US v. Byrd, 83 CR 608 (86 C 2152).

• Decision Date: 31 August 1987
• Docket Number: No. 83 CR 608 (86 C 2152).,83 CR 608 (86 C 2152).
• Citation: 669 F. Supp. 861
• Parties: UNITED STATES of America, Plaintiff, v. Cornell BYRD, Defendant.
• Court: U.S. District Court — Northern District of Illinois

669 F. Supp. 861

UNITED STATES of America, Plaintiff, v. Cornell BYRD, Defendant.

No. 83 CR 608 (86 C 2152).

United States District Court, N.D. Illinois, E.D.

August 31, 1987.

James O'Connell, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

Cornell R. Byrd, pro se.

MEMORANDUM OPINION AND ORDER

NORDBERG, District Judge.

Cornell Byrd pleaded guilty to two charges relating to unlawful possession of firearms in 1983. He filed this petition for habeas corpus pursuant to 28 U.S.C. § 2255 in March of 1986, alleging that his guilty plea should be set aside because of alleged ineffective assistance of counsel and prosecutorial misconduct. The parties are before the court on the Government's motion to dismiss the petition. For the reasons set forth below, the court grants the Government's motion to dismiss, and denies Byrd's petition for habeas corpus.

Procedural Background

In 1983, Byrd was charged in a four count indictment with violations of 18 U.S.C. § 922(h) and 18 U.S.C. Appendix § 1202(a)(1) (83 CR 608). He subsequently pleaded guilty to Counts III and IV the § 1202(a)(1) counts, and this court sentenced him to twenty months in prison, followed by a five year period of probation.

Byrd appealed his sentence to the Seventh Circuit on the grounds that the sentencing court improperly relied on photographs linking him to the El Rukn street gang. The Seventh Circuit affirmed his sentence in an unpublished order, holding that the introduction of these photographs in sentencing was not improper under United States v. Harris, 558 F.2d 366, 373 (7th Cir.1977). United States v. Cornell R. Byrd, 753 F.2d 1076 (7th Cir.1984) (unpublished order). Byrd did not appeal the entry of his guilty plea.

Following the Seventh Circuit's affirmance of his sentence, Byrd filed a petition for habeas corpus pursuant to 28 U.S.C. § 2255. This petition alleged that the court's failure to inform him of the possible delay in the commencement of his sentence rendered his plea involuntary because it was entered without full knowledge of the consequences. United States v. Cornell R. Byrd, 83 CR 608 (85 C 8657). This court summarily denied Byrd's § 2255 petition on October 17, 1985, and denied his motion for leave to appeal on November 4, 1985.¹

Byrd filed this case, his second § 2255 petition, on March 28, 1986. In this motion, he argues that his plea and sentence should be vacated for two reasons. First, he contends that his attorney's ineffective assistance of counsel prompted his decision to enter into the plea agreement. Second, he alleges that the United States Attorney prosecuting the case allegedly forged government money vouchers for grand jury witnesses in order to influence their testimony. The Government urges the court to dismiss the petition on the grounds that these claims, even if proven, are insufficient to invalidate Byrd's guilty plea.²

Ineffective Assistance of Counsel

The sixth amendment right to counsel necessarily includes the right to effective assistance of counsel. Key v. United States, 806 F.2d 133, 138 (7th Cir.1987). In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-part test to evaluate claims of ineffective assistance of counsel. Under Strickland, a defendant must establish that his "counsel's representation fell below an objective standard of reasonableness," and 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 688, 694, 104 S.Ct. at 2065, 2068. When applying this two-part test,

`Judicial scrutiny of counsel's performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's perspective at the time.' ... In particular, `a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'

Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 2474, 91 L.Ed.2d 144 (1986), citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), the Supreme Court held that the two-part Strickland test also applies to collateral proceedings in which the defendant seeks to vacate his guilty plea on the grounds of ineffective assistance of counsel. See Key, 806 F.2d at 138; Haase v. United States, 800 F.2d 123, 128 (7th Cir. 1986).

