Hurlow v. United States

• Citation: 726 F.3d 958
• Decision Date: 09 August 2013
• Docket Number: No. 12–1374.,12–1374.
• Parties: Thomas H. HURLOW, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

726 F.3d 958

Thomas H. HURLOW, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 12–1374.

United States Court of Appeals,

Seventh Circuit.

Argued May 29, 2013.

Decided Aug. 9, 2013.

Richard P. Caldarone (submitted), Mayer Brown LLP, Washington, DC, for Petitioner–Appellant.

Jonathan A. Bont (submitted), Office of the United States Attorney, Indianapolis, IN, for Respondent–Appellee.

Before BAUER, WOOD, and TINDER, Circuit Judges.

BAUER, Circuit Judge.

Petitioner Thomas Hurlow pleaded guilty to multiple drug and firearm offenses after law enforcement officials discovered drugs and a firearm in the home Hurlow shared with his fiancée. In a written plea agreement, Hurlow waived his right to challenge his conviction under 28 U.S.C. § 2255. He has done just that, though, alleging in a § 2255 petition that he advised his trial counsel of events that suggested that the search of his home was in violation of Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), but that counsel failed to investigate those events and instead persuaded Hurlow to plead guilty. The district court denied Hurlow's request for an evidentiary hearing and concluded that his § 2255 motion was barred by the waiver in his plea agreement. Because the § 2255 waiver in his plea agreement does not bar his claim that his trial counsel was ineffective in negotiating the plea agreement, we remand the matter to the district court for an evidentiary hearing on that claim.

I. BACKGROUND

On December 16, 2008, a case worker from the Indiana Department of Child Services and two detectives from the Vigo County Drug Task Force arrived at the home Hurlow shared with his fiancée, Tina Funk, to conduct a welfare check on Funk's children. According to Hurlow, he objected to the presence of the detectives and requested that they leave unless they had a valid search warrant. The detectives instead asked Funk for her permission to search the house. The detectives told Funk that her children would be taken from her if she did not agree to the search; Funk gave her written consent to the search over Hurlow's objections.

During the search that followed, the detectives found a substance containing detectable amounts of methamphetamine, marijuana, drug paraphernalia, and a handgun. After being taken into custody and read his Miranda warnings, Hurlow told the detectives that all of the illegal items found belonged to him and that Funk had no knowledge that the drugs were in the home.

According to Hurlow, he told his appointed trial counsel the circumstances surrounding the search of the home that led to his arrest. He also informed counsel that his “rights ha[d] been violated” by the search and “requested that [counsel] advocate that as a defense.” Hurlow contends, though, that counsel “failed to listen to Hurlow's version of events,” “fail[ed] to investigate” the events surrounding the search, and otherwise failed to make “any attempt” to pursue Hurlow's claim that the search was illegal. Instead, counsel persuaded Hurlow to plead guilty to avoid a sentence of “30 years to life imprisonment.”

Based on counsel's advice, Hurlow entered into a plea agreement with the government and pleaded guilty to all of the charges against him. Like many plea agreements, this one contained a provision noting Hurlow's agreement not to contest his conviction or sentence in a collateral attack under 28 U.S.C. § 2255. In addition to the plea agreement, the parties submitted a stipulated factual basis for the plea to the district court. Regarding the December 2008 search that led to Hurlow's arrest, the document states that “Funk granted [the detectives] consent to search [the home] in writing.”

During his change of plea hearing on July 28, 2009, the district court conducted a Rule 11 colloquy, and Hurlow affirmed the factual basis for the plea, including that Funk consented to the search. He also affirmed that he was satisfied with his counsel's representation and that he had “had sufficient time to talk with him and to work with him to try to consider any options that [Hurlow] might have in this case[.]” Hurlow agreed that there was not anything that he wanted his counsel “to do in regards to this case that he failed to do [.]” The district court concluded that Hurlow's plea was “knowing and voluntary,” and ultimately sentenced him to 248 months' imprisonment.

On September 9, 2010, Hurlow filed a motion for postconviction relief pursuant to 28 U.S.C. § 2255, arguing, among other claims, that his plea agreement was involuntary because it resulted from the ineffective assistance of trial counsel. Hurlow alleged that he informed his trial counsel of the facts surrounding the search of the home he shared with Funk but that counsel failed to listen to Hurlow, conduct any investigation regarding the search, or file a motion to suppress that would have been successful under Georgia v. Randolph. He instead persuaded Hurlow to plead guilty.

