Taylor v. U.S., 99-3656.

• Decision Date: 25 April 2002
• Docket Number: No. 99-3656.,99-3656.
• Citation: 287 F.3d 658
• Parties: Anthony D. TAYLOR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

287 F.3d 658

Anthony D. TAYLOR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 99-3656.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 2002.

Decided April 25, 2002.

Craig A. Newby (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for petitioner-appellant.

Thomas Edward Leggans (argued), Office of the U.S. Atty., Criminal Division, Fairview Heights, IL, for respondent-appellee.

Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

Anthony Taylor is serving 360 months' imprisonment for distributing crack cocaine. After we affirmed his conviction and sentence, see United States v. Taylor, 116 F.3d 269 (7th Cir.1997), he filed a collateral attack under 28 U.S.C. § 2255. Of the grounds that Taylor presented to the district judge, only one survived to this appeal: a contention that counsel failed to inform him point blank not only that he was entitled to testify at his trial (he did not take the stand) but also that he alone held the power to decide. Lawyers make many of the strategic and tactical decisions at trial, but this decision lies in the hands of the defendant personally. See Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984). Taylor contends that, even if he knew that he could testify, and even if he actually made the decision, he is entitled to a new trial unless either the judge or his lawyer relayed that information in unmistakable language. Taylor contends that the advice should be delivered by the judge and a waiver elicited in open court, but he will settle for delivery by defense counsel.

In the district court Taylor filed two affidavits and his trial counsel one. The district court declined to hold an evidentiary hearing, writing: "Although there are conflicting affidavits of [Taylor] and his attorney in the record before the court, the court finds that the ultimate decision not to testify was one made by [Taylor], after consultation with his attorney." On the basis of this "finding" the district court denied the petition. There are two problems with that approach. The first is that, if the record contains an evidentiary conflict on a material issue of fact, a judge must hold an evidentiary hearing to decide who is telling the truth. It is not sound to say that, in every conflict between a prisoner and a lawyer, the lawyer must be believed. Second, the district court's conclusion — that "the ultimate decision not to testify was one made by" Taylor — does not respond to his legal theory. What Taylor argues is that even if he made the decision, he is entitled to a new trial unless he received formal notice and waived his right to testify, preferably on the record in open court.

After denying Taylor's petition, the district court issued a certificate of appealability "on the issue of whether this court should have conducted an evidentiary hearing on [Taylor's] claim that counsel was constitutionally ineffective" for failing to provide adequate advice. This does not comply with 28 U.S.C. § 2253(c)(1)(B)(2), which says that a certificate "may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." Subparagraph (3) requires the certificate to identify the issue about which the substantial showing has been made. Whether a court must hold an evidentiary hearing is a question about how courts resolve collateral attacks, not about constitutional law. It may be presented incident to a substantive decision, if a substantial showing has been made, see Slack v. McDaniel, 529 U.S. 473, 483-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), but the district court did not find that Taylor's theory is substantial. As is common, the prosecutor ignored this shortcoming, forfeiting any entitlement to dismissal of the appeal for noncompliance with § 2253(c)(1)(B). See Ramunno v. United States, 264 F.3d 723 (7th Cir.2001); United States v. Marcello, 212 F.3d 1005 (7th Cir.2000). After one round of briefing, a panel of this court implicitly amended the certificate of appealability, directing the parties to address several issues related to the merits and application of the harmless-error doctrine.

The second round of briefs devotes considerable attention to the question whether Underwood v. Clark, 939 F.2d 473 (7th Cir.1991), is consistent with notice pleading. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). We said in Underwood that to obtain an evidentiary hearing on a theory that counsel prevented him from testifying in his own defense, a prisoner waging a collateral attack must be specific in his affidavits; generalities (such as his impression of what happened, rather than exactly what counsel said) will not suffice. Taylor sees his loss in the district court as an application of Underwood and asks us to overrule that decision as inconsistent with Swierkiewicz and other opinions deprecating heightened pleading requirements. See, e.g., Leatherman v. Tarrant County, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). This is a puzzling request, if only because Taylor does not contend that his lawyer "prevented" him from testifying; his argument is that counsel did not go through a Miranda-like advice-and-waiver formula. No one argues that Underwood deems an affidavit of the sort "counsel never, ever said X" to be insufficient, if the Constitution requires the lawyer to say the magic word X.

Taylor's position is doubly puzzling because neither Underwood nor this case was decided at the pleading stage. Rule 2 of the Rules Governing Section 2255 Proceedings for the United States District Courts is the closest parallel to Fed.R.Civ.P. 8, which creates a notice-pleading system for civil litigation. Rule 2(b) departs from Rule 8 by requiring some fact pleading. (It says that a motion "shall specify all the grounds for relief which are available to the movant and of which he has or, by the exercise of reasonable diligence, should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified.") What is more, the district judge did not deny Taylor's motion at the pleading stage; he received affidavits from both sides and then determined, by parallel to Fed.R.Civ.P. 56, that no disputed issue of material fact calls for an evidentiary hearing. Pleadings are irrelevant at the summary judgment stage. Fed.R.Civ.P. 56(e). Once the affidavits and other materials are on file, the question is not what the pleadings say but what the evidence shows. Underwood holds that to create a material dispute the evidence at the collateral-attack analog to summary judgment must be specific. This has nothing to do with notice pleading, so Swierkiewicz and like cases would not call for a reassessment of Underwood's holding even if Rule 2 were identical to Rule 8 — which it is not.

But it is not Underwood that sinks Taylor's claim. His problem is that a notice-and-waiver regimen is unnecessary. There may be a factual dispute about whether counsel told Taylor in so many words that the accused alone makes the decision whether to testify, but this dispute is not material. We held in Liegakos v. Cooke, 106 F.3d 1381, 1386 (7th Cir.1997), that the Constitution does not require the judge to tell the accused in open court that he is entitled to testify, and to obtain a formal waiver of this right. See also United States v. Manjarrez, 258 F.3d 618, 623-24 (7th Cir.2001); United States v. Thompson, 944 F.2d 1331, 1345 (7th Cir.1991). Nor does the...