In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4263
ROGER G. GALBRAITH,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 01-C-4012—J. Phil Gilbert, Judge.
____________
ARGUED SEPTEMBER 9, 2002—DECIDED DECEMBER 19, 2002
____________
Before CUDAHY, EASTERBROOK, and KANNE, Circuit
Judges.
CUDAHY, Circuit Judge. In this successive appeal, Roger
Galbraith argues that his unconditional guilty plea to
certain methamphetamine charges was unknowing, invol-
untary and unintelligent, and was the product of consti-
tutionally ineffective assistance of counsel. In an earlier
determination, Galbraith’s motion to suppress evidence
obtained as a result of a warrantless search was denied.
Subsequently, Galbraith submitted an unconditional guilty
plea to both charges on the day his jury trial was to com-
mence. On appeal, his attempt to seek review of the de-
nial of his motion to suppress evidence was denied as
waived by the unconditional guilty plea. In the present
2 No. 01-4263
action, Galbraith petitions for relief under 28 U.S.C. § 2255,
seeking to set aside his guilty plea as the product of the
court’s failure to ensure his full understanding of the
waiver of his appellate rights and of the ineffective assis-
tance of counsel to do the same. The district court de-
nied his petition. We affirm.
I.
On November 24, 1997, Roger Galbraith, and his now-
deceased wife, were arrested by Drug Enforcement Agency
(“DEA”) agents for the manufacture of methamphetamine
based on evidence discovered during a warrantless search
of Galbraith’s premises in the weeks before. United
States v. Galbraith, 200 F.3d 1006, 1009 (7th Cir. 2000)
(“Galbraith I”). The detailed facts surrounding this search
are adequately outlined in Galbraith’s previous appeal to
this court. Id. In April 1998, Galbraith moved to sup-
press the evidence gathered during that search, along
with any statements made by Galbraith as a consequence
of the search, as the products of an illegal search in vio-
lation of his Fourth Amendment rights. On April 16, 1998,
the district court, after a hearing on the motion, denied
Galbraith’s motion to suppress. A grand jury returned
a two-count indictment against Galbraith on April 23:
Count 1 alleged conspiracy to distribute and possession
with intent to distribute methamphetamine under 21
U.S.C. §§ 841(a), 846; count 2 alleged conspiracy to man-
ufacture methamphetamine under the same provisions.
Galbraith’s case initially went to a jury trial on October
29, 1998. On November 2, 1998, eleven jury members had
already been selected and the court was ready to begin
taking testimony when Galbraith entered a change of
plea, and pleaded guilty, unconditionally, to both count
one and count two of the indictment. The plea was sponta-
neously undertaken by Galbraith without any prior ne-
No. 01-4263 3
gotiation with the prosecutors. See Change of Plea Tran-
script at 10 (Asst. U.S. Attorney Moore noting, “I wasn’t
expecting this plea at all this morning . . . .”). As required
under Federal Rule of Criminal Procedure 11, the district
court, before accepting Galbraith’s plea, engaged in an on-
the-record colloquy concerning Galbraith’s plea. The
court ensured that Galbraith understood the nature of
the charges against him (Change of Plea Transcript at 5-6);
the maximum penalties possible under those charges (id.
at 6-7); the applicability and possible variations of the
Federal Sentencing Guidelines (id. at 9-12). See Fed. R.
Crim. P. 11(c)(1). The district court also insured his under-
standing of his right to persist in a not guilty plea (Change
of Plea Transcript at 8); his right to a jury trial (id.); his
right to the assistance of his lawyer at a trial (id.); and his
right against self-incrimination (id.). See Fed. R. Crim. P.
11(c)(3). Additionally, the court inquired into the factual
basis for the charges supporting the plea (Change of Plea
Transcript at 12-14). See Fed. R. Crim. P. 11(f). Finally, the
court made certain that Galbraith’s plea was voluntary
and not the result of incapacity, force, threats or promises
(Change of Plea Transcript at 15). See Fed. R. Crim. P.
11(d). The court did not, however, make certain that Gal-
braith understood that his unconditional plea waived the
right to appeal the denial of his motion to suppress. See
United States v. Adams, 125 F.3d 586, 588 (7th Cir. 1997)
(noting that an unconditional plea is “a waiver of non-jur-
isdictional defects occurring prior to the plea,” including
Fourth Amendment claims).
