Harvey v. McCaughtry, 91-3520

• Decision Date: 08 December 1993
• Docket Number: No. 91-3520,91-3520
• Citation: 11 F.3d 691
• Parties: Phillip W. HARVEY, Petitioner-Appellant, v. Superintendent Gary McCAUGHTRY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 691

11 F.3d 691

Phillip W. HARVEY, Petitioner-Appellant, v. Superintendent Gary McCAUGHTRY, Respondent-Appellee.

No. 91-3520.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 28, 1993.

Decided Dec. 8, 1993.

Jerold S. Solovy, Darryl M. Bradford, Cecelia M. Comito (argued), Jenner & Block, Chicago, IL, for petitioner-appellant.

Michael R. Klos, Asst. Atty. Gen. (argued), Madison, WI, for respondent-appellee.

Before BAUER, Circuit Judge, WOOD, Jr., and ESCHBACH, Senior Circuit Judges.

HARLINGTON WOOD, Jr., Senior Circuit Judge.

On December 11, 1984, a Wisconsin State Court found Phillip Harvey guilty of one count of kidnapping and three counts of armed robbery based upon his guilty pleas, and seven counts of first-degree sexual assault based upon his no contest pleas under North Carolina v. Alford. ¹ For these crimes, the court sentenced him to 100 years in prison. Six months after sentencing, Harvey filed a motion to withdraw his pleas, claiming that they were not knowing and intelligent and that he was denied effective assistance of counsel. Although the Wisconsin Court of Appeals reversed the trial court's denial of his motion, the Wisconsin Supreme Court ultimately reversed the appellate court and reinstated the pleas, 139 Wis.2d 353, 407 N.W.2d 235. Harvey then filed this petition for a writ of habeas corpus raising the same grounds for relief that he had raised in state court. The district court rejected the petition and this appeal followed.

I. BACKGROUND

A. Facts

A full understanding of this case requires a discussion of the events that began unfolding the evening of July 14, 1984 and continued throughout the night. In a parking lot in downtown Milwaukee, a woman got out of her car only to be seized by two men unknown to her (suspects A & B). The men pointed a long-barrelled handgun at her head and ordered her back into her car. After looting her personal property (money and jewelry), the two men blindfolded the woman with a swatch of cloth they had severed from her skirt and began a string of sexual assaults. Upon encouragement from suspect A, suspect B forced the woman to engage in a number of sexual acts. He had the gun pressed in her side throughout most of the attack. Soon thereafter the assailants swapped positions and suspect A began sexual assaults upon the woman. He too held her at gunpoint; but now the gun was pointed at her head.

Afterwards, the men stowed the blindfolded victim in the trunk of her car. They then drove the car to several "party spots" where they proceeded to open the trunk and display the victim to their acquaintances. The on-lookers laughed at the victim's misery and lauded the assailants for their deeds. Only after suffering through this humiliation was the victim finally released. Following this assault, the suspects also apprehended two other women and, holding them at gunpoint, absconded with their money and jewelry.

During the investigation that followed these attacks, Milwaukee police obtained a statement from a juvenile who admitted his involvement in the crimes. Later the police visited the home of Mollie Harvey, petitioner's mother. Mrs. Harvey consented to allow the officers to search for her son, Phillip Harvey. In his bedroom, in plain view on the top of petitioner's bureau, the police noticed three rings that Mrs. Harvey was unable to identify. Believing the rings belonged to the victims, the police later returned to the house with a search warrant and seized among other evidence, the three rings. Shortly thereafter, the petitioner voluntarily gave a statement to the police in which he admitted kidnapping and robbing the first victim, and also admitted putting her in the trunk and displaying her to friends. Additionally he admitted being involved in the robberies of the other two women. He told the police that the juvenile sexually assaulted the first victim but maintained that, other than forcing the victim to perform oral sex, he did not assault her. He was ultimately charged with three counts of armed robbery, one count of kidnapping while armed, and seven counts of first-degree sexual assault. Mrs. Harvey hired Alan D. Eisenberg to represent her son.

