Perrone v. United States

• Decision Date: 14 May 2018
• Docket Number: No. 16-2437,16-2437
• Citation: 889 F.3d 898
• Parties: Joseph PERRONE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

889 F.3d 898

Joseph PERRONE, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 16-2437

United States Court of Appeals, Seventh Circuit.

Argued January 4, 2018

Decided May 14, 2018

Rehearing and Rehearing En Banc Denied July 26, 2018^*

Conor Reidy, Attorney, Stephen Victor D'Amore, Attorney, Winston & Strawn LLP, 35 W. Wacker Drive, Chicago, IL 60601-9703 for Petitioner-Appellant.

Robert L. Garrison, Attorney, Office of the United States Attorney, Criminal Division, Suite 300, Nathan D. Stump, Attorney, Office of the United States Attorney, Civil Division, Nine Executive Drive, Fairview Heights, IL 62208-0000 for Respondent-Appellee.

Before Wood, Chief Judge, and Hamilton and Barrett, Circuit Judges.

Barrett, Circuit Judge.

Terry Learn died after Joseph Perrone injected her with 7.5 grams of cocaine. Perrone pleaded guilty to a single count of unlawful drug distribution and stipulated that his distribution of the cocaine had caused Learn’s death. In accordance with Perrone’s plea agreement, the district court applied a statutory sentencing enhancement that mandates a twenty-year minimum term of imprisonment if unlawful drug distribution results in death. The Supreme Court has since clarified that this provision requires a defendant’s drugs to be a but-for cause of the death, not merely a contributing cause. Perrone filed a petition for relief under 28 U.S.C. § 2255 on the ground that the Court’s narrowed interpretation of the enhancement reveals that he is actually innocent of causing Learn’s death. In addition, he asserts that his counsel was ineffective for failing to advise him of a Seventh Circuit case decided on the day before his sentencing that interpreted the "death results" enhancement the same way that the Court ultimately did. He claims that if he had known that the enhancement required the government to show that his cocaine was the but-for cause of Learn’s death, he would have sought to withdraw his plea. The district court denied Perrone’s petition, and we affirm its judgment.

I.

At approximately 4 a.m. on April 17, 2008, Terry Learn and her coworker Madonna Narog went to Narog’s hotel room, where they did heroin and cocaine for several hours. They left the hotel around 8 a.m. to purchase more cocaine, about fifty dollars’ worth for Learn and twenty-five dollars’ worth for Narog. They returned to the hotel and did cocaine until close to noon, when Learn left for her shift at Roxy’s Night Club. Narog saw Learn again around 2 p.m., when Narog went to the club to pick up some money, and again at 8 p.m., when Narog was beginning her shift and Learn was ending hers.

After her shift, Learn met her boyfriend, Joseph Perrone, and went back to his home. According to Perrone, the two made a suicide pact. After watching Learn inject herself with a mixture of cocaine and water, Perrone told her that she had not taken enough to kill herself. He then prepared and injected 7.5 grams of cocaine into Learn. Perrone later told the police that Learn convulsed, fell to the floor, and died immediately after he injected her for the last time. He did not specify the time at which he administered the final injection, but he said that it happened on April 18^th. It was therefore at least four hours after Narog saw Learn at the shift change and at least twelve hours after Narog last saw her do any drugs not distributed by Perrone.

Perrone moved Learn’s body to her apartment. He wiped his fingerprints off the syringe and put it into Learn’s hand. As he stipulated in his plea agreement, he aimed "to create the false impression that Terry Learn had died alone in her own residence." The body was not discovered until April 26^th, when a concerned neighbor flagged down police to report that she had not seen Learn in several days. Police officers discovered Learn’s body in her apartment. According to the coroner’s report, the cause of death was "[c]ombined toxicity with cocaine, ethanol and opiates."

Several months later, Perrone was arrested on an unrelated firearms charge. He chose that time to confess to police that he had killed Learn, describing what he had done as "premeditated murder." During this interview, he told the police that he gave Learn one injection of an unspecified amount of cocaine; during a second interview a few weeks later, he said that he injected Learn with 7.5 grams of cocaine in three separate injections of 2.5 grams each.

The government obtained an indictment against Perrone for distributing a controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The indictment specified that Learn died as a result of Perrone’s distribution, which, if proved, would enhance his statutory sentencing range under § 841(b)(1)(C). That provision mandates a twenty-year minimum sentence if "death or serious bodily injury results from the use" of the unlawfully distributed substance.

