Robert J. Paters v. United States

Affirmed. are also attack2 below Petitioner-Appellant, v. PATERS, J.

Robert America, STATES

UNITED

Respondent-Appellee.

No. 97-2655. Appeals, Court States

United Circuit.

Seventh 3, 1998.

Argued March 28, 1998.

Decided Oct. PA, Westtown,

Cheryl (argued), Sturn J. Petitioner-Appellant. P. Thomas (argued), E. Larsen Christian Attor- States Schneider, Office redemption rates certificate the discount Ragan Messrs. decisions assailed 2. The seal, (3) denying the decision filed under (1) approving the settle- decision Monsees to intervene. appellants' motion fees, (2) these two order- attorneys’ the decision ment ney, Milwaukee, WI, for Respondent-Appel- sponsible only for the kilograms two of co- lee. caine with he caught. was Defense counsel allegedly also told Paters that ESCHBACH, COFFEY, Before and result would be the same pleaded whether he ROVNER, Judges. Circuit guilty trial, or went to and therefore Paters “nothing had by to going lose” to trial. Fi- ESCHBACH, Judge. Circuit nally, Paters claimed that days three before Robert Paters trial by was was convicted scheduled to jury begin, defense conspiracy possess counsel with the informed him intent to that dis- tribute had five-year cocaine offered a in violation of 21 deal2 in exchange U.S.C. for 841(a) §§ guilty plea. his Again, and and was defense alleg- sentenced to 121 edly imprisonment. months’ advised Paters that We he only affirmed could Paters’ responsible held conviction for the drugs sentence. actually States v. (two Paters, possessed cocaine) Cir.1994). kilograms 16 F.3d and that He now he had nothing seeks conviction, vacation of lose going his to trial. under 28 § Paters also alleged U.S.C. that on defense ground counsel “did he re- explain Guidelines, Sentencing ceived espe- ineffective assistance from his attor- cially impact ney conduct, during relevant the plea negotiation foresee- process. ability, acceptance of responsibility, The district court etc. found as matter of law the sentence.” that Paters could not prejudice establish denied Paters’ motion. Since the district Paters claimed defense counsel’s erro- court applied an erroneous standard for de- neous advice concerning proposed plea termining prejudice, we judgment vacate the agreement was objectively unreasonable and of the district court and remand the case for reasonably competent attorney further proceedings. would have discussed the impact of relevant

conduct acceptance of responsibility on his sentence. I. He also claimed HISTORY reason- ably competent attorney would have advised December Paters was charged him accept proposed plea agreement. with conspiracy possess with the intent Additionally, Paters claimed that there was distribute cocaine in violation of 21 U.S.C. no theory viable and, therefore, 841(a) §§ and 846. He hired defense counsel reasonable for basis a recommendation to represent jury him. A found guilty Paters take the case to trial. regard With as charged, and the district court sentenced prejudice prong, Paters asserted that had him to imprisonment. 121 months’ defense counsel competently performed his May 1996,1 On Paters filed this 2255 duties regarding proposed plea agree- motion, asserting that his sentence should ment, Paters would have vacated because defense counsel rendered agreement and received a sentence half as during assistance negotia- long as that which from going resulted process. tion Paters asserted that defense trial. In a signed “declaration” accompany- counsel told him that he could be held motion, re- his he claims he would have Although the Anliterrorism and Effective Death 2. Although neither the nor appellate motion Penalty Act of one-year 1996 added a point, briefs are statute of clear appears on this it had commencing attacks, limitations for responsible Paters been collateral held we for two kilo- grams stated in O'Connor cocaine his v. United sentence would have been (7th Cir.1998) approximately years. five that no criminal histo- collateral attack filed ry category I; if he April was held may 2244(d) accountable be dismissed under kilograms two cocaine his base offense level parallel provision added to 28 U.S.C. would have 2Dl.l(c). been 28. U.S.S.G. Un- by § 105 of the 1996 Act. Id. at 550 calculations, der these sentencing range (quoting Murphy, Lindh v. been 78-97 months. If had Cir.1996) (en banc), grounds, rev'd on other also received a two-level acceptance decrease for U.S. of responsibility, his offense level would have (1997)). months, 26 and sentencing range or approximately five to six and years. a half Although been 78-97 months.3 plea agreement but for his at-

