Berkey, Theodore W. v. United States ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4325
THEODORE W. BERKEY,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 C 4282—J. Phil Gilbert, Judge.
____________
ARGUED DECEMBER 2, 2002—DECIDED FEBRUARY 10, 2003
____________
Before BAUER, POSNER, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Petitioner-Appellant Theodore W.
Berkey pled guilty to drug conspiracy charges and was
sentenced to 360 months’ imprisonment. After an unsuc-
cessful direct appeal, Berkey filed a motion under 28 U.S.C.
§ 2255 claiming ineffective assistance of counsel. The
district court denied the motion and Berkey appeals this
ruling. For the reasons set forth below, we affirm.
BACKGROUND
In March 1996, police officers executed a warrant to
search Theodore Berkey’s home near Tucson, Arizona. The
2 No. 01-4325
following month, a grand jury in Illinois indicted Berkey
on one count of conspiracy to distribute marijuana and
crystal methamphetamine. The indictment charged that
Berkey supplied drugs to a narcotics ring operating in
southern Illinois. Berkey retained Tucson attorney George
Roylston. When Berkey explained that he had insufficient
funds to meet the $25,000 attorney’s fee, Roylston visited
Berkey’s home and accepted several items of personal
property.
After officials detained Berkey in Tucson, they trans-
ferred him to Illinois in May 1996. In September 1996,
Roylston went to Illinois and met with Berkey before
and after a pretrial discovery hearing. These two meet-
ings represented the bulk of the contact between counsel
and his client.
Berkey’s trial was to begin on December 2, 1996. That
morning, Roylston advised Berkey to enter an open-ended
guilty plea. Roylston told Berkey that the plea would
eliminate the risk of being held responsible for mass
quantities of drugs. Roylston told Berkey that he would
face a four to five year prison term with an open-ended
plea instead of a thirty year sentence he could face by go-
ing to trial. Berkey also claims his attorney promised to
arrange an evidentiary hearing at which the government
would have to prove the actual transactions and drug
amounts attributable to Berkey. In light of all this, Berkey
decided to plead guilty.
The district court held a change of plea hearing at which
Berkey told the court that his attorney had discussed
the charges with him and that he was fully satisfied with
his counsel’s representation and advice. The district court
made a thorough explication of the charges Berkey faced
and informed him that there was a possibility that he
could serve between 235 and 293 months in prison. The
court then gave a brief summary of how Berkey’s sentence
No. 01-4325 3
could be increased or decreased based on various factors.
Finally, the court informed Berkey, “if my sentence of you
is more severe than what you expect, you will still be
bound by your plea of guilty. You have no right to with-
draw it.”
Once the guilty plea was formally entered, the govern-
ment began preparing the Presentence Investigation Re-
port (“PSR”). The PSR indicated that Berkey supplied
3,157 kilograms of marijuana and 91 kilograms of crystal
methamphetamine to a major drug distribution network
operating in the southern Illinois and northwestern Ken-
tucky areas. Based on these quantities, Berkey’s base
offense level was calculated to be 38.
After Roylston neglected to give a copy of the PSR to his
client, Berkey contacted a friend in Tucson to retrieve
a copy for him. When Berkey finally obtained a copy of
the PSR he told Roylston that he “objected to everything
but my name.”
Berkey’s sentencing hearing was July 10, 1997. The
district court adopted all of the quantity-based findings
in the PSR and fixed Berkey’s base offense level at 38.
Roylston did not object to those factual findings or to the
base offense level of 38. The court, over Roylston’s objec-
tion, enhanced Berkey’s offense level by two points for his
possession of a firearm during the commission of the
offense. The district court also enhanced the offense level
by three more levels because it found Berkey was a vital
participant in a criminal organization with more than
five people. Roylston did not object to this finding. After
other adjustments, including a three level reduction for
acceptance of responsibility, the court arrived at a total
4 No. 01-4325
offense level of 40 with a criminal history category of II.1
The sentencing guidelines provide that the sentence range
for such an offender is 324 to 405 months. The court
sentenced Berkey to 360 months’ imprisonment, a $10,000
fine, and five years of supervised release.
Following the sentencing, Berkey asked his attorney to
file a notice of appeal but Roylston failed to file such a
notice. When Berkey learned of the failure to seek appel-
late review, he moved for, and the district court granted,
the entry of an order extending the time to file a notice
of appeal and for the appointment of counsel for that
purpose. Berkey raised three claims on direct appeal, all
involving the district court’s sentencing determination. On
December 1, 1998, we rejected his arguments and affirmed
the sentence. United States v. Berkey, 161 F.3d 1099(7th Cir. 1998).
On December 3, 1999, Berkey filed a § 2255 motion to
vacate, set aside, or correct his sentence. He argued that
Roylston rendered ineffective assistance of counsel and
that the indictment failed to conform with Apprendi
v. New Jersey, 530 U.S. 466 (2000). In part because of
Roylston’s conduct in his defense of Berkey, Roylston was
disbarred by the Arizona Supreme Court in May of 2000.2
However, the district court rejected Berkey’s § 2255 mo-
tion, from which he now appeals.
