Coleman v. U.S.

• Citation: 318 F.3d 754
• Decision Date: 07 February 2003
• Docket Number: No. 02-1240.,No. 02-1508.,02-1240.,02-1508.
• Parties: Willie P. COLEMAN, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

318 F.3d 754

Willie P. COLEMAN, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 02-1240.

No. 02-1508.

United States Court of Appeals, Seventh Circuit.

Argued December 2, 2002.

Decided February 7, 2003.

Rehearing and Suggestion for Rehearing En Banc Denied March 12, 2003.

James M. Shellow (argued), Shellow & Shellow, Milwaukee, WI, for Petitioner-Appellant.

Carol L. Kraft (argued), Michelle L. Jacobs, Office of the U.S. Atty., Milwaukee, WI, for Respondent-Appellee.

Before BAUER, POSNER, and ROVNER, Circuit Judges.

BAUER, Circuit Judge.

Petitioner-Appellant Willie P. Coleman, Jr. appeals the district court's order denying his § 2255 motion to vacate, set aside, or correct his sentence. He argues that his guilty pleas were not intelligently and voluntarily entered as a consequence of the ineffective assistance of his counsel. Because we believe Coleman received effective assistance of counsel throughout the proceedings and intelligently and voluntarily entered his guilty pleas, we affirm the sentence imposed below.

I. BACKGROUND

Willie Coleman was indicted on April 8, 1997, after the government recovered 1370 grams of powder cocaine, $49,162 in United States currency, drug paraphernalia, and a loaded handgun from his Milwaukee home. This was followed by a superseding indictment on May 28, 1997. After the district court denied various motions, the case, originally set for trial, was set for a change of plea hearing. On September 19, 1997, Coleman entered a conditional plea to the six-count superseding indictment that charged him with multiple drug-trafficking offenses.

The parties attempted to devise a negotiated plea. The government gave Coleman two separate plea agreements which he rejected. When Coleman came to the change of plea hearing on September 17, there was no agreement in place. At the hearing, defense counsel expressed a willingness to enter a conditional plea; the government acquiesced, assuming the conditional plea was to all six counts. The district court approved the idea of a conditional plea and asked the government if it would accept the plea agreement. The prosecutor responded that the plea agreement did not include all six counts in the indictment, but that the other general provisions of the agreement were acceptable. This was highlighted in the following colloquy:

THE COURT: [T]he Court will proceed to take the plea. And there is no—I take it no disagreement that the conditions—and the understanding, of course, that the Government is not waiving its objection to the Court's ruling relative to this conditional plea, but any of the other conditions in that are—and agreements are still going to be observed in the Plea Agreement as it was originally submitted?

THE GOVERNMENT: Other than the charges to which the Defendant is pleading guilty. Is that the question? Are the other factors that are set forth in the Plea Agreement still applicable? Is that your—is that what you're asking me?

THE COURT: Yes.

THE GOVERNMENT: Yes.

One provision included in the plea agreement involved a stipulation regarding relevant conduct which stated:

That pursuant to Sentencing Guidelines Manual, Section 1B1.3, the sentencing judge will consider not only the weight of the drugs alleged in the offense, to which the defendant is pleading guilty, but also the weight of any other drugs that were involved as part of the same course of conduct or common scheme or plan as the offense of conviction; and the judge will use the total weight of the drugs involved in calculating the guideline range, even if not alleged in the offense of conviction; the parties stipulate that the weight of the drugs for the purpose of calculating the guideline range includes 3 kilograms of cocaine relative to the defendant's conduct in or around March 1997, and an additional 14 ounces as a historical amount After this exchange between the court and the government, the district court advised Coleman of the statutory penalties for the crimes he was being charged with, asked him if he understood that he could still go to trial, and whether there was anything outside of the plea agreement that he had been promised. Coleman responded that he understood everything, that he had not been threatened or promised anything, and that he had nothing to discuss with his attorney or the court. Coleman proceeded to plead guilty and the court accepted the plea. The written plea agreement which had been the subject of repeated negotiations was never executed by the parties nor filed with the court.

