Galbraith v. U.S.

• Decision Date: 19 December 2002
• Docket Number: No. 01-4263.,01-4263.
• Citation: 313 F.3d 1001
• Parties: Roger G. GALBRAITH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

313 F.3d 1001

Roger G. GALBRAITH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 01-4263.

United States Court of Appeals, Seventh Circuit.

Argued September 9, 2002.

Decided December 19, 2002.

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Jeffrey M. Brandt (argued), Robinson Brandt Law Offices, Cincinnati, OH, for Petitioner-Appellant.

J. Christopher Moore (argued), Office of the U.S. Atty., Benton, IL, for Respondent-Appellee.

Before CUDAHY, EASTERBROOK, and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

In this successive appeal, Roger Galbraith argues that his unconditional guilty plea to certain methamphetamine charges was unknowing, involuntary and unintelligent, and was the product of constitutionally ineffective assistance of counsel. In an earlier determination, Galbraith's motion to suppress evidence obtained as a result of a warrantless search was denied. Subsequently, Galbraith submitted an unconditional guilty plea to both charges on the day his jury trial was to commence. On appeal, his attempt to seek review of the denial of his motion to suppress evidence was denied as waived by the unconditional guilty plea. In the present action, Galbraith petitions for relief under 28 U.S.C. § 2255, seeking to set aside his guilty plea as the product of the court's failure to ensure his full understanding of the waiver of his appellate rights and of the ineffective assistance of counsel to do the same. The district court denied his petition. We affirm.

I.

On November 24, 1997, Roger Galbraith, and his now-deceased wife, were arrested by Drug Enforcement Agency ("DEA") agents for the manufacture of methamphetamine based on evidence discovered during a warrantless search of Galbraith's premises in the weeks before. United States v. Galbraith, 200 F.3d 1006, 1009 (7th Cir.2000) ("Galbraith I"). The detailed facts surrounding this search are adequately outlined in Galbraith's previous appeal to this court. Id. In April 1998, Galbraith moved to suppress the evidence gathered during that search, along with any statements made by Galbraith as a consequence of the search, as the products of an illegal search in violation of his Fourth Amendment rights. On April 16, 1998, the district court, after a hearing on the motion, denied Galbraith's motion to suppress. A grand jury returned a two-count indictment against Galbraith on April 23: Count 1 alleged conspiracy to distribute and possession with intent to distribute methamphetamine under 21 U.S.C. §§ 841(a), 846; count 2 alleged conspiracy to manufacture methamphetamine under the same provisions.

Galbraith's case initially went to a jury trial on October 29, 1998. On November 2, 1998, eleven jury members had already been selected and the court was ready to begin taking testimony when Galbraith entered a change of plea, and pleaded guilty, unconditionally, to both count one and count two of the indictment. The plea was spontaneously undertaken by Galbraith without any prior negotiation with the prosecutors. See Change of Plea Transcript at 10 (Asst. U.S. Attorney Moore noting, "I wasn't expecting this plea at all this morning ...."). As required under Federal Rule of Criminal Procedure 11, the district court, before accepting Galbraith's plea, engaged in an on-the-record colloquy concerning Galbraith's plea. The court ensured that Galbraith understood the nature of the charges against him (Change of Plea Transcript at 5-6); the maximum penalties possible under those charges (id. at 6-7); the applicability and possible variations of the Federal Sentencing Guidelines (id. at 9-12). See Fed. R.Crim.P. 11(c)(1). The district court also insured his understanding of his right to persist in a not guilty plea (Change of Plea Transcript at 8); his right to a jury trial (id.); his right to the assistance of his lawyer at a trial (id.); and his right against self-incrimination (id.). See Fed. R.Crim.P. 11(c)(3). Additionally, the court inquired into the factual basis for the charges supporting the plea (Change of Plea Transcript at 12-14). See Fed. R.Crim.P. 11(f). Finally, the court made certain that Galbraith's plea was voluntary and not the result of incapacity, force, threats or promises (Change of Plea Transcript at 15). See Fed.R.Crim.P. 11(d). The court did not, however, make certain that Galbraith understood that his unconditional plea waived the right to appeal the denial of his motion to suppress. See United States v. Adams, 125 F.3d 586, 588 (7th Cir.1997) (noting that an unconditional plea is "a waiver of non-jurisdictional defects occurring prior to the plea," including Fourth Amendment claims).