1
If Berkey had not received the three point reduction for ac-
ceptance of responsibility, his offense level would have been 43
and his sentence would have been mandatory life imprison-
ment without parole.
2
An Arizona State Bar officer determined that Roylston’s con-
duct during his representation of Berkey violated Rule 42, Ariz.
R. S. Ct., ER 1.2 (competence), ER 1.3 (diligence), ER 1.4 (commu-
nication), ER 1.5 (fees), ER 1.15 (safekeeping of property), ER
1.16(d) (protecting clients’ interests), and ER 8.4 (misconduct).
No. 01-4325 5
ANALYSIS
When we review a district court’s denial of a § 2255
motion, we consider questions of law de novo and review
any factual determinations for clear error. Menzer v. United
States, 200 F.3d 1000, 1003 (7th Cir. 2000).
A. Ineffective Assistance of Counsel Claim
We review an ineffective assistance of counsel claim
under the principles set forth in Strickland v. Washington,
466 U.S. 668 (1984). The Supreme Court held in Hill
v. Lockhart, 474 U.S. 52, 57-58 (1985), that the Strick-
land analysis applies to counsel’s conduct during the
pleading phase. To mount a successful claim that counsel
was ineffective at the pleading stage, Berkey must first
show his attorney performed in a deficient manner, Strick-
land, 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 performance is highly defer-
ential. United States ex rel. Simmons v. Gramley, 915 F.2d
1128, 1133 (7th Cir. 1990), and there is a strong presump-
tion that his attorney performed effectively. United States
v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). To meet his
burden, Berkey must establish specific acts or omissions
of his counsel that constitute ineffective assistance. We
then determine whether these acts or omissions were
made outside the wide range of professionally competent
assistance. Menzer, 200 F.3d at 1003.
We need not consider the first prong of the Strickland
test if we find that counsel’s alleged deficiency did not
prejudice the defendant. Matheney v. Anderson, 253 F.3d
1025, 1042 (7th Cir. 2001). As the Court noted in Strick-
land, “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.”
6 No. 01-4325
466 U.S. at 697. We heed this advice and now explain why
Berkey’s claim fails because he suffered no prejudice per
Strickland.
Berkey places significant emphasis on Roylston’s scant
contact with his client, his failure to file a notice of ap-
peal, and his subsequent disbarment from the practice of
law. Even the government, during oral argument, admitted
the factual background was “pretty scary.” But even a
frightening storyline is subject to the principles set forth
in Strickland and its progeny.
Berkey contends that his attorney at the change of plea
hearing and sentencing phase committed two errors
which constitute ineffective assistance. First, counsel er-
roneously advised him that there would be an evidentiary
hearing regarding the drug quantities. Second, counsel
failed to contest the drug amounts attributed to Berkey.
The main contention underlying these two claims is that
even if Berkey had proceeded to trial, the greatest sen-
tence he could have received was no more than thirty
years, which was exactly what he got by pleading guilty.
Berkey expresses frustration with what he perceives
as the government’s inability to fully grasp his argument.
He claims that the government has failed to address the
issue of whether Roylston was ineffective for failing to ful-
fill his promise to Berkey of presenting mitigating evi-
dence at sentencing. Framing the issue in this fashion
reveals the flaw in Berkey’s argument; a lack of evidence
supporting his claim. As we have previously noted, “[a]
mere allegation by the defendant that he would have
insisted on going to trial is insufficient to establish preju-
dice.” Barker v. United States, 7 F.3d 629, 633 (7th Cir.
1993) (quoting United States v. Arvanitis, 902 F.2d 489, 494
(7th Cir. 1990)). Berkey must establish through objective
evidence that a reasonable probability exists that he
would have gone to trial. McCleese v. United States, 75
F.3d 1174, 1179 (7th Cir. 1996). Berkey has offered no
No. 01-4325 7
evidence that he would have presented had an evidentiary
hearing taken place. After the government raised this
issue in its brief, Berkey, in his reply brief, simply ignores
it, pointing to no evidence he would have produced if the
court had held an evidentiary hearing.
In lieu of offering an explication of evidence he had to
offer, Berkey asserts that had he received an evidentiary
hearing, he could have contested the testimony of the
government’s witnesses. Berkey insinuates that the gov-
ernment’s witnesses’ testimony was accepted uncritically.
Nothing could be further from the truth. Five of Berkey’s co-
conspirators put the government to its burden of proof
during a month and a half long trial before the same judge
who sentenced Berkey. Berkey’s co-conspirators strenu-
ously sought to discredit those witnesses Berkey now
seeks to challenge. We believe the district court was cor-
rect in its determination that even with an evidentiary
hearing, Berkey would not have been able to convince the
court that his testimony was more plausible than the
evidence adduced at trial.
