Gardner v. United States

• Decision Date: 25 May 2012
• Docket Number: No. 10–1576.,10–1576.
• Citation: 680 F.3d 1006
• Parties: Derrick GARDNER, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

680 F.3d 1006

Derrick GARDNER, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 10–1576.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 29, 2012.

Decided May 25, 2012.

Kevin S. Ranlett, Brian J. Wong (argued), Attorneys, Mayer Brown LLP, Washington, DC, for Petitioner–Appellant.

David E. Bindi (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Respondent–Appellee.

Before BAUER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

A federal jury convicted Derrick Gardner of possession of a firearm by a felon, prohibited by 18 U.S.C. § 922(g)(1), after police frisked him and discovered a pistol inside his coat pocket. Gardner insisted that the police had planted the gun on him; this led his lawyer to believe that he could not argue that the firearm was the fruit of a suspicionless search. In this collateral proceeding under 28 U.S.C. § 2255, Gardner argues that his trial counsel rendered ineffective assistance in two respects: (1) by refusing to move to suppress the firearm as the product of an unreasonable search; and (2) by not explaining to Gardner that his testimony at a suppression hearing could not be used at trial as evidence of his guilt. See Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The parties agree that if the district court incorrectly determined that counsel's performance was adequate, an evidentiary hearing would be necessary to determine prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We reject Gardner's Simmons argument, but we agree with his first point. Gardner's insistence that the police planted the gun on him neither justified nor compelled counsel to refrain from challenging the search that produced the weapon. We thus reverse the district court's decision and remand for the court to determine whether counsel's failure to move to suppress the weapon prejudiced Gardner.

I

In October 2002 two police officers responded to a radio dispatch reporting an “assault in progress” by a “man with a gun” at unit 407 of a Chicago apartment building. According to the officers' testimony at trial, when they arrived they saw Gardner just outside an entrance to the building, about 50 feet from their car. Gardner approached them, and one officer asked him where he was coming from. He responded “407” and voluntarily placed his hands on the squad car for a pat-down search. The officers quickly found a nine-millimeter pistol in his jacket pocket and arrested him.

The account that Gardner eventually gave of the encounter bore no resemblance to that of the officers. He flatly denied that he offered to be searched. Instead, he said, he was “minding his own business” outside of the apartment building when the officers approached him and ordered him to submit to a search. In addition, Gardner “dispute[d] that he was actually carrying a gun, or that the officer retrieved a gun from his person.”

What Gardner could not deny, however, was the fact that he had several prior felony convictions at the time of the encounter when he was allegedly carrying the gun. This led to his indictment on one count of possession of a firearm by a felon. 18 U.S.C. § 922(g)(1). Gardner wanted to challenge the search that produced the gun, but his first appointed counsel refused to file a motion to suppress. Frustrated, Gardner himself filed a pro se motion that sought to suppress “all evidence and statements” stemming from the frisk. According to Gardner, who is African–American, the officers knew from the radio dispatch that the assailant was a black male weighing 165 pounds and with a height of 5' 7?. Because Gardner weighs 225 pounds and is 6' 2?, he argued in his pro se submission that the police lacked reasonable suspicion to detain and frisk him under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Gardner's counsel believed that Gardner's motion could not succeed unless Gardner was prepared to admit under oath that he had possessed the seized gun. Because of this conflict, counsel moved to withdraw. The district court granted the motion, struck Gardner's pro se motion, and appointed Gardner new counsel.

New counsel also refused to move to suppress the gun, but he did not try to withdraw. As a result, Gardner accused him of providing ineffective assistance and asked the court to dismiss him, but the court refused. The trial judge later stated at a pretrial conference that “you cannot file a motion to suppress an item taken from you while at the same time denying that the item was taken from you. It's just that simple.... And two attorneys have told you that.” Later at the pretrial conference, Gardner reiterated that he was not carrying a gun when the police searched him, saying “I ain't never seen the weapon.”

