Lamar Blake v. United States , 814 F.3d 851 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1239
LAMAR BLAKE,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 14 CV 50117 — Philip G. Reinhard, Judge.
____________________
ARGUED JANUARY 27, 2016 — DECIDED FEBRUARY 26, 2016
____________________
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
PER CURIAM. Lamar Blake pled guilty to possessing co-
caine base with intent to distribute and possessing a firearm
as a felon. See 18 U.S.C. § 922(g); 21 U.S.C. § 841(a)(1). Blake
did not appeal, but he later filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255. The dis-
trict court held an evidentiary hearing on one of Blake’s
claims—that he had received ineffective assistance of coun-
sel when his attorney failed to file a requested notice of ap-
2 No. 15-1239
peal. After the hearing, the district court denied Blake’s
§ 2255 motion but certified the ineffective-assistance claim
for appeal. Because the district court’s finding that Blake did
not ask his attorney to file an appeal is not clearly erroneous,
we affirm.
I. History
Blake was represented during his criminal proceedings
by retained counsel and pled guilty to possessing cocaine
base and a firearm as a felon. The plea agreement did not
include a waiver of Blake’s right to file an appeal or a § 2255
motion.
A probation officer prepared a presentence investigation
report (PSR), finding that Blake qualified as an armed career
criminal, see 18 U.S.C. § 924(e), and a career offender, see
U.S.S.G. § 4B1.1. Blake’s counsel did not object to the PSR,
but the probation officer filed a supplemental report the day
before Blake’s sentencing hearing clarifying that Blake was
not in fact an armed career criminal but still qualified as a
career offender based on prior drug convictions. The district
court accepted the probation officer’s amended findings and
calculated a guidelines range of 188 to 235 months’ impris-
onment. Counsel did not object to the guidelines calculation,
and Blake confirmed that he approved of his attorney’s ac-
tions. The district court explained that “[i]t would be easy
for me to sentence [Blake] to the maximum of 235 or go over
that,” but settled on concurrent terms of 216 months’ impris-
onment on each count. The district court then explained to
Blake his right to appeal and the repercussions of not doing
so.
No. 15-1239 3
Almost a year later Blake filed a § 2255 motion, arguing
that his plea was not knowing and voluntary and that his
attorney rendered ineffective assistance in several ways, in-
cluding by not filing a requested notice of appeal. Blake
submitted an affidavit averring that he asked his attorney to
file a notice of appeal. The government responded with an
affidavit by Blake’s counsel stating that he discussed with
Blake his right to appeal after the sentencing hearing, but
that Blake said he was satisfied with his sentence and so did
not wish to appeal. The district court denied Blake’s § 2255
motion on all claims except the alleged ineffective assistance
for failing to file an appeal; the district court ordered an evi-
dentiary hearing on that claim and appointed counsel for
Blake.
At the evidentiary hearing, only Blake and his former at-
torney testified. Blake testified that he asked about his ap-
peal on three occasions. First, he told counsel he wanted to
appeal right after his sentencing hearing. Next, while Blake
was incarcerated at the Winnebago County Jail because of a
detainer from the Illinois Department of Corrections, counsel
visited him twice before the expiration of the time to appeal.
Blake said he asked about his appeal on both occasions. Ac-
cording to Blake, he was subsequently moved to several fa-
cilities and both he and other family members, including his
brother, attempted unsuccessfully to contact his attorney.
Blake first learned that his appeal had not been filed in May
2014 after his family called the Court of Appeals. Blake, who
testified that he has an eighth grade education, then con-
ducted research to “find out if [he] can get back to an ap-
peal” and filed his § 2255 motion.
4 No. 15-1239
Counsel testified that he and Blake had a “very good”
working relationship. He confirmed that he and Blake had a
short conversation after the sentencing hearing but said that
Blake never asked him to file a notice of appeal. He further
testified that Blake was happy with the sentence he received
because he had feared an above-guidelines sentence based
on his lengthy criminal history. Counsel said he was un-
aware of any attempts by Blake or his family members to
contact him after sentencing. When asked about his visits
with Blake at the jail, counsel initially did not remember the
visits. But after being shown visitors’ logs from the jail, he
responded that his recollection was refreshed but that they
did not discuss filing a notice of appeal during those visits.