Byrd's sixth amendment claim rests on three alleged misrepresentations of his trial counsel. First, Byrd alleges that his attorney told him that, if he pleaded guilty, the maximum sentence he would receive from the judge was one year in jail, plus probation, and that his nine months in state custody would apply to any sentence Judge Nordberg might impose. Second, he contends that his attorney advised him to plead guilty because there was "no way that he could win his case; and it was the only chance he had to keep from spending fourteen years in jail." Pet. for Habeas Corpus at 4½. According to Byrd, this advice was constitutionally deficient because his attorney knew that the four-count indictment was multiplicitous and that Byrd could never have been convicted and sentenced on all four counts. Finally, Byrd alleges that his attorney advised him that, if he pleaded guilty, the Government would agree not to introduce evidence of a former conviction on a related case before Judge Shadur. For the following reasons, the court finds that none of these charges are sufficient to meet the Hill/Strickland test for vacating guilty pleas based on ineffective assistance of counsel.

Byrd's first allegation of error concerns his attorney's alleged inaccurate advice regarding the length of his sentence and when it would begin to run.³ In Key v. United States, the defendant alleged that his plea was involuntary because his attorney had misrepresented when he would be eligible for parole. The Seventh Circuit held that the attorney's inaccurate prediction did not render the guilty plea involuntary, nor did it establish that Key had received ineffective assistance of counsel. First, the court reviewed the plea hearing, emphasizing the deference which should be accorded to Key's statements in the course of that hearing:

A guilty plea must be both a knowing and a voluntary act. To ensure this, Federal Rule of Criminal Procedure 11(d)⁴ requires that the trial judge ask the defendant specific questions concerning the voluntariness of the plea agreement. The questions create a record that can be used in future appeals and collateral attacks. Furthermore, the record is entitled to a presumption of verity.... The Rule 11 questioning has special importance to collateral proceedings. In Thompson v. Wainwright, 787 F.2d 1447 (11th Cir.1986), the court, citing Blackledge v. Allison, 431 U.S. 63, 73-4, 97 S.Ct. 1621, 1629 52 L.Ed.2d 136 (1977), stated `that the representations of the defendant at a plea hearing as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceeding.' Thompson, 787 F.2d at 1460. Moreover, the petitioner's `declarations in open court carry a strong presumption of verity.' Id., citing Blackledge, 431 U.S. at 74, 77 S.Ct. at 1629 52 L.Ed.2d 136.

Key, 806 F.2d at 136 (citations omitted). See also Haase, 800 F.2d at 127. After reviewing the colloquy between Key and the court, the Seventh Circuit held that Key's allegation of a collateral promise regarding his sentence, which was never raised at the plea hearing, failed to establish that the plea was involuntary. Key, 806 F.2d at 137.

The facts in this case parallel the situation in Key. Rule 11(d) is designed to ensure a "meaningful colloquy that elucidates and preserves in the record the defendant's state of mind, his knowledge of the rights foregone, the factual basis for the plea, and his understanding and acknowledgement of the offense to which he is pleading." Haase, 800 F.2d at 127. Byrd alleges that his attorney told him that, if he pleaded guilty, he would receive a maximum sentence of one year, and his federal sentence would run concurrently with his state sentence. After reviewing the record of Byrd's entry into the plea agreement, the court concludes that his allegations regarding his attorney's promises regarding his sentence are insufficient to overcome the `presumption of verity' in the Rule 11(d) proceeding, and fail to establish that his plea was involuntary.

The proposed terms of the plea agreement were orally presented to the court in Byrd's presence. The Government stated that, if Byrd pleaded guilty to the § 1202(a)(1) counts, it would voluntarily dismiss the § 922 counts at the time of sentencing, and it would agree not to use this plea and conviction in another case pending before Judge Shadur.⁵ The Government also indicated that it would request incarceration for Byrd's two violations of the statute. Before accepting Byrd's plea, this court followed the strictures of Rule 11, notifying Byrd of the nature of the charges against him and the penalties allowed by law for violation of these statutes.⁶ Byrd was placed under oath. The court told Byrd that the maximum penalty for Counts III and IV was four years incarceration and a $20,000 fine, and questioned Byrd with respect to any promises, predictions, or representations regarding his plea that were not contained in the plea agreement. Byrd affirmed that the only agreement between the Government and himself was the one presented in open court, and that the Government had correctly stated the terms of the agreement they had reached. He never revealed any collateral promises to this court, and...