After a two-day trial at which the defense called no witnesses, Gardner was convicted. Before sentencing, he filed a pro se motion for a new trial in which he argued that the court had never properly ruled on his motion to suppress. At sentencing the prosecutor responded, without disagreement from Gardner's counsel, that if Gardner did “not have a possessory interest in the firearm, then he has no Fourth Amendment interests to vindicate.” Counsel added that he had repeatedly discussed “this same issue” with Gardner, to no avail. The court denied Gardner's motion for several reasons: the motion had not been signed, filed by counsel, or served upon the prosecution; and Gardner's denial of possession divested him of “standing.”

Following a successful appeal based on United States v. Paladino, 401 F.3d 471, 483–85 (7th Cir.2005), that resulted in a reduction of his prison term to 15 years, Gardner moved under § 2255 to vacate his conviction. He argued that his lawyer's refusal to file a suppression motion constituted ineffective assistance because it was based on the mistaken belief that the gun could not be suppressed as long as Gardner disputed possession. This was wrong, Gardner argued, because the police claimed to have found the gun during a search of his pocket, over which he had an expectation of privacy. And that expectation of privacy, Gardner continued, gave him grounds to challenge the search regardless of whether he admitted or denied possession of the gun.

In an affidavit attached to the § 2255 motion, Gardner also acknowledged for the first time that the officers did recover a gun from his pocket. He explained that he had contested possession in his motion to suppress only because he had believed that his assertions at a suppression hearing had to remain consistent with his not-guilty plea or they would be used against him at trial. He had not known otherwise, Gardner said, because counsel had not advised him of the rule in Simmons, 390 U.S. at 394, 88 S.Ct. 967. Gardner also reiterated in the affidavit that he never told the officers that he had visited apartment 407 or volunteered for a pat-down; instead, he elaborated, an officer ran up to him and forced him to the squad car for the pat-down search. The government's response included an affidavit from Gardner's second counsel, who said that he did not recall advising Gardner of the Simmons rule, but that he did remember telling Gardner that if he testified falsely at any hearing or at trial, his guidelines imprisonment range could be increased by two levels.

The district court denied the § 2255 motion. It ruled that counsel was not ineffective for failing to move to suppress because Gardner's position before trial that the police had planted a gun on him made any effort to suppress the gun a “nonstarter.” The court then determined that counsel was not ineffective for failing to mention the Simmons rule because Gardner never told counsel that he had in fact possessed the gun. Without an assertion that Gardner was prepared to admit possession to his lawyer, the court reasoned, the lawyer could not be faulted for failing to advise Gardner that such an admission could be made at a suppression hearing without fear that the admission would then be usable at trial as evidence of his guilt.

We issued a certificate of appealability on the question whether Gardner “received ineffective assistance when his trial counsel refused to file a motion to suppress on his behalf and did not explain to Gardner that any testimony he provided at a suppression hearing could not be used against him at trial.”

II

Within the general issue of the effectiveness of counsel, Gardner focuses on two instances of deficient performance: first, counsel's refusal to move to suppress the gun that the police allegedly extracted from his pocket, and second, counsel's failure to advise Gardner of the Simmons rule. The government primarily addresses the second issue and takes the position that the first is outside the scope of the certificate. We reject the latter contention. The certificate of appealability itself refers to two potential sources of incompetence—the refusal to file a motion and failure to render Simmons advice—not one. In addition, a certificate based on ineffective assistance of counsel brings up for appellate review all actions of counsel that the petitioner addressed in the district court. Stevens v. McBride, 489 F.3d 883, 894 (7th Cir.2007) (citing Peoples v. United States, 403 F.3d 844, 848 (7th Cir.2005)). The government does not contest that Gardner raised both grounds of ineffective assistance in his § 2255 motion, and so both are properly before us.

We begin with Gardner's Simmons argument, which we conclude does not support a finding of deficient performance. Gardner argues that competent counsel would have surmised that he denied possession for the sole reason that he did not know that Simmons prevents the government from using admissions received at a suppression hearing as evidence of guilt at trial. Gardner urges that the right created in Simmons has meaning only if defendants are...