Thomas H. HURLOW, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 12-1374.
United States Court of Appeals, Seventh Circuit.
Argued May 29, 2013. Decided Aug. 9, 2013.
726 F.3d 958
But even if Bates had not waived his claims against Joyce and the two District Chiefs, and even if the district court had erred by dismissing the
III. Conclusion
The district court correctly determined that Bates was unable to establish a prima facie case under the McDonnell Douglas framework, and even if he could establish such a case, Bates would be unable to show that Trotter‘s reason for Bates‘s demotion was merely pretext. Additionally, the district court correctly dismissed the
the Chicago Fire Department, and the policy-making roles of the two promoted District Chiefs, we assume that Trotter would naturally have considered the advice of these defendants (among others) as a necessary part of reorganizing the Department. But Bates alleges that this advice was based not on the defendants’ professional judgment, but on the defendants’ alleged racial biases. The amended complaint made nothing but vague and generalized allegations about the racial attitudes of these defendants, and failed to make any specific allegations about how racism was the basis for any advice these defendants gave to Trotter.
Jonathan A. Bont (submitted), Office of the United States Attorney, Indianapolis, IN, for Respondent-Appellee.
Before BAUER, WOOD, and TINDER, Circuit Judges.
BAUER, Circuit Judge.
Petitioner Thomas Hurlow pleaded guilty to multiple drug and firearm offenses after law enforcement officials discovered drugs and a firearm in the home Hurlow shared with his fiancée. In a written plea agreement, Hurlow waived his right to challenge his conviction under
I. BACKGROUND
On December 16, 2008, a case worker from the Indiana Department of Child Services and two detectives from the Vigo County Drug Task Force arrived at the home Hurlow shared with his fiancée, Tina Funk, to conduct a welfare check on Funk‘s children. According to Hurlow, he objected to the presence of the detectives and requested that they leave unless they had a valid search warrant. The detectives instead asked Funk for her permission to search the house. The detectives told Funk that her children would be taken from her if she did not agree to the search;
During the search that followed, the detectives found a substance containing detectable amounts of methamphetamine, marijuana, drug paraphernalia, and a handgun. After being taken into custody and read his Miranda warnings, Hurlow told the detectives that all of the illegal items found belonged to him and that Funk had no knowledge that the drugs were in the home.
According to Hurlow, he told his appointed trial counsel the circumstances surrounding the search of the home that led to his arrest. He also informed counsel that his “rights ha[d] been violated” by the search and “requested that [counsel] advocate that as a defense.” Hurlow contends, though, that counsel “failed to listen to Hurlow‘s version of events,” “fail[ed] to investigate” the events surrounding the search, and otherwise failed to make “any attempt” to pursue Hurlow‘s claim that the search was illegal. Instead, counsel persuaded Hurlow to plead guilty to avoid a sentence of “30 years to life imprisonment.”
Based on counsel‘s advice, Hurlow entered into a plea agreement with the government and pleaded guilty to all of the charges against him. Like many plea agreements, this one contained a provision noting Hurlow‘s agreement not to contest his conviction or sentence in a collateral attack under
During his change of plea hearing on July 28, 2009, the district court conducted a
On September 9, 2010, Hurlow filed a motion for postconviction relief pursuant to
The district court rejected Hurlow‘s request for an evidentiary hearing and denied his
According to Hurlow, on October 27, 2011, he prepared his notice of appeal and request for a certificate of appealability, placed the documents in a “postage prepaid envelope,” and deposited them in a mailbox located in his unit at Federal Correctional Institution (F.C.I.) Williamsburg, the prison where he was incarcerated. Hurlow says that “the [Federal Bureau of Prisons] [has] a system for mailing letters certified,” and that “the mailroom staff will document when [the mail was sent] and to whom it is addressed,” but that he did not believe he had to send his notice of appeal that way based on a conversation with the prison mailroom staff. Specifically, Hurlow maintains that the “mailroom staff” told him that using the mailbox in his unit “was just as efficient as placing [the envelope] into their hands for first class mail,” that it “ma[de] no difference” which method he chose, and that the envelope “is considered delivered to the court the moment it is done.”
On October 31, 2012, we granted Hurlow‘s request for a certificate of appealability as to his claim that he was denied his Sixth Amendment right to effective assistance of counsel in the negotiation of his plea agreement.
