Vinyard v. United States

• Decision Date: 04 November 2015
• Docket Number: No. 14–1134.,14–1134.
• Citation: 804 F.3d 1218
• Parties: Jerry L. VINYARD, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

804 F.3d 1218

Jerry L. VINYARD, Petitioner–Appellant

v.UNITED STATES of America, Respondent–Appellee.

No. 14–1134.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 9, 2015.

Decided Nov. 4, 2015.

Grace Anne Fox, Attorney, Maureen L. Rurka, Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner–Appellant.

Thomas E. Leggans, Attorney, Office of the United States Attorney, Benton, IL, for Respondent–Appellee.

Before POSNER, MANION, and HAMILTON, Circuit Judges.

Opinion

HAMILTON, Circuit Judge.

This appeal presents a challenge to the constitutional sufficiency of a criminal defense attorney's advice in unusual circumstances. Jerry Vinyard pled guilty to charges of conspiracy to manufacture, distribute, and possess methamphetamine with intent to distribute. At sentencing, he started to backtrack on whether he was admitting some of the relevant conduct listed in his presentence report. After consulting with his attorney, he withdrew his objections. His hesitation, however, prompted the district judge (Judge Gilbert) to vacate his guilty plea and sentence on the court's own initiative. That led in turn to an unusual series of proceedings culminating in a writ of mandamus from this court ordering the district court to reinstate Vinyard's plea and sentence.

Vinyard still wished to challenge his guilty plea, however, and he tried to do so in the district court proceedings conducted to comply with our mandate. A different district judge (Judge Stiehl) rejected Vinyard's challenge and reinstated the plea and sentence. Vinyard then had a choice to make: he could file a direct appeal, or he could forgo that route in favor of an immediate collateral attack under 28 U.S.C. § 2255. On his attorney's advice, he chose the latter path. He now argues that advice caused him to default some of his claims and amounted to constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Vinyard seeks reinstatement of his right to a direct appeal.

The district court denied relief, concluding that the decision to forgo a direct appeal was strategic and not objectively unreasonable, and that Vinyard could not show prejudice in any event. This court granted a certificate of appealability on only that claim. After full briefing and argument, we affirm the denial of relief because Vinyard has shown neither deficient performance nor prejudice under Strickland.

I. Factual and Procedural Background

Vinyard's only claim on appeal is that his attorney was constitutionally ineffective when he advised Vinyard to challenge his guilty plea as part of a collateral attack under § 2255 without first pursuing a direct appeal. That advice, Vinyard contends, was wrong because as a general rule “the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.” Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The government defends the attorney's advice as a reasoned strategic decision—a decision, moreover, with which Vinyard agreed at the time—and argues that even if the advice was wrong, Vinyard suffered no prejudice by following it. This court reviews the district court's denial of a § 2255 petition de novo with regard to issues of law, and we review factual findings for clear error. Blake v. United States, 723 F.3d 870, 879 (7th Cir.2013), citing Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir.2002).

The procedural history of this case is unusual and central to the ineffective-assistance-of-counsel claim. We must review the relevant portions in some detail. Vinyard was arrested on April 27, 2006 for participating in a conspiracy to manufacture and distribute methamphetamine. Vinyard decided to plead guilty. He signed a stipulation of facts admitting: that he had been involved in the conspiracy; that his role had been to obtain “precursor materials” such as pseudoephedrine pills and anhydrous ammonia for use in methamphetamine cooks; and that the total amount of methamphetamine involved in the conspiracy exceeded 500 grams.

Judge Gilbert held a guilty plea hearing on November 7, 2006. Much of that hearing, including the adequacy of the district court's guilty plea colloquy with Vinyard, is not before this court. Relevant to the present appeal, however, the government explained its evidence, which tracked the stipulation of facts that Vinyard had signed. Vinyard agreed that the government's recitation was correct. When the judge asked if any threats or promises had been made to induce his plea, Vinyard said no. When asked if his plea was his own free and voluntary act, he said it was. The judge accepted the guilty plea and set a date for sentencing. Before the hearing concluded, Vinyard's attorney, Susan Gentle, noted for the record that the parties had agreed that the government would not proceed with a forfeiture action against Vinyard's home and property.

