Judges: Per Curiam
Filed: Feb. 07, 2003
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ Nos. 02-1240 and 02-1508 WILLIE P. COLEMAN, JR., Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. _ Appeals from the United States District Court for the Eastern District of Wisconsin. No. 00 C 76—Rudolph T. Randa, Chief Judge. _ ARGUED DECEMBER 2, 2002—DECIDED FEBRUARY 7, 2003 _ Before BAUER, POSNER, and ROVNER, Circuit Judges. BAUER, Circuit Judge. Petitioner-Appellant Willie P. Coleman, Jr. appeals the dist
Summary: In the United States Court of Appeals For the Seventh Circuit _ Nos. 02-1240 and 02-1508 WILLIE P. COLEMAN, JR., Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. _ Appeals from the United States District Court for the Eastern District of Wisconsin. No. 00 C 76—Rudolph T. Randa, Chief Judge. _ ARGUED DECEMBER 2, 2002—DECIDED FEBRUARY 7, 2003 _ Before BAUER, POSNER, and ROVNER, Circuit Judges. BAUER, Circuit Judge. Petitioner-Appellant Willie P. Coleman, Jr. appeals the distr..
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In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-1240 and 02-1508
WILLIE P. COLEMAN, JR.,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 00 C 76—Rudolph T. Randa, Chief Judge.
____________
ARGUED DECEMBER 2, 2002—DECIDED FEBRUARY 7, 2003
____________
Before BAUER, POSNER, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Petitioner-Appellant Willie P.
Coleman, Jr. appeals the district court’s order denying his
§ 2255 motion to vacate, set aside, or correct his sentence.
He argues that his guilty pleas were not intelligently and
voluntarily entered as a consequence of the ineffective
assistance of his counsel. Because we believe Coleman
received effective assistance of counsel throughout the
proceedings and intelligently and voluntarily entered his
guilty pleas, we affirm the sentence imposed below.
2 Nos. 02-1240 and 02-1508
I. BACKGROUND
Willie Coleman was indicted on April 8, 1997, after the
government recovered 1370 grams of powder cocaine,
$49,162 in United States currency, drug paraphernalia, and
a loaded handgun from his Milwaukee home. This was
followed by a superseding indictment on May 28, 1997.
After the district court denied various motions, the case,
originally set for trial, was set for a change of plea hear-
ing. On September 19, 1997, Coleman entered a conditional
plea to the six-count superseding indictment that charged
him with multiple drug-trafficking offenses.
The parties attempted to devise a negotiated plea. The
government gave Coleman two separate plea agreements
which he rejected. When Coleman came to the change of
plea hearing on September 17, there was no agreement
in place. At the hearing, defense counsel expressed a will-
ingness to enter a conditional plea; the government acqui-
esced, assuming the conditional plea was to all six counts.
The district court approved the idea of a conditional plea
and asked the government if it would accept the plea
agreement. The prosecutor responded that the plea agree-
ment did not include all six counts in the indictment,
but that the other general provisions of the agreement
were acceptable. This was highlighted in the following
colloquy:
THE COURT: [T]he 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 Government is not waiving its objection to the
Court’s ruling relative to this conditional plea, but
any of the other conditions in that are—and agree-
ments are still going to be observed in the Plea Agree-
ment as it was originally submitted?
THE GOVERNMENT: Other than the charges to
which the Defendant is pleading guilty. Is that the
Nos. 02-1240 and 02-1508 3
question? Are the other factors that are set forth in
the Plea Agreement still applicable? Is that your—is
that what you’re asking me?
THE COURT: Yes.
THE GOVERNMENT: Yes.
