Robert J. Paters v. United States

ILANA DIAMOND ROVNER, Circuit Judge,

concurring.

I am pleased to join Judge Eschbach’s opinion for the court, but I write separately to comment briefly on the requirement in this circuit’s eases that someone like Paters, who alleges that he received ineffective assistance of counsel in deciding to reject a proposed plea agreement, must show through objective evidence even in advance of a hearing that but for counsel’s faulty advice, he would have accepted the proposed plea. See Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir.1991), cert. denied, 505 U.S. 1223, 112 S.Ct. 3038, 120 L.Ed.2d 907 (1992); see also McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir.1996). The court faithfully follows those decisions today and suggests, despite the absence of a government challenge on the point, that the evidence Paters submitted in connection with his section 2255 petition may not satisfy that requirement. (See ante at 1047-48 & nn. 5-6.) Although I certainly acknowledge that our cases do impose an objective evidence requirement in this context, I am quite frankly at a loss to understand why the prejudice component for this type of claim — ineffective assistance of counsel in the context of a proposed plea-should be treated any differently than the prejudice component for any other type of ineffectiveness claim. In no other setting do we require evidence of this sort before the petitioner may obtain a hearing on his claim of prejudice, and I therefore do not believe that such a requirement should be imposed in this context either.

None of the decisions in this circuit that recite the objective evidence rule have articulated any rationale for requiring such evidence in this context but in no other. Indeed, the decision from which the rule is derived — Toro v. Fairman, supra — merely imposes the requirement without any explanation, adding a “cf.” cite to Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Toro, 940 F.2d at 1068. But as Toro’s “cf.” cite itself indicates, Strickland does not impose an objective evidence requirement. Strickland merely articulates the standard a petitioner must meet in order to show prejudice — “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. And the Court defined “reasonable probability” in Strickland as “a probability sufficient to undermine confidence in the outcome.” Id. That standard clearly is less demanding than a preponderance of the evidence standard, which the Strickland Court explicitly rejected as too stringent. See id. Yet in my view, our “objective evidence” requirement effectively reimposes the preponderance standard that Strickland rejected, because it seems to require something more than standard testimonial evidence from the party most able to speak to the issue under consideration. In my view, such a requirement cannot be squared with Strickland, and our cases imposing the standard have offered nothing by way of rationale to persuade me otherwise.1

*1050The unarticulated yet evident reason for the objective evidence rule, of course, is that we are reluctant to accept the petitioner’s own assertion that he in fact would have entered a guilty plea had he been properly advised at the plea stage. See Toro, 940 F.2d at 1068; see also McCleese, 75 F.3d at 1179; Johnson v. Duckworth, 793 F.2d 898, 902 n. 3 (7th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986). But in my view, that concern can be addressed in other ways without crafting a legal rule that is inconsistent with Strickland. For example, if all the petitioner were to offer to establish prejudice was his own self-serving statement that he would have pled guilty had he been properly advised, then I think a district judge would certainly have the discretion to find such evidence insufficient under the facts of a given case. But I also can imagine a circumstance where such a statement may be deemed sufficient — e.g., where the ineffectiveness of counsel worked such an unforeseen sentencing detriment that a judge could look at the case objectively and say that, of course, the defendant would have accepted the proposed plea had he been competently advised. Given the difficulty of producing so-called objective evidence in this context, I do not believe that our district judges should be deprived of the discretion to make those sorts of determinations under the facts of particular cases.

Finally, I am concerned by the court’s suggestion that Paters could meet the objective evidence requirement by submitting an affidavit from a government attorney to show that a plea in fact was proposed. (Ante at 1047-48 n. 6.) As I understand it, the government has not even contested that a plea was proposed in this ease, so I am not at all certain what such an affidavit would contribute to the prejudice analysis. It seems to me, moreover, that such an affidavit would address the ineffectiveness prong in any event, and not the prejudice prong that is at issue here. In this case, the government bypassed the ineffectiveness prong below, and thus we are concerned only with whether Paters would have pled guilty had he been properly advised. The proposed government affidavit would not address that issue.

In the end, although I join Judge Esch-bach’s opinion, I believe that the objective evidence requirement that our cases impose in the plea context is unsound. I certainly agree, however, that the affidavits Paters did submit, along with the government’s concessions below, are sufficient to require the district court to conduct a hearing on Strickland’s prejudice prong even under Toro.

. My good friend and colleague Judge Coffey takes issue with my assertion that the objective evidence requirement in this context is derived from Toro, contending that the requirement has been a part of this circuit’s jurisprudence for over four decades. (Post at 1059.) Yet as Judge Coffey’s own opinion makes clear, the decisions cited for that principle address only the requirement that a § 2255 petition be accompanied by an affidavit containing a quantum of proof supporting the petitioner's claim. (See post at 1052-53.) Paters’ petition was supported by such an affidavit, which asserted that had he been properly advised by counsel, he would have accepted the plea offered by the government. Because Paters is the only individual with direct knowledge as to what course he would have chosen, his affidavit certainly satisfies Prewitt’s “actual proof” standard. See Prewitt v. United States, 83 F.3d 812, 819 (7th Cir.1996). As Judge Esch-bach explains, this case is vastly different from Prewitt, where the petitioner made unsupported assertions about the reasons for a government delay, something of which he had no personal knowledge. (See ante at 1048.) In the specific context of an ineffectiveness claim addressed to counsel’s handling of a plea offer, Toro seems to require something more than actual proof — that *1050is, objective evidence in addition to the testimony of the most knowledgeable witness. See Toro, 940 F.2d at 1068. My objection to the Toro standard is thus not answered by reliance on the general habeas pleading standard, as Judge Coffey would suggest.