McCleese v. U.S.

• Citation: 75 F.3d 1174
• Decision Date: 02 February 1996
• Docket Number: No. 95-1312,95-1312
• Parties: Daryl O. McCLEESE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1174

75 F.3d 1174

Daryl O. McCLEESE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 95-1312.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 21, 1995.

Decided Feb. 2, 1996.

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division, No. 94 C 325; William C. Lee, Judge.

Mark Procida (argued), Detroit, MI, for Petitioner-Appellant.

Robert N. Trgovich (argued), Office of the United States Attorney, Fort Wayne, IN, for Respondent-Appellee.

Before CUMMINGS, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

The defendant filed a motion under 28 U.S.C. § 2255 seeking to vacate his sentence on the grounds that he received constitutionally ineffective assistance of counsel and his guilty plea was not knowingly and intelligently made. The district court denied the motion because it found that by failing to raise his claims on direct appeal, the defendant had procedurally defaulted his right to raise it under § 2255. The question before us is whether the defendant has shown cause and prejudice to excuse that default.

I

Daryl Oscar McCleese entered into a written plea agreement in which he admitted to conspiring to distribute more than five kilograms of cocaine and to using or carrying two firearms during and in relation to the drug conspiracy. The district court sentenced him to 235 months of incarceration and four years of supervised release on the conspiracy count and 60 months of incarceration on the firearms count, with both sentences to run consecutively. McCleese was also fined $250,000. McCleese, represented by different counsel, appealed to this court arguing that the district court erred in not allowing him to withdraw his guilty plea and in making certain findings at sentencing. We affirmed the conviction and sentence. United States v. Cooper, 942 F.2d 1200 (7th Cir.1991), cert. denied, 503 U.S. 923, 112 S.Ct. 1303, 117 L.Ed.2d 524 (1992).

McCleese subsequently filed a motion under 28 U.S.C. § 2255 seeking to vacate his sentence on two grounds. First, he argued that he was denied his Sixth Amendment right to effective assistance of counsel when his trial counsel: (1) incorrectly advised him that the conspiracy count carried a statutory ten-year mandatory minimum sentence, when no mandatory minimum applied, and (2) failed to inform him that he was subject to a term of supervised release. Second, he argued that the district court failed to follow the mandate of FED.R.CRIM.P. 11(c) when it incorrectly informed him during the plea hearing: (1) that a statutory ten-year mandatory minimum sentence applied to the drug conspiracy count, when no mandatory minimum applied, and (2) that no term of supervised release could be imposed, when in fact it could--these errors resulting in an unknowing and involuntary guilty plea.

In its answer to McCleese's motion, the government conceded that McCleese's trial counsel and the district court incorrectly informed McCleese that a statutory ten-year mandatory minimum sentence applied to the conspiracy count and that a term of supervised release could not be imposed. The government argued, however, that because McCleese had failed to bring his claims on direct appeal he was procedurally barred from raising them in a § 2255 motion.

The district court agreed with the government that McCleese had procedurally defaulted. Because McCleese had different counsel on appeal, the district court found that he could not show cause for not bringing his two claims on direct appeal. Even if McCleese could show cause, the district court held that he could not show prejudice from the failure to raise the claims on direct appeal. The district court found that McCleese knew, at the time of entering his plea, that the sentencing guidelines would be used to determine his sentence and that the preliminary guidelines computation resulted in a minimum sentence on count one of 151 months or twelve and a half years. ¹ The district court found that the incorrect information could not reasonably be said to have influenced his decision to plead guilty because (1) the inapplicable ten-year mandatory minimum was below the minimum he knew he would receive and (2) the sentence imposed, including the four years of supervised release, was less than the statutory maximum McCleese was made aware of at the time he entered his plea. As a result, the district court found that McCleese had failed to show prejudice to justify his procedural default. Even if he could show cause and prejudice, the district court found that the errors of McCleese's trial counsel did not qualify as ineffective assistance of counsel and that its own errors under Rule 11 were harmless. The district court denied the § 2255 motion without holding an evidentiary hearing.

II

McCleese appeals the district court's denial of his § 2255 motion and argues that the district court erred in finding that he had not shown cause and prejudice to justify the procedural default. He also appeals the district court's determinations that, even if he were found not to have procedurally defaulted, his trial counsel was not ineffective and the Rule 11 errors were harmless. Finally, he argues the district court abused its discretion in not granting him an evidentiary hearing.

