In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3538
K EVIN G. H UTCHINGS,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08 C 1013—Michael M. Mihm, Judge.
A RGUED F EBRUARY 22, 2010—D ECIDED A UGUST 24, 2010
Before K ANNE and W ILLIAMS, Circuit Judges, and
S PRINGMANN, District Judge.
K ANNE, Circuit Judge. Kevin Hutchings filed this peti-
tion for a writ of habeas corpus under 28 U.S.C. § 2255
after he discovered that the government would not
move to reduce his sentence under Federal Rule of
Hon. Theresa L. Springmann, District Judge for the Northern
District of Indiana, sitting by designation.
2 No. 08-3538
Criminal Procedure 35, contrary to what his attorney
had allegedly promised him. Hutchings argues that his
attorney’s false guarantee of a Rule 35 reduction in his
sentence violated his Sixth Amendment right to effec-
tive assistance of counsel. The district court denied
Hutchings’s petition, and we affirm.
I. B ACKGROUND
Hutchings was sentenced by a Texas court in 1992 to
a ninety-nine-year prison sentence for an aggravated
drug offense, but was released on parole in 2001. His
parole is not scheduled to terminate until 2091. The
year after he was released on parole, Hutchings began
trafficking marijuana, cocaine, and methamphetamine,
by purchasing the drugs in Texas and selling them in
Peoria, Illinois. He was arrested in October 2003 in Cleve-
land, Ohio. He was charged in federal court in Ohio
with, and pled guilty to, possession with intent to dis-
tribute cocaine, for which he was sentenced to ten years’
imprisonment. In August 2005, a federal grand jury in
Peoria charged Hutchings with conspiracy to distribute
more than 500 grams of methamphetamine and more
than five kilograms of cocaine. Based on Hutchings’s five
prior felony drug convictions, the government sought
to enhance his sentence under 21 U.S.C. § 851, which
would result in a mandatory minimum life sentence.
The court appointed Mark Wertz to represent Hutchings
regarding the charges in Peoria. Wertz told Hutchings
that if he pled guilty, the court would sentence him to
life in prison. However, according to Hutchings, Wertz
No. 08-3538 3
also told him that if he pled guilty and cooperated with
the government, one year later the government would
move to reduce his sentence to twenty to twenty-five years
under Federal Rule of Criminal Procedure 35. Wertz
allegedly did not tell Hutchings that the government
had broad discretion to bring a Rule 35 motion, and that
the district court had the ultimate discretion whether to
grant it. According to Hutchings, Wertz explained to
him that the government would not ask for a reduced
sentence in exchange for his initial guilty plea because
the government wanted to appear to the public to be
tough on crime. The reduced sentence would have to
wait for one year when it could be arranged with
less publicity.
In response to Hutchings’s habeas petition, the gov-
ernment attached an affidavit of attorney Wertz. Although
Wertz spends significant ink describing his impression
of whether Hutchings voluntarily pled guilty, conspicu-
ously missing from the affidavit is any statement by
Wertz negating Hutchings’s version of events—specifi-
cally, that Wertz guaranteed a sentence reduction.
Prior to pleading guilty, Hutchings wrote several
letters to the district court in which he admitted his
guilt and requested the opportunity to plead guilty as
soon as possible. The apparently upbeat 1 Hutchings
1
At his sentencing hearing in June 2006, Hutchings asked the
district court “for a three-week stay in order to clear up some
unfinished business and to party for a while.” (Supp. App.
(continued...)
4 No. 08-3538
wrote to the district court, among other things, that he
bought cheap drugs and sold them in Illinois (R. at 61,
p.1), 2 that he “set out to break the law and did exactly
that” (id. at 54, p.2), that involving himself in a long,
drawn-out trial was pointless because he had a life sen-
tence from previous cases (id. at 49, p.1), and that he
was impatient to get back to “lovely Three Rivers, Texas,”
where he was previously incarcerated, because his
fellow hearts players in prison missed him (id. at 54, p.1).
