U.S. v. Lilly

• Decision Date: 28 July 2008
• Docket Number: No. 06-2613.,06-2613.
• Parties: UNITED STATES of America v. Clayton LILLY, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

536 F.3d 190

UNITED STATES of America v. Clayton LILLY, Appellant.

No. 06-2613.

United States Court of Appeals, Third Circuit.

Argued April 15, 2008.

Filed: July 28, 2008.

Lisa B. Freeland, Esquire, (Argued), Federal Public Defender, Office of Federal Public Defender, Pittsburgh, PA, for Appellant.

Mary Beth Buchanan, United States Attorney, Kelly R. Labby, Assistant U.S. Attorney, Robert L. Eberhardt, (Argued), Executive Assistant U.S. Attorney, Office of the United States Attorney, Pittsburgh, PA, for Appellee.

Before: AMBRO, FISHER, and MICHEL,^* Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Clayton Lilly appeals to us from the District Court's denial of his petition for habeas corpus. He argues that the District Court should have granted him an evidentiary hearing to develop his claim that his counsel was ineffective in failing to advise him adequately about waiving his right to a jury trial. We disagree, and thus affirm the petition's denial.

I.

In 2001, law enforcement officials began investigating Lilly after they received information from a confidential informant that he was selling crack cocaine over the counter of the clothing store he owned and operated. After police observed Lilly engage in a variety of drug transactions, they applied for a warrant to search him, his store, and his car. To avoid destruction of evidence, police detained Lilly while waiting for the search warrant. Upon executing the warrant, police found crack cocaine in Lilly's store as well as in his car and on his person. Lilly then stated, "It's hard selling these clothes. The guys aren't buying these clothes. I have to support myself." Lilly was arrested. Police subsequently secured a search warrant for Lilly's home, where they discovered large amounts of crack cocaine. The combined searches yielded 162.54 grams of crack cocaine.

A grand jury indicted Lilly for possession with intent to distribute in excess of 50 grams of a substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). Prior to trial, Lilly's attorney, William E. Stockey, Esq., filed a motion to suppress the evidence police had seized. Because the evidence in support of the motion to suppress was almost identical to the evidence that would be presented at trial, the parties allegedly agreed to proceed with a non-jury trial where the District Court would hear the evidence on the suppression motion and the trial together. However, Lilly and his attorney did not sign a written waiver of his jury-trial right pursuant to Federal Rule of Criminal Procedure 23(a) until some six weeks after the non-jury trial was completed but before the District Court rendered a verdict.

In November 2001, the District Court conducted a one-day joint pre-trial hearing and non-jury trial where it heard all of the evidence. At the beginning of the proceedings, the Court confirmed with the parties their intent to have a non-jury trial:

The Court: I think the record should show that both the government and the defendant have requested a non-jury trial; is that correct?

[Government] That's correct for the government, Your Honor.

Mr. Stockey: Correct for the defendant, Judge.

Mr. Lilly was present for this interchange, but he did not speak up, nor did the Court ask him directly to confirm his desire to waive a jury trial.

The Court then heard evidence on the suppression motion and the case simultaneously. The Government based its case on the cocaine that police had seized in its searches of Lilly's person, business, car, and home. Lilly conceded that the searches had yielded a large quantity of cocaine, but argued that the search warrants were unsupported by probable cause because the police officers and the confidential informant were not credible. He further argued that the Government had not established beyond a reasonable doubt that Lilly was guilty because, among other things, it had not called the confidential informant to testify, nor had it established that Lilly had the lavish lifestyle one would expect of a drug dealer.

After hearing all of the evidence, the Court found the police officers to be credible and denied Lilly's motion to suppress. In late December 2001, the Court issued its findings of fact and found Lilly guilty. At sentencing, the Pre-Sentence Investigation Report classified Lilly as a career offender under the United States Sentencing Guidelines, giving him a Guidelines range of 360 months to life imprisonment. Lilly filed a motion for downward departure on the basis that the career-offender designation overrepresented his criminal history. The Court granted the motion and sentenced Lilly to a 188-month term of imprisonment.

Lilly appealed his conviction. Stockey, his trial counsel, initially represented Lilly on appeal, but then withdrew because Lilly and his family could no longer afford his representation. Our Court appointed new appellate counsel. We affirmed Lilly's conviction in March 2003.