accepted the point, specifically court cited no cases torney’s advice. concluded that the difference between the conceded all Surprisingly, sentencing range actual of 121-151 months purposes facts of Paters’ of the relevant potential range of 78-97 and the months was It that conceded 2255 motion. “significant” not under Durrive v. United Mr. he “advised Paters that could States, thus F.3d 548 and kilograms with responsible for the two held prejudice. to was insufficient establish The no whether he was involved and more court denied Paters’ 2255 motion without pled guilty.” or Government’s he stood trial evidentiary hearing, holding an but issued a The also Response government 2. con- at appealability on certificate of the issue of counsel] that told Mr. Paters “[defense ceded ineffective assistance. by nothing going lose trial.” that he had government the did ex- Although Id. appeal argues On Paters that the district pressly prong the first of the Strick- concede compared court should have Paters’ actual representa- (objectively land test deficient sentence of 121 months with the 60-month tion), on that issue. it remained silent the allegedly promised proposed deal alternative, agreement. argues In the prejudice government The relied the that, theory even if the behind the district that, prong It ac- “[e]ven instead. asserted correct, court’s calculations was Paters would Paters’ cepting proposition that Mr. at- the been entitled to at least a two-level have incompetently advising his torney acted acceptance responsibility. reduction trial,” proceed could not Paters client Thus, comparison appropriate the should the prejudice. Accordingly, gov- establish been difference between a sentenc- have the that Paters did suffi- ernment maintained ing range of 121-151 months and 63-78 ciently a Amendment violation allege Sixth (the 26). range for offense level Fi- months § 2255 be denied. and that his motion should that, nally, Paters asserts even if the district hearing. note that there was We compared figures, the court the correct dif- Instead, the court assumed truth the district sentencing of 121- range ference between Although allegations. the factual significant 78-97 months is months and express court made no conclusion district prejudice. sufficient to establish and test, prong about the first Strickland silence on the court treated II. ANALYSIS stated, issue as a waiver. court government’s response that “The assumes de This court reviews novo dis objec- was alleged counsel’s] error [defense denying judgment relief under trict court’s April tively unreasonable.” Order of prevail In order U.S.C. 1997 at 4. claim, Paters court on his Amendment Sixth prong, show that his rendered sub prejudice the must regard With that was allege Paters failed to standard assistance district court said that E.g., prejudiced a result. Hill Lock sufficiently prejudicial result of the as- as hart, 474 performance. The court U.S. sumed deficient (1985); that, v. United had Paters sentenced L.Ed.2d reasoned been Griffin Cir.1997). In the plea agreement, alleged proposed (the below, proceedings his offense level would assumed that defense counsel’s prescribed for accountable district court level defendants objectively unreasonable. kilograms alleged a half error was two three and cocaine) perfor- sentencing range party Since neither has addressed argument sentencing guideline determined rejected calculations are 3. The district court comparison guilty appropriate pleads between his a defendant the court after govern- of 121 months and the actual sentence and the defen- based on relevant conduct years. proposed alleged of five ment's sentence history, well as factors.” criminal other dant’s promise a cannot defendant "[T]he April 1997 at 7. Order of instead, sentence; appropriate particular appeal, manee prong prejudice alleged proposed plea prong remains. agreement absent defense counsel’s advice. Toro, 1068; 940 F.2d at Johnson, see The district court Durrive, relied on (in dicta, n. 3 doubting prejudice 548 for defen- analysis. It conclud ability dant’s prejudice to establish ed because the correct test was whether the he “does not argue allege ... attorney’s there error a “significantly” rendered reasonable probability but for harsher coun- sentence if than no error had oc errors, sel’s he would have accepted Durrive, In curred. we said order to agreement”). establish prejudice resulting from mistakes made counsel at sentencing, the defendant Toro, Durrive, unlike we focused exclu- must show that the sentencing proceeding sively the objective on evidence standard and was fundamentally unreliable unfair. disregarded degree the disparity of between Durrive, 4 F.3d at (relying 550-51 on Lock six-year the proposed plea agreement and Fretwell, hart v. 506 U.S. twenty-year Toro, actual sentence. 940 F.2d 122 (1993)). L.Ed.2d 180 We held that a at 1066. Since produced Toro defendant could meet this only by standard evidence, we held that his “statement [that establishing that the attorney’s pro error he “wouldhave had to be insane not to accept significant duced effect his sentence. plea the agreement’] is self-serving and Id. at 551. We conclude that the district alone, insufficient to establish ... a reason- court erred in applying the Durrive test in able probability that he would have accepted this case. plea.” the Id. at Similarly, 1068. in John- son, This ignored court has we very decided the few in difference cases between the plea volving allegations agreement’s of fifteen-year attorney incompetence sentence and resulting in defendant’s rejection defendant’s actual thirty sentence of plea agreement years See, proposal. when discussing, dicta, e.g., in prejudice Golden, component States v. 102 Cir.1996); F.3d 936 Strickland. 793 F.2d at 902 n. Fairman, Instead, Toro v. 3. we F.2d 1065 stated that Cir. the defendant 1991); could prove Johnson v. Duckworth, not he probably F.2d 898 would have (7th Cir.1986). pleaded guilty. Of those Id. eases Golden and Johnson were decided based on the perfor We find Durrive distinguishable on several mance prong of the Golden, Strickland test. grounds.4 First, whereas Durrive merely 943; Johnson, F.3d at 793 F.2d 902. at sought a two adjustment level in his sen- Johnson addresses prejudice prong, but tence, Paters challenges aspect an Johnson, in dicta. 793 F.2d at 902 n. 3. bargaining process. United States v. Cf. Therefore, only Toro addresses the issue on Broce, U.S. 757, 762, 109 S.Ct. point. (1989) (“A L.Ed.2d 927 plea of guilty and The Toro test parts. has two The court the ensuing comprehend conviction all of the should consider whether Paters established factual legal elements necessary to sus- (1) through objective (2) evidence that there tain a binding, final judgment guilt and a is a probability reasonable that he would lawful sentence.”); Keane, Boria v. 4. Although apply here, we do not the Durrive test Had pled guilty instead proceeding we attorney's note that the alleged trial, error in this indicated, the evidence would have wrought case significant a more effect on defen- admits, as Paters appropriate quan- dant’s sentence than in Durrive. Durrive states that "the difference between 120 months and ... tity drugs was at kilograms, least two which would have resulted offense 98 ... does not demonstrate that the actual sen- level of 28. This difference would have re- tence is ‘unreliable ... or fundamentally un- duced sentencing Paters's range from 121— ” Durrive, fair.’ 4 F.3d at 551. In this case the months, 151 months to 78-97 leading at sentencing actual range was 121-151 months twenty-four least month reduction and Paters' actual sentence was 121 months. forty-three most a month reduction. alleged plea agreement was for 60 months. April Thus, Order of 1997 at regardless We acknowledge that the district would adopted, formula is effect attor- required have been accept agree- ney’s alleged error in this case rendered a more said, ment. As the district court "significant” effect than in Durrive. (“The Cir.1996) (2d Keane, prejudice Boria v. decision standard. See — (2d a criminal plead guilty or contest cert.