The district court rejected Hurlow's request for an evidentiary hearing and denied his § 2255 motion, concluding that Hurlow had “waived his opportunity to challenge his conviction pursuant to § 2255.” The district court reasoned that the waiver in the plea agreement barred Hurlow's motion because Hurlow had not alleged that his counsel was “ineffective with regard to negotiation of the waiver” and his statements at his plea colloquy indicated that “his plea was knowing, intelligent, and voluntary.” The district court accordingly denied Hurlow's § 2255 motion, denied a certificate of appealability, and entered judgment on September 26, 2011.

On February 9, 2012, the district court docketed Hurlow's notice of appeal.¹ Because the district court received the notice of appeal outside the sixty-day window under Federal Rule of Appellate Procedure 4(a)(1)(B), we ordered Hurlow to address the timeliness of his appeal. In response, Hurlow filed declarations asserting that he mailed his notice of appeal on October 27, 2011, and seeks to avail himself of the prison “mailbox rule.” SeeFed. R.App. P. 4(c).

According to Hurlow, on October 27, 2011, he prepared his notice of appeal and request for a certificate of appealability, placed the documents in a “postage pre-paid envelope,” and deposited them in a mailbox located in his unit at Federal Correctional Institution (F.C.I.) Williamsburg, the prison where he was incarcerated. Hurlow says that “the [Federal Bureau of Prisons] [has] a system for mailing letters certified,” and that “the mailroom staff will document when [the mail was sent] and to whom it is addressed,” but that he did not believe he had to send his notice of appeal that way based on a conversation with the prison mailroom staff. Specifically, Hurlow maintains that the “mailroom staff” told him that using the mailbox in his unit “was just as efficient as placing [the envelope] into their hands for first class mail,” that it “ma[de] no difference” which method he chose, and that the envelope “is considered delivered to the court the moment it is done.”

On October 31, 2012, we granted Hurlow's request for a certificate of appealability as to his claim that he was denied his Sixth Amendment right to effective assistance of counsel in the negotiation of his plea agreement.

II. DISCUSSION

This appeal does not involve the merits of Hurlow's ineffective assistance of counsel claim. Rather, the appeal presents us with two issues that go to whether Hurlow should be heard on that claim: the timeliness of his appeal and the effect of the § 2255 waiver in his plea agreement. We address each in turn.

A. Timeliness of Hurlow's Appeal

We first consider whether the prison mailbox rule applies to Hurlow's filing of his notice of appeal, thereby rendering it timely. The prison mailbox rule, established by the Supreme Court in Houston v. Lack, 487 U.S. 266, 275–76, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), and codified in Rule 4(c) of the Federal Rules of Appellate Procedure, provides that a prisoner's notice of appeal is deemed filed at the moment the prisoner places it in the prison mail system, rather than when it reaches the court clerk. In order to receive the benefit of the prison mailbox rule, Rule 4(c) requires that an inmate use the prison's legal mail system if it has one. United States v. Craig, 368 F.3d 738, 740 (7th Cir.2004) (citing Fed. R.App. P. 4(c)(1)). If, however, “the prison lacks such a system: ‘Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first class postage has been prepaid.’ ” Id. (quoting Fed. R.App. P. 4(c)(1)).

Here, in response to our request for briefing on the timeliness of his appeal, Hurlow filed declarations stating that he placed his notice of appeal in a postage pre-paid envelope in his prison's mail system on October 27, 2011, well within the sixty-day window to appeal. The government contends that Hurlow failed to comply with Rule 4(c), however, because Hurlow's statement that F.C.I. Williamsburg had a system for sending certified mail affirmatively establishes that F.C.I. Williamsburg had a system for legal mail, and Hurlow did not use it. Alternatively, the government argues that Hurlow is not entitled to the benefit of the prison mailbox rule because he has not shown that F.C.I. Williamsburg did not have a legal mail system at the time he mailed his notice of appeal.

We find no merit to either argument. First, that the prison had a system for sending and logging certified mail does not mean it had a system “designed for legal mail.” SeeFed. R.App. P. 4(c). A “legal” mail system for purposes of Rule 4(c)(1), is one that, at a minimum, is a “special” system separate from the prison's general mail system. See Ingram v. Jones, 507 F.3d 640, 644 (7th Cir.2007) (noting that the prison had a “separate legal mailing system”); United States v. Gray, 182 F.3d...