Julian v. Bartley

• Decision Date: 25 July 2007
• Docket Number: No. 05-3835.,No. 05-3836.,05-3835.,05-3836.
• Citation: 495 F.3d 487
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: David JULIAN, Petitioner-Appellant, v. Kenneth G. BARTLEY, Warden<SMALL><SUP>1</SUP></SMALL>, Respondent-Appellee.

495 F.3d 487

David JULIAN, Petitioner-Appellant, v. Kenneth G. BARTLEY, Warden¹, Respondent-Appellee.

No. 05-3835.

No. 05-3836.

United States Court of Appeals, Seventh Circuit.

Argued October 19, 2006.

Decided July 25, 2007.

Eric P. Gotting (argued), E. King Poor, John A. McMillan, Winston & Strawn, Washington, DC, for Petitioner-Appellant.

Leah C. Myers (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before RIPPLE, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

In this appeal of the denial of a habeas corpus petition, David Julian asks this court to consider whether the state court properly determined that his counsel did not provide ineffective assistance of counsel during plea negotiations when that counsel misinterpreted the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and informed Julian that the maximum sentence he could receive would be thirty, rather than sixty years in prison.

I.

On August 15, 2000, Julian and his state court trial counsel, Dennis Sheehan, met with Illinois State's Attorneys and the court to discuss a negotiated plea agreement. He was looking down both barrels of a double-barreled gun, having been indicted on May 3, 2000 for a robbery committed that same day, and indicted on May 18, 2000 for a robbery committed on April 30, 2000. At the hearing, the State summarized the plea disposition under which Julian would be sentenced to twenty-three year concurrent terms for the two armed robberies. Just before Julian started to enter his plea, the State mentioned that Julian was on supervised release for a previous armed robbery conviction. In response, the trial judge informed Julian that state law required that he serve his sentence for the armed robbery consecutively with any separate sentence imposed for a parole violation. At that point, Julian conferred with his attorney and then rejected the plea. According to Julian, his lawyer informed him that the Supreme Court had just recently issued a new opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which required any fact that increases the penalty for a crime beyond the statutory maximum to be submitted to a jury and proved beyond a reasonable doubt. Julian testified that Sheehan informed him that because the indictments on the two charges of armed robbery did not mention the prior conviction, the longest sentence he could receive would be thirty years. According to Julian's testimony, Sheehan presented the information to him as a guarantee. According to Sheehan's testimony, Sheehan never guaranteed Julian a maximum sentence of thirty years. Sheehan did testify, however, that he recalled telling Julian that "since there wasn't an additional clause in the Bill of Indictment that made comment about his first conviction for armed robbery, that under those circumstances, it would seem to me that based upon a reading of Apprendi, he couldn't get anything more than 30." (Tr. 3/17/03 at 25).² In any event Julian rejected the plea and proceeded to trial on each of the two indictments — first a jury trial followed later by a stipulated bench trial. Unfortunately for Julian, Sheehan was only half right about the holding of Apprendi. It did indeed hold that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, but it specifically exempted from this holding the fact of a prior conviction. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Julian proceeded to trial and was sentenced to forty-year concurrent terms.

After Julian was sentenced in the first trial, Sheehan filed an unsuccessful motion to reconsider the sentence, arguing that based on Apprendi, Julian should have received thirty years, at most. Several days later, at a sentencing hearing for the second conviction, Julian submitted a letter to the court that stated, in part:

I want you to now bring up the Apprendi v. N. [sic] Jersey as a factor in my sentencing as well as the fact that you stated to me that due to the states [sic] mishandling of the indictment in these cases that I've guaranteed myself a maximum of 30 years, per charge.

(R. at 10, Ex. D, p. 3 & Ex. A, p. 32-33, 39-40)³. The court did not review the letter, but it was entered into the record under seal, over the State's objection.

Julian filed timely direct appeals and motions for post-conviction relief that raised the issue of ineffective assistance of counsel. In those appeals, Julian argued that his attorney was ineffective when he advised Julian that he could not receive more than a thirty-year sentence because of limitations set forth in Apprendi. He also contended that he would have accepted the plea offer of twenty-three years had he known that his potential sentence could have exceeded thirty years.