Galbraith was sentenced on March 3, 1999, to 151 months
in prison. In his direct appeal, in addition to appealing
certain aspects of his sentence, Galbraith appealed the
denial of his motion to suppress. Arguing strictly on the
merits, Galbraith contended that the DEA’s search had
been in violation of his Fourth Amendment rights, and the
4 No. 01-4263
district court’s denial of his motion to suppress was in
error. This court affirmed the district court in all respects.
Galbraith I, 200 F.3d at 1010. The merits of Galbraith’s
appeal of his motion to suppress were never considered
because he had waived his right to appeal by entering
an unconditional plea in the district court. Id.
On January 9, 2001, Galbraith filed a petition for relief
pursuant to 28 U.S.C. § 2255, arguing that (1) his guilty
plea was not knowing and voluntary (based on a lack
of awareness of the elements of his offense, a lack of
awareness of the direct consequences of his plea and
ineffective assistance of counsel in his guilty plea), (2) his
counsel rendered ineffective assistance in his sentencing
and (3) the statutes under which he was convicted were
unconstitutional. The district court denied Galbraith’s
petition in all respects. The court held that the record
belied any lack of voluntariness or knowledge as related
to the elements of his offense. As to ineffective assistance
of counsel rendering him ignorant of the consequences of
his plea, the court found that Galbraith had presented
no objective evidence that his trial counsel’s performance
fell below objectively reasonable standards of effective rep-
resentation nor that this alleged ineffectiveness prej-
udiced Galbraith’s defense. See Strickland v. Washington,
466 U.S. 668, 687-94 (1984). All it had, the district court
noted, was Galbraith’s own “self-serving statement” that
his trial counsel was ineffective. Galbraith v. United
States, Memorandum at 8, No. 01-cv-4012-JPG (S.D. Ill.
Nov. 14, 2001) (“Mem. Op.”). Galbraith’s claim of ineffec-
tive counsel at sentencing and his claim of unconstitu-
tionality of the statutes of conviction were both proce-
durally defaulted by his not having raised them on direct
appeal, and Galbraith failed to show cause and prejudice.
Therefore the district court did not consider the merits
of those claims. Mem. Op. at 10-11.
No. 01-4263 5
A certificate of appealability was granted by the district
court with respect to the argument that Galbraith’s guilty
plea was not knowing and voluntary because he was not
aware of the consequences of his plea and because his
trial counsel rendered ineffective assistance in not in-
forming him of the consequences of his plea, in violation
of Galbraith’s Fifth Amendment rights. This appeal fol-
lowed.
II.
A.
A district court’s decision to deny a petition under § 2255
is reviewed for clear error in factual matters and de novo
as to issues of law. Tezak v. United States, 256 F.3d 702,
712 (7th Cir. 2001).
Due process requires that a guilty plea, to be valid, be
made voluntarily, intelligently and knowingly. Brady v.
United States, 397 U.S. 742, 747 (1970); Ebbole v. United
States, 8 F.3d 530, 533 (7th Cir. 1993). A plea is voluntary
when it is not induced by threats or misrepresenta-
tions, and the defendant is made aware of the direct
consequences of the plea. United States v. Jordan, 870 F.2d
1310, 1317 (7th Cir. 1989) (citing Brady, 397 U.S. at 755).
A plea is knowing and intelligent when the defendant
is competent, aware of the charges and advised by compe-
tent counsel. Id.
Galbraith’s due process claim appears to have two
main points: First, that his plea was involuntary because
he did not know that his unconditional plea waived the
right to challenge the denial of his motion to suppress
(a “direct consequences” argument). This is simply an
attack on the Rule 11 colloquy between the district court
and Galbraith that was held when Galbraith entered his
guilty plea. Second, Galbraith claims that his plea was
6 No. 01-4263
not knowing and intelligent because the failure of his
trial counsel to inform him of the consequences of his plea
rendered counsel’s assistance constitutionally ineffective.1
B.
The government argues that Galbraith has procedurally
defaulted these arguments because they were not raised
on direct appeal. When an issue is not raised on direct
appeal, but later attacked collaterally via a petition for
post-conviction relief, the petitioner will be barred from
collateral review unless he can show good cause for fail-
ing to raise the issue and actual prejudice. Bousley v.
United States, 523 U.S. 614, 622 (1998); Prewitt v. United
States, 83 F.3d 812, 816 (7th Cir. 1996). Additionally, a
showing that a refusal to consider the issue would be a
“fundamental miscarriage of justice” can overcome the de-
fault. Prewitt, 83 F.3d at 816. As will be shown, Galbraith
has defaulted his “direct consequences” claim, but not his
ineffective assistance of counsel claim.