B. Proceedings

On December 11, 1984, the petitioner appeared in court on the above charges and entered guilty pleas on the armed robbery and kidnapping charges and Alford no contest pleas to the sexual assault charges. The state trial court accepted the pleas, entered a finding of guilt on all eleven counts, and sentenced petitioner to 100 years ² in prison. On August 26, 1985, the petitioner, then represented by new counsel, filed a motion to withdraw his pleas alleging that he did not enter them knowingly and intelligently, and that he did not receive effective assistance of counsel. The state trial court denied the motion. Upon review, the Wisconsin Court of Appeals held that the actions of attorney Alan Eisenberg denied the petitioner effective assistance of counsel and allowed the petitioner to plead anew. The Supreme Court of Wisconsin reversed the appellate court and reinstated the pleas. This petition followed in the United States District Court, which denied the requested relief.

II. ANALYSIS

The petitioner has raised three arguments to support the claim that his pleas were invalid. First, he claims that his counsel made misrepresentations to him concerning the sentence he would receive if he pled guilty and that these misrepresentations deprived him of effective assistance of counsel. Second, he contends that his counsel acted under a conflict of interest that also deprived him of effective representation. Finally, he has argued that the trial court did not explain the charges adequately enough to enable him to understand them fully and that he therefore did not enter his pleas knowingly and voluntarily.

A. Ineffective Assistance of Counsel

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth the standards governing claims of ineffective assistance of counsel. To prevail on such a claim, the petitioner must prove: 1) that "counsel's representation fell below an objective standard of reasonableness," Id. at 688, 104 S.Ct. at 2064 and 2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Id. at 694, 104 S.Ct. at 2068 (i.e. "that the deficient performance prejudiced the defense") Id. at 687, 104 S.Ct. at 2064.

This two-part test also applies when a defendant challenges the validity of guilty plea proceedings based on claims of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). In the guilty plea context, the first part of the Strickland test remains the same. Id. A person who attempts to satisfy the second, or "prejudice," prong of the test, however, "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370.

1. Alleged Misrepresentations by Counsel

The petitioner claims that prior to the entry of his guilty pleas, his attorney approached him with a piece of paper that had the number "75" written on it. He further claims that the attorney explained that the judge had written that number on the piece of paper and that if the petitioner pled guilty the judge would sentence him to only 75 years in prison. ³ The record, however, reveals that the judge told the petitioner, prior to pleading, that he would be subject to a maximum sentence of 230 years. The record also establishes that the prosecutor was recommending a sentence of 100 years. Nevertheless, based solely on this "promise" of 75 years, the petitioner claims that he decided to waive his constitutional right to a trial and plead guilty. He entered his pleas, and the court made a finding of guilt on all counts. Following this, the judge sentenced the petitioner to a prison term of 100 years. ⁴

The petitioner argues that his attorney's alleged misrepresentations about the sentence the court would impose amounted to objectively unreasonable assistance of counsel and that they induced him to plead guilty and waive his right to trial. In other words, he asserts that had he known he was going to receive a sentence of 100 years (rather than 75) he would have fought the charges and never pled guilty. He raised similar arguments in his motion to withdraw the pleas before Judge Hanley in Wisconsin state court. Judge Hanley held a hearing on the merits of petitioner's claims and made certain findings of fact. As we consider this current petition for habeas corpus relief, the factual findings of the state court "shall be presumed to be correct." 28 U.S.C. Sec. 2254(d) (1988). We will not disregard these findings unless the petitioner shows a procedural defect in the state court proceedings, or demonstrates that the findings are not fairly supported by the record. 28 U.S.C. Sec. 2254(d)(1-8).

Among other things, Judge Hanley found that Mrs. Harvey hired Mr. Eisenberg to represent the petitioner "after he turned himself into the Milwaukee Police Department and confessed to what he was arrested for...." Furthermore, according to Judge Hanley's findings of fact, Eisenberg was hired to represent the petitioner only at sentencing, not to try the case. The record more than adequately supports these findings. First, Mrs. Harvey testified that she hired Eisenberg to see if he could get her son the least possible time in prison, and that she was aware that a guilty plea would probably be the best means for reducing the sentence. The petitioner himself stated that he wanted Eisenberg to get him "the less time as possible." The only reasonable inference from this is that Eisenberg's role was limited to the guilty plea proceedings and sentencing. The petitioner had no attorney to prepare the case for...