Abraham ESTREMERA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 12-2043.
United States Court of Appeals, Seventh Circuit.
Decided July 30, 2013.
724 F.3d 773
Argued July 9, 2013.
The two provisions do not conflict with one another, and therefore the Lease‘s indemnity provision remained in effect at the time of Mr. Large‘s accident. Certainly, both provisions relate to Elliot‘s duty to defend and indemnify Mobile. The two provisions differ, though, in that they appear to touch upon separate occasions when the duty to defend and indemnify arises. The Lease provision imposes a duty when a claim arises from “the actual or alleged use, operation, deliver, or transportation of the” bucket truck. The Invoice provision, on the other hand, imposes a duty when a claim arises from the failure to provide maintenance or proper training. We find that these two provisions actually harmonize very well with one another, as opposed to conflicting. The original Lease set forth a broad duty to defend and indemnify in situations arising primarily from use and operation of the bucket truck; the Invoice expanded that duty further to situations before use and operation—namely training and maintenance. On the plain language of these provisions, we must conclude that they do not conflict with one another.
This is particularly true given that “[w]hen two provisions of a contract seemingly conflict, if, without discarding either, they can be harmonized so as to effectuate the intention of the parties as expressed in the contract considered as a whole, this should be done.” See, e.g., Plunkett v. Plunkett, 271 Va. 162, 624 S.E.2d 39, 42 (2006); Hutchison v. King, 206 Va. 619, 145 S.E.2d 216, 220 (1965); Ames v. American Nat‘l Bank, 163 Va. 1, 176 S.E. 204, 217 (1934). Here, reading the two provisions as supplementing one another respects their plain terms without doing violence to either, as is also required by Virginia contract law. See, e.g., Ames, 176 S.E. at 217; Bridgestone/Firestone v. Prince William Square Assocs., 250 Va. 402, 463 S.E.2d 661, 664 (2008); D.C. McClain, Inc. v. Arlington County, 249 Va. 131, 452 S.E.2d 659, 662 (1995).
III. Conclusion
For these reasons, we conclude that the district court was correct in determining that Elliot was required to defend and indemnify Mobile against Mr. Large‘s claims, and accordingly we AFFIRM that decision.
Solana P. Flora (argued), Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner-Appellant.
David E. Bindi (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.
Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge.
The United States asks us to affirm on the ground that the district court erred by reaching the merits while a question of timeliness remained unresolved. Estremera‘s direct appeal ended on February 27, 2008, when the Supreme Court denied his petition for certiorari, see Clay v. United States, 537 U.S. 522, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003), but he did not invoke
Federal statutes of limitations do not affect the tribunal‘s subject-matter jurisdiction, see Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (general proposition); Day v. McDonough, 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (application to collateral attacks), so the district court was right to conclude that it is permissible to reject a petition on the merits without resolving a limitations defense. There is no necessary priority among non-jurisdictional reasons for rejecting a suit or claim. It makes sense to tackle the merits first when they are easy and the limitations question hard, just as it makes sense (and is permissible) to reject a collateral attack on the merits while other procedural defenses, such as waiver, default, or lack of exhaustion, remain in the background.
The district judge also was right to conclude that this petition could not be dismissed as untimely without a hearing. Estremera contends that he told his law-yer to file a collateral attack, and that counsel failed to keep the promise to do so—and that not until the year had almost expired did Estremera realize that he had been left in the lurch. Abandonment by counsel can toll the limitations period. See Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Holland deals with state prisoners’ petitions under
Estremera contends that diligence on his part was not required because he gets extra time under
The United States offers two responses: first, that lack of library access never supports a reset of the time under
And the first is wrong. Lack of library access can, in principle, be an “impediment” to the filing of a collateral attack. The United States’ contrary position assumes that all a prisoner need do is narrate the facts; legal argument and analysis comes later. Indeed, the form that all prisoners must use when applying for relief under
This argument supposes that “fact” and “law” can be neatly separated. They can‘t. The form tells prisoners to “state the specific facts that support your claim.” But how does a prisoner know what facts establish a “claim“? Estremera contends that his lawyer misrepresented the requirements of the proposed plea agreement. If the lawyer erred, Estremera knew it without needing a law library. But does such an error establish a good “claim” for relief? That requires some legal knowledge.
Prisoners who file collateral attacks without doing legal research face two dangers. First, the district judge may dismiss the petition summarily on screening under Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. A prisoner‘s failure to allege all that is necessary to a valid claim may cause him to lose a winnable petition. Second, a prisoner who files a
To hold that the absence of library access may be an “impediment” in principle is not necessarily to say that lack of access was an impediment for a given prisoner. “In principle” is a vital qualifier. Perhaps Estremera had no need of a library. Would he have jeopardized a good claim—or advanced a bad one, closing the door to a good claim later—if he had filed without consulting a library? Did he consult one before filing this petition? (The prosecutor maintains that he did not even ask for library access until April 2009, more than a year after his conviction became final.) If he didn‘t want or need a law library during the year after his conviction became final, its unavailability (if it was unavailable) would not have been an impediment. These and other subjects—in addition to the questions what access Estremera had, and when—would require an evidentiary hearing to explore.
The district court‘s decision therefore cannot be affirmed on the ground that the petition was untimely, and we must take up the merits. Estremera filed an affidavit stating that, every time he met with his lawyer, he told counsel “that I wanted to plead guilty and accept responsibility for my own conduct, but I would not agree to give information about, or testify against anyone else.” Estremera and his confederates all belonged to the Latin Kings, a violent gang inclined to retaliate against members who assist police or prosecutors. The prosecutor‘s early offers called for Estremera to testify at other defendants’ trials; his lawyer told the prosecutor that Estremera would not do that. The prosecutor then made other proposals, which were less beneficial to Estremera—he would not get the potentially large reduction for substantial assistance to the prosecution—but required less of him.
