U.S.A. v. Morris

• Citation: 259 F.3d 894
• Decision Date: 13 August 2001
• Docket Number: No. 00-2803,00-2803
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Michael L. Morris, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 894

259 F.3d 894 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Michael L. Morris, Defendant-Appellant.

No. 00-2803

In the United States Court of Appeals For the Seventh Circuit

Argued May 8, 2001

Decided August 13, 2001

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 CR 213--Charles N. Clevert, Judge. [Copyrighted Material Omitted]

Before Bauer, Posner, and Coffey, Circuit Judges.

Bauer, Circuit Judge.

Michael Morris comes before the court a second time seeking to withdraw his guilty plea and asking the court to strike from his sentence a district court order that he may not contact the victim of his crime or her immediate family while he is in prison. We remand Morris's request to withdraw his guilty plea and affirm the no-contact order.

I. Background

Because this is Morris's second appeal, we outline the necessary (and somewhat unusual) case history, but leave interested readers to find further discussion in United States v. Morris, 204 F.3d 776 (7th Cir. 2000). On the advice of Lew Wasserman, his attorney, Morris pled guilty to two counts of traveling in interstate commerce with the intent to engage in a sexual act with a juvenile in violation of 18 U.S.C. sec. 2423(b). Morris claims to have signed the plea agreement relying on misinformation Wasserman provided him about its effect. Specifically, Morris recalls assurances from Wasserman that the guilty plea would not waive his ability to appeal the admissibility of evidence the police found based on information they obtained from Morris after he invoked his right to counsel. The written plea agreement did not expressly preserve this ground. The district judge accepted Morris's guilty plea and, for reasons not relevant to this appeal, sua sponte and without notice to Morris imposed a five-level upward departure.

Wasserman appealed the sentence enhancement but made no mention of the evidentiary issue or the withdrawal of Morris's guilty plea. After Wasserman filed the appellate brief, Morris petitioned the court to file a pro se supplemental brief. We allowed Morris to dismiss Wasserman as his attorney and to address the court directly. Morris argued cursorily in the brief that he should be permitted to withdraw his guilty plea because Wasserman provided ineffective assistance in part by misrepresenting the ramifications of the guilty plea.

When we decided this appeal, we reconsidered the wisdom of allowing Morris to dismiss his counsel and to file a pro se brief. To avoid prejudice to Morris, we considered both his and Wasserman's arguments. Wasserman's brief persuaded us to remand the case to a different district judge for the limited purpose of reconsidering the five-level upward departure. We reappointed Wasserman to represent Morris on remand. We did not address Morris's motion to withdraw his guilty plea, stating that it had "no bearing on any issue before this court." Morris, 204 F.3d at 780. Accordingly, we did not discuss any of the ways in which Morris claimed that Wasserman rendered ineffective assistance.

On remand, Wasserman successfully argued the sentencing issue. He did not move to withdraw Morris's guilty plea, and Morris again filed a pro se motion to that effect. Morris reiterated that he should be allowed to withdraw his plea because Wasserman provided ineffective assistance. This time, however, Morris fleshed out his theory and argued that his guilty plea was not knowing and intelligent because Wasserman misinformed him about the effect the plea would have on his right to appeal. The judge admonished Morris to communicate with the court only through Wasserman, but decided to consider Morris's motion anyway because Wasserman could not, without an inherent conflict of interest, argue that due to his misrepresentations, Morris's guilty plea was not knowing and intelligent. Although he recognized the conflict of interest, the judge took no steps to explore or alleviate it because he believed that Morris's motion to withdraw the guilty plea was not properly before him. At the re-sentencing hearing, the judge found that Morris's motion to withdraw the guilty plea was outside the scope of the remand and that he therefore lacked jurisdiction to rule on it. But, for the sake of thoroughness, he addressed it, explaining to Morris that the motion was futile because (1) the plain language of the plea agreement did not preserve the appeal, (2) Morris told the original district judge under oath that no one made promises to him not contained in the plea agreement to induce him to plead guilty, and (3) the judge believed that Morris fabricated Wasserman's purported ineffective assistance.