We review a district court's decision to grant or deny a § 2255 motion de novo. Small v. Endicott, 998 F.2d 411, 414 (7th Cir.1993).

A

Before we can consider the merits of McCleese's claims, we must first address the government's argument that McCleese procedurally defaulted on those claims by not raising them in his direct appeal. A § 2255 motion is "neither a recapitulation of nor a substitute for a direct appeal." Belford v. United States, 975 F.2d 310, 313 (7th Cir.1992). As a result, constitutional errors not raised on direct appeal may not be raised in a § 2255 motion unless the defendant can demonstrate either: (1) both good cause for his failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or (2) that the district court's refusal to consider the claims would lead to a fundamental miscarriage of justice. Reed v. Farley, --- U.S. ----, ----, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977); Dugan v. United States, 18 F.3d 460, 464 (7th Cir.1994) (quoting United States v. Kovic, 830 F.2d 680, 683 (7th Cir.1987), cert. denied, 484 U.S. 1044, 108 S.Ct. 778, 98 L.Ed.2d 864 (1988)); Bond v. United States, 1 F.3d 631, 634 (7th Cir.1993). McCleese seeks to justify his procedural default only under the cause and prejudice test; he does not argue that the district court's refusal to consider his claims would lead to a fundamental miscarriage of justice.

McCleese offers two causes for his failure to assert the two claims in his direct appeal: (1) because his ineffective assistance of counsel claim rests on extrinsic evidence, he may bring his claim in a § 2255 motion rather than on direct appeal, and (2) his appellate counsel was constitutionally ineffective when he failed to raise the two claims on direct appeal.

This circuit, as well as many of our sister circuits, has held that most claims of ineffective assistance of trial counsel are properly raised for the first time in a § 2255 motion rather than on direct appeal. See Bond, 1 F.3d at 634; United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991); see also United States v. Daniels, 3 F.3d 25, 26-27 (1st Cir.1993); United States v. DeRewal, 10 F.3d 100, 103-04 (3d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1544, 128 L.Ed.2d 196 (1994); United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir.1994); United States v. Bounds, 943 F.2d 541, 544 (5th Cir.1991); United States v. Goodlett, 3 F.3d 976, 980 (6th Cir.1993); United States v. Jennings, 12 F.3d 836, 840 (8th Cir.1994); United States v. Simas, 937 F.2d 459, 463 (9th Cir.1991); Beaulieu v. United States, 930 F.2d 805, 806-07 (10th Cir.1991); United States v. Gholston, 932 F.2d 904, 905 (11th Cir.1991). As we discussed in Bond, the justification for allowing claims of ineffective assistance of counsel to be raised for the first time in § 2255 motions is that, in order to be successful, such claims generally require that the record be supplemented with "extrinsic evidence that illuminates the attorney's errors." 1 F.3d at 635. A § 2255 proceeding offers defendants the opportunity to supplement the record with additional evidence. If we required defendants to raise all such claims on direct appeal, we would be limited to only the trial record. Another, unrelated circumstance that justifies raising a claim of ineffective assistance of trial counsel for the first time in a § 2255 motion is where trial counsel was also appellate counsel because he "can hardly be expected to challenge on appeal his own ineffectiveness at trial." Taglia, 922 F.2d at 418.

The reasons for a rule also define its exceptions. Where a defendant offers no extrinsic evidence to support his claim of ineffective assistance of counsel and he was represented by different counsel on appeal, that defendant must bring that claim on direct appeal or face procedural default for failing to do so. Dugan, 18 F.3d at 464; Bond, 1 F.3d at 635; Taglia, 922 F.2d at 418; see also Matzkin, 14 F.3d at 1017; Gholston, 932 F.2d at 905. In this case, McCleese was represented by different counsel on appeal. Therefore, the question becomes whether McCleese offers any extrinsic evidence to support his claim of ineffective representation.

In his motion to vacate before the district court, McCleese stated that "[t]his court need only examine the record to find more than adequate support for defendant's position." McCleese is correct. The erroneous advice regarding the existence of a ten-year mandatory minimum sentence is clear from the...