whether U.S. -, ordinarily important most sin- charge is case.”). (1997); criminal gle Engelen decision v. United (8th Cir.1995). Second, emphasized that in Durrive we challenge have been raised on should applied wrong The district court appeal, direct and that prejudice ease. analysis order to merely attempting avoid his default (1) prejudice, establish Paters must show Sixth his claim under the Amend- bringing (2) through there is a Durrive, (“Adjust- ment. See that, probability reasonable but for counsel’s steps or three the offense level two performance, inadequate he would ac supposed that is exactly the routine decision cepted government’s offer. Paters has sentencing ap- direct handled at prong certainly met the of that test. second in Dur- peal.”). Unlike the claim involved alleged probability He has a reasonable rive, not have been Paters’ claim could performance, inadequate but for counsel’s upon it relies appeal on direct because raised offer. appeal. record on direct On Support Declaration in of 2255 Motion at pointed to appeal could not have evi- Paters (“Under guidance, I legal am befitting more describing coun- dence in record defense been certain I would have amenable advice, record contain evi- sel’s nor did the plea of bargain.”). conditions alleged plea offer. government’s dence using an is not ineffective-assistance Paters Thus, we must ascertain whether ob bring claim to circumvent his failure to some jective evidence shows there reason is. appeal. Durrive is claim on direct other , probability that have ac able Paters would ground distinguishable on this as well. thus cepted plea attorney’s deal for his but Durrive, have con Since Fretwell we motion, In his support advice. Paters analyz apply the Toro standard for tinued to his His parents. submitted from affidavits ing prejudice in the context of ineffective parents they personally attest that attended during negotia plea of counsel assistance pre-plea conferences in offer attorney Although tions. such cases involve not counsel said that Paters’ sentence could acceptance plea of a leading errors See, years.5 e.g., Mary exceed 5 Affidavit (rather case), they rejection than husband, I my (“Together, with was rely on and the Toro standard. See Toro his present meetings my son and between States, United McCleese occasions, [defense .... those On Cir.1996) (“In (7th preju order to show sixty maximum of described a' counsel] from assistance of counsel dice pun as the months incarceration related plea, entering of a the defen that led crime.”). for ishment Robert’s through objective dant must establish evi certainly not evidence is overwhelm- that, Such probability but for dence reasonable ing. prove the ultimate And it does not advice, accepted not have counsel’s would proba- Toro.); question—that there is a reasonable citing plea,” see also United (7th accepted have bility that Paters would Woolley, States attorney’s Cir.1997); Jackson, plea his advice. In- deal but for States v. United (7th Cir.1996). addition, stead, alleged advice In shows that the other employed in fact appeals the Toro was offered.6 courts of have penalty perjury parents suggest signed pursuant to 5. from also The affidavits his However, seriously does consid- document Paters received offer U.S.C. However, "objective do not reflect under Toro. ered it. these statements constitute evidence” not parents, personal knowledge part on the merely plausible of Paters relate naked for Pa- 6. We think it would have provide compelling assertions fall short of himself. Such tenuous evidence more ters advice, being attorney’s evidence. his he' but for attorney-client Sup- deal. Since the Paters also submitted a “Declaration waive, port privilege petitioner's Garcia v. see of 28 U.S.C. 2255 Motion” which he However, when we view such evidence 2255 petition. The concessions conjunction with factual government petitioner’s lower the eviden- concessions, we hearing think a tiary warranted. burden.7 Marvin, United States v. Cf. Government’s Response to § 2255 Cir.1998) Motion at (“[Stipula 2 (accepting as true that defense tions of fact ... told obviate the need for appel Paters he could late responsible be held ”). review of no factual findings .... more kilograms than two whether he stood addition, In Prewitt absolutely had per- no trial pled guilty); see also Dist. Ct. Order sonal knowledge regarding the facts underly- April (“The 1997 at 3 government ing his allegation. He did why know accepts Paters’ version of the relevant facts indictment delayed, only spec- but could motion.”). as true purposes of this For Therefore, ulate. his affidavit could not con- purposes of Toro’s test, stitute evidence supporting Thus, his claim. the concessions and the together affidavits Prewitt offered absolutely evi- —no are sufficient to warrant a hearing. support dence—in allegation that the prosecutor delayed the indictment in order to Although Judge Coffey compares this case deny Prewitt the benefit guideline aof provi- Prewitt v. 83 F.3d 812 sion that was amended during the interim. Cir.1996), the readily cases are distinguish- In case, however, we parental Prewitt, able. In petitioner claimed that the affidavits and concessions which prosecutor intentionally delayed his indict- tend to Paters’ claim. The “search ment in deny order to him the benefit of a for the truth” to which Judge Coffey refers guideline provision that was during amended can best be completed by conducting a hear- interim. did ing. concede, but vigorously challenged Prew- itt’s version of the facts. The court said that .Although the district court that said the “Prewitt’s lack of submission must be con- government conceded all facts, relevant it is trasted with the facts government as the has not clear the government whether has con- relayed them.” Id. at 819. Turning to the ceded the ultimate issue—that there is a case, facts of however, this government the reasonable probability that Paters would appears relay very the same facts listed on have the deal but for his attor- Corp., 1171, Zenith (7th Electronics 58 F.3d 1175 government if the Even properly had raised the Cir.1995) ("[T]he attorney-client privilege gen- issue, it is still not clear that we would review an erally waived when the client asserts claims or erroneous order requiring government the to an- put defenses attorney’s that his advice at issue in swer petition. a 2255 Like a certificate of litigation.”), way one for Paters to establish appealability, judge’s a initial consideration of a his reaction to the would to submit an 4(b) 2255 screening ais device: affidavit from defense counsel. See United States The [of certificate appealability] screening is a Day, (3d v. Cir.1992) 969 F.2d 39 (stating that device, helping (and judicial prose- conserve lawyer's "might corroboration qualify as suffi- cutorial) resources .... Once a certificate has confirming cient petitioner evidence" that would issued, however, proceeds the case to briefing accepted plea have offer attorney’s but for ad- decision; the resources have been invest- vice). illustration, As another have could ed. It is too late to narrow the issues or submitted an affidavit from the Assistant U.S. screen out weak claims .... [0]nce the briefs Attorney establishing that government in fact have heard, been written and the case there is plea agreement. offered a point little in scrutinizing the certificate of appealability. obligation An to determine 7. Judge Coffey argues that the district court whether a issued, certificate should have been should not have government ordered the to an parties even if the present do not this swer the issue 2255 for grounds peti on that step decision—a tioner offered entailed insufficient conclusion evidence to warrant an proper that a Judge jurisdictional answer. See Coffey's certificate ais Opinion at re- 4(b) quirement (citing Rule Governing § Rules increase the complexity 2255 —would However, appeals Proceedings). in collateral government since the judicial attacks and the challenged has not required them, effort court’s requiring order opposite resolve answer, the issue is legislative waived. plan. See Nichols v. proceed Unit So we States, 1137, (7th ed 75 F.3d Cir.1996) 1145 n. 17 parties merits as the presented have them. (stating that non-jurisdiction States, Young waives 794, v. United (7th 799 argument al by failing to appeal). Cir.1997). raise it on

