Blake v. United States, 15–1239.

• Decision Date: 26 February 2016
• Docket Number: No. 15–1239.,15–1239.
• Citation: 814 F.3d 851
• Parties: Lamar BLAKE, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

814 F.3d 851

Lamar BLAKE, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 15–1239.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 27, 2016.

Decided Feb. 26, 2016.

Carol A. Brook, Attorney, Office of the Federal Defender Program, Chicago, IL, Paul E. Gaziano, Attorney, Federal Defender Program, Rockford, IL, for Petitioner–Appellant.

Talia Bucci, Asst. U.S. Atty., Office of the United States Attorney, Rockford, IL, for Respondent–Appellee.

Before POSNER, KANNE, and HAMILTON, Circuit Judges.

PER CURIAM.

Lamar Blake pled guilty to possessing cocaine base with intent to distribute and possessing a firearm as a felon. See 18 U.S.C. § 922(g)

; 21 U.S.C. § 841(a)(1). Blake did not appeal, but he later filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The district court held an evidentiary hearing on one of Blake's claims—that he had received ineffective assistance of counsel when his attorney failed to file a requested notice of appeal. After the hearing, the district court denied Blake's § 2255 motion but certified the ineffective-assistance claim for appeal. Because the district court's finding that Blake did not ask his attorney to file an appeal is not clearly erroneous, we affirm.

I. History

Blake was represented during his criminal proceedings by retained counsel and pled guilty to possessing cocaine base and a firearm as a felon. The plea agreement did not include a waiver of Blake's right to file an appeal or a § 2255

motion.

A probation officer prepared a presentence investigation report (PSR), finding that Blake qualified as an armed career criminal, see 18 U.S.C. § 924(e)

, and a career offender, see U.S.S.G. § 4B1.1. Blake's counsel did not object to the PSR, but the probation officer filed a supplemental report the day before Blake's sentencing hearing clarifying that Blake was not in fact an armed career criminal but still qualified as a career offender based on prior drug convictions. The district court accepted the probation officer's amended findings and calculated a guidelines range of 188 to 235 months' imprisonment. Counsel did not object to the guidelines calculation, and Blake confirmed that he approved of his attorney's actions. The district court explained that "[i]t would be easy for me to sentence [Blake] to the maximum of 235 or go over that," but settled on concurrent terms of 216 months' imprisonment on each count. The district court then explained to Blake his right to appeal and the repercussions of not doing so.

Almost a year later Blake filed a § 2255

motion, arguing that his plea was not knowing and voluntary and that his attorney rendered ineffective assistance in several ways, including by not filing a requested notice of appeal. Blake submitted an affidavit averring that he asked his attorney to file a notice of appeal. The government responded with an affidavit by Blake's counsel stating that he discussed with Blake his right to appeal after the sentencing hearing, but that Blake said he was satisfied with his sentence and so did not wish to appeal. The district court denied Blake's § 2255 motion on all claims except the alleged ineffective assistance for failing to file an appeal; the district court ordered an evidentiary hearing on that claim and appointed counsel for Blake.

At the evidentiary hearing, only Blake and his former attorney testified. Blake testified that he asked about his appeal on three occasions. First, he told counsel he wanted to appeal right after his sentencing hearing. Next, while Blake was incarcerated at the Winnebago County Jail because of a detainer from the Illinois Department of Corrections, counsel visited him twice before the expiration of the time to appeal. Blake said he asked about his appeal on both occasions. According to Blake, he was subsequently moved to several facilities and both he and other family members, including his brother, attempted unsuccessfully to contact his attorney. Blake first learned that his appeal had not been filed in May 2014 after his family called the Court of Appeals. Blake, who testified that he has an eighth grade education, then conducted research to "find out if [he] can get back to an appeal" and filed his § 2255

motion.

Counsel testified that he and Blake had a "very good" working relationship. He confirmed that he and Blake had a short conversation after the sentencing hearing but said that Blake never asked him to file a notice of appeal. He further testified that Blake was happy with the sentence he received because he had feared an above-guidelines sentence based on his lengthy criminal history. Counsel said he was unaware of any attempts by Blake or his family members to contact him after sentencing. When asked about his visits with Blake at the jail, counsel initially did not remember the visits. But after being shown visitors' logs from the jail, he responded that his recollection was refreshed but that they did not discuss filing a notice of appeal during those visits. Counsel testified that he would have made a notation if Blake had requested that he file an appeal, but he would not have made a similar notation if Blake had not wanted to appeal.

The district court made oral findings, which it later adopted in a written order, that Blake had not asked his attorney to file a notice of appeal and therefore could not succeed on his ineffective assistance of counsel claim. The district court found that Blake's credibility was undermined because (1) he waited almost a year after sentencing to file anything with the court complaining about his appeal not being filed; (2) at sentencing Blake seemed satisfied with his sentence; (3) Blake has an extensive criminal history which undercut his credibility generally; (4) there were inconsistencies between Blake's version of events supporting other claims in his § 2255

motion and what he said during the plea colloquy and sentencing hearing; (5) Blake has a reason to lie; and (6) he did not corroborate his claim with other evidence, such as an affidavit or testimony from his family members who he asserted tried to contact his attorney. The court, on the other hand, found counsel credible because (1) his testimony that Blake was happy with his sentence because he faced the possibility of a much higher one was logical and consistent with the transcript of the sentencing hearing, (2) he has no bias or interest, and (3) he is an experienced attorney who had no reason not to file an appeal if asked.

The district court also separately discredited Blake's testimony that he and his attorney discussed an appeal while Blake was at the jail. The court found that the "focus of the conversation" was the detainer placed on Blake by the Illinois Department of Corrections. The court based this finding on Blake's testimony that the detainer was why he asked his attorney to meet him in jail and the fact that counsel did not remember the meetings was "not unusual if there was nothing remarkable that the defendant had asked him."

The court did, however, grant relief on a claim Blake's newly appointed attorney added to the § 2255

motion. Blake was sentenced to 216 months' imprisonment on both counts. But Blake is not an armed career criminal, so the maximum sentence for the firearm offense was 120 months' imprisonment. Compare 18 U.S.C. § 924(e)(1), with § 924(a)(2). The district court therefore vacated the 216–month sentence on the firearm count and imposed 120 months' imprisonment, still to run concurrently to the 216–month term for the drug count.¹ The court also granted Blake a certificate of appealability on his claim that his attorney was ineffective for not filing an appeal: "Given the nature of these proceedings, and the fact that the court had to make a factual finding regarding whether defendant instructed his attorney to file an appeal, the court finds that reasonable jurists could debate" whether Blake had received ineffective assistance.

II. Analysis

To succeed on the ineffective assistance claim certified for appeal, Blake had to show that he in fact asked his attorney to file a notice of appeal. See Gant v. United States, 627 F.3d 677, 681 (7th Cir.2010)

. The only issue before us, therefore, is if the district court clearly erred in finding that Blake did not, a determination based on the relative credibility of the two men. A credibility determination will be overturned only if credited testimony is internally inconsistent, implausible, or contradicted by extrinsic evidence. Ortiz v. Martinez, 789 F.3d 722, 729 (7th Cir.2015) ; United States v. Williams, 216 F.3d 611, 614 (7th Cir.2000). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ; see also Webster v. United States, 667 F.3d 826, 833 (7th Cir.2011). We have gone so far as to say that a "credibility determination is not a basis for appellate review." Gant, 627 F.3d at...