One provision included in the plea agreement involved
a stipulation regarding relevant conduct which stated:
That pursuant to Sentencing Guidelines Manual,
Section 1B 1.3, the sentencing judge will consider not
only the weight of the drugs alleged in the offense, to
which the defendant is pleading guilty, but also the
weight of any other drugs that were involved as part
of the same course of conduct or common scheme or
plan as the offense of conviction; and the judge will
use the total weight of the drugs involved in calculat-
ing the guideline range, even if not alleged in the
offense of conviction; the parties stipulate that the
weight of the drugs for the purpose of calculating the
guideline range includes 3 kilograms of cocaine rela-
tive to the defendant’s conduct in or around March
1997, and an additional 14 ounces as a historical
amount;
After this exchange between the court and the govern-
ment, the district court advised Coleman of the stat-
utory penalties for the crimes he was being charged with,
asked him if he understood that he could still go to
trial, and whether there was anything outside of the
plea agreement that he had been promised. Coleman
responded that he understood everything, that he had
not been threatened or promised anything, and that he
had nothing to discuss with his attorney or the court.
Coleman proceeded to plead guilty and the court ac-
cepted the plea. The written plea agreement which had
been the subject of repeated negotiations was never exe-
cuted by the parties nor filed with the court.
4 Nos. 02-1240 and 02-1508
At the sentencing hearing, the prosecution proffered
that Coleman’s relevant conduct involved 11 kilograms
of cocaine. The district court accepted the government’s
position. On December 12, 1997, the district court sen-
tenced Coleman to 135 months in prison, a fine of $3,000,
5 years of supervised release, and a forfeiture of $49,162
in drug proceeds.
Coleman appealed the judgments of conviction on var-
ious grounds he preserved for appeal. We affirmed the
conviction on July 16, 1998. United States v. Coleman, 149
F.3d 674 (7th Cir. 1998). On January 5, 2000, Coleman
moved pursuant to 28 U.S.C. § 2255, to vacate, set aside,
or correct his sentence. Coleman argued that he had not
been effectively represented and that his guilty plea was
not voluntarily and intelligently entered. On December 6,
2001, the district court denied Coleman’s petition. A week
later, Coleman filed a motion for reconsideration and a
supplement to his § 2255 motion.
In its opposition to Coleman’s motion, the government
attached affidavits of Coleman’s trial counsel. It was
through these affidavits that Coleman learned, for the
first time, that his lawyer believed the government had
erred when it failed to note that it would not be bound
by the weight stipulation. Despite this newly discovered
information, the district court denied the motion for recon-
sideration. The district court granted Coleman’s motion
for a certificate of appealability on the issue of whether
his counsel was ineffective at sentencing but denied Cole-
man’s motion to include the issue of whether his guilty
plea was not voluntarily and intelligently entered. On
June 25, 2002, we granted Coleman’s motion to amend
the certificate of appealability to include the issue of
whether his counsel was ineffective during his plea hear-
ing and whether, as a result of this deficient perfor-
mance, his plea was involuntary.
Nos. 02-1240 and 02-1508 5
II. ANALYSIS
In this appeal, Coleman contends his counsel was inef-
fective at both the plea hearing and at sentencing while
the government argues that counsel’s actions were en-
tirely reasonable. Like two ships that pass in the night,
both parties focused on entirely different matters, fail-
ing to address the core arguments of their respective
opponent. Nevertheless, we first examine Coleman’s inef-
fective assistance claim as it relates to counsel’s perfor-
mance at the plea hearing. We will then consider Cole-
man’s claim that his counsel’s assistance was ineffective
at his sentencing hearing. We review a district court’s
ruling on ineffective assistance of counsel de novo under
the principles set forth in Strickland v. Washington, 466
U.S. 668 (1984).