1049 before this sort require we evidence hearing on for a remand We ney’s advice. his claim hearing may obtain petitioner proce- that at note alsoWe this issue. not believe I therefore do variety prejudice, has court district posture, dural imposed requirement should 7, such See, e.g., Rule disposal. options its either. context in this Proceedings 2255 Governing Section Rules record). expand the parties (permitting circuit in this of the decisions None and the is Vacated order have articu- court’s rule The district evidence recite evi- such requiring case is rationale Remanded. lated In- in other. but context in dence ROVNER, Circuit ILANA DIAMOND rule is deed, from which the decision concurring. Judge, Fairman, supra merely v. derived —Toro — any expla- Judge Eschbach’s without join requirement imposes the pleased to I am separately to Strickland court, nation, cite adding I write but for the opinion “cf.” 104 S.Ct. Washington, U.S. briefly requirement to comment (1984). Toro, Paters, like 80 L.Ed.2d someone eases this circuit’s itself indi- cite assis as Toro’s But at 1068. he received alleges that who “cf.” objec- impose an pro cates, reject a does deciding to Strickland of counsel tance mere- Strickland through requirement. evidence must show tive plea agreement, posed must the standard ly of a hear articulates in advance even objective evidence there prejudice advice, to show in order faulty meet for counsel’s but —“that coun- probability reasonable plea. is a See proposed accepted the would errors, result unprofessional sel’s Fairman, Toro been different.” proceeding cert. 2052. And Court S.Ct. (1992); U.S. see also 120 L.Ed.2d in Strick- probability” “reasonable defined v. United McCleese undermine sufficient probability as “a land Cir.1996). faithfully fol court That stan- outcome.” Id. confidence de suggests, today and decisions lows those pre- than a demanding clearly is less challenge dard of a spite the absence standard, which the evidence ponderance Paters sub that the point, on the rejected as explicitly Court the Strickland section connection mitted view, our my Yet in See id. stringent. requirement. too satisfy that may not effectively requirement “objective 5-6.) evidence” Although I (See nn.& at 1047-48 ante that standard preponderance reimposes the im cases do our acknowledge that certainly to re- seems rejected, because in Strickland requirement objective evidence pose an testimo- than standard something more quire frankly at a loss context, quite amI this able most party the from evidence nial component prejudice why the understand In consideration. issue under speak to the assistance type of claim—ineffective this cannot view, requirement a my such plea- proposed of a context in the im- Strickland, our cases and squared with differently than the be treated should by nothing offered have posing the standard type of any other component for prejudice otherwise.1 persuade me rationale way of setting do no other In claim. ineffectiveness Because government. by plea Coffey offered Judge colleague My good and friend with direct knowl- only individual Paters is the objective that my assertion with issue takes chosen, he would edge what course as to is derived requirement this context evidence “actual certainly Prewitt’s satisfies affidavit Toro, requirement has his contending from States, 83 v. United See Prewitt proof” standard. jurisprudence for circuit’s part a been Cir.1996). Judge (7th Esch- As 1059.) Judge (Post asYet decades. four over vastly from different clear, explains, case bach decisions opinion Coffey’s makes own petitioner made where require- only the principle address for that cited the reasons by about accompanied assertions petition be §a ment personal he something had delay, of which sup- proof quantum of containing a an affidavit 1048.) specific (See knowledge. ante at (Seepost at 1052- petitioner's claim. porting the addressed claim ineffectiveness context an by supported such 53.) petition was offer, seems plea Toro handling aof prop- counsel’s been affidavit, had he asserted than actual something more require counsel, —that would erly advised yet unarticulated evident reason for properly advised. The proposed government objective rule, course, evidence is that affidavit would not address that issue. we are accept reluctant petitioner’s end, In the although join I Judge Esch- own assertion that he in fact would have opinion, bach’s I believe that objective entered guilty plea had he properly requirement evidence that our impose cases advised at the stage. Toro, See context is unsound. certainly 1068; F.2d at McCleese, see also 75 F.3d at agree, however, that the affidavits Paters did 1179; Johnson Duckworth, submit, along government’s conces- 902 n. Cir.), cert. 479 U.S. below, sions require sufficient to (1986). But in district court to conduct a hearing on view, Strick- my that concern can be addressed in prejudice land’s prong even under Toro. other ways crafting without legal rule that is inconsistent with Strickland. For exam ple, if all the COFFEY, were to offer to Circuit Judge, dissenting prejudice establish was his own self-serving concurring. statement pled he would have guilty had Robert Paters claims in his he been properly advised, then think a that, had he received adequate counsel, he district judge certainly have the dis would have accepted al- cretion to find such evidence insufficient un leged offer sixty imprisonment months’ der the facts of given case. But I also can exchange for guilty plea to charges of imagine a circumstance where such a state conspiring possess cocaine, with intent to ment may be deemed e.g., where sufficient — same, distribute the in violation of 21 U.S.C. the ineffectiveness of counsel worked such an 841(a) §§ rather than run the risk of unforeseen sentencing detriment that a judge receiving the 121 month sentence ultimately could look at the case objectively say imposed upon him. The majority concludes course, the defendant would have that this allegation of inadequate representa- accepted the proposed plea had he been com tion, by itself, is not enough to satisfy the petently advised. Given the difficulty pro prejudice prong of the ineffective assistance ducing so-called evidence in this of counsel test set forth in Strickland v. context, I do not believe that our district Washington, judges should deprived of the discretion (1984). L.Ed.2d 674 Following our holding to make those sorts of determinations under Fairman, Toro v. particular the facts of cases. majority opines that Paters Finally, I am concerned the court’s was, is, obligated to submit suggestion that Paters could objec- meet the evidence in support claim, of his and re- tive requirement by submitting an mands the in order that the district affidavit from attorney to show may court determine whether Paters has ad- a plea that in (Ante proposed. fact was duced, or produce, can objective such evi- 6.) 1047-48 n. As I it, understand govern- the dence. I concur in the majority’s holding to ment has not even contested a plea that was the extent I agree Toro requires Paters’ proposed ease, in this I so am not at all allegations to grounded be in evi- certain what such an affidavit would contrib- dence, which he has failed to do. ute to prejudice the analysis. It seems to me, moreover, that such an affidavit would dissent because I am convinced the address the prong ineffectiveness scope in any of the majority’s remand, which di- event, and not prejudice the prong that is at rects the district court to conduct hearing issue case, here. solely focus on the issue of whether bypassed the ineffectiveness prong below, “there is a reasonable probability that Pa- and thus we are only concerned with whether ters would deal but Paters pled would have guilty had he been for his attorney’s advice,” (Maj. Op. at 1048- is, objective in addition to testimony standard is thus not answered reliance on the of the knowledgeable most Toro, witness. See general standard, pleading habeas Judge as Cof- 940 F.2d at My objection to fey the Toro suggest. would partici- active petition2 supposedly an ters’ in it assumes 49), too limited — far system be almost in adversarial pant to warrant was sufficient Paters’ —to obligation an abdication place. in the first merits on its consideration a recur- justice. prevent To detail, in the search for the trial greater IAs discuss in the situation rence of this unfortunate pe- summarily dismissed should future, encourage Con- I would the Judicial comply with this circuit’s failure to tition for an adopt a rule requiring to 83 ference in Prewitt v. United mandate clear of (7th is accused ineffective numer- who and its and, of the accusation given timely notice require companion ous cases him- necessary, opportunity an defend if petition, he his habeas the time filed self or herself. present evidence1 obligated to was therein, every allegation support each Petitioner, Filing When A. A 2255 preju- relating allegations including those Writ, “Extraordinary” Must thus His counsel. dice Containing Affidavit Ob- an summarily Submit dis- court instruct the district Evidence, Opposed jective as to Un- of petition on remand out miss Assertions, in Order supported inability satisfy Prewitt. of His Petition. Avoid Dismissal it I feel separately also because I write relief “is an Reflecting fact that my displeasure necessary express remedy,” v. Keo extraordinary Waletzki the defense respect displayed towards lack of Cir.1994) (em hane, court, who defend- attorney, an officer (a added), civil ac § 2255 phasis who stands accused at trial and ed Paters tion) pleading subject stringent more to a Beyond the self-serv- ineffective assistance. comp ordinary civil requirement than crimi- of the twice-convicted ing statements complaint re typically a civil Paters, state- as as those While well nal defendant laint.3 allegations plaintiff present only that a quires relate relevant parents, which ments of his claim,4 them, of his told their son part to what by a detailed accompanied “must support for his claim record is barren peti which shows that specific gov- counsel. ineffective assistance affidavit actual al- tioner had to Paters’ ernment conceded unsupported assertions’’ going beyond mere type of in- conducting any legations without omitted) (citations Prewitt, F.3d at 819 whether or vestigation to determine added). fail Should the Considering to them. merit there “objective evi petition containing sup- to submit in the record to the dearth of evidence and, thus, not support of his claims ineffectiveness, well dence” in as port Paters’ claim set pleading standard threshold in- meet charges of effects that the disastrous obligated to judge is attorney’s forth upon an competence wreak can requiring petition without dismiss this lack of reputation, I find professional 4(b) of the Rule to answer. See of the Assistant diligence part on the (“If Proceedings Governing (“AUSA”) Pa- Rules defended Attorney who States Paige, 140 F.3d "objective See Members evi- construed. the term does use 1. Prewitt Cir.1998) dence,” (quoting v. United prool” in McNeil to "actual but instead refers allegations. petitioner's 106, 112-13, of habeas U.S. 508 terms, used case, two Because the (1993)). 83 F.3d at 819. 1983-84, In this 21 124 L.Ed.2d Prewitt, virtually the same in are and in Toro meaning, however, represented interchangeably in this them I use pro- § during these 2255 the course of all times opinion. peti- his habeas ceedings, the time he filed from through appeal. tion defend- who 2. Because the prosecutor at petition § and the ed Paters’ 2255 individuals, I shall 8(a) ("A are different pleading Paters' trial two sets which P. Fed. R. Civ. 4.See "for- the "AUSA” and (2) to them as hereafter refer a ... ... contain a for relief shall forth claim AUSA,”respectively. mer showing claim plain statement of the short and relief....”). pleader is entitled that the pleadings that submitted well established 3. It is liberally acting pro be by prisoners se should plainly appears the motion it, tantamount See to affidavits. from face of and prior annexed exhibits and the Browman, Williams proceedings in the case that the movant is Cir.1992) (“[W]e believe that pur- the stated court, in entitled the district relief pose § 28 U.S.C. 1746 is accomplished judge shall summary make an its order for whether the verification statement is hand- dismissal and cause the movant to noti- be typewritten written or simply and under- Otherwise, shall order the fied. signed. Therefore, a complaint in verified Attorney United States an answer or file either would have the same form force other pleading(emphasis added). as an affidavit_”) added). effect Prewitt’s affidavit requirement is consistent every Each and statute, with federal district court federal habeas with- U.S.C. § in this circuit govern and the rules has § which chosen to exercise its au- proceedings. thority 2(b), § supra, While the text of under itself require Rule does not petitioners mandate that habeas § be petitions to file that in- accompanied affidavit, by an the statute does the exact language clude of 28 U.S.C. expressly provide “any district 1746(2), § court namely, “I penalty declare under may by require local rule that motions filed of perjury that foregoing is true and with it ... prescribed be in the form (date).”6 correct. Executed on It is thus a 2(b) local rule.” Rule of the Governing Rules § circuit-wide rule petitions must § And, fact, 2255 Proceedings. in every dis- accompanied by an affidavit. It is like- trict court jurisdiction within this circuit’s wise evident that Prewitt’s require- affidavit requirement has a affidavit, that an or at ment in accord with the habeas statute. least a certification with “force and ef- The Prewitt § case dealt with affidavit, fect” of accompany § petition of a petition. is, convicted criminal in That when search of contains language habeas relief alleging effect of that set forth in 28 (or 1746(2),5 § intentionally delayed U.S.C. “I seeking declare certify, veri- an indictment state) fy, or against under penalty perjury him in deprive that the order him of the foregoing correct,” 5G1.3(c) is true petition, § such benefit Sentencing deelaration(s) and the submitted along and, turn, with Guidelines in a shorter sentence.7 terms, § 5. Title 28 general U.S.C pro- in people another thirteen in a different investment (the vides that may an individual scheme”). submit an unsworn scheme "second One Id. week declaration, certificate, verification, prison or statement before his release from on the Northern (i.e., convictions, petition) represents habeas District in grand that its October sitting penalty jury contents are "true under perjury” in the in United States District Court for lieu of a the Southern sworn declaration or District of affidavit. Indiana indicted Prewitt for his involvement in the second Fol- scheme. trial, lowing jury Prewitt was convicted of 6. The of the form in the 2Rule charges, these and the federal Southern District appendix language also contains the of 28 U.S.C. twenty-seven Court sentenced him to months’ (or certify, state) verify, "1 declare imprisonment years supervised and three re- penalty perjury under foregoing that the lease. Prewitt unsuccessfully later moved the (date).” true and correct. Executed on Southern District Court declare his sentence concurrent with the Northern District sentence. jurisdiction authorities in the He thereafter filed a motion to vacate the South- United States District Court for the Northern ern pursuant District sentence to 28 U.S.C. District of Indiana charged arrested Prewitt and arguing for the him filing fraud mail a false tax return delay indicting intentional him in the South- whereby with a connection scheme he and two District, ern prison would have still other corporation individuals sold stock in a under his Northern District sentence when he whose assets were the investors’ own funds. District, was sentenced in entitling the Southern See pleaded F.3d at 815. Prewitt him to the benefit of a shorter sentence guilty charges to these and was sentenced to § 5Gl,.3(c). Specifically, the old version of prison years concurrent terms of three 5G1.3(c) provided part, "[T]he sentence for mail fraud years counts and probation three imposed the instant offense shall to run con- the false tax return count. Id. From late 1989 secutively prior undischarged to the term of im- mid-1990, through pend- while released on prisonment bond necessary to the extent to achieve a ing of the resolution Northern District federal punishment reasonable incremental for the in- charges, Prewitt and two other men defrauded stant offense.”

