Willie P. Coleman, Jr. v. United States

ILANA DIAMOND ROVNER, Circuit Judge,

concurring in part.

I agree with my colleagues that Willie Coleman has not demonstrated that his trial counsel was constitutionally ineffective and I join the opinion to that extent. I write separately, however, because I cannot agree that what transpired at Coleman’s change of plea hearing was a mere “phantom mistake.” I would rest the decision instead on the narrower ground that Coleman has not demonstrated that he was prejudiced by the performance of his counsel at his change-of-plea hearing.

*761What happened here was that the government extended a plea offer in which it would promise to dismiss five of the six changes in the indictment, recommend a two-level reduction to Coleman’s base offense level for acceptance of responsibility, and recommend that he receive a sentence near the lower end of the applicable guideline range. The offer also provided that the government would, stipulate for sentencing purposes that the amount of cocaine involved in the offense “includes three kilos fourteen ounces.”

Prior to this offer, Coleman had moved to exclude from evidence the cocaine seized during his arrest and some statements he made to the police. The district court denied the motion, however, and in light of that ruling Coleman’s attorneys advised him that it was likely he would be found guilty if he chose- to stand trial. Coleman’s best option for limiting his criminal liability and reducing his prison sentence, according to his counsel, was to negotiate a plea in which the government would agree to cap the amount of cocaine involved in the offense. It appears from this record that Coleman appreciated counsel’s advice. But Coleman harbored a deep-felt belief, however misguided, that the court’s ruling on his suppression motion was incorrect. He thus rejected his counsel’s advice and hence the government’s offer, insisting as a matter of personal principle on appealing the denial of his suppression motion, a right he would lose if he pleaded guilty unconditionally. Defense counsel then advised the prosecutor that although Coleman did not wish to go to trial and intended to plead guilty, he wanted to enter a conditional plea and preserve his right to appeal.

With no further response from Coleman, a few days before the change-of-plea hearing, the government sent Coleman a letter to entice him to accept the plea offer and avoid trial. In addition to the promises set forth in the offer, the government sweetened the deal by offering to recommend that Coleman receive an acceptance of responsibility reduction of three rather than two offense levels, and to cap the amount of cocaine involved- in the offense at “not less than two and not more than 3.5” kilograms. But in the letter the government refused to agree to a conditional plea as part of the bargain, explaining that its offer “did not contemplate continued litigation” and that it would not dismiss some of the charges nor recommend acceptance of responsibility credit should Coleman insist on a conditional plea. Defense counsel reviewed the government’s letter with Coleman, but Coleman insisted on preserving his right to appeal.

At the change-of-plea hearing, counsel explained to the judge that he had spent “hours” discussing the government’s offers with Coleman, and that Coleman wanted to sign the plea agreement, but could not because he did not want to waive the right to appeal the denial of his pretrial motions. Defense counsel further represented that Coleman understood that “it would be wrong for him to go to trial,” because, among other things, the statements that he had unsuccessfully sought to suppress were strong evidence of his guilt, and because he would certainly lose the opportunity to reduce his sentence for cooperating with the government or accepting responsibility. Defense counsel then suggested that the court allow Coleman to enter a conditional plea, and he also appears to have suggested that Coleman also be allowed to accept the plea offer:

DEFENSE COUNSEL: ... So we ask the Court in its discretion to allow Mr. Coleman to sign the Plea Agreement which we have before us, which has been gone over with him chapter and verse, line by line, word by word, concept by *762concept, and still maintaining his right to raise legal issues in the Court of Appeals....

In response, the prosecutor reiterated her view that the government’s offer did not contemplate Coleman preserving his right to appeal, but that if Coleman persisted on entering a conditional plea she would not object so long as Coleman pleaded guilty to all six counts of the indictment. The prosecutor added that, as she had stated in the letter, she also would not recommend the three-level reduction for acceptance of responsibility.

Defense counsel replied that in his view the government’s conditions on consenting to a conditional plea were not important. He explained that whether Coleman pleaded guilty to a single charge of conspiracy to distribute cocaine, or the same charge plus five additional cocaine distribution charges, ultimately would not effect the length of time he spent in prison. In addition, defense counsel noted that any stipulation by the government as to the maximum amount of drugs involved in the offenses could not bind the court or super-cede the court’s duty to make independent findings.

The district court was willing to allow Coleman to enter a conditional plea. Defense counsel then asked for what appears to be clarification from the judge whether Coleman could also sign the plea agreement, perhaps as modified by the prior conversation:

DEFENSE COUNSEL: Your Honor, having said that, we can proceed with— if [the prosecutor] wishes — with what the Court has said, we would graciously sign the Plea Agreement. If not, then I can assure the Court that all of the rights enumerated in the Plea Agreement and all other concepts have been gone over with Mr. Coleman, and he will come forth and swear and answer whatever questions the Court has referenced now, his conditional plea — that you referenced now as a conditional plea.