A. Ineffective Assistance of Counsel at the Plea Hearing
Hill v. Lockhart,
474 U.S. 52, 57-58 (1985), held that
the Strickland analysis applies to counsel’s conduct dur-
ing the pleading phase. To mount a successful claim
that counsel was ineffective at the pleading stage, Cole-
man must first show his attorney performed in a defi-
cient manner, Strickland,
466 U.S. 668, 687, and then
prove that “but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Hill, 474 U.S. at 58-59. Our scrutiny of counsel’s perfor-
mance is highly deferential. United States ex rel. Simmons
v. Gramley,
915 F.2d 1128, 1133 (7th Cir. 1990). Coleman
also has a difficult burden of proof as he must overcome
the strong presumption that his attorney’s performance
was effective. Chichakly v. United States,
926 F.2d 624,
627 (7th Cir. 1991). To meet this burden, Coleman must
establish specific acts or omissions of his counsel which
constitute ineffective assistance. We then determine
whether these acts or omissions were made outside the
6 Nos. 02-1240 and 02-1508
wide range of professionally competent assistance. Menzer
v. United States,
200 F.3d 1000, 1003 (7th Cir. 2000). To
find that Coleman’s guilty plea was involuntary as a result
of ineffective assistance of counsel, his attorney must
have given advice that falls below prevailing profes-
sional norms. Chichakly v. United States,
926 F.2d 624,
628 (7th Cir. 1991).
Coleman offers little as to why he was denied the effec-
tive assistance of counsel during the plea colloquy. More-
over, he fails to apply the Strickland test, making only
a passing reference to the case. Coleman’s treatment of
Strickland and its progeny as negligible points of law
cannot be emphasized enough. This is especially true,
given his approach of relying on conclusory assertions in
lieu of any reasonable Strickland analysis.
Despite these analytical missteps, Coleman attempts
to establish a specific omission of his counsel which con-
stitutes ineffective assistance. Specifically, he argues
that defense counsel erred when he failed to speak to
Coleman after the prosecutor neglected to include the
weight stipulation as one of the provisions in the plea
agreement to which the government would not be bound.
According to Coleman, defense counsel was either not
paying attention during the exchange between the court
and the government or counsel believed that the prosecu-
tor’s omission was inadvertent. He contends that either
circumstance constitutes ineffective assistance of coun-
sel. Coleman contends that the failure of counsel to fully
inform him that there would not be a limit on the drug
weight resulted in a guilty plea entered with a substan-
tial misunderstanding of the consequences of his plea.
Coleman bases his ineffective assistance claim on what
is essentially a phantom mistake with no adverse con-
sequences to him. During the plea colloquy, it was a
foregone conclusion that Coleman wanted to plead guilty.
Nos. 02-1240 and 02-1508 7
The record clearly supports this finding. In his affidavit,
Coleman’s defense counsel stated that he repeatedly told
Coleman that he was in severe jeopardy of a lengthy
sentence unless the amount of drugs involved in the case
was limited. He swore that he explained to Coleman that
he could achieve such a result only by a plea of guilty.
Coleman’s defense counsel also stated that he advised
his client that unless there was a plea agreement, his
sentence would be longer and he would lose point reduc-
tions by not pleading guilty.
Apparently, Coleman took this advice to heart. The
case was twice scheduled for trial, however, Coleman
eventually requested a change of plea hearing. Consider-
ing the underlying circumstances of the case, it would
seem that Coleman’s best option was to plead guilty.
This would be true regardless of how the prosecutor
answered the question about the plea provisions. While
her answer could, at its worst, be considered vague,
there was nothing fallacious about the statement or the
underlying plea provisions.
The strategy of Coleman’s counsel was perfectly rea-
sonable. He tried to make the best of a bad situation for
his client by attempting to minimize the sentence and
help effectuate an earlier release. In essence, Coleman
got exactly what he bargained for. As we explain below,
Coleman’s claim is based on the faulty premise that
paragraph 6(h) placed a cap on Coleman’s relevant con-
duct. Counsel’s reading that paragraph 6(h) was not a cap
gave effect to the plain meaning of the words, and thus,
is correct. Given his interpretation of this unambiguous
language, counsel had little reason to speak with Cole-
man about it. Considering the “conduct from counsel’s
perspective at the time,”
Strickland, 466 U.S. at 689, we
believe counsel’s actions fall within the wide range of
reasonable professional assistance. Because Coleman
failed to meet the requisite burden of proof with regard to
8 Nos. 02-1240 and 02-1508
the first prong of Strickland, we are required to go no
further in our analysis. See Hough v. Anderson,
272 F.3d
878, 890 (7th Cir. 2001).