The court sentenced Vinyard on May 3, 2007. The presentence investigation report indicated that Vinyard was responsible for 36,491 grams of a mixture or substance containing methamphetamine, 36,000 of which stemmed from an incident in which Vinyard supplied tanks to store 300 gallons of anhydrous ammonia stolen by his co-conspirators. Vinyard's attorney did not object to the report. When Judge Gilbert asked Vinyard directly if he wanted to correct any errors or make any alterations, Vinyard declined. Later on, however, Vinyard questioned the accuracy of the report. He told the judge that although he was guilty, he was “not guilty of everything that I'm accused of” and that, of the 36,491 grams of methamphetamine listed in his presentence investigation report as relevant conduct, “36,000 of that does not belong on there. Is simply not true. I did not do that.”

Understandably troubled by this sudden change in Vinyard's position, Judge Gilbert asked Vinyard if he wished to object to the relevant conduct identified in the presentence report. The prosecutor said there was no “realistic possibility” that the relevant conduct would fall below 500 grams of methamphetamine, the threshold needed to apply the twenty-year mandatory minimum sentence in light of Vinyard's criminal record. The court recessed while Vinyard consulted with his attorney. After that consultation, Vinyard said he would not contest the relevant conduct described in the presentence investigation report. He specifically declined to contest whether the relevant conduct involved more than 500 grams of methamphetamine. Judge Gilbert then sentenced Vinyard to the mandatory minimum of 240 months in prison.

Judge Gilbert remained troubled by Vinyard's protests at sentencing. The next day, May 4, without first notifying the government, he ordered that Vinyard be released on bail. The order was not filed until May 7, however, and the government learned of Vinyard's release only when an agent saw him walking into the Probation Office. The government immediately appealed the release order. On May 10, it filed an additional motion to reverse the release order. That same day, Judge Gilbert vacated the release order and directed Vinyard to surrender to the United States Marshal, mooting the first appeal. The judge also sua sponte vacated Vinyard's guilty plea and sentence and ordered that new counsel be appointed to represent him, terminating attorney Gentle and appointing attorney Gene Gross in her place. The government appealed again and on June 5 moved for a stay in both the district court and this court.

Judge Gilbert granted the motion to stay on June 13 and explained his reasons for vacating the plea and sentence. He was concerned that Vinyard had not agreed knowingly and voluntarily to the relevant conduct in the presentence investigation report. The judge also believed he had not adequately informed Vinyard of his right to challenge a prior conviction that raised the mandatory minimum sentence to twenty years under 21 U.S.C. §§ 841 and 851. With its second appeal still pending, the government then petitioned for a writ of mandamus to compel the district court to reinstate the plea and sentence.

This court granted the writ, holding that the district court had committed patent error and that the government had demonstrated irreparable harm. See United States v. Vinyard, 539 F.3d 589, 595 (7th Cir.2008). While expressing doubt that the district court had erred at all in failing to inform Vinyard of his rights under § 851 or in adopting the relevant conduct described in the presentence investigation report, we held that neither arguable error could call the guilty plea itself into question. Id. at 593–94. We further held that neither error warranted relief from the sentence. Id. Accordingly, we vacated the district court's May 10 order and issued a writ mandating “that judgment be entered pursuant to the May 3, 2007 sentence pronounced by the district court.” Id. at 595.

The case returned to the district court, where Judge Gilbert recused himself. The case was reassigned to Judge Stiehl. Vinyard then filed for the first time a motion to withdraw his guilty plea, which Judge Stiehl denied on May 20, 2009. Recognizing the rarity of the situation, the judge correctly noted that the remand was “very simply a mandamus directing the Court to enter judgment on the sentence.” Judge Stiehl concluded that he could not grant Vinyard relief because of the specific and limited nature of the remand. He denied Vinyard's motion and noted that Vinyard was “not without remedy as he may challenge his plea on direct appeal of this sentence, or on habeas review.” The district court entered judgment on June 8, 2009.

At that point, attorney Gross offered the advice that Vinyard now challenges. Gross and Vinyard discussed whether to pursue a direct appeal of the conviction and sentence. Vinyard's affidavit in support of his § 2255 petition says that Gross advised him “that the record was not...