As we plainly noted in McCleese v. United States, 75 F.3d
1174, 1179 (7th Cir. 1996), a self-serving statement is
not enough to satisfy the second Strickland prong. Prece-
dent on this question is manifold and clear: the defendant’s
sole assertion that he would have proceeded to trial cannot
carry the burden to show prejudice under Strickland. See,
e.g., Arango-Alvarez v. United States, 134 F.3d 888, 893
(7th Cir. 1998); United States v. Arvanitis, 902 F.2d 489,
495 (7th Cir. 1990); Gargano v. United States, 852 F.2d 886,
891 (7th Cir. 1988).
Berkey additionally contends his 360 month sentence
obtained through the plea bargain was the effective equiva-
lent of a life sentence, which represented the worst case
scenario had he gone to trial. But the court specifically
warned Berkey that he faced, at minimum, a range of 235
8 No. 01-4325
to 290 months if found to have a Category I criminal
history. The court then explained how his sentence could
increase as the criminal history went up. The appellant
acknowledged that he understood this process and under-
stood the potential sentence. To now object to the 360
months’ as unfair fails to consider the unambiguous
explanation given to Berkey in open court. Berkey clearly
manifested his consent to the terms.
As the Supreme Court noted in North Carolina v. Alford,
400 U.S. 25, 31 (1970), we consider the validity of a guilty
plea based upon “whether the plea represents a voluntary
and intelligent choice among the alternative courses of
action open to the defendant.” Berkey admitted that no one
had made any promises to him to induce a plea of guilty.
In addition, the court asked Berkey if it was his intent
to plead guilty as his own free and voluntary act. Berkey
responded in the affirmative. This colloquy, in addition
to other excerpts from the record, demonstrates that
Berkey entered his plea knowing the likely consequences
and understanding the implacable nature of the sentence.
To now claim that he was pushed by his attorney through
an abyssal process contradicts the record.
Berkey’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 constituted ineffective assistance because of
the failure to contest the drug quantities attributed to
Berkey. To meet the prejudice prong of Strickland in an
ineffective assistance at sentencing claim, Berkey must
show that but for counsel’s unprofessional error, there is
a reasonable probability that the results would have
been different. Fountain v. United States, 211 F.3d 429, 434
(7th Cir. 2000).
Berkey’s ineffective assistance at sentencing claim has
the same fault as his claim at the pleading phase: lack
No. 01-4325 9
of any evidentiary support. Berkey again fails to point to
any evidence he would have presented that would create
a reasonable probability that the result of the proceed-
ings would have been different. The government had
significant evidence concerning drug quantities attribut-
able to Berkey that placed him in a damaging light.
Thus, Berkey fails to meet the prejudice prong of Strick-
land.
Whatever shortcomings Berkey’s lawyer might have in his
general practice of law, we are still bound to review the
matter under the principles set forth in Strickland.
The district court did not err in its determination that
Berkey failed to make a valid ineffective assistance of
counsel claim.
Berkey also contends that his counsel’s representation
was ineffective due to a conflict of interest. The government
points out that Berkey never raised this claim before the
district court in his § 2255 motion. We agree that a con-
flict of interest can be grounds to find counsel’s assistance
ineffective. Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980).
However, before we undertake this question, we must
determine whether the issue is properly before us. We
have concluded that it is not.
Berkey contends that his conflict claim is merely a le-
gal extension of his ineffective assistance argument. In
Pierce v. United States, 976 F.2d 369 (7th Cir. 1992), we
faced a similar claim. The petitioner appealed after the
district court denied his § 2255 motion. Included in his
appeal was a claim of ineffective assistance of counsel,
based on a conflict of interest on the part of his trial
attorney. Id. at 370. Pierce also attempted to argue on
appeal that his trial attorney rendered ineffective assis-
tance of counsel because he did not adequately explain the
consequences of pleading guilty. Id. While we entertained
Pierce’s conflict of interest claim, we determined his ar-
10 No. 01-4325
gument regarding the inadequate explanation of his plea
was waived because it was not raised in the § 2255 motion
before the district court. Id. at 370 n. 2.
Berkey’s conflict of interest argument is procedurally
barred because he failed to raise it in his § 2255 motion
before the district court.
B. Apprendi Claim
In a supplement to his § 2255 motion, Berkey argued
that Apprendi v. New Jersey, 530 U.S. 466 (2000), entitled
him to relief from his sentence. For Apprendi to be ap-
plicable, we would have to apply it retroactively. We have
already determined, however, that Apprendi is not retro-
active on collateral review. Curtis v. United States, 294 F.3d
841, 842 (2002), cert denied ___ U.S. ___, 123 S.Ct. 451(2002). We also noted in Curtis that Apprendi “does not
disturb sentences that became final before June 26, 2000,
the date of its release.” Id. at 844. Berkey’s sentence
was finally adjudicated in December 1998. Thus, we reject
Berkey’s request to expand the certificate of appealabil-
ity to include his Apprendi claim.
CONCLUSION
The petitioner has not established that counsel’s conduct
constituted ineffective assistance. In addition, Berkey’s
conflict of interest and Apprendi claims are procedurally
barred and therefore waived. For these reasons, we AFFIRM
the district court’s denial of Berkey’s § 2255 motion.
No. 01-4325 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-10-03