Kafo v. U.S.

• Decision Date: 03 November 2006
• Docket Number: No. 05-3034.,05-3034.
• Parties: Saidi KAFO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

467 F.3d 1063

Saidi KAFO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 05-3034.

United States Court of Appeals, Seventh Circuit.

Argued September 11, 2006.

Decided November 3, 2006.

November 3, 2006.

Bruce R. Braun, John F. Kness (argued), Winston & Strawn, Chicago, IL, for Petitioner-Appellant.

Andrew C. Porter (argued), Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before RIPPLE, KANNE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Saidi Kafo appeals the denial of a motion brought pursuant to 28 U.S.C. § 2255. The district court denied the motion without an evidentiary hearing and further denied a certificate of appealability. On October 25, 2005, we granted a certificate of appealability on the issue of "whether [] counsel was ineffective for failing to file an appeal."¹ Kafo v. United States, No. 05-3034, 2005 WL 3817981 (7th Cir.Oct.25, 2005) (unpublished order). We further instructed the parties to address whether Mr. Kafo had presented enough evidence on this issue to warrant an evidentiary hearing.² We conclude that the amended motion submitted by Mr. Kafo was insufficient because it was not submitted under oath or accompanied by an affidavit. Following the course recommended by the Advisory Committee Notes to the Rules Governing Section 2255 Proceedings for the United States District Courts, we vacate the decision of the district court and remand the case with instructions that the court give the petitioner an opportunity to file such a verified pleading or affidavit.

I BACKGROUND

A. Facts

In November 2003, Mr. Kafo pleaded guilty to three counts of uttering a forged document. Subsequently, the district court sentenced him to 48 months' imprisonment. He did not file a direct appeal. Soon thereafter, however, Mr. Kafo did file a § 2255 motion. In the original version of that motion, he conceded that he had filed no direct appeal, but contended that he had asked his attorney to do so. His principal ground for relief was his contention that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), required that certain facts found in calculating his sentence should have been submitted to the jury.³ The Government responded that Blakely and Booker have been held not to apply retroactively and that Mr. Kafo's conviction became final before the Supreme Court rendered these decisions.

Mr. Kafo later moved to amend his § 2255 motion. In this amendment, he expanded on his earlier statement that, despite his request, his attorney had failed to file a direct appeal. Neither Mr. Kafo's original motion nor his amendment was signed under penalty of perjury as required by Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Neither document was submitted on the forms appended to the Rules or provided by local rule. See Rule 2(c) (requiring the motion to "substantially follow" one of the above forms).

In responding to Mr. Kafo's amended motion, the Government addressed his claims on the merits.⁴ The Government noted that Mr. Kafo had submitted no evidence in support of his ineffective assistance claim and contended that, "even if [the district court] were to consider defendant's [] motion, defendant should be required to submit affidavits or other evidence in order to present a colorable claim." R.11 at 4.

After receiving the Government's response, the district court granted Mr. Kafo's motion to amend his petition, but then denied, without a hearing, any further relief.⁵ In denying relief, the district court construed broadly the pleadings of Mr. Kafo, a pro se litigant, and examined both the Booker and ineffective assistance claims. The court first determined that the Booker claim was not meritorious under McReynolds v. United States, 397 F.3d 479 (7th Cir.2005).⁶ Turning to the ineffective assistance of counsel claim, the court noted that a failure to take an appeal despite a defendant's request is ineffective assistance per se in this circuit. See Castellanos v. United States, 26 F.3d 717 (7th Cir.1994).⁷ The court went on to note, however, that the essential inquiry in determining the viability of a Castellanos claim is whether the defendant comes forth with evidence that he had expressed his desire to appeal. R.13 at 4 (relying on Roe v. Flores-Ortega, 528 U.S. 470, 485, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), which stated that evidence "that the defendant in question promptly expressed a desire to appeal will often be highly relevant" to a determination of ineffectiveness); see also Castellanos, 26 F.3d at 719 ("[The defendant's] `request' [for an appeal] is an important ingredient in this formula."). The court found no evidence in the record to support the claim, and further noted that the allegations in the motion were not made under oath. Characterizing Mr. Kafo's allegations as "unsubstantiated," R.13 at 5, the motion was denied without an evidentiary hearing.