The district court held a change of plea hearing in
February 2006, when Hutchings pled guilty to a super-
seding indictment. As part of the properly conducted
Rule 11 colloquy, after placing Hutchings under oath, the
district court asked him if there had been “any promises
or assurances of any kind made to [him] in an effort to
induce [him] to plead guilty?”, to which Hutchings
replied, “No, sir.” (Supp. App. at 16.) The district court
also confirmed with Hutchings that he understood that
pleading guilty would result in a mandatory life sen-
tence without the possibility of parole. (Id. at 17.)
Hutchings pled guilty, and in June 2006 the district
court sentenced him to life in prison without the possi-
bility of parole.
1
(...continued)
at 46.) The district court denied the request in no uncertain
terms. (Id. at 52.)
2
References to “R.” are to the numbered docket entries in
the district court for Hutchings’s underlying criminal case,
No. 05-cr-10061.
No. 08-3538 5
Of course, now in his habeas petition, Hutchings
alleges that in fact there was a promise made to induce
him to plead guilty; he argues that had his attorney not
guaranteed him a sentence reduction for pleading guilty,
he would have gone to trial rather than plead guilty.
He alleges that he lied to the district court about
Wertz’s guarantee because of what Wertz had allegedly
told him about the government wanting to appear tough
on crime.
Hutchings later signed a cooperation agreement with the
Drug Enforcement Administration, pursuant to which
he twice met with a government agent to provide evi-
dence. Hutchings alleges that he called Wertz sixty
times between May and October 2007 to find out when
he would be resentenced. Wertz told him that he would
check with the government to find out. Finally, on Octo-
ber 15, 2007, Wertz told Hutchings that the govern-
ment said that it would not move to reduce his sen-
tence because he had not provided substantial assistance.
This petition for a writ of habeas corpus followed,
arguing, among other things, that his guilty plea was
involuntary because Wertz’s guarantee of a sentence
reduction constituted ineffective assistance of counsel.
The district court denied Hutchings’s petition without
holding an evidentiary hearing, and subsequently denied
Hutchings’s motion for a certificate of appealability. In
January 2009, however, this court gave Hutchings a
certificate of appealability, finding that “Hutchings has
made a substantial showing of the denial of a constitu-
tional right as to whether counsel’s advice regarding
Hutchings’s plea of guilty was ineffective assistance.”
6 No. 08-3538
II. A NALYSIS
This appeal raises two issues: first, whether Wertz’s
advice to Hutchings violated Hutchings’s constitu-
tional right to effective assistance of counsel, and second,
whether the district court should have held an evidentiary
hearing before ruling on Hutchings’s habeas petition.
The government initially urges us to reject Hutchings’s
petition outright because his “Memorandum of Law and
Facts” was not signed under penalty of perjury. But the
government waived this argument by failing to present
it to the district court. Bus. Sys. Eng’g, Inc. v. Int’l Bus.
Machs. Corp., 547 F.3d 882, 889 n.3 (7th Cir. 2008) (quoting
Hicks v. Midwest Transit, Inc., 500 F.3d 647, 652 (7th Cir.
2007)). Even if the argument was not waived, we find
that Hutchings properly incorporated by reference his
Memorandum into his sworn petition, especially con-
sidering his pro se status at the time of his original filing.
Cf. Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001).
A. Ineffective Assistance
Turning now to the merits, we review the district
court’s denial of a petition for a writ of habeas corpus
under § 2255 de novo as to legal questions and for clear
error as to factual questions. Sandoval v. United States,
574 F.3d 847, 850 (7th Cir. 2009). We analyze a peti-
tioner’s claim of ineffective assistance of counsel under
the two-part inquiry described in Strickland v. Washington,
466 U.S. 668, 687 (1984). “To prevail on an ineffective-
assistance[-]of-counsel claim under Strickland, a petitioner
must demonstrate that his counsel’s assistance was ob-
No. 08-3538 7
jectively unreasonable and resulted in a substantial risk
of prejudice.” Brown v. Finnan, 597 F.3d. 416, 419 (7th
Cir. 2010). Under our “highly deferential” review of an
attorney’s performance, we presume that the attorney
advised his client effectively. Berkey v. United States, 318
F.3d 768, 772 (7th Cir. 2003). Only if the petitioner comes
forward with “specific acts or omissions of his counsel
that constitute ineffective assistance” will we then
consider “whether these acts or omissions were made
outside the wide range of professionally competent
assistance.” Id.
