FLAUM, Circuit Judge.
Curtis Pidgeon is currently confined in a Wisconsin prison after pleading guilty to a sexual assault charge in Dodge County. He now seeks to withdraw that plea, arguing that he agreed to a plea bargain only because of incorrect — and, he claims, constitutionally ineffective — advice from his attorney. After exhausting his state remedies, Pidgeon filed a petition for a writ of habeas corpus in the Western District of Wisconsin. He claims that the performance of his trial counsel, Joseph Fischer, was constitutionally ineffective because he incorrectly advised Pidgeon that he would
The district court found that an evidentiary hearing was necessary to determine whether Pidgeon's constitutional right to effective assistance had been violated. Pidgeon testified at this hearing, but his trial counsel did not. The district court found that the trial counsel's performance had been constitutionally ineffective, and granted a writ of habeas corpus allowing Pidgeon to withdraw his plea and instead proceed to trial. Respondent — Pidgeon's custodian Judy Smith — now appeals the grant of the writ, arguing that Pidgeon did not satisfy his burden of proving that his trial counsel had been ineffective because Pidgeon failed to call him as a witness during the evidentiary hearing, as would have been required in an ineffective assistance hearing held in Wisconsin state court. We disagree. There is no requirement that federal courts assessing an ineffective assistance claim follow state evidentiary procedure, and the district court judge did not abuse her discretion by declining to enforce her earlier order which arguably called for the presentation of the trial counsel's testimony at the evidentiary hearing. We affirm the judgment of the district court.
In October 2007, Pidgeon was charged in Dodge County with four counts of second-degree sexual assault of a child and two counts of fourth-degree sexual assault. He eventually agreed to a plea bargain — from which he now seeks to withdraw — in which he pled no contest to one count of second-degree sexual assault of a child; the other counts were dismissed and read in. Pursuant to the terms of that plea bargain, Pidgeon was sentenced to ten years of confinement and ten years of extended supervision. Pidgeon claims that he accepted this plea due to incorrect information provided to him by his trial counsel. It is uncontested that counsel — as well as the prosecutor — told Pidgeon that, if he did not accept the plea bargain, he faced the possibility of life in prison under the Wisconsin persistent offender law. See Wis. Stat. § 939.62(2m). Under that law, a third "serious felony" conviction results in mandatory life imprisonment without the possibility of parole. Id. Pidgeon's counsel apparently thought that (1) Pidgeon's 1991 Dane County aggravated battery conviction constituted a serious felony offense; (2) the Dodge County charges would constitute a second serious felony offense if Pidgeon were convicted; and (3) Pidgeon faced a third possible serious felony conviction (for third-degree sexual assault
However, both Pidgeon's counsel and the prosecutor were wrong about Pidgeon's exposure to life imprisonment. As respondent now concedes, Pidgeon's 1991 Dane County conviction for aggravated battery does not constitute a serious felony offense under the persistent repeater law.
After he began his term of incarceration, Pidgeon learned of his counsel's mistake and filed a post-conviction motion in state court seeking to withdraw his plea or, alternatively, for a hearing on his claim of ineffective assistance. In Wisconsin, such a hearing is known as a Machner hearing;
Pidgeon then filed a petition for a writ of habeas corpus in the Western District of Wisconsin. In a December 13, 2013 order, the district court ruled that the Wisconsin Court of Appeals unreasonably applied Strickland and the related precedent of Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) — which holds that the Strickland test applies to guilty plea challenges based on ineffective assistance — when it denied Pidgeon's request for a Machner hearing. As respondent does not appeal this determination, we omit further details of the district court's legal analysis on this matter.
After ruling that the state court had unreasonably applied federal law, the district court determined that an evidentiary hearing was necessary to determine whether the writ should be granted. In ordering a hearing, the district court stated that "Petitioner will have to introduce all the evidence he would have presented had the state court allowed him a Machner hearing, explaining in detail counsel's defective advice and the way in which it prejudiced him." Pidgeon v. Smith, No. 13-cv-57, 2013 WL 6571807, at *10 (W.D.Wis. Dec. 13, 2013). According to respondent, this statement imposed a requirement that Pidgeon call his trial counsel as a witness during the federal evidentiary hearing because, under Wisconsin law, "[w]here an ineffective assistance of counsel claim is raised, trial counsel must be informed and his or her presence is required at any hearing in which counsel's conduct is challenged." State v. Allen, 274 Wis.2d 568, 682 N.W.2d 433, 437 n. 3 (2004) (emphasis added).
The evidentiary hearing was held on April 25, 2014. Pidgeon was the only witness. He testified about the incorrect information given to him by his trial counsel. He also stated that when he signed the plea offer, he included the small capital letters "T," "D," and "C," which he said referred to the fact that he was entering the plea under "threat, duress, and coercion" — specifically, the threat of a life sentence. (Those letters do indeed appear within his signature on the plea agreement form.) Pidgeon also testified that he took the plea only because he believed he was facing a life sentence, and that had he known that he did not in fact face a life sentence, he would have proceeded to trial in both Dodge and Columbia Counties. After Pidgeon testified, he rested his case, and respondent's attorney stated that he had no witnesses to call. At that point, Judge Crabb seemed surprised that neither party had called the trial counsel. Judge Crabb was also concerned by the fact that neither party had provided any information regarding the sentence Pidgeon would have faced had he been convicted at trial in Dodge or Columbia County.
On August 29, 2014, the district court granted a writ of habeas corpus to Pidgeon. The court concluded that Pidgeon's trial counsel had been deficient because "reasonable counsel would have investigated petitioner's prior felony conviction in
Regarding prejudice, the district court stated that Pidgeon had shown "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). "The only evidence on this point is petitioner's unrebutted testimony: he would have taken his chances at trial in Dodge County had his counsel not told him, inaccurately, that he ran a strong risk of getting a life sentence under the persistent repeater statute." Id. "Respondent," the court continued, "has neither adduced any evidence that would tend to call petitioner's testimony into question nor suggested that even if counsel misrepresented the potential sentence petitioner could receive, it was not significantly different from what he could actually have received. I find petitioner's testimony credible." Id.
