In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1465
JOHN M. W YATT,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06 CV 00322—David R. Herndon, Chief Judge.
A RGUED A PRIL 16, 2009—D ECIDED JULY 28, 2009
Before E ASTERBROOK, Chief Judge, and B AUER and
M ANION, Circuit Judges.
M ANION, Circuit Judge. John Wyatt filed a § 2255 motion
alleging that his attorney rendered ineffective
assistance during various stages of his criminal case.
The district court denied the motion, and Wyatt has
appealed that decision. For the following reasons, we
affirm.
2 No. 08-1465
I.
In 2002, police stopped a recreational vehicle driven by
John Wyatt and discovered a large quantity of marijuana
during a search of the vehicle. Wyatt was indicted for
possessing marijuana with the intent to distribute in
violation of 21 U.S.C. § 841(a)(1). After the district court
denied his motion to suppress the evidence seized
during the traffic stop, Wyatt entered a conditional plea
of guilty to the charged offense, reserving his right to
appeal the denial of the suppression motion. The
district court then sentenced Wyatt to 262 months’ im-
prisonment based on his status as a career offender
under the Guidelines. Wyatt appealed the denial of his
suppression motion and his sentence to this court. We
affirmed in an unpublished order. United States v. Wyatt,
No. 04-3314, 2005 WL 1220479 (7th Cir. May 16, 2005).
Wyatt then filed a pro se motion to vacate, set aside,
or correct his sentence under 28 U.S.C. § 2255 in which
he identified twenty-nine reasons his attorney, Nishay
Sanan, rendered ineffective assistance during the plea,
sentencing, and direct appeal phases of his case. The
district court denied the motion, and Wyatt appeals.
II.
On appeal, Wyatt claims that the district court erred
in denying his motion because he demonstrated three
ways in which Sanan’s counsel was ineffective. When the
denial of a § 2255 motion is challenged on appeal, we
review the district court’s findings of fact for clear error
No. 08-1465 3
and its legal determinations de novo. Suggs v. United
States, 513 F.3d 675, 678 (7th Cir. 2008).
The Sixth Amendment to the Constitution accords
criminal defendants the right to effective assistance of
counsel. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009).
To succeed on a claim of ineffective assistance, a
prisoner must prove (1) his attorney’s performance fell
below an objective standard of reasonableness, and (2) he
suffered prejudice as a result. Strickland v. Washington, 466
U.S. 668, 687-88, 693 (1984). With respect to the perfor-
mance prong, a movant must overcome the “strong
presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at
689. He must establish the specific acts or omissions
of counsel that he believes constituted ineffective assis-
tance; we then determine whether such acts or omissions
fall outside the wide range of professionally competent
assistance. Coleman v. United States, 318 F.3d 754, 758
(7th Cir. 2003). Regarding the prejudice prong, “the
defendant must show that there is a reasonable prob-
ability 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 (1985).
Wyatt first alleges that Sanan was ineffective because
he did not inform him of the consequences of entering
a conditional plea—namely, that under then-existing
Seventh Circuit case law,1 Wyatt could be sentenced as
1
Under United States v. Bryant, 310 F.3d 550, 554 (2002), which
was the controlling case law in this circuit at the time of Wyatt’s
(continued...)
4 No. 08-1465
a career offender based partly on his prior walkaway
escape from a halfway house. Wyatt claims he would
not have pleaded guilty had Sanan not assured
him that he would not be subject to a career offender
sentence.
Wyatt’s allegations concerning Sanan’s advice, if true,
may suggest that Sanan’s assistance was objectively
unreasonable. But even assuming arguendo that Sanan’s
performance was deficient, Wyatt has failed to demon-
strate prejudice because he has not shown that Sanan’s
advice was a decisive factor in his decision to enter a
conditional plea instead of going to trial or entering an
unconditional plea in hope of obtaining a lower sen-
tence. See Julian v. Bartley, 495 F.3d 487, 498 (7th Cir.
2007) (noting that in the plea agreement context, the
prejudice prong focuses on whether counsel’s deficient
performance was a decisive factor in the defendant’s
decision to plead guilty rather than pursuing other op-
tions). First, this court has repeatedly emphasized that
a defendant’s mere allegation that he would have
chosen a path other than the conditional plea is insuf-
ficient by itself to establish prejudice. Bethel v. United
States, 458 F.3d 711, 718 (7th Cir. 2006). Second, Wyatt
1
(...continued)
sentencing, the crime of escape was categorically a crime of
violence under the Guidelines. In light of the Supreme Court’s
opinion in Begay v. United States, 128 S. Ct. 1581 (2008), however,
we recognized in United States v. Templeton, 543 F.3d 378, 383
(2008), that a walkaway escape from a nonsecure halfway
house is not a crime of violence under the Guidelines.
No. 08-1465 5
stated in his petition to enter the conditional plea that
his decision to plead was not tied to any particular sen-
tence. Wyatt stated he understood that the district court
could “impose the same punishment as if [he] had
pleaded not guilty and had been convicted by a jury” and
acknowledged that neither Sanan nor the government
had represented that his guilty plea would result in a
sentence lower than the one he could receive were he
convicted by a jury. Third, Wyatt’s statements during the
plea colloquy clearly demonstrate that his decision to
make the conditional plea was not predicated upon any
specific sentence. The government informed the court
that it would be seeking an enhancement based on Wyatt’s
prior convictions, which would increase the minimum
penalty to ten years and the maximum to life. Wyatt
indicated he understood that specific penalty range
would be a consequence of a guilty plea. He also said
he knew his Guidelines range could be more than the
mandatory minimum of ten years and that the range
recommended in the presentence report could vary
from any estimate that Sanan might have made. In addi-
tion, Wyatt confirmed that, other than a pending indict-
ment in Arizona that the government had agreed to
dismiss upon his conditional plea (certainly a consequen-
tial benefit), no other promises had been made to him.2
2
The court asked Wyatt: “Are there any other agreements out
there . . . ? Anybody made any other promises to you?” Wyatt
responded: “Nothing at all, Your Honor.” Were Sanan’s
alleged assurances about Wyatt’s sentence a decisive factor in
(continued...)