If we find that Hutchings was not sufficiently preju-
diced, however, we need not address the adequacy of
Wertz’s representation. Strickland, 466 U.S. at 697; United
States v. Taylor, 569 F.3d 742, 748 (7th Cir. 2009). To estab-
lish prejudice in the pleading context, the petitioner
must prove that there is a reasonable probability that
he would not have pled guilty absent his attorney’s
deficient conduct. Hill v. Lockhart, 474 U.S. 52, 59 (1985);
Morales v. Boatwright, 580 F.3d 653, 663 (7th Cir. 2009). To
make that showing, the petitioner must do more than
simply allege “that he would have insisted on going to
trial”; he must also come forward with objective evi-
dence that he would not have pled guilty. United States
v. Cieslowski, 410 F.3d 353, 359 (7th Cir. 2005). Objec-
tive evidence includes the nature of the misinformation
provided by the attorney to the petitioner and the
history of plea negotiations. See Julian v. Bartley, 495
F.3d 487, 499 (7th Cir. 2007).
We find that Hutchings’s ineffective assistance claim
fails because he did not adequately show that he
8 No. 08-3538
would not have pled guilty even had his attorney fully
explained to him that a Rule 35 motion to reduce his
sentence was not guaranteed. Hutchings argues, however,
that he has both objective and subjective evidence that
he was prejudiced.
As subjective evidence of prejudice, Hutchings sub-
mits his testimony that he would have proceeded to trial
absent Wertz’s promise of a sentence reduction. The
“ ‘mere allegation by the defendant that he would have
insisted on going to trial is insufficient to establish preju-
dice.’ ” Julian, 495 F.3d at 499 (quoting United States v. Fudge,
325 F.3d 910, 924 (7th Cir. 2003)). But such a statement can
support a finding of prejudice if combined with proba-
tive, objective evidence, such as “a history of the plea
discussion[], and the type of mis-information” provided
to a defendant about the sentencing consequences of
pleading guilty. See id. at 500. Hutchings’s statement
that he would have proceeded to trial absent Wertz’s
guarantee is tempered significantly by the multitude of
unsolicited letters he sent to the district court, admitting
his guilt and expressing his desire to plead guilty.
Hutchings now argues that drafting those letters is
entirely consistent with his version of events: of course
he wanted to plead guilty as soon as possible if he was
promised a sentence reduction one year later. But the
evidence does not support Hutchings’s position. Of par-
ticular note is at least one letter that Hutchings wrote
to the district court requesting to plead guilty before he
had ever met with Wertz. (R. at 54, p.1.) Hutchings
could not have been motivated to plead guilty based on
Wertz’s alleged guarantee if at the time he wrote the letter
No. 08-3538 9
Wertz and Hutchings had never even met. Even if he
was motivated to hurry the process along so that he
could have his sentence reduced, there would be no
reason to manufacture the explanations that he gave to
the district court in the letters he drafted: he thought
mounting a defense was useless and therefore did not
want to delay his sentencing and return to prison.
Hutchings’s statement that he would have insisted on
going to trial absent Wertz’s alleged guarantee rings
hollow when read in conjunction with expressions of
Hutchings’s intent to plead guilty.