Perrone pleaded guilty. In his plea agreement, he admitted that his conduct had violated the "death results" provision—namely, he stipulated that "the ingestion of the controlled substance distributed by the Defendant caused the death of another person." He also signed a stipulation of facts admitting that he "injected Terry Learn with a syringe containing cocaine" and that she "died immediately after receiving the injection." At his plea hearing a few weeks later, Perrone stated that he had read the documents, that he understood them, and that they were accurate.

On the day before Perrone was sentenced, the Seventh Circuit decided United States v. Hatfield , 591 F.3d 945 (7th Cir. 2010), which held that the "death results" enhancement requires the government to prove that "ingestion of the defendants’ drugs was a ‘but for’ cause of the death[ ]." Id. at 948. Hatfield rejected jury instructions that used vaguer, less demanding language to describe the necessary causal relationship; it said that the district court could not summarize the "death results" enhancement as requiring the jury to find only that the illegal drugs "played a part" in the victim’s death. Id. at 949.

At sentencing the next day, the district court applied the "death results" enhancement and sentenced Perrone to 240 months’ imprisonment. Before imposing the sentence, the district judge said that he had reviewed Perrone’s Stipulation of Facts to see "what impact, if any, the Rex Hatfield case was going to have on this case." Perrone’s attorney did not engage this point with the judge, nor did he inform Perrone about Hatfield . Instead, he once again agreed that the sentencing enhancement applied. Perrone did not appeal his sentence. He eventually received an 80-month reduction of his sentence for assistance to the government, a possibility contemplated by the plea agreement and that Perrone and the district court had discussed at his sentencing hearing.

Four years later, the Supreme Court decided Burrage v. United States , 571 U.S. 204, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014), which effectively ratified Hatfield ’s standard of causation. The Court held that the "death results" enhancement ordinarily requires the government to prove that the victim would have lived but for the unlawfully distributed drugs. Id. at 888. In Burrage , the victim died with multiple drugs in his bloodstream, including metabolites from heroin that had been distributed by the defendant. Although morphine

, a heroin metabolite, was the only drug present at a level above the therapeutic range, the government’s experts could not say whether the victim would have lived if he had not taken the heroin. They testified only that heroin was a "contributing factor" to a death caused by "mixed drug intoxication." That testimony dovetailed with instructions requiring the jury to find "that the heroin distributed by the Defendant was a contributing cause of [the victim’s] death." Id. at 886. The Court said that the statute requires the government to show more than that the distributed drug contributed to the victim’s death. The enhancement applies when "death or serious bodily injury results from the use of [the distributed] substance," which means that the substance must be a "but for" cause of the death. Id. at 887–88.

Within a month of Burrage , Perrone filed a petition to vacate or alter his sentence pursuant to 28 U.S.C. § 2255. His initial petition asserted that the new interpretation of the "death results" enhancement announced in Burrage renders him actually innocent of causing Learn’s death. In his reply brief below, Perrone added a claim that his attorney had been constitutionally ineffective for not telling him about Hatfield .

The district court dismissed Perrone’s claims with prejudice. We granted a certificate of appealability on three questions: whether Perrone was actually innocent of his sentence under Burrage , whether Perrone’s sentencing counsel had been constitutionally ineffective for failing to address the issue of causation in light of Hatfield , and whether Perrone’s plea was knowing and voluntary. Perrone presses only the first two of these arguments on appeal.

II.

Perrone’s strongest argument is that he is actually innocent of the "death results" sentencing enhancement. He claims that when he entered his plea agreement and pleaded guilty, he did not know that the enhancement required but-for causation. Since then, Burrage has made the standard clear, and under it, he says, there is insufficient evidence to show that Learn’s death resulted from the cocaine he gave her. Although Perrone generally waived his right to raise collateral challenges, the waiver excludes collateral attacks based on "any subsequent change in the interpretation of the law" by the Supreme Court that is declared retroactive and renders Perrone innocent.

A.

The government contends that Perrone procedurally defaulted his Burrage claim by failing to raise it on direct appeal. McCoy v. United States , 815 F.3d 292, 295 (7th Cir. 2016) ("A claim cannot be raised for the first time in a § 2255 motion if...