Rutledge v. U.S.A.

• Decision Date: 24 October 2000
• Docket Number: No. 99-1686,99-1686
• Citation: 230 F.3d 1041
• Parties: (7th Cir. 2000) Tommy L. Rutledge, Petitioner-Appellant, v. United States of America, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1041

230 F.3d 1041 (7th Cir. 2000)

Tommy L. Rutledge, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 99-1686

In the United States Court of Appeals For the Seventh Circuit

Argued September 28, 2000

Decided October 24, 2000

Appeal from the United States District Court for the Central District of Illinois, Rock Island Division. No. 97-4054--Michael M. Mihm, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Flaum, Chief Judge, and Bauer and Harlington Wood, Jr., Circuit Judges.

Flaum, Chief Judge.

Tommy Rutledge appeals the denial of his federal habeas petition. He challenges the reinstatement of a vacated conviction and raises various claims related to the inadequate performance of both his trial and habeas counsels. For the reasons stated herein, we affirm the district court.

I. Background

Petitioner Rutledge was indicted in February, 1991 on six counts related to running a narcotics enterprise. The charges were conducting a continuing criminal enterprise in violation of 21 U.S.C. sec. 848 ("CCE") ("Count I"); conspiring to distribute cocaine in violation of 21 U.S.C. sec. 846 ("Count II"); distribution of cocaine in violation of 21 U.S.C. sec. 841(a)(1) ("Count III"); possession of a firearm by a convicted felon in violation of 18 U.S.C. sec. 922(g) ("Count IV"); and using or carrying a firearm during the commission of a drug offense in violation of 18 U.S.C. sec. 924(c) ("Count V" and "Count VI"). Kim Mummert, a member of Rutledge's enterprise and his girlfriend at the time, cooperated with the government, and testified that on hundreds of occasions she saw Rutledge give cocaine to other members of the organization with instructions as to whom to deliver the cocaine and how much money to collect. The government sought to establish the distribution count through Michael Wright, who testified that he purchased cocaine from Rutledge on January 27, 1989. Following a jury trial, Rutledge was found guilty of all six counts on June 25, 1992. Rutledge received life imprisonment on the CCE count, life imprisonment without the possibility of parole for the conspiracy and distribution counts, and ten years imprisonment for the felon in possession of a firearm count, which were all to run concurrently. Rutledge received five years imprisonment for Count V and ten years imprisonment on Count VI, which were to run consecutively to each other and the other sentences. Rutledge's convictions and sentences were affirmed by this court on direct appeal. United States v. Rutledge, 40 F.3d 879 (7th Cir. 1994). Following precedent in this circuit, we held that Rutledge could be convicted of and sentenced for both CCE and conspiracy to distribute drugs, even though the latter is a lesser included offense of the former, so long as the sentences ran concurrently. Id. at 886.

The Supreme Court reversed, holding that because conspiring to distribute drugs is a lesser included offense of CCE either Count I or Count II must be vacated. Rutledge v. United States, 517 U.S. 292, 307 (1996). The Supreme Court remanded Rutledge's case to this court, and we remanded to the district court with directions to vacate either the CCE or conspiracy conviction. The district court vacated the conspiracy conviction and resentenced Rutledge on the remaining five convictions, giving him the same sentence for each conviction as it had after trial.

In the months leading up to the district court's decision on the 28 U.S.C. sec. 2255 motion which is the subject of this appeal, Rutledge and the government filed a number of motions and responses, of which only the ones relevant to this appeal are mentioned. On April 24, 1997, Rutledge, acting pro se, filed a motion pursuant to sec. 2255 to vacate his convictions and correct his sentence. Among his other claims, Rutledge asserted that he had received ineffective assistance of counsel regarding his distribution count because his trial counsel failed to interview Mummert and Wright and present an alibi defense.

On November 12, 1997, the district court appointed counsel for Rutledge in order to develop the arguments raised in his sec. 2255 motion. In a December 4 telephone conference, the district court requested that counsel address whether the court could reinstate Rutledge's conspiracy conviction if it vacated his CCE conviction. Rutledge's appointed attorney filed a supplemental memorandum on March 26, 1998, which provided additional and detailed legal support for Rutledge's claims. On June 18, the district court held a conference concerning Rutledge's case. After discussion and debate with counsel, the court tentatively announced parts of its decision regarding Rutledge's claims. Among other conclusions, the court indicated that it would reject Rutledge's claim that his trial counsel had been ineffective with respect to the distribution charge.