We are unpersuaded by the subjective evidence
that Hutchings would have pled guilty but for Wertz’s
guarantee of a sentence reduction. The objective evidence
suggested by Hutchings is also unpersuasive. He points
to the sentencing consequences he faced as objective
evidence that he would have gone to trial absent Wertz’s
bad advice. Hutchings’s choices were to go to trial, where
if convicted he would have received a life sentence, or
to plead guilty and receive a life sentence. Hutchings
argues that it made no sense for him to plead guilty when
doing so simply guaranteed a life sentence, no matter
how minuscule his chances of acquittal at trial were.
Pleading guilty would make sense, however, if—as
Hutchings alleges—Wertz told him that his choices were
actually to either go to trial and all but guarantee a
life sentence without parole, or plead guilty, receive an
initial life sentence, but then one year later receive a
reduced sentence under Rule 35.
Hutchings’s argument works neatly in the abstract,
but it ignores at least one other key variable that a reason-
10 No. 08-3538
able person in Hutchings’s shoes would have factored
into his decision-making process. Hutchings was out on
parole from Texas at the time he committed the felony
drug crimes in Ohio and Illinois. As a result, Texas
issued a parole violation warrant for Hutchings. Under
Texas law, Hutchings could be required to serve the
remainder of his ninety-nine-year sentence in prison,
see Tex. Gov’t Code Ann. § 508.156(e), which for
Hutchings would effectively be a life sentence. Hutchings
was clearly cognizant of the specter of serving a life
sentence in Texas because he cited it in one of his letters
to the district court as a reason why proceeding to trial
would be “pointless.” (R. at 49, p.1.) When viewed in
their proper context, the sentencing consequences that
Hutchings faced do not militate as strongly in favor
of finding ineffective assistance of counsel as he might
hope.
Hutchings relies heavily on two cases, Moore v. Bryant,
348 F.3d 238 (7th Cir. 2003), and Julian v. Bartley,
495 F.3d 487 (7th Cir. 2007).3 Both involved attorneys
giving incorrect sentencing advice at the pleading stage.
3
After we heard oral arguments in this case, the Supreme Court
decided Padilla v. Kentucky, 130 S. Ct. 1473 (2010). There, the
Supreme Court held that an attorney provided ineffective
assistance of counsel to his client by incorrectly telling him
that he would not be removed if he pled guilty. Id. at 1483. The
Padilla decision has no bearing on our decision in this case
because we need not decide whether Wertz’s performance
was deficient to reach our conclusion that Hutchings
was not prejudiced and therefore not entitled to habeas relief.
No. 08-3538 11
In Moore, the defendant pled guilty after his attorney
told him he would receive ten years for pleading guilty
or face twenty-two to twenty-seven years if convicted at
trial; in reality, the defendant’s exposure at trial would
only have been twelve-and-a-half to fifteen years. 348 F.3d
at 240. In Julian, the defendant opted to go to trial after
his attorney told him he would receive twenty-three
years if he pled guilty or face just seven years more
if convicted at trial; in reality, the defendant faced a
sentence of up to sixty years if convicted at trial. 495
F.3d at 489. In both cases, we granted the defendants’
habeas petitions, finding that the attorneys provided
ineffective assistance of counsel that prejudiced their
clients. Julian, 495 F.3d at 498-500; Moore, 348 F.3d at 241-
43. As objective evidence of prejudice, both courts deter-
mined that the attorneys’ miscalculations, based on
clearly erroneous readings of the applicable law, were
“precisely the type of information that is likely to impact
a plea decision.” Julian, 495 F.3d at 498; Moore, 348 F.3d
at 242-43.