Respondent does not appeal the district court's determination that the Wisconsin Court of Appeals unreasonably applied clearly established federal law when it denied Pidgeon an evidentiary hearing on his ineffective assistance claim. Rather, the only issue on appeal is whether Pidgeon, at the federal evidentiary hearing, met his burden of proving ineffective assistance. When a district court has held an evidentiary hearing in a habeas case, we review its factual determinations for clear error and its legal decision that a prisoner's custody violates the Constitution de novo. Quintana v. Chandler, 723 F.3d 849, 852 (7th Cir.2013).
Respondent's argument centers on the fact that Pidgeon did not call his trial counsel as a witness during the federal evidentiary hearing. In respondent's brief, she argues that this doomed Pidgeon's case for two reasons. First, Pidgeon would have been required to present the testimony of his trial counsel at a Machner hearing — the Wisconsin analogue to the federal ineffective assistance hearing held in this case. Second, the district court's December 13, 2013 order stated that, at the evidentiary hearing, Pidgeon would have to "introduce all the evidence he would have presented had the state court allowed him a Machner hearing."
At oral argument, counsel for respondent rightly conceded that, normally, federal courts do not have to follow state procedural rules when holding evidentiary hearings for ineffective assistance claims. The reason for this is clear: an ineffective assistance claim is a claim under the United States Constitution. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (noting that the right to effective assistance of counsel stems from the Sixth Amendment). States may devise their own procedures for determining whether a counsel's performance was constitutionally ineffectual, as long as they abide by Supreme Court precedent. But such procedures are in no way binding on federal courts. Nothing in Strickland or its progeny requires prisoners seeking to prove ineffective assistance to call the challenged counsel as a witness. Although Wisconsin courts have chosen to
Respondent's second argument — that the judge's earlier order required Pidgeon to call his trial counsel as a witness — has more bite, though we ultimately do not think that it requires reversal. In evaluating respondent's claim, we must determine whether Judge Crabb's interpretation and application of her December 13, 2013 order was an abuse of discretion. Chi., Rock Island & Pac. R.R. Co. v. Atchison, Topeka & Santa Fe Ry. Co. 860 F.2d 267, 272 (7th Cir.1988) ("We will not reverse a district court's interpretation of its own order unless the record clearly shows an abuse of discretion." (citation and internal quotation marks omitted)). There was no abuse of discretion here.
First, as we stated above, there is simply no requirement that trial counsel testify during a federal ineffective assistance evidentiary hearing. It would be odd to say that the judge abused her discretion by excusing petitioner from an added procedural burden that federal courts have long declined to impose.
Moreover, we do not think that trial counsel's testimony would have been of great value in this case. In order to demonstrate that he received constitutionally ineffective counsel, Pidgeon was required to show that his counsel's performance "fell below an objective standard of reasonableness" and that the deficient performance prejudiced his defense such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052.
Regarding the deficient performance prong, respondent has not explained how trial counsel's testimony could have changed the district court's conclusion. In Moore v. Bryant, 348 F.3d 238, 242 (7th Cir.2003), we said that the deficient performance prong is met where "erroneous advice is provided regarding the sentence likely to be served if the defendant chooses to proceed to trial, and that erroneous advice stems from the failure to review the statute or caselaw that the attorney knew to be relevant." Here, trial counsel did not verify the veracity of an immensely important fact — whether his client could be sent to prison for the rest of his life — even though doing so would have been simple. Even if counsel reviewed the persistent repeater statute, we think that a reasonably competent attorney would have realized that Pidgeon's 1991 conviction was not a serious felony.
Wisconsin's persistent repeater statute is relatively straightforward. It provides an exhaustive list of current Wisconsin felonies that are defined as "serious." However, determining whether an older conviction — specifically one, such as Pidgeon's 1991 conviction, that occurred prior to April 28, 1994 — is a serious felony conviction is more complicated. One must determine whether that crime is "comparable" to one of the listed crimes. Wis. Stat. § 939.62(2m)(d).
As the Supreme Court has stated, "[w]hen the ... consequence" of a plea "is truly clear ... the duty to give correct advice is equally clear." Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). We cannot think of any possible strategic explanation for counsel's mistake — he either neglected to read the statute or interpreted it in an unreasonable manner. Nothing counsel could have said at the evidentiary hearing would have made this error reasonable. And, because the state concedes that counsel did in fact give this erroneous advice, his testimony was not necessary to test the veracity of Pidgeon's claim.
As for the prejudice prong, we similarly struggle to understand what value counsel's testimony could have added. Respondent argues, basically, that Pidgeon received a favorable deal in this case, and that his testimony at the evidentiary hearing was "self-serving." First, though, it is difficult for us to evaluate this claim, as respondent has not provided us with any information regarding the sentences Pidgeon would have faced had he proceeded to trial in Dodge and Columbia Counties. Second, a defendant who foregoes trial in favor of a plea deal based on incorrect advice can still show prejudice even if the terms of the plea are highly favorable. The terms of a plea deal are admittedly relevant in assessing the credibility of a petitioner's claim that he would have gone to trial had he received correct information at the plea bargaining stage.
Regardless of whether his counsel's testimony would have helped defeat Pidgeon's case, nothing prevented respondent from calling him as a witness — or asking for a continuance in order to do so — during the evidentiary hearing. It makes little sense to penalize Pidgeon for her failure to do so.
We AFFIRM the judgment of the district court.