Hays v. U.S.

• Decision Date: 10 February 2005
• Docket Number: No. 04-2456.,04-2456.
• Citation: 397 F.3d 564
• Parties: Jon Riley HAYS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

397 F.3d 564

Jon Riley HAYS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 04-2456.

United States Court of Appeals, Seventh Circuit.

Argued December 6, 2004.

Decided February 10, 2005.

William P.Ziegelmueller (argued), Stetler & Duffy, Chicago, IL, for Petitioner-Appellant.

Stephen B. Clark (argued), Ranley R. Killian, Jr., Office of the United States Attorney, Fairview Heights, IL, for Respondent-Appellee.

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

KANNE, Circuit Judge.

Jon Riley Hays, a licensed medical doctor, pled guilty to two charges stemming from his illegal use of OxyContin. Count I charged Hays with tampering with a consumer product, and Count II charged him with possession of a controlled substance by misrepresentation or fraud. Hays was sentenced to fifty-one months in prison for Count I and a concurrent sentence of forty-eight months for Count II. Hays now asks for collateral relief under 28 U.S.C. § 2255, claiming that his attorneys provided ineffective assistance and that his plea was not voluntary because he did not understand the nature of the charges against him. The district court denied his motion. For the reasons set forth in this opinion, we affirm.

I. History

Hays practiced medicine in several towns in rural Illinois. In early 2000, he was involved in a car accident which caused injury to his back. He began taking OxyContin to relieve his pain and became addicted to the drug. Although the recommended oral dosage was 20 to 40 mg per day, Hays would often inject approximately 300 mg of the drug in a day.

In order to gain access to such a large amount of OxyContin, Hays prescribed it to his patients and then stole the drug from them during house calls. How he did this is in some dispute. The state argues that he crushed the OxyContin tablets, dissolved the particles in a syringe, and injected the patient with a portion of the dissolved drug. He then left with a syringe filled with the drug and some of the remaining tablets for his own use. Hays denies that he injected patients with the dissolved OxyContin, stating that he thought "crushing something... would be dangerous." He claims that he occasionally broke pills in half or prescribed more of the drug than the patient needed so that he could take some of the pills for himself. He also injected some patients with a placebo (i.e., lidocaine or saline) so that he could inject the entire dosage of OxyContin into himself.

Under Count I of the indictment, Hays was charged with tampering with a consumer product:

Whoever, with reckless disregard for the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product that affects interstate or foreign commerce ... [shall] be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. § 1365(a), (a)(4). Count II alleged that Hays had "acquire[d] or obtain[ed] possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge." 21 U.S.C. § 843(a)(3). Hays pled guilty to these charges but now seeks relief from his fifty-one month sentence under 28 U.S.C. § 2255.

II. Analysis

Relief under § 2255 "is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.1996) (citing Brecht v. Abrahamson, 507 U.S. 619, 633-34, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). The court may vacate or correct Hays's sentence if he can "show that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Prewitt, 83 F.3d at 816 (citing Theodorou v. United States, 887 F.2d 1336, 1338 n. 2 (7th Cir.1989)). We review the district court's denial of the § 2255 motion de novo. McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir.1996).

In order for a plea to be valid, it must be made voluntarily, knowingly, and intelligently. See United States v. Gilliam, 255 F.3d 428, 432-33 (7th Cir.2001) (citing McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). Hays now argues that his plea was not intelligent or voluntary and that his attorney provided ineffective assistance.

A. Hays's Conduct Affected Interstate Commerce

A guilty plea is not made intelligently unless the defendant receives "real notice of the true nature of the charge against him...." Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941). Hays argues that because "neither [Hays], nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged," the guilty plea is not valid. See Bousley v. United States, 523 U.S. 614, 618-19, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The misunderstanding that Hays alleges relates to the interstate commerce element of 18 U.S.C. § 1365(a).