1053 (7th 803, Cir.1958), son, 805 cert. 256 F.2d petition was that Prewitt’s court held This 857, 77, denied, provided only alle 79 S.Ct. 3 L.Ed.2d “has 358 U.S. in that he deficient (1958) (“A de proof, petitioner’s allegation intentional [§ 2255] rather than 91 gations, be memoranda Suppositions only by about his own assertions are lay. supported added) (citations ... prosecutors investigators (emphasis sufficient.”) tween not conclusory allega cairy day, as omitted); Trumblay, cannot v. 256 United States (7th 83 F.3d denied, 615, tions do cert. 617 suffice.” added) (citing United (emphasis 355, 819-20 947, 3 353 79 S.Ct. L.Ed.2d 358 U.S. (7th 893, Cir. Canoy, 902 38 (court States (1959) petition § found 2255 1994)). Restated, to submit Prewitt failed petitioner “makes no show deficient because (actual) govern any proof .... he has [The thereof In the delay he claimed. intentional ment’s allegations] must be based on more than us, no documentation there is case before added) (emphasis unsupported allegations.”) plea that a offer was speculate from which (citation omitted); ex rel. United States have neither a to Paters —we even made (7th Knoch, Swaggerty v. 245 F.2d memoriali- nor written plea agreement Cir.1957) (court petition to be found 2255 agreement in the record. such an zation of petitioner “makes no because show deficient fact, provided the has not even Paters any proof ing that he has his sup attorney who name of assertions.”) unsupported than his other plea. of a alleged offer posedly extended added). (emphasis part long been in Prewitt has The rule and, explain as I jurisprudence, this circuit’s Petition Must B. Paters’ Habeas discussion, apparent that it is ensuing in the Failing to Meet Dismissed satisfy short in falls Paters’ Pleading Requisite Ar- Standard Humphrey v. United ing it here. See in Prewitt. ticulated (7th Cir.1990), 1066, States, 896 F.2d from suffers 111 S.Ct. 498 U.S. cert. Prewitt’s in that it is bar- problem same (1990) (“mere unsupported alle L.Ed.2d 306 evidence and contains ren of (cita hearing.”) a gations do not watrant selfserving assertions. nothing omitted) added); (emphasis United tions in- allegations regarding petition makes two Warden, 676 F.2d ex rel. Edwards States Initially, Paters avers that counsel. effective Cir.1982) (“[Petitioner] (7th did n. time and government, at an undefined specific the ‘detailed and affidavit’ file (Paters) plea agreement, him a place, offered ‘beyond unsupported mere as showing proof counsel, whereby he through defense by this court required sertions’ before sixty-month allegedly received omitted) (citation hearing granted.”) must be guilty if he entered sentence States, added); Barry v. United (emphasis him, rather than the charges against Cir.1976), cert. de 528 F.2d imprisonment to he was ulti- months’ nied, 50 L.Ed.2d following his conviction. mately sentenced (1976) (“the petition must be 2255] [§ merely allege that his goes on to specific accompanied by detailed and affi reject that he recommended petitioner has shows that davit which its put offer and beyond proof allegations going actual “nothing to he had proof at trial because assertions.”) (footnote mere lose.” omitted) added); (emphasis States v. United allega- Cir.1966) attempt corroborate these In an Lowe, tions, self-serving Declara- Paters submits (§ deficient because found tion,8 of his mother together with affidavits [petitioner] has “does not show that (neither present added) of whom was father (citing sufficient....”) plea agreement was com- alleged when 836- Mitchell v. United Paters), their asser- (7th Cir.1966)); who base Mathi municated States v. pursu- “Declaration,” penalty perjury through- ment submitted as it is used 8. The term U.S.C. 1746. opinion, ant to 28 means a state- out the duration of this plea tion that their son received a declared, offer not Paters’ mother “I specifically recall knowledge on direct that one was my made to son Robert came to our home a few through attorney, him solely his days what prior to jury the commencement of his their son told time, them his counsel allegedly said trial. At that he told me of his conver- Declaration, him. to In Paters’ he states counsel, sation with his apprising defense “[my attorney] plea bargain related a him government’s plea of the (sixty offer [to which had been gov- me] in exchange months guilty plea).” for a As offered (i.e.,.. ernment year sentence in .[sic] these solely averments are based on their five exchange guilty plea),” and that his self-serving statements,9 son’s they likewise reject him plea advised to agree- fall short of meeting objec- the standards of trial, go ment “nothing and he had tive evidence. Paters, by doing lose” so. who clear made has nothing offered in support more that he was not present during alleged any allegations of his counsel, of ineffective plea negotiations, played thus role am thus convinced that he has failed to meet purported up leading discussions to the al- pleading requirements articulated leged plea agreement, and does not any claim Moreover, in Prewitt. proceed this habeas personal concerning knowledge offer errors, has riddled proce with both plea agreement. Mathison, See F.2d at (i.e., dural properly per failed to (“[Petitioner] any did not assert material 4(b)) form screening his function under Rule facts to which he has shown that he had a (i.e., legal applied district court personal knowledge_A petitioner’s alle- standard), wrong prejudice govern and the gation supported only by his own assertions ment’s ill-advised decision concede to facts sufficient.”) added) (cita- are not which, outside parents’ Paters’ and his sworn omitted). tions point Nor does he statements, support are without has left us objective evidence, or “actual beyond very with a barren record to review. For assertions,” his mere support his claims. reasons, these urge majority majority seems to plea assume the district instruct court to dismiss Paters’ while, offer was made to Paters at the same 4(b) on remand. Rule See of the time, noting that the is record devoid of Governing Rules Proceedings. Pa (outside of Paters’ Declaration and ters would at that opportunity time have the affidavits) parents’ his that the gather objective evidence in of his plea ever offered a to him. This as- claim (if, of ineffective assistance of counsel which, sumption view, my does not lend fact, exist), such facts such as a statement itself to the truth-seeking obligation inherent original from his and/or in our roles as appellate federal judges. Un- AUSA that a plea made, offer was indeed der re-file district court “carry cannot day.” . satisfy evidence sufficient to the thresh The two parents affidavits Robert Paters’ old test evidence. See Dellen submitted, which are based on what he told Hanks, bach v. them, helpful thus are no more than his own — U.S. -, rt. ce Declaration. Paters’ father attested: (1996) (“When peti My son told me that he received a call that tion corpus for habeas is dismissed ... be evening from counsel, his defense inform- cause the presented has not ade ing him that quate had offered substantiation of his claim to cross him a agreement sixty months of what we have referred to the threshold of in exchange incarceration guilty plea. for a plausibility, filing a successive Defense reject counsel advised Robert to cannot be writ, barred as an abuse of the the offer because he would not receive yet because there has not been a determina sixty more than months if even he proceed- tion of legality petitioner’s deten tion.”). ed to trial. parents 9. Paters' they both attested that attorney, attended unequivocal but it that no pre-trial conference with their son and his at that offered time. merely allegations of Paters himself. my reliance relate disagrees with majority The being Mar fall short of v. Such tenuous assertions Citing to United States on Preuntt. (7th Cir.1998), vin, (Maj. Op. at 1047 evidence.” n.5 added)). opinion opines that majority majority, in author of How can the government breath, [as go concessions the same on to state that these “[t]he evi- petitioner’s lower the counsel] ineffective assertions” are sufficient to same “tenuous 1048). (Maj. Op. at I fail dentiary and, turn, burden.” satisfy in sustain a viable Prewitt principle of he divines this to understand how all, petition? parents’ if the After true, While it is as we law from Marvin. solely on what their son affidavits were based Marvin, fact “stipulations stated them, told how can their statements appellate review of ... obviate the need for alleged plea any offer knowledge of the (citation omitted), it findings,” id. factual probative than Because Pa- more Paters’? petitioner’s not follow that habeas does to overcome ters’ are insufficient as “evidentiary is somehow lowered burden” affidavits, Preuntt, largely which parents’ fact, stipulation. be result of such them, repeat nothing do but what told 4(b) Governing of the Rules cause Rule constituting objective likewise fall short of pointed previ I out Proceedings, respect majori- evidence. With all due judge sum ously, that the district mandates distinguished ty, Prewitt cannot be on its marily dismiss facts, my opinion misapplication and in it is standard, even be fails to meet the Prewitt suggest of this circuit’s law to otherwise. ordering government to submit an fore that, majority opines also “since the The unsupported allega petition, answer to challenged the court’s government has not enjoy benefit of tions therein must never answer, requiring an [Prewitt order a concession. 