II DISCUSSION

We review the district court's decision to deny an evidentiary hearing for an abuse of discretion. Bruce v. United States, 256 F.3d 592, 597 (7th Cir.2001). The governing statute, 28 U.S.C. § 2255, provides, in pertinent part:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

(emphasis added). We have interpreted this provision as not requiring an evidentiary hearing when a petitioner's allegations are "vague, conclusory, or palpably incredible rather than detailed and specific." Bruce, 256 F.3d at 597 (internal citations and quotation marks omitted). Conversely, we have held that a district court must grant an evidentiary hearing when the petitioner "alleges facts that, if proven, would entitle him to relief." Id. (internal citations and quotation marks omitted). Mr. Kafo relies upon this latter language in Bruce and claims that the denial of a hearing was error.

We cannot accept Mr. Kafo's argument. As he admits, we also have stated that "[i]t is the rule of this Court that in order for a hearing to be granted, the petition must be accompanied by a detailed and specific affidavit which shows that the petitioner had actual proof of the allegations going beyond mere unsupported assertions." Prewitt v. United States, 83 F.3d 812, 819 (7th Cir.1996). We have referred to the affidavit as a threshold requirement; its absence precludes the necessity of a hearing. Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir.2002). Specifically, in Galbraith, we said that:

While [the petitioner] is correct that this court requires a district court to grant an evidentiary hearing if a § 2255 petitioner alleges facts that, if proven would entitle him to relief, the threshold determination that the petitioner has sufficiently alleged such facts requires the petitioner to submit a sworn affidavit showing what specific facts support the petitioner's assertions.

Id. (emphasis added) (internal citations and quotation marks omitted).

Our insistence that a petition under 28 U.S.C. § 2255 include an affidavit setting forth the specific basis for relief is nothing more than our enforcement of Rule 2 of the Rules Governing Section 2255 Proceedings for the United States District Courts. That Rule provides as follows:

Rule 2. The Motion

(a) Applying for Relief. The application must be in the form of a motion to vacate, set aside, or correct the sentence.

(b) Form. The motion must:

(1) specify all the grounds for relief available to the moving party;

(2) state the facts supporting each ground;

(3) state the relief requested;

(4) be printed, typewritten, or legibly handwritten; and

(5) be signed under penalty of perjury by the movant or by a person authorized to sign it for the movant.

(c) Standard Form. The motion must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule. The clerk must make forms available to moving parties without charge.

(d) Separate Motions for Separate Judgments. A moving party who seeks relief from more than one judgment must file a separate motion covering each judgment.

There are salutary reasons for requiring strict observance of the affidavit requirement. Motions to vacate a conviction or sentence ask the district court to grant an extraordinary remedy to one who already has had an opportunity for full process. See Prewitt, 83 F.3d at 816 ("Habeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations."). Before this remedy can be invoked, a district court must assure itself that a threshold showing has been made that justifies the commitment of judicial resources necessary to accomplish this delicate and demanding task. In this respect, the verification requirement serves to ensure that a petitioner can provide some evidence beyond conclusory and speculative allegations, even if that evidence is his verified statement alone.⁸ Requiring either that the motion be signed under penalty of perjury or be accompanied by an affidavit is thus not a mere technicality of pleading; once a pleading is submitted in this form, the allegations contained therein become evidence and permit the district court to evaluate properly the movant's allegations and to determine whether a sufficient threshold showing has been made to warrant further proceedings.

The allegation in the amended motion presented by Mr. Kafo makes particularly clear the importance of the verification requirement. The accusation that he levels against his trial counsel is a grave one; indeed, under our precedent, such a failure on the part of counsel is a per se constitutional...