Gilbert Spiller v. United States
855 F.3d 751
7th Cir.
2017
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Case Information

*1 Before W OOD , Chief Judge , and F LAUM and H AMILTON , Cir- cuit Judges .

F LAUM , Circuit Judge

. Gilbеrt Spiller pled guilty to drug and firearm charges. He later filed a petition under 28 U.S.C. § 2255, arguing that his counsel was constitutionally ineffec- tive during the plea-bargaining process. The district court de- nied Spiller’s petition without holding an evidentiary hear- ing. We affirm.

I. Background On July 13 and 21, 2011, Gilbert Spiller sold a tоtal of 121 grams of crack cocaine for $5,000 to an undercover confiden- tial informant. Spiller later sold a loaded .40 caliber handgun for $500 to the same informant, whom Spiller knew to be a felon who planned to use the gun to protect his drug opera- tion frоm rival gang members. The government proceeded to charge Spiller with two counts of distributing a controlled substance, in violation of 21 U.S.C. § 841(a)(1) (“Counts One and Two”), and one count of selling a firearm to a felon, in violation of 18 U.S.C. § 922(d)(1) (“Count Three”). The gov- ernment also filed a notiсe, pursuant to 21 U.S.C. § 851, that it would seek an enhanced mandatory minimum sentence based on Spiller’s three prior drug felonies.

On July 30, 2012, the government sent Spiller’s counsel a proposed plea agreement, under which Spiller would plead guilty to Count One and acknowledgе that the conduct un- derlying Counts Two and Three was relevant for sentencing purposes, pursuant to U.S.S.G. § 1B1.3. Under the proposed agreement, Spiller would also stipulate to the government’s Guidelines calculation, including a “career offender” en- hancement pursuant to § 4B1.1.

Defense counsel responded to the government’s proposal on August 8 with the following inquiry:

Mr. Spiller has asked a great question and one that I cannot seem to answer for him: what ex- *3 3 actly does he gain if he proceeds by plea agree- ment, as opposed to a blind plea. [1] Is the gov- ernment withdrawing the 851? Can you tell me one concession the government makes in the draft plea you sent over? I want to make sure I am not missing something.

That same day, the government responded, in relevant part:

The government is not withdrawing the 851 no- tice. You ask a good question, and I admit that the рlea agreement does not offer a whole lot beyond a blind plea. There are a few minor ben- efits: we would dismiss two counts so he would save himself $200 in special assessments. He also gets the recognition in the plea agreement that, as things currently stand, he is еntitled to acceptance of responsibility ….

Spiller rejected the government’s proposed plea agree- ment and, instead, executed a blind plea. In relevant part, Spiller pled ‍‌‌‌‌‌​​‌‌‌​​​​‌​​‌‌​‌‌‌‌​‌​‌​‌‌​​‌​​‌‌‌‌‌‌​​‌​‌​‍ guilty to all three counts and “expressly re- serve[d] the right to disаgree with the government's guide- lines calculation.”

At Spiller’s sentencing hearing on February 27, 2013, the parties did not dispute that Spiller’s Guidelines range was 262 to 327 months’ imprisonment—accounting for Spiller’s con- duct, his status as a career offender, and his acceptance of re- sponsibility. While the government sought a sentence within the Guidelines range, however, defense counsel sought the 120-month mandatory minimum, highlighting the well- known crack-cocaine disparity and Spiller’s troubled up- bringing. Ultimately, the district court sentenced Spiller to 240 months’ imprisonment, and we affirmed on appeal. United States v. Spiller , 732 F.3d 767 (7th Cir. 2013).

On October 6, 2014, Spiller filed a pro se petition under 28 U.S.C. § 2255, contending, in relevant part, that his attorney had been constitutionally ineffective by counseling him to ex- ecute a blind plea rather than the government’s proposed plea agreement. The district court denied Spiller’s petition, with- out holding an evidentiary hearing, and denied him a certifi- cate of appealability. We granted it, however, and this appeal followed.

II. Discussion “When reviewing the denial of a federal prisoner’s § 2255 petition, we review the district court’s legal conclusions de novo , its factual findings for clear error, and its decision to forgo holding an evidentiary hearing for abuse of discretion.” Martin v. United States , 789 F.3d 703, 705–06 (7th Cir. 2015) (cit- ing Osagiede v. United States , 543 F.3d 399, 408 (7th Cir. 2008)). “The district court’s decision must strike us as fundamentally wrong for an abuse of discretion to occur.” Williams v. Chi. Bd. of Educ. , 155 F.3d 853, 857 (7th Cir. 1998) (citation omitted).

