U.S. v. Ryan, 97 C 2765.

• Decision Date: 03 December 1997
• Docket Number: No. 93 CR 419-1.,No. 97 C 2765.,97 C 2765.,93 CR 419-1.
• Citation: 986 F.Supp. 509
• Parties: UNITED STATES of America, Respondent, v. John RYAN, Petitioner.
• Court: U.S. District Court — Northern District of Illinois

986 F.Supp. 509

UNITED STATES of America, Respondent, v. John RYAN, Petitioner.

No. 97 C 2765.

No. 93 CR 419-1.

United States District Court, N.D. Illinois, Eastern Division.

December 3, 1997.

COPYRIGHT MATERIAL OMITTED

Ronald D. May, U.S. Atty's Office, Chicago, IL, for U.S.

John Ryan, Pekin, IL, pro se.

MEMORANDUM OPINION AND ORDER

ASPEN, Chief Judge.

Upon entering a plea of guilty on September 20, 1993, petitioner John Ryan was convicted of six counts of conspiracy to possess with intent to distribute, and the distribution of ritalin, dilaudid, and morphine sulfate in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 846. We sentenced Ryan to 185 months in prison on counts I, IV, V, and VI, with the sentences to run concurrently with each other, and to 60 months on counts II and III, to run concurrently with each other and with the sentences imposed on the other four counts. Ryan appealed, but the Seventh Circuit rejected his arguments and affirmed his sentence. See United States v. Ryan, 78 F.3d 587 (7th Cir.1996) (table) (unpublished opinion available at 1996 WL 89229). Ryan now moves this court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied.

I. Discussion

Most of Ryan's arguments in this petition allege that his attorney rendered ineffective assistance to him, depriving him of his Sixth Amendment right to counsel.¹ To establish that he was deprived of effective assistance of counsel, Ryan must demonstrate that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). With respect to the first prong—known as the "performance" prong—the Supreme Court has observed:

The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted—even if defense counsel has made demonstrable errors— the kind of testing envisioned by the Sixth Amendment has occurred.

United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657 (1984). The second prong—known as the "prejudice" prong—requires the defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2067. A defendant asserting a Sixth Amendment claim has "the heavy burden of affirmatively establishing that counsel's performance was constitutionally deficient." United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir.1990). We may not second-guess counsel's strategic decisions. See United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir.1997). With these principles in mind, we consider each of Ryan's arguments in turn.

A. Coerced Guilty Plea

Ryan's first argument is that his attorney rendered ineffective assistance by "coercing" him into entering a guilty plea. Pet'r Br. at 6. Despite this claim, Ryan does not identify any act by his attorney that could even arguably be characterized as coercive,² and the transcript of his plea hearing clearly establishes the voluntariness of his plea:

THE COURT: [H]ave there been any conversations or promises or threats or coercion made to you by the United States Attorney, your attorney or any other person to induce you to enter a plea of guilty against your will?

THE DEFENDANT: No.

THE COURT: Do you understand that any such promises, threats or coercion made to you by anyone would in no way be binding upon the Court? Do you understand?

THE DEFENDANT: Yes.

THE COURT: In other words, you're making this plea of guilty voluntarily and as a result of your own decision, is that right?

THE DEFENDANT: Yes, sir.

Plea Hr'g Tr. at 7-8. Ryan was also informed of the potential length of his sentence, and that this court would be the ultimate decisionmaker thereof.

THE COURT: For each of the six counts you are pleading to there is a statutory penalty of up to 20 years imprisonment, a one-million dollar fine and up to five years supervised release ....

The Probation Department will look at your personal background as well as the offenses here and will recommend a sentencing guideline range .... Your attorney and the government will have access to those computations and will have a right to object to any of those computations. And of course I [will] sentence you within the computed sentencing guideline range.

Do you understand the possible penalties I could impose?

THE DEFENDANT: Yes.

Id. at 10.