Galbraith was sentenced on March 3, 1999, to 151 months in prison. In his direct appeal, in addition to appealing certain aspects of his sentence, Galbraith appealed the denial of his motion to suppress. Arguing strictly on the merits, Galbraith contended that the DEA's search had been in violation of his Fourth Amendment rights, and the district court's denial of his motion to suppress was in error. This court affirmed the district court in all respects. Galbraith I, 200 F.3d at 1010. The merits of Galbraith's appeal of his motion to suppress were never considered because he had waived his right to appeal by entering an unconditional plea in the district court. Id.

On January 9, 2001, Galbraith filed a petition for relief pursuant to 28 U.S.C. § 2255, arguing that (1) his guilty plea was not knowing and voluntary (based on a lack of awareness of the elements of his offense, a lack of awareness of the direct consequences of his plea and ineffective assistance of counsel in his guilty plea), (2) his counsel rendered ineffective assistance in his sentencing and (3) the statutes under which he was convicted were unconstitutional. The district court denied Galbraith's petition in all respects. The court held that the record belied any lack of voluntariness or knowledge as related to the elements of his offense. As to ineffective assistance of counsel rendering him ignorant of the consequences of his plea, the court found that Galbraith had presented no objective evidence that his trial counsel's performance fell below objectively reasonable standards of effective representation nor that this alleged ineffectiveness prejudiced Galbraith's defense. See Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). All it had, the district court noted, was Galbraith's own "self-serving statement" that his trial counsel was ineffective. Galbraith v. United States, 2001 WL 34054922, *5, Memorandum at 8, No. 01-cv-4012-JPG (S.D.Ill. Nov. 14, 2001) ("Mem.Op."). Galbraith's claim of ineffective counsel at sentencing and his claim of unconstitutionality of the statutes of conviction were both procedurally defaulted by his not having raised them on direct appeal, and Galbraith failed to show cause and prejudice. Therefore the district court did not consider the merits of those claims. 2001 WL 34054922, at *7, Mem. Op. at 10-11.

A certificate of appealability was granted by the district court with respect to the argument that Galbraith's guilty plea was not knowing and voluntary because he was not aware of the consequences of his plea and because his trial counsel rendered ineffective assistance in not informing him of the consequences of his plea, in violation of Galbraith's Fifth Amendment rights. This appeal followed.

II.

A.

A district court's decision to deny a petition under § 2255 is reviewed for clear error in factual matters and de novo as to issues of law. Tezak v. United States, 256 F.3d 702, 712 (7th Cir.2001).

Due process requires that a guilty plea, to be valid, be made voluntarily, intelligently and knowingly. Brady v. United States, 397 U.S. 742, 747, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993). A plea is voluntary when it is not induced by threats or misrepresentations, and the defendant is made aware of the direct consequences of the plea. United States v. Jordan, 870 F.2d 1310, 1317 (7th Cir.1989) (citing Brady, 397 U.S. at 755, 90 S.Ct. 1463). A plea is knowing and intelligent when the defendant is competent, aware of the charges and advised by competent counsel. Id.

Galbraith's due process claim appears to have two main points: First, that his plea was involuntary because he did not know that his unconditional plea waived the right to challenge the denial of his motion to suppress (a "direct consequences" argument). This is simply an attack on the Rule 11 colloquy between the district court and Galbraith that was held when Galbraith entered his guilty plea. Second, Galbraith claims that his plea was not knowing and intelligent because the failure of his trial counsel to inform him of the consequences of his plea rendered counsel's assistance constitutionally ineffective.¹

B.

The government argues that Galbraith has procedurally defaulted these arguments because they were not raised on direct appeal. When an issue is not raised on direct appeal, but later attacked collaterally via a petition for post-conviction relief, the petitioner will be barred from collateral review unless he can show good cause for failing to raise the issue and actual prejudice. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.1996). Additionally, a showing that a refusal to consider the issue would be a "fundamental miscarriage of justice" can overcome the default. Prewitt, 83 F.3d at 816. As will be shown, Galbraith has defaulted his "direct consequences" claim, but not his ineffective assistance of counsel claim.

First, we consider whether Galbraith has defaulted his "direct consequences" claim — that the district court failed to ensure his understanding of his plea's unconditional waiver effect — by not raising it on direct appeal in Galbraith I. After his unconditional guilty...