Spiller argues that the district court abused its discretiоn by denying his petition without holding an evidentiary hear- ing. “The petitioner’s burden for receiving an evidentiary hearing is relatively light ….” Torres-Chavez v. United States , 828 F.3d 582, 586 (7th Cir. 2016) (citation omitted). A district court must grant a hearing if the petitioner alleges facts that, if proven, would entitle him to relief. Martin , 789 F.3d at 706 *5 5 (citation omitted). “It is well-established,” however, “that a district court need not grant an evidentiary hearing in all § 2255 cases.” Id. For instance, a hearing is not required if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. ‍‌‌‌‌‌​​‌‌‌​​​​‌​​‌‌​‌‌‌‌​‌​‌​‌‌​​‌​​‌‌‌‌‌‌​​‌​‌​‍§ 2255(b). Additionally, if the record contains sufficient facts to explain counsel’s actions as “tactical,” generally no hearing is re- quired. See Osagiede , 543 F.3d at 408 (citation omitted). Finally, a hearing is unnecessary if the petitioner makes allegations that are “vague, conclusory, or palpably incredible,” rather than “dеtailed and specific.” Martin , 789 F.3d at 706 (quoting Kafo v. United States , 467 F.3d 1063, 1067 (7th Cir. 2006)).

Spiller alleged below that his lawyer was constitutionally ineffective for failing to investigate the facts and law relevant to his case, and for giving “deficient” advice regarding his plea options. The Sixth Amendment provides that, “[i]n all criminal prоsecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This right extends to the plea-bargaining process. Martin , 789 F.3d at 706 (citing Lafler v. Cooper , 566 U.S. 156, 162 (2012)); see also Missouri v. Frye , 566 U.S. 133, 140–42 (2012). To demonstrate that his lawyer was constitutionally ineffective, Spiller must “satisfy the familiar two-prong test set forth in Strickland v. Washington .” Makiel v. Butler , 782 F.3d 882, 897 (7th Cir. 2015) (citing Strickland , 466 U.S. 668 (1984)). First, Spiller must show that his counsel’s performance fell below an objective standard of reasonableness. Strickland , 466 U.S. at 687–88. Second, he must show that counsel’s deficient perfor- mance prejudiced the defense, which means there is a reason- able probability thаt, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id . at 691–92, 694. “When applying Strickland to the facts of a par- ticular case, ‘there is no reason for a court … to approach the inquiry in the same order or even to address both cоmponents of the inquiry if the defendant makes an insufficient showing on one.’” McDaniel v. Polley , 847 F.3d 887, 893 (7th Cir. 2017) (quoting Strickland , 466 U.S. at 697) (alteration in original).

Here, we need go no further than Strickland ’s performance prong. In the plea-bargaining context, “we have noted that a reasonably competent lawyer will attempt to learn all of the relevant facts of the casе, make an estimate of a likely sen- tence, and communicate the results of that analysis to the cli- ent before allowing the client to plead guilty.” Bethel v. United States , 458 F.3d 711, 717 (7th Cir. 2006) (citing cases). The rec- ord, taken as a whole, demonstrates that Spiller’s counsel did just that.

First, as reflected in hеr inquiry to the government, de- fense counsel discussed the proposed plea agreement with Spiller. His attorney then considered the government’s pro- posal and emails and determined that Spiller would be better off pleading blindly. According to Spiller’s affidavit, which he attached to his petition, his lawyer recommended ‍‌‌‌‌‌​​‌‌‌​​​​‌​​‌‌​‌‌‌‌​‌​‌​‌‌​​‌​​‌‌‌‌‌‌​​‌​‌​‍that he ex- ecute a blind plea declaration, explaining to him that he would “get a better sentence with pleading blindly” and that a blind plea would “get [him] a better deal [and] is more fa- vorable than the gоvernment’s offer.” The resulting plea dec- laration distinguishes this case from others where attorneys have advised clients to not plead guilty. In those instances, there may be a natural gap in the record: The attorney recom- mends that the client reject the government’s offer, and the cli- ent proceeds to trial. Here, Spiller did plead guilty, and his counsel drafted an eleven-page plea declaration illustrating her and Spiller’s understanding of the relevant facts and law underlying the case. Indeed, the signed agreement stаtes, in relevant part:

Defendant GILBERT SPILLER, after extensive consultation with his attorney, … acknowledges and states the following: … Mr. Spiller has read the charges against him contained in the indict- ment, and those charges have been fully ex- plained to him by his attorney. Mr. Spiller fully understands the nature and elements of the crimes with which he has been charged….Mr. Spiller agrees that this Plea Declaration shall be filed and become part of the record of the case….Mr. Spiller further acknowledges that he has read this Plea Declaratiоn and carefully re- viewed each provision with his attorney.

When assessed in its entirety, the record conclusively shows that defense counsel discussed with Spiller his case and plea options and advised him accordingly. This is constitutionally sufficient. Consequently, the district cоurt did not abuse its discretion by concluding, without an evidentiary hearing, that Spiller was not entitled to relief.