4(b) summary issue is dismissal] Rule question of whether This returns us to the n.7). (Maj. Op. at 1048 Once waived.” majority Paters has satisfied Prewitt. disagree I with the ma again, am forced to because, case, suggests that he has jority. general rule is that non- While governmen- parental “we have affidavits jurisdictional issues not raised before the support [his] tal concessions which tend to appeal, see Nich district court are waived on 1048). repeat, (Maj. Op. at be- claim.” n. 17 ols v. United repeating, that the cause I believe it is worth (7th Cir.1996), excep this rule does have its concession is irrelevant Jordan, v. example, in Kurzawa tions. For petition meets the issue of whether Paters’ (7th Cir.1998), this court ex 146 F.3d 435 petition, as pleading Prewitt standard —if the if neither ex plained submitted, satisfy Prewitt stan- failed to implicitly forgoes its plicitly nor dard, obligated at that the trial procedurally is 2254 habeas sponte directing time to it sua before dismiss “ faulted, may sponte inquiry ‘we make sua allegations. respond to its procedural is mani whether a default into parents’ affida- move on to consider (quoting ...’” at 440 Galowski fest. Id. they to the ineffectiveness vits as relate n. 11 Murphy, 891 F.2d course, in test. Of prong of the Strickland denied, Cir.1989), 495 U.S. cert. his counsel Paters to establish that order for (1990)); see also S.Ct. assistance, there must rendered Thieret, Henderson yet plea agreement, have been an offer of a cert. points nothing in Paters’ majority (1989) (“[A] dis 104 L.Ed.2d suggesting they had parents’ affidavits ... raise permitted [the trict court is offer of a personal knowledge such sponte, the court is [but] sua waiver] defense Indeed, majority ad- plea agreement. decision permitted to override the state’s par- affidavits from [Paters’] mits that “[t]he forego that explicit ... de implicit suggest ... that Paters received ents fense.”). However, seriously considered it. offer and peti- § 2255 procedure, the personal As a matter not reflect these statements do file a parents, obligated part of the tioner knowledge on the grounded trial, evidence sufficient to sistance of counsel at as required by Prewitt, and, turn, satisfy supra. overcome the 4(b) Rule bar. he or she does not submit If I further add it is the law of this allegations going beyond “actual circuit in the effort to reach the correct assertions,” Prewitt, mere justice, result and may administer we sua (citation omitted), petition sponte address appeal issues on which the summarily must be parties dismissed. See Rule have failed to raise as bases for af 4(b) firming, reversing Governing remanding judg of the Rules Proceed- or (“If See, ment of e.g., the district courts. ings Hunt plainly appears it from the face of zinger Co., Hastings Mut. Ins. 143 F.3d the motion and annexed exhibits and the (7th Cir.1998) (affirming judg prior proceedings in the case that the movant grounds ment on parties’ not set forth in court, is not entitled relief the district briefs); Bay Massachusetts Ins. v.Co. Vic shall make an order for its sum- (7th Koenig Leasing, 136 F.3d mary dismissal cause the movant to be Cir.1998) (“ ‘Although it is true that we nor notified.”). trial judge Should the commit mally arguments refuse consider pre petition error and fail to dismiss that falls sented, it is within our discretion to consider satisfying short of govern- and the arguments such when to do so is in the ment remains silent on the issue the dis- ”) justice.’ interests of (quoting United States appeal, trict court and on Kurzawa and Leichtnam, (7th Cir. suggest Henderson would this court 1991) J., (Coffey, concurring) (citing Garling discretion, may, in its procedur- consider the O’Leary, ton v. 282-83 question. al default question The in the Cir.1989); Andrews v. United present case thus gov- whether the becomes Cir.), 1n. cert. de explicitly ernment has either or implicitly nied, 98 L.Ed.2d foregone its defense that Paters’ (1987))). justice The interests certain procedurally It is faulted. manifest from the ly sponte favor sua consideration of Prewitt explicit record that there is no waiver of that in this ease. demands that Justice the law (i.e., defense here no time did the AUSA by faithfully, be abided statutory and that state that pursue he did proce- not wish requisites case, In fulfilled. the dis Henderson, argument, dural default as in comply trict coui’t failed to with the man 498), F.2d at and the mere fact that 4(b), dates of 2255 interpreted and Rule as government procedur- remained silent on the Justice, therefore, this circuit Prewitt. question al default interpreted should not be requires that we impact examine the implicitly evidence that it waived the is- herein, Prewitt if even we must raise the Kurzawa, (“[T]he sue. See 146 F.3d at 440 sponte. issue sua State suggest[ [does not] ] ... appeal faulted, Original somehow ... C. procedurally Treatment of Paters’ De- fense foregone [but] State has not Counsel. waiver defense, explicitly either implicitly.”). or earlier, As noted surprised I am at how sum, because the has government neither original attorney defense has been explicitly foregone procedur- or implicitly during treated 2255 proceedings. these case, al default defense in this I am of the The record is devoid of evidence that the opinion may that we consider whether or not attorney was even competency aware that his habeas should be dismissed challenged prior had been to the time the 4(b) under Rule failing objec- forth set government that he conceded rendered inef- tive evidence that received as- he fective government accepted counsel.10 The 10. The record reflects that attorney Paters filed his cause Paters’ trial was never called Then, May upon on respond the court AUSA to year, him, October 4 of that the court ordered the against levied it is unknown government government answer. filed its whether in fact received the 6, 1997, response such, January record, copy and mailed a answer. As may from state of the response to Paters’ in the habeas original even be that Paters' defense attor- proceeding original ney knowledge counsel. Be- still has no that he has been unsupported, confirmed that had indeed value the defendant’s at face Paters, offer to that he plea agree- tendered self-serving Declaration that reject Paters to that offer. attor- had even advised and that the defense ment was offered Nevertheless, for the to concede improperly. Surprisingly, under ney acted bald, self-serving allegations con- these without argument, at oral the AUSA questioning govern- conducting even the semblance of an investi nothing in the there is ceded possess gation, failing so much as a plea agreement that a suggest file to ment’s record, Paters, for them the much less dis- scintilla was ever offered only improper but unfair to the court and attorney: him or his cussed with original Every counsel. attor Paters’ trial even know whether COURT: You don’t ney government would do representing the offered, you? agreement was do justice, well to remember that is not stra that, frankly.... know AUSA: don’t is, be, tegic victory, which and must file, you you look at the did Did COURT: overriding concern. See United States v. look at the file? Jones, 1433 n. 13 Cir.\ file, Yes, Your yes I did look at the AUSA: 1993) (“The public prosecutor cannot take Honor. guide for the conduct of his office the nothing in there You found COURT: attorney appearing of an on behalf standards months? plea agreement for 60 about client_The public prose of an individual nothing writing Right, there is AUSA: role, occupies cutor must recall that he a dual that.... that would establish hand, being obligated, on the one to furnish Yet, court and of both the in adversary detriment element essential to the attorney, present original controversy, AUSA but be formed decision of other, did not see important ing possessed, who defended on the of any type investigation an pledged fit to conduct of governmental powers that are objective only, so much as a letter even (e.g., accomplishment not even one of of the former telephone inquiry call of Re impartial justice”) (quoting Professional AUSA) was Conference, to determine whether there sponsibility: Report the Joint of (1958)) allegations: 1159,1218 (emphasis of truth to Paters’ add semblance 44 A.B.A.J. ed). prom- What did the