We find Julian and Moore inapposite here. First, unlike
the defendants in Julian and Moore, Hutchings was
facing the very real possibility of spending the rest of his
life in prison, even if he was acquitted at trial. At the
very least, that possibility made Hutchings’s decision
less of an obvious choice than the defendants’ decisions
in Julian and Moore. Second, and importantly, there is no
evidence that the defendants in Julian and Moore lied to
the district court judge during the plea colloquy. In
Moore, the state court relied on the plea colloquy to
hold that the defendant had knowingly and voluntarily
12 No. 08-3538
entered the guilty plea and could therefore not complain
later that his counsel’s bad advice forced him to plead
guilty. 348 F.3d at 243. On appeal, this court reversed
because nothing in the plea colloquy would have
alerted the defendant that the advice he received from
his attorney was erroneous; therefore, the “sequence of
questions did nothing to ameliorate the adverse impact
of his counsel’s misinformation.” Id. Here, however, there
was at least one question in the plea colloquy between
the district court and Hutchings that should have given
Hutchings at least pause for concern: the district court
asked him whether there had been any promises made
to him to induce him to plead guilty. Hutchings re-
sponded under oath that there were not, which di-
rectly contradicts his recent testimony that his attorney
promised him a Rule 35 sentence reduction. Hutchings
justifies his lie to the district court by arguing that the
deal was a secret because the government and the
court wanted to appear to be tough on crime. We find
this after-the-fact explanation wholly insufficient to
override the verity that presumptively attaches to a de-
fendant’s statements when entering a guilty plea. United
States v. Loutos, 383 F.3d 615, 619 (7th Cir. 2004).
When a district court conducts a Rule 11 colloquy, it is
not putting on a show for the defendant, the public, or
anybody else. “The purpose of a Rule 11 colloquy is to
expose coercion or mistake, and the district judge must
be able to rely on the defendant’s sworn testimony
at that hearing.” Id. Because the court takes a crim-
inal defendant’s rights at a change-of-plea hearing very
seriously, it is reasonable to expect, and demand, that the
No. 08-3538 13
criminal defendant do so as well. For that reason, a de-
fendant is normally bound by the representations he
makes to a court during the colloquy. Id. Justice would
be ill-served, and the utility of the Rule 11 colloquy
would be undermined, by allowing Hutchings to renege
on his representation under oath to the district court
that there were no promises made to him to induce his
guilty plea. Absent a showing that his attorney per-
sonally directed him to hide the truth from the judge,
we simply cannot accept Hutchings’s explanation for
lying to the court.
Hutchings has failed to make the minimum required
showing that he would have pled guilty absent his at-
torney’s deficient performance. Because we find that
Hutchings has failed to establish that he was sufficiently
prejudiced by his attorney’s performance, we need not
decide whether Wertz’s performance was constitu-
tionally deficient.
B. Evidentiary Hearing
Hutchings also appeals the district court’s decision to
consider his petition without holding an evidentiary
hearing. “The court should grant an evidentiary hearing
on a § 2255 motion when the petitioner alleges facts that,
if proven, would entitle him to relief.” Sandoval, 574 F.3d
at 850 (internal quotation marks omitted). However, the
district court need not hold an evidentiary hearing
“ ‘where the motion, files, and records of the case conclu-
sively show that the prisoner is entitled to no relief.’ ”
Torzala v. United States, 545 F.3d 517, 525 (7th Cir. 2008)
14 No. 08-3538
(quoting Cooper v. United States, 378 F.3d 638, 641-42 (7th
Cir. 2004)). We review the district court’s decision not to
hold an evidentiary hearing for an abuse of discretion.
Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008).
The district court did not abuse its discretion by de-
clining to hold an evidentiary hearing. To be sure, if
Wertz guaranteed to Hutchings that the government
would move to reduce his sentence if he pled guilty, that
could support a finding that Wertz’s performance was con-
stitutionally deficient. Surprisingly, Wertz elected not to
refute Hutchings’s allegations that he provided inef-
fective assistance of counsel. Ordinarily an evidentiary
hearing would be necessary to help lay before the dis-
trict court all the relevant facts to determine what
Wertz did or did not promise. However, an evidentiary
hearing in this case was not necessary because the
record before the district court, and now before us, con-
clusively shows that Hutchings was not prejudiced
under Strickland and is therefore entitled to no relief.
III. C ONCLUSION
The district court’s denial of Hutchings’s petition for
a writ of habeas corpus under § 2255 is A FFIRMED.
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