Spiller stresses the lack of evidence that his attorney inves- tigated the differences between the two plea options, arguing that the district court simply presumed that defense counsel’s decision was tactical. Again, however, the record shows oth- erwise. Contrary to Spiller’s assertion, counsel’s email to the government evidences the very research he complains was lacking: His attorney reviewed Spiller’s plea options, specifi- cally inquired of the government whether there were differ- ences, examined the government’s response, and suggested that Spiller plead blindly. Further, the government conceded to Spiller’s lawyer that its proposal did not “offer a whole lot beyond а blind plea.” So, according to Spiller’s signed plea declaration and affidavit, defense counsel reserved Spiller’s right to challenge the government’s Guidelines calculation— a right he otherwise would have sacrificed under the govern- ment’s proposal—and believed that she could secure him a “better sentence.” In all, the record was sufficient to explain counsel’s decision as strategic, thereby eliminating the need for an evidentiary hearing. See Osagiede , 543 F.3d at 408 (cita- tion omitted).

Spiller takes issue with his attorney’s strategy for two rea- sons—neither of which is convincing. First, he relies on Toro v. Fairman , 940 F.2d 1065 (7th Cir. 1991), in questioning whether it was reasonable for defense counsel to believe that challeng- ing the government’s Guidelines calculation would have been successful. In Toro , however, “counsel admitted that the deci- sion to proceed tо trial was not ‍‌‌‌‌‌​​‌‌‌​​​​‌​​‌‌​‌‌‌‌​‌​‌​‌‌​​‌​​‌‌‌‌‌‌​​‌​‌​‍ so much a rational, profes- sional judgment, but an emotional one.” Id . at 1068. Not so here: Spiller’s lawyer believed she could secure her client a better sentence and reserved certain arguments to do just that. This sounds in strategy rather than in emotion, аnd a “strate- gic decision, even if clearly wrong in retrospect, cannot sup- port a claim that counsel’s conduct was deficient,” United States v. Yancey , 827 F.2d 83, 90 (7th Cir. 1987) (citing Strickland , 466 U.S. at 689–91). Second, Spiller highlights that defense counsel did not, in fact, end up challenging the government’s calculation; but he does nоt point to any authority for the proposition that an attorney must adhere to an initial decision throughout a case for that decision to qualify as tactical. Ra- ther, we analyze whether that attorney’s decision is strategic at the time she makes it. Strickland , 466 U.S. at 689 (“A fair as- sеssment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to re- construct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspeсtive at the time.”). This is especially so in the plea-bargaining context. See Bethel , 458 F.3d at 717 (highlighting “the many uncertain- ties surrounding the difficult decision of whether to plead guilty” (citing McMann v. Richardson , 397 U.S. 759, 769–70 (1970))).

Lastly, Spiller’s reliance on Moore v. Bryant , 348 F.3d 238 (7th Cir. 2003), and Jones v. Calloway , 842 F.3d 454 (7th Cir. 2016), is misplaced. In Moore , we focused on “inaccurate ad- vice,” such as advice that “goodtime credits could severely lengthen [a] sеntence if [the client] proceeded to trial and lost.” 348 F.3d at 241–42. Here, Spiller’s only argument resem- bling a claim of inaccurate advice was that defense counsel informed him that he would receive a more favorable sen- tence if he pled blindly. We have clarified, though, that “[a]n inaccurate prediction of a sentence alone is not enough to meet the [ Strickland ] standard.” Bethel , 458 F.3d at 717 (cita- tions omitted). Additionally, in Jones , we held that the trial court had misapplied Strickland in finding that a defense at- torney’s failure to call a particular witness constituted a stra- tegic decision, in part because “the state appellate court had no basis in the record to classify counsel’s failure to call [the witness] as a strategic trial choice.” 842 F.3d at 464. Here, how- ever, the district court did have a sufficient basis in the record to characterize counsel’s decision as strategic: Her emаil, Spiller’s affidavit, the government’s ‍‌‌‌‌‌​​‌‌‌​​​​‌​​‌‌​‌‌‌‌​‌​‌​‌‌​​‌​​‌‌‌‌‌‌​​‌​‌​‍ proposed plea agree- ment, and Spiller’s Plea Declaration, taken together, obviated the need for an evidentiary hearing.

III. Conclusion For the foregoing reasons, we A FFIRM the judgment of the district court.

Notes

[1] A “blind plea” is a “guilty plea made without the promise of a con- cession from either the judge or the prosecutor.” Blind Plea , B LACK ’ S L AW D ICTIONARY (10th ed. 2014).

[2] At the outset, the district court concluded that the government’s pro- posed plea agreement was not a formal plea offer, but merely a draft agreement, аs it did not have a “fixed expiration date.” Thus, concluded the district court, all of Spiller’s arguments regarding his counsel’s inef- fective assistance at the plea-bargaining stage were inapposite. The court then addressed the merits of Spiller’s ineffective-assistance claim, how- ever, and determined that defense counsel’s performance was not defi- cient and did not prejudice him. Spiller stresses that there is no “fixed ex- piration date” requirement, making the district court’s initial ruling a legal error that warrants remand. Even assuming this ruling was incorrect, it constitutes harmless error in light of the court’s subsequent rulings on the merits. See Citizens for Appropriate Rural Roads v. Foxx , 815 F.3d 1068, 1079 (7th Cir. 2016) (“An error is harmless if it does not affect a party’s substan- tial rights.”) (citation omitted).

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