First, we consider whether Galbraith has defaulted his
“direct consequences” claim—that the district court failed
to ensure his understanding of his plea’s uncondi-
tional waiver effect—by not raising it on direct appeal in
Galbraith I. After his unconditional guilty plea, Galbraith
1
This quasi-Sixth Amendment argument is characterized as
merely an additional component of the Fifth Amendment analysis
because the “intelligent” element of satisfying due process is
defined as requiring advice by effective counsel. Jordan, 870 F.2d
at 1318 (describing petitioner’s Sixth Amendment claim as
“subsumed” by the Fifth Amendment analysis). As this court’s
prior decisions make clear, the standard for proving ineffective
counsel is, in both circumstances, the deficient performance-plus-
actual prejudice test that originated in Strickland. See, e.g.,
United States v. George, 869 F.2d 333, 336 (7th Cir. 1989).
No. 01-4263 7
appealed to this court, challenging, inter alia, the district
court’s denial of his motion to suppress evidence. Galbraith
I, 200 F.3d 1006. At the time of the Galbraith I appeal,
Galbraith made clear in his briefs to this court that he
understood that he had entered an unconditional plea and
that the effect of such a plea was to waive the right to
appeal the denial of the motion to suppress evidence. See
Galbraith I, No. 99-1676, Reply Br. at 2 (“Mr. Galbraith
concedes that he entered an unconditional plea of
guilty . . . . and that Seventh Circuit precedent holds that
ordinarily such a plea waives all antecedent nonjuris-
dictional issues.”). Nonetheless, Galbraith pressed for-
ward with his appeal, on the merits alone, of the denial
of the motion to suppress evidence. Any alleged defects in
his guilty plea (not originating in the alleged ineffective
assistance of counsel, described infra) were squarely be-
fore him and properly appealable during Galbraith’s first
journey through this court. Yet in his direct appeal in
Galbraith I, Galbraith raised no argument that the court’s
failure to explain the guilty plea’s effect of waiving his
right to appeal the motion to dismiss made the plea defec-
tive, and Galbraith made no attempt to withdraw the plea
or have it vacated as involuntarily given. By not raising
any alleged defect in his guilty plea’s voluntariness on
direct appeal, Galbraith has procedurally defaulted such
a claim.
Because Galbraith’s “direct consequences” argument
concerning his guilty plea’s voluntariness is procedurally
defaulted, Galbraith, to obtain review, must show cause
why the issue was not raised. However, Galbraith offers
no such cause for his procedural default of this issue. The
ineffective assistance of counsel claim, discussed infra,
concerns only his trial counsel, and that counsel’s al-
leged ineffectiveness during the taking of the guilty plea.
Galbraith’s attorney on direct appeal in Galbraith I was
new counsel, and Galbraith makes no argument that
8 No. 01-4263
that counsel was ineffective in not raising the deficient
guilty plea claim on direct appeal.2 Therefore, Galbraith’s
failure during his direct appeal to raise his claim that
the district court did not adequately inform him of the
consequences of his guilty plea stands unexplained, and is,
therefore, barred from collateral attack by this petition.
Next, we must consider whether Galbraith has proce-
durally defaulted his claim that he had ineffective assis-
tance of counsel before or during the guilty plea hearing.
Ineffective counsel claims that are not raised on direct
appeal are subject to the same procedural default rules
as other issues. Guinan v. United States, 6 F.3d 468, 471
(7th Cir. 1993).3 Despite that, this court has noted that
it is generally proper to raise arguments of ineffective
assistance of counsel for the first time on collateral review
in a § 2255 petition because such claims usually, as here,
involve evidence outside the record. McCleese v. United
States, 75 F.3d 1174, 1178 (7th Cir. 1996). A reviewing
court on direct appeal is limited to the record of trial and
cannot consider any extrinsic evidence that may be neces-
sary to support the ineffective counsel claim. Id.; United
States v. Gilliam, 255 F.3d 428, 437 (7th Cir. 2001) (noting
2
Galbraith’s counsel in the present case is the same as he had
on direct appeal in Galbraith I, a circumstance that may further
bely any notion that Galbraith is impliedly alleging ineffective
assistance of counsel at the appellate level in his direct appeal
in Galbraith I.