Counsel testified that he would have made a notation if
Blake had requested that he file an appeal, but he would not
have made a similar notation if Blake had not wanted to ap-
peal.
The district court made oral findings, which it later
adopted in a written order, that Blake had not asked his at-
torney to file a notice of appeal and therefore could not suc-
ceed on his ineffective assistance of counsel claim. The dis-
trict court found that Blake’s credibility was undermined be-
cause (1) he waited almost a year after sentencing to file any-
thing with the court complaining about his appeal not being
filed; (2) at sentencing Blake seemed satisfied with his sen-
tence; (3) Blake has an extensive criminal history which un-
dercut his credibility generally; (4) there were inconsisten-
cies between Blake’s version of events supporting other
claims in his § 2255 motion and what he said during the plea
colloquy and sentencing hearing; (5) Blake has a reason to
lie; and (6) he did not corroborate his claim with other evi-
dence, such as an affidavit or testimony from his family
No. 15-1239 5
members who he asserted tried to contact his attorney. The
court, on the other hand, found counsel credible because (1)
his testimony that Blake was happy with his sentence be-
cause he faced the possibility of a much higher one was logi-
cal and consistent with the transcript of the sentencing hear-
ing, (2) he has no bias or interest, and (3) he is an experi-
enced attorney who had no reason not to file an appeal if
asked.
The district court also separately discredited Blake’s tes-
timony that he and his attorney discussed an appeal while
Blake was at the jail. The court found that the “focus of the
conversation” was the detainer placed on Blake by the Illi-
nois Department of Corrections. The court based this finding
on Blake’s testimony that the detainer was why he asked his
attorney to meet him in jail and the fact that counsel did not
remember the meetings was “not unusual if there was noth-
ing remarkable that the defendant had asked him.”
The court did, however, grant relief on a claim Blake’s
newly appointed attorney added to the § 2255 motion. Blake
was sentenced to 216 months’ imprisonment on both counts.
But Blake is not an armed career criminal, so the maximum
sentence for the firearm offense was 120 months’ imprison-
ment. Compare 18 U.S.C. § 924(e)(1), with § 924(a)(2). The dis-
trict court therefore vacated the 216-month sentence on the
firearm count and imposed 120 months’ imprisonment, still
to run concurrently to the 216-month term for the drug
count.1 The court also granted Blake a certificate of appeala-
1 Neither party argues that the adjustment to Blake’s sentence on the
firearm count impacts this appeal. At most, Blake received a resentenc-
ing on that count, which would not entitle him to challenge the underly-
(continued…)
6 No. 15-1239
bility on his claim that his attorney was ineffective for not
filing an appeal: “Given the nature of these proceedings, and
the fact that the court had to make a factual finding regard-
ing whether defendant instructed his attorney to file an ap-
peal, the court finds that reasonable jurists could debate”
whether Blake had received ineffective assistance.
II. Analysis
To succeed on the ineffective assistance claim certified for
appeal, Blake had to show that he in fact asked his attorney
to file a notice of appeal. See Gant v. United States, 627 F.3d
677, 681 (7th Cir. 2010). The only issue before us, therefore, is
if the district court clearly erred in finding that Blake did
not, a determination based on the relative credibility of the
two men. A credibility determination will be overturned on-
ly if credited testimony is internally inconsistent, implausi-
ble, or contradicted by extrinsic evidence. Ortiz v. Martinez,
789 F.3d 722, 729 (7th Cir. 2015); United States v. Williams, 216
F.3d 611, 614 (7th Cir. 2000). “Where there are two permissi-
ble views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” Anderson v. City of Besse-
mer City, N.C., 470 U.S. 564, 574 (1985); see also Webster v.