During the evidentiary hearing held during the post-conviction proceedings, both Julian and Sheehan testified about the Apprendi issue. Sheehan's version of the facts differs from Julian's only in the level of certainty Sheehan provided regarding the thirty-year sentence. Julian described Sheehan's advice as a guarantee as shown in the following exchange:

Q: And did Mr. Sheehan advise you what the absolute maximum sentence would be that you could receive?

A: Yes, sir.

Q: And what did he tell you the absolute maximum sentence you could receive would be on these cases?

A: 30 years.

Q: Did he cite any particular case that you remember in support of his statements to you?

A: Yes, sir.

Q: What was that?

A: The Apprendi vs. New Jersey.

Q: And what was your — from what he told you during these meetings on this issue, what was your understanding of that?

A: My understanding was that due to the way I was improperly —

Q: I'm sorry, let me cut you off. What did Mr. Sheehan tell you regarding that, to the best of your recollection, Apprendi?

A. He told me, due to the Apprendi, that I have guaranteed myself no more than 30 years.

(Tr. 3/13/03 at 6-7). Sheehan testified about the Apprendi advice as follows:

First, on direct examination the following exchange occurred:

Q: And did you ever advise or make a statement to Mr. Julian to the effect that because of this Apprendi Case, that he was guaranteed or that the most he could get was 30 years in the Department of Corrections?

A. No.

(Tr. 3/17/03 at 12). On cross-examination, he elaborated further:

Here is what I remember telling him about it. I remember saying to him that my reading of the Apprendi Case indicated to me that since there wasn't an additional clause in the Bill of Indictment that made comment about his first conviction for armed robbery, that under those circumstances it would seem to me that based upon a reading of Apprendi, he couldn't get anything more than 30. That's basically what I told him.

(Tr. 3/17/03 at 25). On re-direct examination, Sheehan testified as follows:

Q: ... [D]id you ever tell Mr. Julian then that based on that case and based on your interpretation of that case [Apprendi], would be held here in the State of Illinois, that he was guaranteed to only get 40[sic] years?

A: ... [T]he answer to that question is no. I indicated to him that it was for the Court to make a determination as to his penalty and certainly not myself.

(Tr. 3/17/03 at 31-32).

Julian's friend, Richye Herlihy, testified that Sheehan told her that Julian could get up to thirty years in prison, but no more. (Tr. 3/13/03 at 50).

Julian and Sheehan agree that, prior to the decision in Apprendi, at his first court appearance on May 3, 2000, both Sheehan and the trial Judge informed Julian that he was eligible for a term of up to sixty years. Julian testified, however, that Sheehan later informed him that Apprendi had altered the landscape and changed the maximum he could receive. (Tr. 3/13/03 at 45-46, 55).

The state post-conviction court denied Julian's request for post-conviction relief, finding clear evidence that both the court and Julian's counsel advised Julian that he was eligible for an extended term of up to sixty years. (R. at 10, Ex. H, p. 1). Julian's appeal to the state appellate court resulted in a similar conclusion (R. at 10, Ex. L), and the Illinois Supreme Court denied his petition to appeal (R. at 10, Ex. N).

On petition for a writ of habeas corpus, the district court below concluded that there was no clear and convincing evidence that the state court's factual determination — that Julian's counsel did not erroneously inform him that he could not receive a sentence greater than 30 years — was unreasonable based on the record. Our review of the district court's decision to deny the petition for writ of habeas corpus is de novo. Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir.), cert. denied, 546 U.S. 866, 126 S.Ct. 153, 163 L.Ed.2d 152 (2005).

II.

Our review of this habeas petition, like all habeas petitions, is limited by the terms of the Antiterrorism and Effective Death Penalty Act (AEDPA). Habeas relief must not be granted unless the state court's adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). In assessing the reasonableness of the state court's decision, the federal court assumes that the state courts' factual determinations are correct unless the defendant rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Our review of this case utilizes both prongs of the § 2254(d). We begin with a discussion of the state court's fact-finding. The state post-conviction court's complete discussion of the evidence on this...