William L. AVILA, Petitioner-Appellant, v. Reed A. RICHARDSON, Respondent-Appellee.
No. 13-1833.
United States Court of Appeals, Seventh Circuit.
Argued April 18, 2014. Decided May 7, 2014.
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Robert J. Palmer, Attorney, May, Oberfell & Lorber, Mishawaka, IN, Petitioner-Appellant.
William L. Gansner, Attorney, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.
Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
The Antiterrorism and Effective Death Penalty Act of 1996 amended
Petitioner William Avila pleaded guilty in Wisconsin state court to one count of repeated sexual assault of a child, as well as one count of producing child pornography and sixteen counts of possessing it. See
The few facts before us can be summarized briefly. Avila was accused of sexually assaulting an eight-year-old boy. He told police that he had abused the boy more than twenty times, including one instance when Avila had drugged and raped him. A search of Avila‘s computer revealed more than a thousand images of child pornography along with a sexually explicit video of his victim. Avila was charged with sexually assaulting the child, producing child pornography (which Wisconsin terms sexual exploitation of a child), and 48 counts of possessing child pornography, of which 32 were dismissed in exchange for his guilty plea. At sentencing, the state recommended 60 years in prison, the presentence report recommended 31 to 38 years, and Avila‘s attorney asked for eight years. The judge imposed consecutive sentences of 20 years for sexual assault, ten years for sexual exploitation, and five years for each of the possession charges, the last of these to be served concurrently with one another. In addition, Avila was sentenced to 20 years of extended supervision after his release.
Avila‘s appellate counsel identified only frivolous grounds for appeal and so submitted a no-merit report to the Wisconsin Court of Appeals. See
The state appellate court adopted the reasoning of the no-merit report and rejected the claims Avila raised in his response. In the passage critical to this appeal, the court rejected Avila‘s argument that he received ineffective assistance in connection with the plea agreement: “Avila‘s claims that trial counsel performed deficiently before entry of the guilty pleas
The district court denied Avila‘s petition and denied him a certificate of appealability as to any of the issues he raised. With respect to the issue here, the court followed without further analysis the state court‘s conclusion that “Avila‘s various claims that trial counsel performed deficiently before entry of the guilty plea were waived by his guilty plea.” Avila appealed from that decision, which we construed as a request for a certificate of appealability. See Fed. R.App. P. 22(b)(2). A judge of this court granted the certificate as to whether Avila had received ineffective assistance in pleading guilty, citing Koons v. United States, 639 F.3d 348, 350-51 (7th Cir.2011), in which we noted that a habeas petitioner “can challenge the validity of his guilty plea by demonstrating that he received ineffective assistance from counsel during the plea process.”
We review de novo the district court‘s denial of Avila‘s petition. Harris v. Hardy, 680 F.3d 942, 948 (7th Cir.2012). We may grant relief if the state court‘s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
The clearly established federal law applicable here is the holding of Hill v. Lockhart that “the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” 474 U.S. at 58, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As explained in Hill, a criminal defendant who pleads guilty on the advice of counsel can challenge that plea as having not been made knowingly and voluntarily if his attorney‘s representation fell below an objectively reasonable standard. 474 U.S. at 56. The defendant must also show “a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty.” Id. at 59.
That is the situation Avila has described in his response to the no-merit brief and at every stage of review since then. But rather than looking to Hill v. Lockhart, the state court applied the more general rule that a guilty plea waives nonjurisdictional defects and defenses, including constitutional claims, as explained in the case the state court cited, State v. Lasky, 646 N.W.2d at 57; accord United States v. Villegas, 388 F.3d 317, 322 (7th Cir.2004). The exception recognized in Hill for ineffective assistance in deciding to enter the plea, however, is clearly established in both the federal and state courts. See, e.g., Villegas, 388 F.3d at 322; Johnson v. Duckworth, 793 F.2d 898, 899 (7th Cir.1986); State v. Kelty, 294 Wis.2d 62, 716 N.W.2d 886, 888–89 (2006), citing State v. Bentley, 201 Wis.2d 303, 548 N.W.2d 50 (1996). The state court‘s conclusion that
The state suggests that we overlook the state court‘s erroneous statement that Avila‘s claims “were waived by his guilty pleas,” characterizing it as a superfluous statement of a general principle, a “fugitive sentence” in an otherwise unobjectionable opinion that should be read to have implicitly applied the correct rule of Strickland. A peculiarity of habeas corpus jurisprudence is that if the state court had simply denied Avila‘s claim without explanation, we would be required to assume that the court had applied Strickland, and we could grant relief only if the petitioner proved the negative by showing there was no reasonable basis for the result reached by the state court. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011); cf. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (state court need not cite or even know Supreme Court cases so long as “neither the reasoning nor the result” of its decision contradicts them). But here the state appellate court did explain its reasoning. Because that reasoning contradicted clearly established federal law as determined by the Supreme Court,
The existing factual record, however, is not adequate to determine whether Avila‘s counsel was actually ineffective and, if so, whether Avila can show that but for the ineffective assistance, he would have insisted on going to trial. See Hill, 474 U.S. at 58-59 (standard for relief); Mosley v. Atchison, 689 F.3d 838, 853 (7th Cir.2012) (whether “the petitioner is actually entitled to relief ... is a separate question” from whether the state court‘s decision was contrary to federal law). Avila therefore asks that we remand to the district court for an evidentiary hearing.
AEDPA forecloses federal-court fact-finding, except in certain unusual circumstances not present here, if “the applicant has failed to develop the factual basis of a claim in State court proceedings.”
Because a hearing is not barred by
Because the state court‘s finding of waiver was contrary to clearly established Federal law as stated by the Supreme Court of the United States and because
HAMILTON
CIRCUIT JUDGE