II. DISCUSSION
This appeal does not involve the merits of Hurlow‘s ineffective assistance of counsel claim. Rather, the appeal presents us with two issues that go to whether Hurlow should be heard on that claim: the timeliness of his appeal and the effect of the
A. Timeliness of Hurlow‘s Appeal
We first consider whether the prison mailbox rule applies to Hurlow‘s filing of his notice of appeal, thereby rendering it timely. The prison mailbox rule, established by the Supreme Court in Houston v. Lack, 487 U.S. 266, 275-76, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), and codified in
Here, in response to our request for briefing on the timeliness of his appeal, Hurlow filed declarations stating that he placed his notice of appeal in a postage pre-paid envelope in his prison‘s mail system on October 27, 2011, well within the
We find no merit to either argument. First, that the prison had a system for sending and logging certified mail does not mean it had a system “designed for legal mail.” See
Instead, the only evidence before us—Hurlow‘s sworn declarations—indicates that there was not a legal mail system at F.C.I. Williamsburg at the time he sent his notice of appeal. According to Hurlow, he asked the prison mailroom staff whether he should place his envelope, which was addressed to this Court, in the mailbox in his unit or directly in the hands of the mailroom staff. The mailroom staff told him that “it made no difference” whether he placed the envelope in his unit mailbox or directly in the hands of the mailroom staff: either method would be “as efficient” and the envelope would be “considered delivered to the court at the moment” Hurlow placed it in the unit mailbox or in the hands of the mailroom staff. From this exchange between Hurlow and the prison mailroom staff, which was clearly about the prison mailbox rule, the only reasonable inference—assuming the competency and honesty of the mailroom staff, which we will absent evidence to the contrary—is that F.C.I. Williamsburg did not have a legal mail system at the time he sent his notice of appeal or he would have been informed of such system by the prison staff. We therefore reject the government‘s arguments regarding the existence of a legal mail system at F.C.I. Williamsburg.3
B. Hurlow‘s § 2255 motion
We now turn to the issue of whether Hurlow‘s
Though disputes over plea agreements are “usefully viewed through the lens of contract law,” we have recognized that the application of ordinary contract law principles to plea agreements, “must be tempered by recognition of limits that the Constitution places on the criminal process, limits that have no direct counterparts in the sphere of private contracting.” United States v. Bownes, 405 F.3d 634, 636 (7th Cir.2005). For example, “while a contracting party is bound by the mistakes of his lawyer, however egregious (his only remedy being a suit for malpractice), the Constitution entitles defendants entering plea agreements to effective assistance of counsel.” Id. at 637. We have therefore repeatedly recognized that appellate and collateral review waivers cannot be invoked against claims that counsel was ineffective in the negotiation of the plea agreement. United States v. Jemison, 237 F.3d 911, 916 n. 8 (7th Cir.2001); United States v. Hodges, 259 F.3d 655, 659 n. 3 (7th Cir.2001); Bridgeman, 229 F.3d at 591.
Despite our precedent indicating that a collateral review waiver does not prevent a habeas petitioner from being heard on claims that his plea agreement was the product of ineffective assistance of counsel, the government argues, and the district court concluded, that this avenue of relief from waiver is not applicable to Hurlow because he has not alleged that his counsel was ineffective in the negotiation of the waiver provision of his plea agreement, as opposed to the agreement as a whole. In support, the government relies upon Jones v. United States, in which we stated that
While we have repeated the less-than-artful phrase in Jones regarding the “negotiation of the waiver,” e.g., United States v. Sines, 303 F.3d 793, 798 (7th Cir.2002), we have never held that the waiver is unenforceable only when counsel is ineffective in negotiating the specific waiver provision. Instead, our cases since Jones have affirmed that an attorney‘s ineffectiveness with regard to the plea agreement as a whole, and not just the specific waiver provision at issue, renders the waiver unenforceable. E.g., Bridgeman, 229 F.3d at 591 (“A plea agreement that also waives the right to file a
Our analysis here is informed by cases in which a defendant has pleaded guilty unconditionally, which, like a direct or collateral review waiver, generally “forecloses any opportunity to contest any alleged antecedent constitutional deprivations.” Gomez v. Berge, 434 F.3d 940, 943 (7th Cir.2006). In Tollett v. Henderson, the Supreme Court explained the reasoning behind this principle:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The Supreme Court recognized, though, that a criminal defendant can bring claims “attack[ing] the voluntary and intelligent character of the guilty plea[,]” such as claims that the defendant “plead[ed] guilty on the advice of counsel” that “was not ‘within the range of competence demanded of attorneys in criminal cases[.]‘” Id. at 266-67 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). This includes cases in which counsel has “fail[ed] to evaluate properly facts giving rise to a constitutional claim, or [failed to] inform himself [properly] of facts that would have shown the existence of a constitutional claim[.]” Id. at 266-67. The Supreme Court emphasized, however, that while the habeas petitioner “must, of course, prove that some constitutional infirmity occurred in the proceedings[,]” the “focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity.” Id. at 266. Nevertheless, while claims of prior constitutional deprivations “are not themselves independent grounds for federal collateral relief[,]” they “may play a part in evaluating the advice rendered by counsel[.]” Id. at 267.
The same is true for a petitioner such as Hurlow who seeks to overcome the waiver provision in his plea agreement based on ineffective assistance of counsel: he cannot just assert that a constitutional violation preceded his decision to plead guilty or that his trial counsel was ineffective for failing to raise the constitutional claim. Rather, he must allege that he entered the plea agreement based on advice of counsel that fell below constitutional standards. In other words, he must allege that the plea agreement was “the product of ineffective assistance of counsel,” Jemison, 237 F.3d at 916 n. 8, or “tainted by ineffective assistance of counsel,” United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995). See also United States v. Teeter, 257 F.3d 14, 25 n. 9 (1st Cir.2001) (“This category [of situations in which denying a right of appeal would work a miscarriage of justice] is infinitely variable, but, by way of illustration, we would include within it situations in which
Turning to Hurlow‘s allegations in his
Seeking to avoid this result, the government argues that Hurlow affirmed his satisfaction with counsel when he “knowingly and voluntarily” pleaded guilty after a “thorough
Moreover, aside from his dissatisfaction with counsel, Hurlow‘s allegations in his
In reaching the conclusion that the collateral review waiver in Hurlow‘s plea agreement does not bar his claim that his guilty plea resulted from ineffective assistance of counsel, we offer no opinion regarding the veracity of Hurlow‘s allegations or the ultimate outcome of his collateral attack. Our inquiry here is focused on whether Hurlow‘s allegations entitle him to an evidentiary hearing on his
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s denial of Hurlow‘s petition and REMAND for further proceedings consistent with this opinion.