COURT: deny you Would ise Mr. Paters. attorney incompetence are far Charges of 5-year promise was a of a recom- there legal for counsel. “Pro- from a trivial matter plead? if he would mendation attorney’s life- reputation” is an fessional Well, Honor, this matter was Your AUSA: blood, published finding stigma of a prosecutor who is handled a different obviously harmful to a incompetence is of longer in the office and whether that attorneys all legal career.12 It behooves investigated promise made was not professional respect treat with and care specifically. court, every reputation of officer of undertaken, proper investigation Had just cause. To to tarnish it without orig- would have contacted the AUSA attorneys, including no other ensure that attorney as well as the former inal defense counsel, subject- court-appointed defense veracity peti- of the AUSA11to ascertain treatment, type unfair as stated ed to this of allegations. tioner’s earlier, urge promulgation of the I would as- a claim of ineffective rule that whenever we know on the state of record For all presented to a trial us, of counsel is attorney might have sistance the defense before Indeed, subject charges incompetence can rendering 12. of assistance accused of counsel, proceedings, attorney disciplinary Dis see an ciplinary year dis- than one after court more Woodard, Proceedings Against petition April missed (incom (1994) N.W.2d 700 Wis.2d preparation provided petence and failure longer a member of 11. The former AUSA is no Disciplin proceeding); grounds disciplinary Attorney. Office of the United States Dumke, ary Proceedings Against Wis.2d (same). (1992) N.W.2d 919 court, attorney the accused must be notified to a representation claim of ineffective appeal preserve given opportuni- testimony of the accusation and be trial counsel. We cannot ty, otherwise determine appearance, either affidavit or to an- whether trial counsel’s actions were the re- charge, swer the and that the letter of notifi- incompetence sult or deliberate trial strat- part cation to the be made added). egies.”) (emphasis course, in court file. Of those cases where that a decides habeas must adversary system country is summarily dismissed for want of merit premised upon a search the truth. See 4(b) pursuant Governing to Rule of the Rules York, Herring 853, 862, v. New Proceedings, contacting the need for 2550, 2555, (1975) (“The obviously the accused counsel is eliminated. very premise adversary system our Thus, face, petition, justice it is partisan when the on its criminal advocacy on both sides promote a case will best summary sufficient avoid dismissal un- 4(b) guilty ultimate that the be convict- der Rule that counsel must be notified of go free.’’) ed and the innocent against the accusations levied him or her. added) (quoted in Spears, United States v. would at this encourage time also the trial (7th Cir.1982)). I am at a jurisdiction within require courts our loss to very understand how “truth” —the attorneys rendering who are accused of inef- judicial system heartbeat our —can (in fective assistance of counsel achieved of a absence full and com- 4(b)) petition that satisfies Rule given plete hearing, including opportunity an for all and, desire, they notification so should an parties present espe- their case. This is opportunity charges against answer the cially true in situations like the action before them. us, allegations where diligence of a lack of poor and exercise of judgment accepted It previously has been discussed this and conceded without challenge, as well as case that such a rule great would visit a premised nothing on self-serving, but hardship upon the district courts. I dis uninvestigated sworn statement of a twice- agree. judge, As a trial I instituted this convicted criminal defendant. procedure after against accusations accepted counsel became an strategy for D. The Precedential Value of Toro. criminal attorneys, defendants and their usu ally they when were without other viable Lastly, I must point take issue with a My proposed defense. might very rule well by my colleague raised esteemed in her con- reduce the petitions number of meritless filed currence. disagrees She with court, petitioners with the as become increas requirement in this Circuit’s eases that ingly aware that their of ineffec Paters, someone like alleges who that he go tive counsel will unchallenged. At received ineffective assistance of counsel in least one within jurisdic state this circuit’s deciding reject proposed plea agree tion —the State of adopted Wisconsin—has ment, must through objective show evi rule, such a recognizing the inherent unfair dence even in hearing advance of a ness that analyzes results when a court faulty advice, but for counsel’s he would proposed claims of ineffective plea. assistance without even See Fairman, Toro v. letting F.2d 1065 know that he has been rt. 505 U.S. S.Ct. Machner, accused. See State v. 92 Wis.2d ce (1992); see also 797, 804, (Wis.Ct.App. N.W.2d McCleese v. United 1979) {“[Wjhere a counsel’s conduct at trial (7th Cir.1996). questioned, duty responsibili is it is the ty subsequent go beyond counsel to mere 1049). (Concurring Op. My colleague goes require pres and to counsel’s Toro, rule, on to state that notification the source of the hearing ence at the in which his conduct is Strickland, exclusively relies but she challenged. prerequisite opines We hold'that it is a that this inapposite rebanee is because And, rule is de the decision from which the mere assertions.” as I Fairman, supra merely Prewitt, interpret rived —Toro an “unsupported asser- — imposes requirement without ex tion” qualify objective is one that does not planation, adding a cite to Strickland petitioner’s claims. See “cf.” 668, 694, 104 Washington, (“Prewitt at 819 provided only has (1984). Toro, 80 L.Ed.2d allegations, proof, rather than of intentional But F.2d at 1068. as Toro’s cite itself delay. Suppositions “cf.” about memoranda be- indicates, impose Strickland does not investigators tween prosecutors concern- objective requirement. evidence Strick timing of the second indictment can- merely pe land articulates the standard a carry day_”). Contrary to what preju titioner must meet order to show my colleague might say, nothing my dis- .... dice 466 U.S. at 104 S.Ct. 2052. clear,” sent-concurrence “makes much less 1049). Op. (Concurring even remotely implies, that Prewitt and its only related line of cases disagree with her contention that address the amount proof necessary requirement circuit’s viable habeas Toro, solely petition. founded or that is somehow Indeed, requirement anomalous. has disagree my respected also col part jurispru been a of our Seventh Circuit league’s “objective conclusion that ev forty years. dence for more than As I stated “unsound,” idence” rule is “[gjiven the concurrence, my petition earlier in difficulty producing so-called er unsup cannot be content to offer mere evidence in this context.” Not