We now briefly address a separate argument by Cole-
man that is intertwined with his ineffective assistance
claim. Coleman says that the district court erred when
it refused to consider a letter sent by the prosecutor
to Coleman on August 11, 1997. Coleman argues the let-
ter corroborates his interpretation that paragraph 6(h)
was intended to be a cap on his relevant conduct. Coleman
misconstrues the import of the letter. The district court
found that the government wrote the letter to induce
Coleman to accept the plea agreement and that his re-
jection of the proposal in the letter was a rejection of all
of its inducements. There is little dispute as to what the
letter intended. It unambiguously asserted that Cole-
man “would remain in the ‘not less than two and not
more than 3.5’ kilogram range in the sentencing guide-
lines.” We do not dispute Coleman’s contention that this
letter corroborates his interpretation of paragraph 6(h).
However, once Coleman rejected the offer in the August 11,
1997 letter, the parties went back to the drawing board.
Coleman cannot now retrieve any contemplated plea
agreements to prove that the government maintained
a certain tactical position throughout the negotiations.1
Thus, the district court did commit clear error in its re-
fusal to consider the government’s letter.
1
Coleman cites United States v. Mankiewicz,
122 F.3d 399, 403
(7th Cir. 1997), where we noted that, because plea agreements
“implicate the deprivation of human freedom, the rules govern-
ing their interpretation, although having their roots in the prin-
ciples of contract law, also acknowledge that concern for due
process outweighs concern for freedom of contract.” (internal
quotes omitted). We do not stray from this proposition. However,
no plea agreement was ever entered into.
Nos. 02-1240 and 02-1508 9
B. Ineffective Assistance of Counsel at Sentencing
Coleman’s claim of ineffective assistance of counsel is
not confined to the plea phase of the proceedings. He
also claims that his counsel’s conduct during the sentenc-
ing hearing was ineffective assistance. The district court
found that the unexecuted plea agreement did not con-
tain a limit on the drug weight attributable to Coleman
and that defense counsel’s failure to object at sentenc-
ing was not ineffective assistance of counsel.
Our analysis of Coleman’s claim of ineffective assis-
tance at the sentencing stage is similar to our approach
with regard to the plea hearing. For Coleman to prevail,
he must first demonstrate that his counsel’s performance
fell below an objective standard of reasonableness, Strick-
land, 466 U.S. at 688, and that he suffered prejudice by
the deficient performance.
Id. As we previously noted,
Coleman must show his counsel’s representation fell below
an objective standard of reasonableness. Hough v. Ander-
son,
272 F.3d 878, 890 (7th Cir. 2001). We measure rea-
sonableness under the standard of prevailing professional
norms.
Id. To meet the prejudice prong of Strickland,
Coleman must show that but for counsel’s unprofessional
error, the results would have been different.
Coleman contends the prosecutor had a commitment
to honor the supposed stipulated cap on relevant con-
duct. Coleman concludes that the failure to object amounted
to ineffective representation of counsel. It is unclear
what basis defense counsel would have had for an objec-
tion. Counsel correctly interpreted the plain import of
paragraph 6(h) and came to a plausible conclusion: the
proposed plea agreement did not cap the relevant con-
duct; moreover there was no plea agreement; it had been
rejected.