Following this, the judge, defense counsel, and the prosecutor engaged in the following colloquy, part of which has been reproduced in the majority’s opinion:

THE COURT: The Court having made that ruling, is the Government prepared, then, to offer that Plea Agreement to the defense?
THE GOVERNMENT: Well, the Plea Agreement anticipated the Defendant pleading guilty to only one of the charges. I think the government’s position is — and I certainly don’t quarrel with the Court’s ruling — I think it’s appropriate, but that if the Defendant is going to plead guilty, he should plead guilty to all of the counts set forth in the Superceding Indictment. So insofar as the other aspects of the Plea Agreement in terms of what rights he has given up and some of the other general provisions in there, I have no problem with [defense counsel] asserting that he has explained those to the Defendant. But the government is not offering the Plea Agreement in exchange for a conditional plea. I agree and I have no quarrel with his ability to do that, but I believe it should be to the Superceding Indictment.
DEFENSE COUNSEL: If that’s what we must do, we will enter a plea of guilty with the understanding ... that what we are doing is entering a plea of guilty to the 6 counts in the Superceding Indictment ... with the understanding that Mr. Coleman is entering ... a conditional plea....
THE COURT: ... That being said, then the Court will proceed to take the plea. And there is no- — -I take it no disagreement that the conditions — and the understanding, of course, that the *763Government is not waiving its objection to the Court’s ruling relative to this conditional plea, but any of the other conditions that are — and agreements that are going to be observed in the Plea Agreement as it was originally submitted?
THE GOVERNMENT: Other than the charges to which the Defendant is pleading guilty. Is that the question? Are the other factors that are set forth in the Plea Agreement still applicable? Is that your — is that what you are asking me?
THE COURT: Yes.
THE GOVERNMENT: Yes.
THE COURT: Okay. The Court would like to see a copy of that Plea Agreement, then, just because I haven’t received a copy of it since we had this problem outstanding.
THE GOVERNMENT: Except if I could just interpose one more thing. The Government would not be recommending a decrease for acceptance of responsibility. That’s a point on which [defense counsel] and I differ.

It is true that a plausible interpretation of the above (the view taken by the government and the majority) is that the prosecutor simply misspoke — that what she really meant to say was that the plea offer was dead and that the only “factors set forth in the Plea Agreement” still applicable to Coleman’s plea were the boilerplate provisions included in the written offer to ensure that Coleman’s decision to accept the agreement was knowing and voluntary, e.g., Fed.R.Crim.P. 11(c). But an equally plausible interpretation is that which Coleman presses in this appeal, that his counsel and the government reached an oral agreement containing some but not all of the terms of the second plea offer as modified by the terms set forth in the government’s letter.

This concerns me because the decision whether to accept or reject any plea was only Coleman’s to make — counsel could not make it for him without consultation. See Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir.1986). Although I am confident that defense counsel did not believe that they had unexpectedly wheedled a deal out of the prosecutor — a “Eureka!” moment as the parties put it — there is nothing in this record addressing how defense counsel reconciled their beliefs with what was said at the hearing. Considering the ambiguity of the colloquy, counsel’s apparent request to allow Coleman to accept the agreement and receive the benefit of a conditional plea, and the prosecutor’s concession that her response was “improvident” and did not reflect what she meant, it was unreasonable in my view for counsel to proceed without first consulting Coleman to make sure he understood that all he had obtained was the conditional plea and nothing more. See Nevarez-Diaz v. United States, 870 F.2d 417, 423 (7th Cir.1989).

If the reasonableness of counsel’s performance was the only issue standing between Coleman and habeas corpus relief, on this record I would remand the issue to the district court for further proceedings. But it is not the only issue, and I must concur with the judgment because I am not persuaded that Coleman has demonstrated prejudice from any deficiencies in counsel’s performance. To satisfy the prejudice requirement in the context of guilty pleas, Coleman had to demonstrate that there existed a reasonable probability that, but for counsel’s errors, he would not have entered a plea of guilty and would have insisted on a trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Coleman asserts that he would not have pleaded guilty had his trial attor*764neys explained to him that they did not believe, contrary to his own understanding, that he and the government had reached an oral plea agreement embodying the offer to cap the amount of cocaine. But defense counsel’s representations to the judge during the change-of-plea hearing made it quite clear that Coleman was aware of the perils he faced if he went to trial, and because of that he intended to plead guilty so long as he could enter a conditional plea, which the court allowed. See United States v. Standiford, 148 F.3d 864, 868-69 (7th Cir.1998) (record created at a Rule 11 colloquy is accorded a presumption of verity; district court may hold defendant to admissions made at the hearing). Also, in his § 2255 motion Coleman averred that “Had I known that the government would argue for relevant conduct between 5 and 15 kilograms of cocaine, I would not have entered the guilty plea as I did.” The statement is just equivocal enough to suggest that Coleman might only have attempted to strike a better bargain with the government, not proceed to trial. See Tezak v. United States, 256 F.3d 702, 713 (7th Cir.2001). But even if we read it as an assertion that Coleman would have insisted on a trial, without more the statement is not enough to establish prejudice under our cases. Rather, Coleman had to identify some evidence supporting his claim that the outcome of the proceedings would have been different. See id.; Gargano v. United States, 852 F.2d 886, 890 (7th Cir.1988); Key v. United States, 806 F.2d 133, 139 (7th Cir.1986); see also Paters v. United States, 159 F.3d 1043, 1047 (7th Cir.1998); id. at 1049-50 (Rovner, J., concurring). Because he has not, I respectfully concur in the judgment.