ported allegations, point must instead support there no ease law to this obser evidence, or, it, as Prewitt termed vation, my concurring but colleague must proof allegations beyond “actual going of 4, remember that Rule like Fed. R. Civ. mere assertions.” 83 12(b)(6), screening P. acts as a device to added) (citations (emphasis F.3d at 819 omit weed out meritless claims from the feder ted). 1070; Humphrey, also 896 F.2d at See system already by al court overburdened Edwards, ex United States rel. 676 F.2d at questionable appeals brought pursuant 3; 1101; Lowe, Barry, 256 n. 528 at 367 F.2d ever-increasing an congression number of Mitchell, (citing at 359 F.2d at Dellenbach, al enactments. See 76 F.3d 836-37); Mathison, 805; 256 at Trum at 822. As we observed Olson v. 617; Knoch, blay, 256 F.2d at 245 F.2d at 229, 233 Cir. My concurring judge fellow submits “ 1993), somewhere, place, some ‘[s]ome “objection that her to the Toro standard is how, put we must to this ... end by general ... not ... answered habeas litigation meritless if we are to be able standard,” Preuntt, pleading as forth in set attempt justice timely to render goes because Preivitt’s “actual evidence” test ” fashion to those with meritorious claims.’ “quantum proof supporting peti to the of Kovic, (quoting v. United States claims,” tioner’s whereas Toro “seems to re cert. 484 quire something proof.” more than actual 108 S.Ct. 98 L.Ed.2d 864 1). view, Op. (Concurring my at 1049 n. U.S. (1988)). recognizes potential Rule proof’ she mischaraeterizes Preuntt’s “actual proceedings for abuse in habeas and im relating solely “quantum as standard to the poses stringent pleading a more threshold proof’ necessary support petitioner’s of standard than its Federal Rule of Civil habeas claims. The fact of the matter is that equivalent, Procedure as “the writ of ha- pleading the Prewitt with standard deals corpus historically regarded (i.e., beas has quantity proof’) both the “actual assertions”) remedy, (i.e., extraordinary as an a bulwark quality beyond “going mere If, against convictions that violate ‘fundamen my sug colleague offered. ” Abrahamson, tal fairness.’ Brecht v. gests, “quantum went Prewitt 619, 633-34, proof’ required petition, in a habeas our U.S. S.Ct. (1993) (internal opinion in that case not have 123 L.Ed.2d 353 added added); qualification proof “go[] beyond emphasis quotations that such omitted and Dellenbach, (i.e., agree 76 F.3d at 822. For that Paters’ other see also reason, very Supreme agreement has Court that an offer of a was even “applied standards on habeas place) may in the made first different applied on direct re than would be support. agree my without Nor Ido view...,” Brecht, at 507 U.S. colleague in her concurrence that Toro does added); (emphasis at 1720 for ex S.Ct. law. sound basis also ample, although has been the Constitution urge adoption rule which mandates properly interpreted guarantee notice, given opportu- that counsel be and an appeal, right on direct there is herself, nity to defend himself or whenever mounting “right to counsel when col rendering he or she is accused of ” Pennsylvania lateral attacks.... assistance. a rule Such would serve en- 551, 555-56, Finley, 107 S.Ct. compliance sure with this court’s directive to (1987) 1990, 1993, (empha “not, attorneys they good all absent added) (citing Avery, sis Johnson cause, improper attribute bad motives or 747, 750, 483, 488, U.S. bring profes- conduct to other counsel or (1969)). Because habeas re L.Ed.2d 718 disrepute by sion into accusa- unfounded ” extraordinary remedy, lief is an the stan impropriety. Report tions Final petitioner §a must meet dards that Civility Committee on the Seventh Federal necessarily stringent more than those Circuit, “Lawyer’s Judicial Duties Other required complainant a criminal di (The Counsel,” Std. No. 4 standards set forth review, plaintiff in a rect or a civil suit. Report in the Final of the Committee on remedy And insofar as the habeas Civility of the Seventh Federal Judicial Cir- limited,” Brecht, “secondary nature adopted by cuit were this court on December it is U.S. 14,1992, the district courts within our proper that a habeas not be 15) jurisdiction very day, next December merely able to a claim on the added). unsupported allegations, basis of in stead needs to demonstrate he or

she has actual evidence of his or her Toro, agree

claim. I cannot herein) (eight

and their numerous cited

companion are without a cases sound ba

sis in the law. CONCLUSION BOGARD, al., Frank et Plaintiffs- majority opinion I from the dissent Appellees, scope extent that believe the its remand majority is far too limited. While the directs hearing that a be conducted on the issue of WRIGHT, Robert Director of the Illinois probability whether there is a reasonable Department Aid, al., of Public et accepted alleged that Paters Defendants-Appellants. plea agreement but for his trial counsel’s advice, opinion peti- I am of the that Paters’ No. 97-2926. tion should be dismissed on remand to the Appeals, United States Court of 4(b). district court under Rule Prewitt re- Seventh Circuit. actual, quires §a to adduce objective proof allegation for each at the time Argued Sept. 1998. petition, he submits his and Paters has failed requirement. agree to meet While I Decided Oct. Toro, majority with the Paters is obligated produce evidence dem-

onstrating he would have

government’s alleged plea agreement, can-

Case Details

Case Name: Robert J. Paters v. United States

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 28, 1998

Citation: 159 F.3d 1043

Docket Number: 97-2655

Court Abbreviation: 7th Cir.