And, as we noted with his ineffective assistance claim
at the plea phase, the difficulty Coleman faces is the
10 Nos. 02-1240 and 02-1508
content of paragraph 6(h) of the plea agreement. If the
paragraph in fact unequivocally limited the drug weight
he might have some argument. However, the paragraph
instead clearly set forth that the drug weight would in-
clude 3 kilograms, 14 ounces. There was not a single
word or inference that suggested the relevant conduct
was limited to this weight. It was reasonable for Cole-
man’s counsel to conclude that there was no agreement
between Coleman and the government regarding a drug
weight cap.
The government argues that a provision intending to
cap a drug amount should read “includes but does not
exceed” or “is limited to” instead of “includes.” We agree.
The word “includes” does not suggest limitation. In fact,
the word is defined “comprises as a part of the whole.”2
Given the context of the plea agreement and the under-
lying factual background, we cannot read the term “in-
cludes” to mean a limitation.
There is one final point we must address. Coleman
attempts to manufacture an argument concerning an
alleged breach of the plea agreement by the government.
He contends that this breach resulted in an involuntary
plea. This issue is not before this court. Coleman never
raised the issue on direct appeal and thus his argument
is procedurally defaulted. A § 2255 motion is not a sub-
stitute for a direct appeal. Doe v. United States,
51 F.3d
693, 698 (7th Cir. 1995). Accordingly, we AFFIRM the dis-
trict court’s order denying Coleman’s motion for § 2255
relief.
2
Merriam Webster’s Collegiate Dictionary 588 (10th ed. 1996).
Nos. 02-1240 and 02-1508 11
ROVNER, Circuit Judge, concurring in part. I agree
with my colleagues that Willie Coleman has not demon-
strated that his trial counsel was constitutionally ineffec-
tive 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 nar-
rower ground that Coleman has not demonstrated that
he was prejudiced by the performance of his counsel at
his change-of-plea hearing.
What happened here was that the government ex-
tended 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 ac-
ceptance of responsibility, and recommend that he re-
ceive a sentence near the lower end of the applicable
guideline range. The offer also provided that the govern-
ment 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 de-
nied the motion, however, and in light of that ruling Cole-
man’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 coun-
sel’s advice. But Coleman harbored a deep-felt belief,
however misguided, that the court’s ruling on his sup-
pression motion was incorrect. He thus rejected his coun-
sel’s advice and hence the government’s offer, insisting
as a matter of personal principle on appealing the denial
12 Nos. 02-1240 and 02-1508
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 be-
fore 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 re-
sponsibility 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, explain-
ing 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 Cole-
man insist on a conditional plea. Defense counsel reviewed
the government’s letter with Coleman, but Coleman in-
sisted on preserving his right to appeal.
At the change-of-plea hearing, counsel explained to the
judge that he had spent “hours” discussing the govern-
ment’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 state-
ments 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 responsibil-
ity. Defense counsel then suggested that the court allow
Coleman to enter a conditional plea, and he also appears
Nos. 02-1240 and 02-1508 13
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 concept, 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 preserv-
ing 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 in-
dictment. 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 co-
caine, 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 supercede the court’s duty to make
independent findings.
The district court was willing to allow Coleman to en-
ter 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
14 Nos. 02-1240 and 02-1508
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 condi-
tional plea.
Following this, the judge, defense counsel, and the prosecu-
tor 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 prob-
lem 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. . . .
Nos. 02-1240 and 02-1508 15
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 under-
standing, of course, that the Government is not waiv-
ing 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 prob-
lem outstanding.
THE GOVERNMENT: Except if I could just interpose
one more thing. The Government would not be recom-
mending 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 pro-
visions included in the written offer to ensure that Cole-
man’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
16 Nos. 02-1240 and 02-1508
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 ac-
cept 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 (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 condi-
tional 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 condi-
tional 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 preju-
dice 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 (1985).
Coleman asserts that he would not have pleaded guilty had
Nos. 02-1240 and 02-1508 17
his trial attorneys 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 at-
tempted 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 iden-
tify 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.
18 Nos. 02-1240 and 02-1508
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-7-03