A defendant's declaration under oath that his guilty plea is voluntary is entitled to "a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977); see also Nguyen v. United States, 114 F.3d 699, 703-04 (8th Cir.1997); Liss v. United States, 915 F.2d 287, 292 (7th Cir.1990) (indicating that a petitioner challenging his own sworn testimony regarding the voluntariness of his plea "faces a heavy burden of persuasion"). Ryan has not come close to overcoming this presumption: even giving the most generous reading to his allegations, the most we could infer is that his attorney accidentally gave him inaccurate advice about the sentence the court was likely to impose. Thus, we cannot conclude that Ryan's attorney rendered ineffective assistance by "coercing" his client to plead guilty against his will.³

Furthermore, even if Ryan's attorney's performance had been deficient Ryan has not established prejudice. In the context of his guilty plea, Ryan must demonstrate "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v.. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); see also United States v. Woolley, 123 F.3d 627, 635 (7th Cir.1997); Liss, 915 F.2d at 291 (quoting Key v. United States, 806 F.2d 133, 138 (7th Cir.1986)). It is far from obvious how a petitioner is expected to make such a showing, but it is clear that "merely making such an allegation is insufficient." Key, 806 F.2d at 139 (rejecting the petitioner's bald allegation that he would have pleaded differently and gone to trial absent counsel's poor advice); see also McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir.1996) (requiring that the petitioner "establish through objective evidence" that he would not have accepted the plea). We need not dwell on Ryan's proof problem because he does not even allege that he would have pleaded not guilty and proceeded to trial but for his attorney's flawed advice. Rather, he merely suggests that his expectation of being sentenced at an offense level of 26 (rather than 30) "was a major factor in his decision to plead as he did." Pet'r Br. at 7. Even if credited, this claim is not sufficient to establish prejudice. See Gargano v. United States, 852 F.2d 886, 891 (7th Cir.1988) ("We have already held that mere allegations by a defendant that he would have pleaded differently and insisted on going to trial are insufficient to establish prejudice; allegations that do not go even that far are clearly inadequate." (citation omitted)).⁴

B. Career Offender Classification

Ryan next presents several ineffective assistance of counsel arguments related to his classification as a career offender under U .S.S.G. § 4B1.1. We address each in turn.

1. Erroneous Advice

Ryan's most straightforward attack stems from his attorney's prediction that Ryan would be sentenced based on an offense level of 26; in fact, we sentenced him based on an offense level of 30. Ryan believes that his attorney misunderstood how the career offender provision (§ 4B1.1) would affect his offense level. See Pet'r Br. at 7. The fact that Ryan's counsel may have made an erroneous prediction, however, does not necessarily mean that his performance was constitutionally ineffective. As the Supreme Court has explained: "[A] decision to plead guilty must necessarily rest upon counsel's answers, uncertain as they may be. Waiving trial entails the inherent risk that the good faith evaluations of a reasonably competent attorney will turn out to be mistaken ...." McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970). Taking its cue from McMann, the Seventh Circuit has held that counsel cannot be found to have rendered constitutionally ineffective assistance based on inaccurate sentence predictions made in good faith. See United States v. Barnes, 83 F.3d 934, 939-40 (7th Cir.), cert. denied, ___ U.S. ____, 117 S.Ct. 156, 136 L.Ed.2d 101 (1996); United States v. Arvanitis, 902 F.2d 489, 494 (7th Cir.1990). Accordingly, even a grossly inaccurate prediction will not be found constitutionally inadequate unless the petitioner can show "that his attorney did not make a good-faith effort to discover the facts relevant to his sentencing, to analyze those facts in terms of the applicable legal principles and to discuss that analysis with him." Barnes, 83 F.3d at 940.

Ryan argues that his attorney failed to research the career offender provision adequately. See Pet'r Br. at 7. This assertion raises a question of fact that precludes us from determining whether Ryan's counsel's performance was constitutionally ineffective in the absence of an evidentiary hearing. Cf. Daniels, 54 F.3d at 293 (district court must hold an evidentiary hearing if the petitioner alleges facts that could entitle him to relief).⁵ We need not hold an evidentiary hearing, however, because even if the hearing revealed that Ryan's attorney did make an erroneous sentencing prediction without conducting a good faith investigation, Ryan has not shown prejudice. As...