On September 25, 1998, the court issued an order granting in part and denying in part Rutledge's sec. 2255 motion and resolved certain other outstanding motions. Rutledge v. United States, 22 F. Supp.2d 871 (C.D. Ill. 1998). The court vacated the CCE conviction as well as Counts V and VI, and reduced the sentence for Count III (distribution) from life without parole to thirty years. The court reinstated Count II, the conspiracy conviction, rejecting Rutledge's claims that he would be prejudiced by this reinstatement because he received a harsher sentence on Count II than Count I and that the court lacked statutory jurisdiction to reinstate a vacated sentence. The court also finalized its rejection of Rutledge's arguments that his trial counsel had been ineffective regarding the distribution count. The court entered judgment on October 16, 1998.

On October 2, 1998, the district court docketed a September 20, 1998 letter from Rutledge to his sec. 2255 counsel, a copy of which Rutledge had sent to the court. This letter detailed ways in which Rutledge believed his sec. 2255 counsel had performed inadequately. Rutledge's letter claimed that both his sec. 2255 and trial counsels failed to interview witnesses including Wright, Mummert, and Brandy Bolen. Attached to the letter were various declarations from these witnesses or persons who had talked to these witnesses. One attachment was a transcript of an interview between Bolen and a private investigator hired by Rutledge, in which Bolen said that on January 27, 1989, Rutledge had left the area where the distribution was supposed to have occurred before Wright arrived.

On October 5, 1998, Rutledge's counsel filed a timely motion to alter or amend the judgment. Rutledge filed pro se motions to reconsider the district court's decision on October 6, October 15, November 12, and November 25. On November 20, the court docketed Rutledge's pro se motion to strike the motion to alter or amend the judgment filed by his attorney, to dismiss his appointed counsel and proceed pro se, and to extend the time to file his notice of appeal from the court's ruling. The clerk of the court also received a notice of appeal from Rutledge on or shortly before November 23, but did not file this in the district court docket.

The district court held a telephone conference with Rutledge, his attorney, and the government on November 25. The district court asked Rutledge whether he wanted to file his notice of appeal, which would divest the court of jurisdiction, or proceed with a motion to alter or amend the judgment under Federal Rule of Civil Procedure 60(b). Rutledge asked the court if he could appeal after the consideration of his Rule 60(b) motion. The government told the court that it did not believe that Rule 60(b) motions tolled the time for filing a notice of appeal. The court stated that a miscarriage of justice would result if Rutledge were not permitted to file his Rule 60(b) motion and appeal after the ruling on such motion. Rutledge agreed to proceed with his Rule 60(b) motion and asked the court to withdraw his notice of appeal. The court then granted Rutledge's motion to proceed pro se. The court also ruled that all of the motions to reconsider had been withdrawn except for the one filed by Rutledge on November 25, the day of the conference. This November 25 motion included an affidavit from Bolen stating that she would have been willing to serve as an alibi witness on the distribution count but had not been interviewed by trial counsel.

The court denied Rutledge's motion to reconsider on January 26, 1999. Rutledge had claimed that his trial counsel was ineffective for not interviewing Bolen. The court found that this was the first mention of Bolen and that it was too late to raise this issue in a motion to reconsider. The court rejected Rutledge's challenge to the court's jurisdiction to reinstate the vacated conspiracy conviction, finding that Rutledge had not raised this argument in his sec. 2255 motion¹ and that sec. 2255 provided statutory authority for the court's action.

Rutledge filed a notice of appeal and an application for a certificate of appealability on March 15, 1999. On March 23, the district court issued to Rutledge a certificate of appealability for the issue of whether reinstating the conspiracy conviction was proper, but denied a certificate for Rutledge's various claims of ineffective assistance of trial counsel.

II. Discussion

Rutledge presents five issues in this appeal of the denial of his sec. 2255 and Rule 60(b) motions.² The first, and only one for which he was issued a certificate of appealability, is whether the district court had jurisdiction to reinstate the previously vacated conspiracy conviction.

The second issue is whether the district court should have conducted an evidentiary hearing regarding Rutledge's claim that his trial counsel was ineffective for failing to interview Mummert and Wright. The third question is did the district court err in not treating Rutledge's September 20, 1998 letter as a motion to amend his ...