3
The question of whether a claim of ineffective assistance of
counsel is defaulted if not raised on direct appeal is, at the time
of the filing of this opinion, currently before the Supreme Court.
Massaro v. United States, 27 Fed. Appx. 26 (2d Cir. 2001), cert.
granted, 123 S. Ct. 31 (2002). However, because we find that
any procedural default by Galbraith has been overcome, the
possible invalidity of the underlying rule is irrelevant to the dis-
position of the present case.
No. 01-4263 9
that limitation to the record on direct appeal “almost
invariably dooms” ineffective counsel claims) (quotation
omitted). Because Galbraith’s ineffective counsel claim
argues that his trial lawyer failed to inform him of the
effects of his unconditional plea, an evidentiary matter
not in the record, there was no opportunity for adequate
review on direct appeal. Consequently, whatever default
there may have been is easily overcome, because the
evidence that Galbraith alleges to support his petition
is extrinsic to the record that was available on direct appeal
and provides the cause and prejudice necessary to sustain
Galbraith’s claim. Galbraith’s claim of ineffective assistance
of counsel is properly raised for the first time in this
petition.
C.
Because Galbraith has not defaulted his ineffective
assistance of counsel claim, we must next consider the
merits of his claim that the district court improperly de-
nied his petition. Galbraith alleges that he was prevented
from making an intelligent plea by his trial counsel’s inef-
fective assistance, that is, counsel’s failure to tell Galbraith
that his unconditional plea waived the right to appeal
the denial of the motion to suppress. In order to make
a claim of ineffective assistance of counsel, Galbraith
must show that his trial counsel’s performance was objec-
tively deficient, and that the deficient representation
caused prejudice to him. Strickland, 466 U.S. at 688; Tezak,
256 F.3d at 712. Prejudice in the context of a guilty
plea requires a showing that but for counsel’s deficient
performance, Galbraith would not have pleaded guilty.
Tezak, 256 F.3d at 712; Jordan, 870 F.2d at 1318. How-
ever, this analysis takes place in the context of the pre-
sumption that an attorney’s conduct is reasonably profi-
cient. United States v. Godwin, 202 F.3d 969, 973 (7th Cir.
10 No. 01-4263
2000) (noting “the general presumption that [the attorney’s]
conduct falls within the wide range of reasonable profes-
sional assistance”).
Galbraith claims that his trial counsel failed to make
clear to him that his unconditional plea waived for all
time his power to challenge the denial of his motion to
suppress. Galbraith claims that he pleaded guilty simply
to expedite matters, to avoid a trial and to get appellate
review of what he believed was a clearly dispositive issue
(the constitutionality of the search). Galbraith argues
that the failure of his counsel to effectively advise him
resulted in a guilty plea into which he otherwise would
never have entered. However, Galbraith provided the dis-
trict court with no evidence whatsoever to support his
allegations of counsel’s deficient performance, save his
naked assertions. Even if we were to decide that failure
to inform a client that there were no exceptions to his
guilty plea’s waiver of an appeal was constitutionally
deficient lawyering,4 Galbraith presents no scintilla of evi-
4
Let us be clear, however, that we do not reach such a determi-
nation here because it is not necessary to the disposition of this
case. Nor do we take at face value Galbraith’s assertions of
prejudice. Yet we do note that this court and the Supreme Court
have been hesitant to find ineffective counsel in situations
short of conspicuous failings. Mistakes in an attorney’s advice
to a client do not constitute, per se, ineffective counsel. See,
e.g., United States v. Teller, 762 F.2d 569, 577 (7th Cir. 1985)
(finding minimum competence despite defendant’s guilty plea
in response to attorney’s mistaken advice that acquittal by reason
of insanity would still result in “spend[ing] the rest of your life
in an insane asylum”). Nor, generally, do tactical omissions. Bell
v. Cone, 535 U.S. 685, 122 S.Ct 1843, 1852-53 (2002) (affirming
competent counsel when counsel did not adduce mitigating
evidence and waived closing arguments during sentencing hear-
ing involving potential death sentence). Therefore, there is a
(continued...)
No. 01-4263 11
dence of the alleged omission of his lawyer. And lest it
sound like a formidable task (to prove his lawyer’s
nonfeasance), we note that the sort of evidence usually
employed in such cases begins with sworn affidavits
attesting to the petitioner’s allegations. See Duarte v.
