884 F.2d 300 (7th Cir. 1989), 88-1708, Page v. United States

Docket Nº:88-1708.
Citation:884 F.2d 300
Party Name:Eldon L. PAGE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:September 01, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 300

884 F.2d 300 (7th Cir. 1989)

Eldon L. PAGE, Petitioner-Appellant,


UNITED STATES of America, Respondent-Appellee.

No. 88-1708.

United States Court of Appeals, Seventh Circuit

September 1, 1989

Submitted Aug. 24, 1989.

Eldon L. Page, Oxford, Wis., pro se.

R. Jeffrey Wagner, Nathan A. Fishbach, Asst. U.S. Attys., John E. Fryatt, U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., for U.S.

Page 301

Before CUMMINGS, POSNER, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Students of strategy and bargaining cut their teeth on the game of Prisoners' Dilemma. Two prisoners, unable to confer with one another, must decide whether to take the prosecutor's offer: confess, inculpate the other, and serve a year in jail, or keep silent and serve five years. If the prisoners could make a (binding) bargain with each other, they would keep silent and both would go free. But they can't communicate, and each fears that the other will talk. So both confess. Studying Prisoners' Dilemma has led to many insights about strategic interactions. See Thomas C. Schelling, The Strategy of Conflict 53-80, 119-61 (1960; 1980 rev.); Robert Axelrod, The Evolution of Cooperation (1984). Eldon Page did not have the leisure to study the game before he had to play it.

Page and Maurice Falls were charged with armed bank robbery. On the day set for Page's trial, the prosecutor appeared with Falls in tow. Falls had signed an agreement promising, in exchange for a lower sentence, to plead guilty and testify against Page. After the judge accepted Falls' plea, Page caved in and pleaded guilty too. Back in jail, Falls and Page were able at last to coordinate. Each presently asked leave to withdraw his plea. Too late, the judge said. Both were sentenced and appealed. We affirmed in an unpublished order.

Page tried again, filing a petition under 28 U.S.C. Sec. 2255 and arguing that trial counsel rendered ineffective assistance in letting him plead guilty. This was brought up short by the fact that Page had not argued on his original appeal that trial counsel was constitutionally inadequate. Because Page had fresh counsel for the appeal, the omission forfeits the point unless Page could establish "cause" for and "prejudice" from the neglect. United States v. Kovic, 830 F.2d 680, 684 (7th Cir.1987). See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Ineffective assistance of counsel is "cause", Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct...

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