At the sentencing hearing, the prosecution proffered that Coleman's relevant conduct involved 11 kilograms of cocaine. The district court accepted the government's position. On December 12, 1997, the district court sentenced Coleman to 135 months in prison, a fine of $3,000, 5 years of supervised release, and a forfeiture of $49,162 in drug proceeds.

Coleman appealed the judgments of conviction on various grounds he preserved for appeal. We affirmed the conviction on July 16, 1998. United States v. Coleman, 149 F.3d 674 (7th Cir.1998). On January 5, 2000, Coleman moved pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Coleman argued that he had not been effectively represented and that his guilty plea was not voluntarily and intelligently entered. On December 6, 2001, the district court denied Coleman's petition. A week later, Coleman filed a motion for reconsideration and a supplement to his § 2255 motion.

In its opposition to Coleman's motion, the government attached affidavits of Coleman's trial counsel. It was through these affidavits that Coleman learned, for the first time, that his lawyer believed the government had erred when it failed to note that it would not be bound by the weight stipulation. Despite this newly discovered information, the district court denied the motion for reconsideration. The district court granted Coleman's motion for a certificate of appealability on the issue of whether his counsel was ineffective at sentencing but denied Coleman's motion to include the issue of whether his guilty plea was not voluntarily and intelligently entered. On June 25, 2002, we granted Coleman's motion to amend the certificate of appealability to include the issue of whether his counsel was ineffective during his plea hearing and whether, as a result of this deficient performance, his plea was involuntary.

II. ANALYSIS

In this appeal, Coleman contends his counsel was ineffective at both the plea hearing and at sentencing while the government argues that counsel's actions were entirely reasonable. Like two ships that pass in the night, both parties focused on entirely different matters, failing to address the core arguments of their respective opponent. Nevertheless, we first examine Coleman's ineffective assistance claim as it relates to counsel's performance at the plea hearing. We will then consider Coleman's claim that his counsel's assistance was ineffective at his sentencing hearing. We review a district court's ruling on ineffective assistance of counsel de novo under the principles set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A. Ineffective Assistance of Counsel at the Plea Hearing

Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), held that the Strickland analysis applies to counsel's conduct during the pleading phase. To mount a successful claim that counsel was ineffective at the pleading stage, Coleman must first show his attorney performed in a deficient manner, Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, and then prove that "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 58-59, 106 S.Ct. 366. Our scrutiny of counsel's performance is highly deferential. United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir.1990). Coleman also has a difficult burden of proof as he must overcome the strong presumption that his attorney's performance was effective. Chichakly v. United States, 926 F.2d 624, 627 (7th Cir.1991). To meet this burden, Coleman must establish specific acts or omissions of his counsel which constitute ineffective assistance. We then determine whether these acts or omissions were made outside the wide range of professionally competent assistance. Menzer v. United States, 200 F.3d 1000, 1003 (7th Cir.2000). To find that Coleman's guilty plea was involuntary as a result of ineffective assistance of counsel, his attorney must have given advice that falls below prevailing professional norms. Chichakly v. United States, 926 F.2d 624, 628 (7th Cir.1991).

Coleman offers little as to why he was denied the effective assistance of counsel during the plea colloquy. Moreover, he fails to apply the Strickland test, making only a passing reference to the case. Coleman's treatment of Strickland and its progeny as negligible points of law cannot be emphasized enough. This is especially true, given his approach of relying on conclusory assertions in lieu of any reasonable Strickland analysis.

Despite these analytical missteps, Coleman attempts to establish a specific omission of his counsel which constitutes ineffective assistance. Specifically, he argues that defense counsel erred when he failed to speak to Coleman after the prosecutor neglected to include the weight stipulation as one of the provisions in the plea agreement to which the government would not be bound. According to Coleman, defense counsel was either not paying attention during the exchange between the court and the government or counsel believed that the prosecutor's omission was inadvertent. He contends that either circumstance constitutes ineffective assistance of counsel. Coleman contends that the failure of counsel to fully inform him that there would not be a limit on the drug weight resulted in a guilty plea entered...