United States, 81 F.3d 75, 76 (7th Cir. 1996) (evaluating
§ 2255 petition’s claims of ineffective counsel based on
petitioner’s sworn affidavit); Daniels v. United States, 54
F.3d 290, 293 (7th Cir. 1995) (granting evidentiary hear-
ing on § 2255 petition based on conflicting evidence con-
tained in sworn affidavits of petitioner and his former
attorney). Galbraith presents no affidavit from himself
or his trial counsel supporting his version of his attor-
ney’s conduct, nor any other available, probative evidence
that would effectively support Galbraith’s claim. Without
any such evidence, there is no clear error in the district
court’s denial. See Jordan, 870 F.2d at 1318 (finding
no ineffectiveness of counsel when petition is not sup-
ported by any evidence of attorney’s failure to advise
client other than petitioner’s “bare allegations”).
Galbraith acknowledges, ultimately, the lack of eviden-
tiary support for his allegations of attorney nonfeasance. As
an alternative to his request for vacating the plea, he
requests that we remand to the district court for an eviden-
tiary hearing to secure the evidence that he is missing. The
reason he lacks the necessary evidence to support his
claims, Galbraith argues, is because the only person who
can provide that evidence, his trial counsel, is not cooper-
ating. Trial counsel, according to Galbraith, had a falling
out with Galbraith and his family after having “previously
destroyed favorable evidence.” Pet. Br. at 14. According
4
(...continued)
high hurdle to clear in showing that an omission, not reflecting
intent to prevaricate, would rise to the level of constitutionally
ineffective counsel.
12 No. 01-4263
to Galbraith, the only way to force trial counsel to admit
his omission is to put him on the stand and force him to
answer questions under oath. This argument fails as well.
This court reviews a district court’s decision not to
grant an evidentiary hearing for abuse of discretion. Prew-
itt, 83 F.3d at 820. There is no requirement that the district
court grant an evidentiary hearing for every § 2255 petition
alleging factual improprieties. Id. at 819; Aleman v.
United States, 878 F.2d 1009, 1012 (7th Cir. 1989). As this
court has noted before, “ ‘[i]t is the rule of this [c]ourt
that in order for a hearing to be granted, the petition
must be accompanied by a detailed and specific affidavit
which shows that the petitioner had actual proof of the
allegations going beyond mere unsupported assertions.’ ”
Prewitt, 83 F.3d at 819 (quoting Barry v. United States, 528
F.2d 1094, 1101 (7th Cir. 1976)). Galbraith presented no
detailed and specific affidavit, merely bare allegations.
And, therefore, he cannot meet the threshold requirement
for securing an evidentiary hearing.
Galbraith’s reliance on Stoia v. United States, 22 F.3d 766
(7th Cir. 1994), is misplaced. While he is correct that this
court requires a district court to grant an evidentiary
hearing if a § 2255 petitioner “alleges facts that, if proven,
would entitle him to relief,” id. at 768, the threshold
determination that the petitioner has sufficiently alleged
such facts requires the petitioner to submit a sworn affi-
davit showing what specific facts support the petitioner’s
assertions. Prewitt, 83 F.3d at 819. The cases Galbraith
cites supporting his argument are all distinguishable on
this ground—factual allegations must be supported by an
affidavit before we will require the additional step of an
evidentiary hearing. Stoia, 22 F.3d at 768 (requiring
evidentiary hearing for petition supported by affidavits);
Prewitt, 83 F.3d at 819 (denying evidentiary hearing for
lack of affidavits).
No. 01-4263 13
While we understand Galbraith’s concern, his former trial
counsel was not the only source of affidavits. Galbraith
himself might have submitted a sworn affidavit recount-
ing the facts of his plea hearing and surrounding events.
Galbraith’s new counsel on direct appeal might have
submitted an affidavit attesting to Galbraith’s state-
ments about his trial counsel’s performance (such an
affidavit might have been hearsay as to trial counsel’s
alleged omissions, but would have provided some corrob-
oration of Galbraith’s allegations). Whatever the source,
a sworn affidavit with specific details that showed
Galbraith had actual proof of the conduct alleged was
required as a predicate to securing an evidentiary hearing.
Aleman, 878 F.2d at 1012 (“Mere unsupported allega-
tions cannot support a petitioner’s request for a hearing.”).
Galbraith’s assertions at oral argument that such an
affidavit would have made no difference in the district
court’s ultimate decision is speculation and does not obvi-
ate the need for affidavit support.
III.
The district court’s denial of Galbraith’s § 2255 petition
is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-19-02