Barker v. U.S.

• Decision Date: 15 October 1993
• Docket Number: Nos. 91-1746,91-1956,s. 91-1746
• Citation: 7 F.3d 629
• Parties: Hayes BARKER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 629

7 F.3d 629

Hayes BARKER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 91-1746, 91-1956.

United States Court of Appeals Seventh Circuit.

Argued April 1, 1993.

Decided Oct. 15, 1993.

James R. Bittorf (argued), Bittorf & Lacy, Milwaukee, WI, for petitioner-appellant.

Paul Kanter, Asst. U.S. Atty. (argued), Milwaukee, WI, for respondent-appellee.

Before POSNER, Chief Judge, RIPPLE, Circuit Judge, and TIMBERS, Senior Circuit Judge. ^*

RIPPLE, Circuit Judge.

Hayes Barker pleaded guilty to conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988). On July 31, 1990, Mr. Barker was sentenced to 360 months' imprisonment followed by ten years' supervised release. Mr. Barker filed, but later withdrew, a direct appeal. He now appeals the district court's denial of his pro se § 2255 petition as well as the court's denial of his subsequent pro se motion to change his plea. ¹ For the reasons that follow we affirm the judgment of the district court.

I BACKGROUND

On January 23, 1990, a grand jury charged Mr. Barker and three others by indictment with conspiracy to distribute and to possess with intent to distribute more than five kilograms of cocaine. Mr. Barker was charged in four other counts with distribution of cocaine. He entered an initial plea of not guilty on January 29, 1990.

At a hearing on April 17, 1990, pursuant to a plea agreement, Mr. Barker changed his plea to guilty for the conspiracy count; the government, in turn, dismissed the four remaining counts against him. At the hearing, the government delineated the elements of the conspiracy, the maximum term of imprisonment (life) and the maximum penalty ($4,000,000), and explained that the court would make its own determination of the applicable guidelines and proper sentence. The government further explained that, because Mr. Barker had two prior convictions, he qualified under the Sentencing Guidelines for career offender status. This status provides a sentencing range of thirty years to life. The district court asked Mr. Barker if he understood the government's explanation. Mr. Barker replied that he understood and that he wished to plead guilty to the conspiracy count.

The court then asked the government to make an offer of the proof it had against Mr. Barker. The government reviewed the evidence and indicated that at trial it could prove Mr. Barker was the leader of a cocaine distribution conspiracy involving in excess of five kilograms of cocaine. When the court asked Mr. Barker whether he "did, in fact, negotiate and distribute in excess of five kilograms of cocaine," the defendant answered, "I don't know about that amount." R.39 at 25. The court pursued its questions concerning the quantity of cocaine by stating, "Well, that's why I'm asking. That makes a difference," and then adding, "it does make a whale of a lot of difference." Id. It continued to clarify the difference later in the hearing:

[I]n terms of your guilt or innocence the five kilograms is not determinative. It's not an element of the offense. It does make a difference in terms of what the guidelines do with you. And that's up to the Court to decide after I have heard all the rest of the cases. Do you understand that?

Id. at 29. When the court was satisfied that Mr. Barker understood the impact on his sentence of the cocaine quantity and of his two prior convictions, it accepted Mr. Barker's guilty plea and ordered a presentence report to be prepared.

At the sentencing hearing on July 31, 1990, the court determined that Mr. Barker qualified for career offender status, which mandates a criminal history category of VI. United States Sentencing Guidelines § 4B1.1. It then established a base offense level of 32, based on Mr. Barker's involvement with five to fifteen kilograms of cocaine. The court added a four-level increase as an organizer or leader pursuant to § 3B1.1, a two-level increase for possession of a firearm pursuant to § 2D1.1(b)(1), and a two-level decrease for acceptance of responsibility pursuant to § 3E1.1(a). This calculation resulted in an offense level of 36, with a range of 324-405 months' imprisonment, from which range the district court selected a 360-month sentence.

Mr. Barker, represented by his trial counsel, filed a direct appeal after being sentenced, but voluntarily dismissed it on November 19, 1990, pursuant to Federal Rule of Appellate Procedure 42(b). On March 18 1991, Mr. Barker filed a pro se § 2255 petition for writ of habeas corpus. In his petition, Mr. Barker asserted that he had failed to follow through with the direct appeal because his attorney would appeal only the sentencing enhancements and because Mr. Barker believed that they had a conflict of interest.