Hays relies on a Tenth Circuit decision as support for his argument that neither his counsel nor the court truly understood what was necessary for proving the interstate commerce element of § 1365(a). In United States v. Levine, the court held that "the effect on interstate commerce must occur at or after the tainting." 41 F.3d 607, 614 (10th Cir.1994). The court noted that "the interstate commerce requirement is phrased in the present tense." Id. Therefore, it should be read to penalize one who tampers with a product that "affects interstate commerce." This "suggests that the consumer product must have either a present effect or an effect in the future, and appears to exclude pre-tainting events." Id.

At the change of plea hearing, the court established that OxyContin is manufactured in Minnesota and that the tampering occurred in Illinois. This was taken as adequate evidence of an effect on interstate commerce. Hays believes that the question should have been whether the drug had any effect on interstate commerce after Hays gained access to the OxyContin at the homes of his patients. He argues that his lawyers should have been aware of Levine and should have advised him not to plead guilty.

Even if it is on point, a Tenth Circuit decision is not binding on courts in other circuits. See United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir.1994). We decline to follow Levine. We find the Eighth Circuit's decision in United States v. Moyer to be persuasive. 182 F.3d 1018 (8th Cir.1999). In that case, the court reasoned that when a nurse stole morphine, she depleted the supply of morphine and caused more to be ordered. The morphine that was ordered traveled in interstate commerce. Under this reasoning, when a drug is manufactured outside the state, the law of supply and demand can support a violation of § 1365(a). See Moyer, 182 F.3d at 1021.

Also instructive was our decision in United States v. Cunningham, 103 F.3d 553 (7th Cir.1996). In that case, a nurse stole Demerol from a locked cabinet and replaced the drug with saline. This tampering arguably occurred after the drug had traveled in interstate commerce. The court did not discuss the interstate commerce element in upholding Cunningham's conviction under § 1365, but the case can be read to state implicitly that the timing of the tampering is irrelevant.

Hays does not deny that he tampered with OxyContin. By breaking pills, injecting saline, and stealing up to half of the drugs he prescribed, he denied patients who were dying of cancer their pain medication. Because of the prescriptions he wrote to facilitate his use of the drug, pharmacies in Illinois were required to order more OxyContin from Minnesota to replenish their supplies. Under the supply and demand theory, this is enough to support a violation of § 1365(a).

The Supreme Court has indicated that the phrase "affecting commerce" usually "signals Congress' intent to exercise its Commerce Clause powers to the full." Allied-Bruce Terminix Co. v. Dobson, 513 U.S. 265, 273, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). We find that a violation of § 1365(a) occurs whether the tampering takes place before, during, or after the product moves in interstate commerce. Therefore, Hays did have real notice of the charges against him and his guilty plea was made intelligently.

B. Ineffective Assistance

Hays claims that his counsel failed to adequately advise him of the elements of the tampering charge and that he was provided with false information about his likely sentence. "To demonstrate prejudice arising from a guilty plea allegedly rendered involuntary by counsel's deficient performance, a petitioner must establish that counsel's performance was objectively unreasonable and that, but for counsel's erroneous advice, he would not have pleaded guilty." Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir.2000) (citation omitted). This test is "highly deferential" to counsel and presumes reasonable judgment and effective trial strategy. See United States v. Scanga, 225 F.3d 780, 783-84 (7th Cir.2000).

Hays argues that he is actually innocent of the tampering charge and that he would not have pled guilty to it if he had understood the elements. However, because we decline to accept the rationale of Levine, we find that Hays's counsel was objectively reasonable in allowing Hays to plead guilty.

Hays claims his attorney misrepresented what his sentence would be if he did not plead guilty. Specifically, Hays states that his counsel told him that he should plead guilty because the prosecutors were personally angry with him and that they win ninety-nine percent of their cases. He says that counsel informed him that if he did not plead guilty to Count I, the prosecutors would "de-stack" the charges against him and he might have to spend ten to twenty years in prison. Hays says he was told that if he did accept the plea agreement, he would probably receive a very short sentence or possibly just probation...