The prosecutor‘s final proposal, which was in writing, omitted a promise by Estremera to testify at anyone‘s trial or even to be debriefed. It extended three benefits in exchange for the plea: the prosecutor would dismiss the weapons charge, move for a three-level reduction of Estremera‘s offense level, see
This seems to us too sanguine a view of the matter. Estremera is a prisoner, not a securities lawyer making subtle linguistic distinctions in a bond indenture. Against a background of negotiations in which his lawyer told him that the prosecutor wanted Estremera‘s trial testimony, a statement that the latest draft still called for him to “cooperate with the government against others” readily could have been understood as a reference to turning state‘s evidence. Counsel could have clarified by going through the proposal, but Estremera avers that the lawyer did not discuss with him “anything” in the agreement; Estremera thus did not learn that cooperation would have been limited to ensuring the forfeiture of Estremera‘s property.
If Estremera read the proposal he would have come across the phrase “the ancillary stages of any forfeiture proceedings“. Would he have understood what an “ancillary stage” is? A trial perhaps? Would he have been confident that “any forfeiture proceedings” (emphasis added) was limited to the forfeiture of his own property? If “any” included forfeiture proceedings concerning the property of other Latin Kings, then the cooperation clause might well oblige him to testify. A lawyer probably would read “any” in ¶ 15 to refer back to ¶ 14, which described the property that would be forfeited. But Estremera is not a lawyer, and to go by his affidavit (which is all we have to go on) his lawyer did not tell him what this commitment entailed. Nor did counsel try to obtain clarification from the prosecutor, even though that step could have put Estremera‘s mind at ease.
The Supreme Court held in Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), that lawyers must tell their clients about offers of plea bargains. Hare v. United States, 688 F.3d 878 (7th Cir. 2012), concludes that these decisions do not create “new rules” and therefore apply on collateral review. The parties assume in this litigation, as we did in Overstreet v. Wilson, 686 F.3d 404 (7th Cir. 2012), that counsel‘s obligation entails explaining the material terms of the prosecutor‘s offer. Given the parties’ mutual assumption, here as in Overstreet we need not decide whether counsel‘s obligation extends to ensuring the client‘s understanding of each term‘s significance—for the problem here was not Estremera‘s failure to grasp what the law-yer told him, but the absence of a review of the offer‘s terms plus a false statement about a material part of the offer. See also Julian v. Bartley, 495 F.3d 487 (7th Cir. 2007) (misleading the defendant about an offer‘s terms can constitute ineffective assistance).
Estremera‘s affidavit may not show the whole picture—indeed, it may contain falsehoods. The way to find out what happened is to hold a hearing at which both
The prosecutor tells us that a hearing is unnecessary because Estremera was sure never to plead guilty, and his lawyer‘s advice, even if bad, therefore did not cause prejudice. The district judge agreed with this view, thinking that Estremera suffers from regret after being convicted and sentenced to life imprisonment. As the district judge saw things, Estremera wants to have his cake and eat it too, by getting a crack at acquittal and only then seeking the (potentially) lower sentence available to those who plead guilty. Yet Estremera‘s affidavit asserts that from the outset he wanted to plead guilty and would have done so had he known that the prosecutor‘s final proposal did not require him to testify against other gang members. That statement may be false, as the district judge believed, but it cannot be rejected without an evidentiary hearing.
Whether a prisoner‘s statement that he would have pleaded guilty requires corroboration in order to be believed is an interesting question pending before the Supreme Court in Burt v. Titlow, cert. granted, — U.S. —, 133 S.Ct. 1457, 185 L.Ed.2d 360 (2013). See also Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (requiring corroboration). Suppose counsel told Estremera that he was likely to be sentenced to life imprisonment whether he pleaded guilty or not—he was a big-time dealer, held accountable for distributing more than 150 kilograms of cocaine, and is a career offender to boot. That would make it hard to see what he could have hoped to gain by pleading guilty, and it would be correspondingly hard to find that there was a “reasonable probability” (the legal standard, see Cooper, 132 S.Ct. at 1384-85) that he would have entered a guilty plea had he received better advice about what sort of cooperation the proposal required. Estremera was 35 at the time of trial, so an extended sentence (say, 480 months) could amount to a life term as a practical matter. But we need not pursue this topic; decision should await the results of the hearing and the Supreme Court‘s opinion in Titlow.
At any hearing, the judge should recognize that not only Estremera‘s testimony but also his former lawyer may try to make himself look good, or have a faulty memory, or both. Sometimes lawyers are tempted to help out their former clients by admitting to nonexistent failings. It can be hard to piece together what happened when only recollections are available; writings exchanged before the trial would be more reliable. But this is the district judge‘s bailiwick, not ours.
Before we close, a few words are in order about the remedy should the hearing on remand lead to conclusions that the petition is timely and that counsel furnished ineffective assistance. Estremera maintains that, if he prevails at the hearing, the district court must direct the prosecutor to offer the same plea agreement that had been on the table before the trial. Cooper and Frye mentioned this as a possible remedy—adding that the judge would be free to reject the plea, the agreement, or both, and stick with the original sentence—but did not hold that it is the only permissible remedy. Cooper, 132 S.Ct. at 1389. Indeed, the second question presented in Titlow is whether an obligation to offer the original deal again is even an appropriate remedy when it is no longer possible for the defendant to fulfil all of the promises that would have been valuable to the prosecutor, had a deal been struck before trial. The deal offered to Estremera would have rewarded him for saving the prosecutor the expense and ef-
Circuit Rule 36 will apply on remand.
REVERSED AND REMANDED