6 No. 08-1465
For these reasons, Sanan’s allegedly deficient advice to
Wyatt concerning a career offender enhancement did not
play a decisive factor in Wyatt’s decision to enter the
conditional plea.
Wyatt next claims that Sanan rendered ineffective
assistance when he failed to argue adequately that Wyatt’s
prostate condition warranted a lenient sentence. The
government points out that Wyatt never asserted that
claim in his § 2255 motion and suggests he thus is proce-
durally barred from raising it here. We agree. Nowhere
in his detailed twenty-nine claim motion does Wyatt
suggest that Sanan’s performance was deficient because
Sanan failed to present an adequate mitigation argu-
ment based on Wyatt’s health. Pro se collateral review
filings are construed liberally. Haines v. Kerner, 404
U.S. 519, 520 (1972) (per curiam); Lewis v. Sternes, 390
F.3d 1019, 1027 (7th Cir. 2004). As here, however, where
a § 2255 motion makes absolutely no mention of a
claim, we will not entertain an argument pertaining to
that claim on appeal. Berkey v. United States, 318 F.3d
768, 774 (7th Cir. 2003); Barker v. United States, 7 F.3d
629, 632 n.2 (7th Cir. 1993).
Finally, Wyatt argues that Sanan’s failure to file a
timely petition for a writ of certiorari with the Supreme
Court was ineffective assistance. That argument is a non-
starter. The Supreme Court held in Ross v. Moffitt, 417 U.S.
2
(...continued)
Wyatt’s choosing to enter the conditional plea, this would
have been the opportune time to raise the issue.
No. 08-1465 7
600, 617 (1974), that a criminal defendant has no constitu-
tional right to counsel to pursue a petition for a writ of
certiorari. And where there is no constitutional right to
counsel, there cannot be constitutionally ineffective
assistance of counsel. See Coleman v. Thompson, 501 U.S.
722, 752 (1991) (holding that because there is no constitu-
tional right to counsel in state post-conviction
proceedings, “a petitioner cannot claim constitutionally
ineffective assistance of counsel in such proceedings”);
Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (per
curiam) (concluding that because petitioner had no consti-
tutional right to counsel in pursuing state supreme court
review, petitioner “could not be deprived of the effective
assistance of counsel by his retained counsel’s failure to
file the application timely”); Wilson v. United States, 413
F.3d 685, 687 (7th Cir. 2005) (“Because the sixth amend-
ment does not guarantee quality (or any) counsel in
post-conviction proceedings, the doctrine of ineffective
assistance does not apply and lawyers’ errors do not
support relief.”). Because he had no constitutional right to
counsel in seeking review with the Supreme Court, Wyatt
cannot claim constitutionally ineffective assistance of
counsel based on Sanan’s failure to file a timely petition
for a writ of certiorari.
One housekeeping matter remains. During the
pendency of this appeal, Wyatt filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2241 in the Western
District of Texas, the district in which he is currently
confined. In his petition, Wyatt contends that his career
offender enhancement should be vacated and his sen-
8 No. 08-1465
tence reduced in light of the Supreme Court’s opinions in
Chambers v. United States, 129 S. Ct. 687 (2009) and Begay
and our decision in Templeton. The Texas district court
determined that Wyatt could not bring a § 2241 petition
challenging his underlying sentence because the escape
hatch provision of § 2255(e) was not satisfied. That should
have been the end of the matter. However, the district
court then construed Wyatt’s filing as a second or suc-
cessive § 2255 motion, determined it lacked jurisdiction
to consider it, and transferred the motion to this court
because our authorization is required before a § 2255
motion may be filed in the sentencing court, the
Southern District of Illinois. See 28 U.S.C. §§ 2255(h) &
2244(b)(3)(A). The re-characterization and transfer of
Wyatt’s petition to this court was unnecessary and likely
improper, for we held in Collins v. Holinka, 510 F.3d 666,
667 (7th Cir. 2007), that a § 2241 petition should not be re-
characterized as a § 2255 motion because courts must
respect a litigant’s decision to invoke a certain statute
and must resolve the case under that law. It is pointless
to transfer the § 2241 petition back to the Texas district
court, where it was considered and dismissed. And under
§ 2241(a), no district within the Seventh Circuit may
consider Wyatt’s petition because the proper venue for
filing a § 2241 petition is the district in which the
prisoner is confined. Moore v. Olson, 368 F.3d 757, 758-59
(7th Cir. 2004); see al-Marri v. Rumsfeld, 360 F.3d 707, 709
(7th Cir. 2004). The matter is over, so we dismiss his
petition.
No. 08-1465 9
III.
Having concluded that Wyatt has not established that
his counsel’s assistance was ineffective under Strickland,
we A FFIRM the district court’s denial of his § 2255 mo-
tion. We also D ISMISS Wyatt’s § 2241 petition.
7-28-09