Long v. United States

• Decision Date: 13 February 2017
• Docket Number: No. 15-2668,15-2668
• Citation: 847 F.3d 916
• Parties: Willie LONG, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

847 F.3d 916

Willie LONG, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 15-2668

United States Court of Appeals, Seventh Circuit.

Argued November 9, 2016

Decided February 13, 2017

Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Petitioner–Appellant.

Nathaniel Whalen, Attorney, Office of the United States Attorney, Hammond, IN, Respondent–Appellee.

Before Bauer and Kanne, Circuit Judges, and Feinerman, District Judge.^*

Kanne, Circuit Judge.

Willie Long pled guilty to being a felon in possession of a firearm. Thereafter, Long sought collateral relief, arguing that his trial attorney provided ineffective assistance of counsel. Unfortunately for Long, his plea agreement contained a provision waiving his right to collaterally attack his conviction and sentence. For that reason, the district court summarily denied his claim.

On appeal, Long argues that the district court erred in denying his claim without an evidentiary hearing. Long correctly notes that we will allow a petitioner to circumvent a collateral-attack waiver if he can prove that his counsel was ineffective in negotiating the plea agreement containing that waiver. Nevertheless, because Long has failed to allege any facts that, if proven true, would entitle him to relief, he is not entitled to an evidentiary hearing. We affirm.

I. BACKGROUND

According to Long's arrest report, on November 18, 2013, at about 4:20 a.m., a Mishawaka police officer on routine patrol saw several cars maneuvering around a car parked in a McDonald's drive-through lane. The officer notified dispatch of his location and gave a description of the parked car. He then got out of his squad car and approached the car on foot. When he reached the car, he saw Long asleep in the driver's seat. The officer noticed that the car was actually in drive, but Long's foot was on the brake.

The officer knocked on the car's window. When Long responded, the officer told him to park the car and open the door so they could talk. Long opened the door, and the officer immediately smelled marijuana. As they were discussing the marijuana odor, the officer saw a gun on the floorboard near Long's feet. He then secured Long's hands and told him not to move.

At that point, another officer arrived at the scene. The officers discovered that Long had a prior felony conviction and thus could not lawfully possess the gun. They arrested Long and impounded his car. An inventory search of the car revealed five gallon-sized bags of marijuana, three bags of ecstasy pills, three cell phones, two digital scales, and ninety-eight small plastic baggies.

The government charged Long under 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm. Assistant federal public defender H. Jay Stevens was appointed to represent Long. Long and Stevens allegedly discussed the possibility of filing a motion to suppress the gun evidence. But Stevens never filed that motion because he apparently "didn't see any realistic hope in [Long] winning [it]." (R. 35 at 2.)¹ Two weeks after the filing deadline passed, Long pled guilty to the possession charge.

In his plea agreement, Long expressly waived his right to appeal or collaterally attack his conviction and sentence. He also affirmed that he had told Stevens the facts and circumstances of his case and that he believed Stevens was fully informed of the relevant matters. During the change-of-plea hearing, Long agreed that, if the case were to proceed to trial, the government would be able to prove that a police officer found Long asleep at the wheel in a McDonald's drive-through lane, and after waking Long, the officer saw a gun on the floorboard, which Long admitted he knew was there. The court accepted Long's plea and set a date for sentencing.

Nevertheless, Long changed his mind once he discovered that his presentence report ("PSR") recommended a 4–level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense—that is, Long's possession of marijuana. This enhancement increased Long's guidelines range from 37–46 months to 57–71 months. At the sentencing hearing, Long claimed that Stevens told him that no such enhancement would factor into his sentence. Thus, Long wished to withdraw his plea. Stevens acknowledged that the two disagreed about how to handle the case. Accordingly, the court rescheduled the sentencing hearing, allowed Stevens to withdraw as counsel, and appointed Michael Rehak as new counsel.