In his § 2255 petition, Mr. Barker argued he was denied his right to effective assistance of counsel. He claimed that there was no factual or legal basis for his guilty plea, and that his plea was not voluntarily and knowingly made because his attorney misinformed him concerning the manner of proving the quantity of drugs at sentencing. He claimed his privilege against self-incrimination was violated by his cooperation with the government on his attorney's advice. Further, he argued that the sentencing enhancements for being an organizer, using a firearm, and being considered a career offender were factually erroneous and were a consequence of his attorney's failure to investigate properly.

On March 20, 1991, the district court entered an order denying this petition. It reasoned that Mr. Barker had failed to support with a sufficient factual basis his ineffective assistance claim in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court further determined that an adequate factual basis for accepting the plea and for finding the drug amount had been adduced at the change of plea hearing, in the presentence report, and at the sentencing hearing. The court also concluded that Mr. Barker clearly had been apprised of his Fifth Amendment right against self-incrimination at the change of plea hearing. Mr. Barker appeals this denial.

II ANALYSIS

A.

The failure to raise an issue on direct appeal generally bars a defendant from raising it later in a post-conviction proceeding. United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991); Norris v. United States, 687 F.2d 899, 900 (7th Cir.1982). Constitutional claims may be raised for the first time in a collateral attack, however, if the defendant can demonstrate cause for the procedural default as well as actual prejudice from the failure to appeal. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982); Belford v. United States, 975 F.2d 310, 313 (7th Cir.1992).

Because he did not appeal his sentence directly, we first must consider whether Mr. Barker is entitled to appeal any of the issues he raised in his petition. The district court did not explain in its order the bases for finding cause to excuse Mr. Barker's failure to appeal. Nor did it directly address any resulting prejudice from Mr. Barker's failure. The denial of a defendant's Sixth Amendment right to effective assistance of counsel can excuse procedural default. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); Velarde v. United States, 972 F.2d 826, 827 (7th Cir.1992).

In his petition, Mr. Barker adequately alleges that the cause for his procedural default, his failure to appeal, was the result of ineffective counsel. ² He contends that he withdrew his appeal for two reasons: a "conflict of interest" with his attorney, and his attorney's "ineffective" appeal of only the sentence enhancement. Because his attorney on direct appeal was also his trial counsel, Mr. Barker is not barred from raising his ineffective assistance of trial counsel claim for the first time on post-conviction review. See Velarde, 972 F.2d at 827. We do not usually expect lawyers to raise the issue of their own ineffectiveness at trial on appeal. Taglia, 922 F.2d at 418.

As for the prejudice requirement, Mr. Barker generally asserts in his habeas petition that his plea was not knowingly and voluntarily made. Specifically, he insists that, because of his lawyer's bad advice, he misunderstood the government's method of proving the quantity of drugs in the conspiracy. Under these circumstances, Mr. Barker has alleged adequately prejudice: He would not have pleaded guilty had his lawyer not given him the incorrect advice. See Nevarez-Diaz v. United States, 870 F.2d 417, 423 (7th Cir.1989).

B.

We must now examine whether this claim of ineffective assistance of counsel has been substantiated adequately. ³ The Sixth Amendment right to counsel entitles a defendant to the effective assistance of counsel. We evaluate whether an attorney's assistance is constitutionally adequate under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a petitioner must show that his attorney's conduct "fell below an objective standard of reasonableness" and "outside the wide range of professionally competent assistance." Id. at 688, 690, 104 S.Ct. at 2065, 2066. Additionally, the petitioner must demonstrate that, because of these errors, the outcome is unreliable or fundamentally unfair. See Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838, 841, 122 L.Ed.2d 180 (1993). Because counsel is presumed effective, the petitioner bears a heavy burden to prove that his counsel was ineffective and that his defense was actually prejudiced. United States v. Booker, 981 F.2d 289, 292 (7th Cir.1992).

1.

Mr. Barker asserts that his guilty plea was involuntary and that he would not have pleaded guilty had his counsel not been ineffective. Mr. Barker contends that he misunderstood the consequences of his plea because...