Also at the re-sentencing hearing, the prosecution presented evidence that while imprisoned, Morris persisted in contacting his victim by calling her home, asking his friends to relay messages to her, and writing her a letter. The court heard testimony from the victim's mother, step-father, and grandmother concerning how the crime itself and Morris's repeated attempts to contact the victim affected her. In response, the district court imposed a condition on Morris's sentence; namely, that he avoid all contact with his victim and her family while he was in prison. This condition applied both to Morris's federal sentence and to his consecutive seven-year state sentence.

II. Discussion

A. Ineffective Assistance of Counsel

Morris claims that he was denied effective assistance of counsel on remand when he attempted to withdraw his guilty plea and requests that we remand the issue so he can have the benefit of effective assistance. The government argues that the effective assistance argument is irrelevant because the withdrawal of Morris's guilty plea was not properly before the district court on remand.

When the district court addresses a case on remand, the "law of the case" generally requires it to confine its discussion to the issues remanded. See United States v. Story, 137 F.3d 518, 520 (7th Cir. 1998) ("Generally, under the law of the case doctrine, 'when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.'") (citations omitted); see also United States v. Thomas, 11 F.3d 732, 736 (7th Cir. 1993). But see United States v. Buckley, 251 F.3d, 668, 669-70 (7th Cir. 2001) (stating that courts retain strictly limited discretion to revisit previously decided issues in some special circumstances); United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (listing special circumstances). The law of the case doctrine, however, applies only to issues that have been resolved, generally leaving a district judge free to address issues that the appellate court left undecided. See Moore v. Anderson, 222 F.3d 280, 283 (7th Cir. 2000); Aramony, 166 F.3d at 661. This power must be construed in harmony with our familiar exhortation that parties cannot use the accident of remand as an opportunity to reopen waived issues. See United States v. Jackson, 186 F.3d 836, 838 (7th Cir. 1999) (citations omitted). Therefore, on remand and in the absence of special circumstances, a district court may address only (1) the issues remanded, (2) issues arising for the first time on remand, or (3) issues that were timely raised before the district and/or appellate courts but which remain undecided.

The withdrawal of the guilty plea argument clearly does not fit into either of the first two categories. The closer question is whether Morris's motion to withdraw his guilty plea could be categorized as a timely raised issue that the appellate court did not decide. The Federal Rules of Appellate Procedure specify that an adequately briefed argument must "contain an argument consisting of more than a generalized assertion of error, with citations to supporting authority." Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001) (citations omitted); see Fed. R. App. P. 28(a)(9). We construe pro se appeals liberally, but we will not hesitate to dismiss them if they are not adequately presented. See, e.g., Anderson, 241 F.3d at 545.

During his initial appeal, Morris petitioned to withdraw his plea agreement based on his perception that Wasserman rendered ineffective assistance by "misrepresent[ing] the guilty plea and the ramifications thereof." Morris's brief is very cursory and he provides no legal support for his position, therefore coming exceptionally close to meriting a dismissal for failure to comply with Federal Rule of Appellate Procedure 28(a)(9). However, we are able to understand Morris's argument that his guilty plea was not knowing and intelligent and we conclude that Morris has saved this argument from being considered waived.¹ See, e.g., Smith v Town of Eaton, Indiana, 910 F.2d 1469, 1471 (7th Cir. 1990) (holding that a pro se appellant's brief was adequate because the court was able to "glean, albeit faintly--the basic facts and general lines of argument from the briefs and record . . . ."); McCottrell v. E.E.O.C., 726 F.2d 350, 351 (7th Cir. 1984) (declining to dismiss a pro se brief which, "though woefully inadequate, sets forth a discernible, albeit unsupported, argument."). Because we have held that Morris preserved the argument and as we did not address it during Morris's first appeal, it falls within the third category of issues the district court may properly address on remand.

We now consider whether Morris suffered the effects of ineffective assistance of counsel in his attempt to withdraw his guilty plea. Morris argues that there was a conflict of interest between Wasserman's motivation to protect himself from a malpractice claim and Morris's position that, when he pled guilty, he relied on Wasserman's false assurances that the plea would not impact his ability to appeal an evidentiary issue. On remand, the district judge forced Morris to choose between representing himself pro se or allowing Wasserman to make the...