Soon after, in accordance with Long's wishes, Rehak moved to withdraw Long's plea. Rehak argued that, had Long known of the enhancement, Long would have moved to suppress the gun evidence on the ground that the officers had no probable cause to stop him. The government conceded that there was no probable cause, but argued that there was no Fourth Amendment violation because the officers were performing a caretaking function by checking on Long, whom they had found asleep at the wheel. At a hearing on the motion, Rehak said that he viewed the case the same way that Stevens did and that Rehak had explained to Long that withdrawing the guilty plea and proceeding with a motion to suppress was a bad idea. The court gave Long and Rehak time to discuss. After a recess, Long agreed to stick with his guilty plea and proceed to sentencing.

At sentencing, the court confirmed that Long had read and understood the PSR and that Long was satisfied with Rehak's work. The court then overruled Long's objection to the sentencing enhancement and imposed a below-guidelines sentence of 51 months' imprisonment.

On May 8, 2015, Long filed a timely pro se motion seeking relief under 28 U.S.C. § 2255. Long alleged that he had told Stevens that the officers obtained the gun evidence in a way that violated his Fourth Amendment rights and that Stevens provided ineffective assistance of counsel by failing to move to suppress that evidence. Long further argued that he would have gone to trial had Stevens so moved. Finally, Long claimed that Stevens failed to adequately investigate the case and "never fully explained to Long what the waiver in his plea bargain restricted him from doing." (R. 49 at 2.)

The district court summarily denied Long's motion without an evidentiary hearing on the ground that Long's plea agreement contained a collateral-attack waiver. The court rejected Long's argument that Stevens did not fully explain the waiver to him, finding that argument inconsistent with Long's statements at his change-of-plea hearing.

Long then sought a certificate of appealability, in which he claimed that he was denied effective assistance of counsel. The district court declined to issue a certificate, but we granted one. This appeal followed.

II. ANALYSIS

Long's § 2255 motion asserts that Stevens provided ineffective assistance of counsel. The district court held that the waiver in Long's plea agreement precluded this claim. In so holding, the court rejected Long's argument that Stevens was ineffective for failing to explain the waiver, determining that Long fully understood the consequences of the waiver.

But the fact that Long understood the waiver does not necessarily foreclose his ineffective-assistance-of-counsel claim. As Long argues, we have "repeatedly recognized that appellate and collateral review waivers cannot be invoked against claims that counsel was ineffective in the negotiation of the plea agreement."

Hurlow v. United States , 726 F.3d 958, 964 (7th Cir. 2013). Although Long's § 2255 motion does not specifically allege Stevens's ineffectiveness in negotiating the plea agreement, we construe his motion liberally. Wyatt v. United States , 574 F.3d 455, 459 (7th Cir. 2009) ("Pro se collateral review filings are construed liberally."). And liberally construed, it appears that Long is making this argument. For instance, Long alleges that he told Stevens that he wanted to move to suppress the gun evidence—which he claims was obtained in violation of his Fourth Amendment rights—but Stevens never filed that motion. Long further claims that "Stevens never looked fully into Long's case, just obtained a plea agreement without fully investigating." (R. 49 at 2.) Long contends that, had Stevens done these things, Long never would have entered into the plea agreement. These allegations suggest that the plea agreement was either "the product of ineffective assistance of counsel or tainted by ineffective assistance of counsel," which, if proven true, would mean that Stevens was ineffective in negotiating the plea agreement. See Hurlow , 726 F.3d at 967 (internal citations and quotation marks omitted).

Nevertheless, although these allegations allow Long to open the door to collateral relief, they do not necessarily permit him to walk through it. Indeed, "[n]ot every claim of ineffective assistance of counsel can overcome a waiver in a plea agreement." Id . at 966. For instance, we have disallowed "broad, unsupported assertions of ineffective assistance" to circumvent a waiver. Id .

Long contends that, at this stage, he is not trying to succeed on the merits of his claim; instead, he seeks nothing more than an evidentiary hearing to develop his argument. Even so, a district court need not grant an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," or "if the petitioner makes allegations that are vague, conclusory, or palpably incredible, rather than detailed and specific." Martin v. United States , 789 F.3d 703, 706 (7th Cir. 2015) (internal quotation marks omitted). Only when a petitioner "alleges facts that, if proven, would entitle him to relief" must a district court grant a hearing. Id . (quoting Kafo v. United States , 467 F.3d 1063, 1067 (7th Cir. 2006) ). Thus, we must decide whether Long's allegations sufficiently state a claim for...