In March 2004, Lilly filed a pro se habeas petition under 28 U.S.C. § 2255. In it, Lilly alleged, inter alia, that Stockey had been ineffective in failing to advise him of his right to a jury trial and in failing to obtain from him a written, signed waiver of that right. Lilly further alleged that Stockey had "tricked" him into signing the written waiver six weeks after trial.

One month after filing the initial pro se petition, Lilly filed a supplemental pro se habeas petition alleging that he was denied his constitutional right to a jury trial when his counsel waived it without his consent.¹ He further asserted that the District Court would have learned all of this had it conducted a colloquy with him directly before accepting his waiver. The Government filed a single response to both petitions contending that Lilly had been informed of his right to a jury trial and had knowingly and voluntarily waived it.

The District Court treated Lilly's multiple filings as a single, all-inclusive § 2255 petition so that Lilly would not run afoul of the Antiterrorism and Effective Death Penalty Act (AEDPA)'s prohibition on filing second or successive habeas petitions.² The District Court also appointed habeas counsel. While Lilly's petition was pending before the District Court, his trial counsel submitted a voluntary affidavit stating that he had informed Lilly of his right to a jury trial and that Lilly had waived it. In pertinent part, the affidavit stated:

3. I am aware that Mr. Lilly has filed a Motion to Vacate under 28 U.S.C. § 2255.... I am also aware that Mr. Lilly claims that I did not advise him of his right to a jury trial in the present case.

4. I did inform Mr. Lilly that he had a right to trial by jury. On September 28, 2001 and at subsequent meetings I also advised him to waive that right and proceed with a bench trial.

5. Mr. Lilly took my advice. He knowingly and willingly waived his right to jury trial. In fact, he even signed a written waiver of his right to jury trial that I filed with this court before a verdict was entered in this case.

The District Court concluded that an evidentiary hearing was not necessary and denied Lilly's § 2255 petition in its entirety. With regard to Lilly's claims about his waiver of a jury trial, the District Court understood him to be making two distinct arguments that his counsel was ineffective (1) in failing to advise him that he had a right to a jury trial, and (2) in failing to have him sign a written Rule 23(a) waiver of a jury trial before trial began. The Court found that the record belied Lilly's assertion that he was never advised of his right to a jury trial. Specifically, it reasoned that Lilly's signed waiver post-trial, his trial counsel's affidavit saying that Lilly had knowingly and willfully waived a jury trial, and the District Court's pretrial oral confirmation of Lilly's waiver "demonstrate[d] indisputably that [Lilly] was well-aware of his right to a jury trial." United States v. Lilly, 2006 WL 566499, at *4 (W.D.Pa.2006). The District Court continued that Lilly "simply cannot get a second chance with a jury after taking his chances with the Court based on a self-serving claim, wholly refuted by the record, that he was not advised of his right to a jury trial." Id.

With regard to Lilly's claim about the timing of the written waiver, the Court held that Rule 23(a) does not require that a written jury-trial waiver be filed at any particular time. Thus filing the waiver after trial but before verdict was appropriate. Even assuming that the late waiver showed incompetence by Lilly's attorney, the Court found no prejudice because it had orally confirmed the waiver with Lilly's counsel prior to trial in Lilly's presence.

Finally, the Court noted that it was under no duty to conduct an on-the-record colloquy with Lilly prior to accepting his waiver of the jury-trial right. See United States v. Anderson, 704 F.2d 117, 119 (3d Cir.1983). As will be discussed below, while an on-the-record colloquy is preferred, it is not constitutionally required. Id.

Lilly filed a motion for reconsideration on the jury-waiver claim, which the District Court denied. In the opinion and order denying reconsideration, the Court considered whether Lilly's petition could be read as raising a due process claim in addition to an ineffective assistance of counsel claim — namely, that his waiver was not knowing, intelligent, and voluntary. The Court went on to find Lilly's due process claim procedurally defaulted because he had failed to raise it on direct appeal.

Lilly filed a timely notice of appeal and a request for a certificate of appealability with our Court. In his counseled application for a certificate of appealability, he renewed his ineffective assistance and due process claims. We granted a certificate of appealability on the ineffective assistance claim, reasoning that jurists could disagree with the District Court's holding that Lilly's counsel was...