Page v. U.S.

• Decision Date: 01 September 1989
• Docket Number: No. 88-1708,88-1708
• Citation: 884 F.2d 300
• Parties: Eldon L. PAGE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 300

884 F.2d 300

Eldon L. PAGE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 88-1708.

United States Court of Appeals Seventh Circuit.

Submitted Aug. 24, 1989.

Decided Sept. 1, 1989.

Eldon L. Page, Oxford, Wis., pro se.

R. Jeffrey Wagner, Nathan A. Fishbach, Asst. U.S. Attys., John E. Fryatt, U.S. Atty., Office of the U.S. Atty., Milwaukee, Wis., for U.S.

Before CUMMINGS, POSNER, and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Students of strategy and bargaining cut their teeth on the game of Prisoners' Dilemma. Two prisoners, unable to confer with one another, must decide whether to take the prosecutor's offer: confess, inculpate the other, and serve a year in jail, or keep silent and serve five years. If the prisoners could make a (binding) bargain with each other, they would keep silent and both would go free. But they can't communicate, and each fears that the other will talk. So both confess. Studying Prisoners' Dilemma has led to many insights about strategic interactions. See Thomas C. Schelling, The Strategy of Conflict 53-80, 119-61 (1960; 1980 rev.); Robert Axelrod, The Evolution of Cooperation (1984). Eldon Page did not have the leisure to study the game before he had to play it.

Page and Maurice Falls were charged with armed bank robbery. On the day set for Page's trial, the prosecutor appeared with Falls in tow. Falls had signed an agreement promising, in exchange for a lower sentence, to plead guilty and testify against Page. After the judge accepted Falls' plea, Page caved in and pleaded guilty too. Back in jail, Falls and Page were able at last to coordinate. Each presently asked leave to withdraw his plea. Too late, the judge said. Both were sentenced and appealed. We affirmed in an unpublished order.

Page tried again, filing a petition under 28 U.S.C. Sec. 2255 and arguing that trial counsel rendered ineffective assistance in letting him plead guilty. This was brought up short by the fact that Page had not argued on his original appeal that trial counsel was constitutionally inadequate. Because Page had fresh counsel for the appeal, the omission forfeits the point unless Page could establish "cause" for and "prejudice" from the neglect. United States v. Kovic, 830 F.2d 680, 684 (7th Cir.1987). See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Ineffective assistance of counsel is "cause", Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986), so Page maintains that his appellate counsel was ineffective in failing to challenge the effectiveness of trial counsel. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Page also points to other aspects of appellate counsel's performance that he finds deficient. Fearing infinite regress, the district judge brushed aside all questions concerning appellate counsel and went straight to the foundation of the claim, holding that Page's trial counsel had supplied effective assistance and denying the petition for relief.

The first question facing us on Page's appeal is whether ineffective assistance of counsel may be raised at all, and if so in which court. The United States Attorney insists that the attack on appellate counsel comes too late. It, too, was surrendered because not raised on appeal. Such an argument is better suited to the works of Ionesco and Beckett than to the Federal Reporter. How could appellate counsel attack his own competence? Although this is not logically impossible (counsel could say, for example, that although he knew he ought to challenge trial counsel he had not had the time to prepare a brief on the subject), it is so implausible that we cannot demand it of counsel. Few of us have insight into our shortcomings; fewer still have the nerve to flaunt our own failings. Just as trial counsel need not attack his competence during trial, appellate counsel need not protest his inadequacies. That may be left to the next step in the process without fear of forfeiture.

"Where" is slightly more difficult than "whether". Two courts of appeals have held that the defendant's exclusive recourse is a motion asking the court of appeals to recall its mandate on the ground of counsel's inadequacy. Feldman v. Henman, 815 F.2d 1318, 1321-22 (9th Cir.1987); United States v. Winterhalder, 724 F.2d 109, 111 (10th Cir.1983). They reason that because district judges must obey the mandate of the court of appeals, and may not issue orders compelling appellate courts to do anything (such as hear the appeal anew, a common remedy for deficient appellate counsel), the claim must come to the court of appeals in the first instance. Other courts of appeals have allowed defendants to start in the district courts. E.g., Mack v. Smith, 659 F.2d 23, 25-26 (5th Cir.1981); United States v. DeFalco, 644 F.2d 132, 137 (3d Cir.1979). We join this latter group.

Section 2255 authorizes collateral attacks on criminal judgments. It also specifies the forum: "the court which imposed the [contested] sentence". That statutory designation prevails even though relief may call for revision of a judgment that has been affirmed by the court of appeals. Review of existing judgments simply defines a "collateral" attack. If the court of appeals has actually considered and rejected a claim of ineffective assistance of counsel on appeal, that decision binds the district court unless there has been an intervening change of law. United States v. Mazak, 789 F.2d 580 (7th Cir.1986). But if the issue has never been presented on appeal, it is open in the district court as any other question would be under Sec. 2255.

Relief does not require the district court to issue orders to the court of appeals. District courts may grant relief. Ineffective assistance may justify vacating and reentering the judgment of conviction, allowing a fresh appeal. It may also justify a new trial on occasion. Counsel is ineffective only if performance below the norms of the profession causes prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Prejudice means a "reasonable probability that, but for counsel's...