United States, 667 F.3d 826, 833 (7th Cir. 2011). We have gone
so far as to say that a “credibility determination is not a basis
for appellate review.” Gant, 627 F.3d at 681 (internal citation
(…continued)
ing conviction in a subsequent proceeding. See Suggs v. United States, 705
F.3d 279, 282 (7th Cir. 2013). And because Blake retained the right to ap-
peal the validity of his guilty plea, the relief sought in this appeal is not
coextensive with the relief he received. See Garner v. United States, 808
F.3d 716, 718 (7th Cir. 2015).
No. 15-1239 7
and quotation marks omitted). But simply affixing the label
“credibility determination” will not insulate a decision from
review, and the court must base a finding on evidence, not
mere speculation. See Anderson, 470 U.S. at 575; Ray v. Clem-
ents, 700 F.3d 993, 1012–17 (7th Cir. 2012); Castillo v. United
States, 34 F.3d 443, 445–46 (7th Cir. 1994).
Despite Blake’s best efforts to argue that some of the dis-
trict court’s reasoning was not based on the evidence, the
district court here chose between two competing, plausible
versions of events. The only evidence, other than the jail visi-
tors’ logs, was testimony by Blake and his attorney. Counsel
said that Blake never asked him to file an appeal, and the
district court believed his testimony over Blake’s. This find-
ing is clearly supported. The court credited counsel because,
for example, his testimony that Blake was happy with his
sentence aligned with the court’s reading of the sentencing
transcript and was logical because Blake faced the possibility
of a far longer sentence. Indeed, the district court said at sen-
tencing that “[i]t would be easy for me to sentence [Blake] to
the maximum of 235 or go over that.” Furthermore, Blake
failed to present any evidence corroborating his version of
events, such as an affidavit or testimony from the family
members he claimed unsuccessfully tried to contact his at-
torney, even though his brother was present at the eviden-
tiary hearing. Cf. Furry v. United States, 712 F.3d 988, 994 (7th
Cir. 2013); Morales v. Johnson, 659 F.3d 588, 602 (7th Cir. 2011).
We note briefly, however, that two of the district court’s
reasons for discrediting Blake are problematic. First, the
court believed that if Blake was really concerned about an
appeal, then he would have filed something with the court
sooner than he filed his § 2255 motion. But it is undisputed
8 No. 15-1239
that Blake met the one-year deadline for filing his § 2255 mo-
tion. See 28 U.S.C. § 2255(f)(1). Using a perceived lack of dili-
gence to undermine Blake’s credibility effectively prevented
him from taking the full year he was allotted. See Liu v.
Lynch, 788 F.3d 737, 741 (7th Cir. 2015). Diligence is instead
an appropriate inquiry when determining if lateness should
be excused by equitable tolling. See Taylor v. Michael, 724 F.3d
806, 811 (7th Cir. 2013); Ryan v. United States, 657 F.3d 604,
607 (7th Cir. 2011). Next, the district court found that Blake
was biased—and therefore more likely to lie—because he
“wants to somehow get this before the Court of Appeals,”
while counsel had “no such bias.” But it will always be true
that a movant—if he is unsuccessful in the district court and
especially if his claim is based on not receiving an appeal—
would want his case to proceed. Additionally, although there
was no evidence that counsel had a bias against Blake, an
attorney accused of ineffective assistance certainly has an
interest in protecting his reputation.
Despite our disagreement with two of the district court’s
specific reasons underpinning its credibility ruling, we can-
not find that the district court clearly erred in finding that
Blake did not ask his attorney to file an appeal. See United
States v. White, 240 F.3d 656, 660–61 (7th Cir. 2001) (explain-
ing that factual findings will not be disturbed even if review-
ing court would have weighed evidence differently as trier
of fact); Abbott v. United States, 195 F.3d 946, 950 (7th Cir.
1999) (upholding credibility determination even though “ev-
idence was not entirely consistent”).
III. Conclusion
Accordingly, the judgment is AFFIRMED.