Julian, David v. Johnson, Yolande ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3835 & 05-3836
DAVID JULIAN,
Petitioner-Appellant,
v.
KENNETH G. BARTLEY, Warden1
Respondent-Appellee.
____________
Appeals from the United States District Court
for the Central District of Illinois.
Nos. 05-CV-1076 & 05-CV-1077—Michael M. Mihm, Judge.
____________
ARGUED OCTOBER 19, 2006—DECIDED JULY 25, 2007
____________
Before RIPPLE, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. In this appeal of the denial of a
habeas corpus petition, David Julian asks this court to
consider whether the state court properly determined that
his counsel did not provide ineffective assistance of coun-
sel during plea negotiations when that counsel misinter-
preted the Supreme Court decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000) and informed Julian that the
maximum sentence he could receive would be thirty,
rather than sixty years in prison.
1
Pursuant to Fed. R. App. P. 43(C), we have substituted the new
warden of the Pinckneyville Correctional Center where Julian is
currently confined, for the former warden, Kenneth G. Bartley.
2 Nos. 05-3835 & 05-3836
I.
On August 15, 2000, Julian and his state court trial
counsel, Dennis Sheehan, met with Illinois State’s Attor-
neys and the court to discuss a negotiated plea agreement.
He was looking down both barrels of a double-barreled
gun, having been indicted on May 3, 2000 for a robbery
committed that same day, and indicted on May 18, 2000
for a robbery committed on April 30, 2000. At the hearing,
the State summarized the plea disposition under which
Julian would be sentenced to twenty-three year concur-
rent terms for the two armed robberies. Just before Julian
started to enter his plea, the State mentioned that Julian
was on supervised release for a previous armed robbery
conviction. In response, the trial judge informed Julian
that state law required that he serve his sentence for the
armed robbery consecutively with any separate sentence
imposed for a parole violation. At that point, Julian
conferred with his attorney and then rejected the plea.
According to Julian, his lawyer informed him that the
Supreme Court had just recently issued a new opinion in
Apprendi v. New Jersey, 530 U.S. 466 (2000), which re-
quired any fact that increases the penalty for a crime
beyond the statutory maximum to be submitted to a jury
and proved beyond a reasonable doubt. Julian testified
that Sheehan informed him that because the indictments
on the two charges of armed robbery did not mention the
prior conviction, the longest sentence he could receive
would be thirty years. According to Julian’s testimony,
Sheehan presented the information to him as a guarantee.
According to Sheehan’s testimony, Sheehan never guaran-
teed Julian a maximum sentence of thirty years. Sheehan
did testify, however, that he recalled telling Julian that
“since there wasn’t an additional clause in the Bill of
Indictment that made comment about his first conviction
for armed robbery, that under those circumstances, it
would seem to me that based upon a reading of Apprendi,
Nos. 05-3835 & 05-3836 3
he couldn’t get anything more than 30.” (Tr. 3/17/03 at
25).2 In any event, Julian rejected the plea and proceeded
to trial on each of the two indictments—first a jury trial
followed later by a stipulated bench trial. Unfortunately
for Julian, Sheehan was only half right about the holding
of Apprendi. It did indeed hold that any fact that increases
the penalty for a crime beyond the statutory maximum
must be submitted to a jury and proved beyond a reason-
able doubt, but it specifically exempted from this holding
the fact of a prior conviction. Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). Julian proceeded to trial and was
sentenced to forty-year concurrent terms.
After Julian was sentenced in the first trial, Sheehan
filed an unsuccessful motion to reconsider the sentence,
arguing that based on Apprendi, Julian should have
received thirty years, at most. Several days later, at a
sentencing hearing for the second conviction, Julian
submitted a letter to the court that stated, in part:
I want you to now bring up the Apprendi vs. N. [sic]
Jersey as a factor in my sentencing as well as the fact
that you stated to me that due to the states [sic]
mishandling of the indictment in these cases that I’ve
guaranteed myself a maximum of 30 years, per charge.
2
Because Julian’s two habeas cases were not consolidated in the
district court, the record on appeal consists of two identical
volumes of pleadings and two identical supplemental volumes
of state evidentiary hearing transcripts, one for each case. For
some reason, although the records containing the pleadings are
identical, they are not numbered identically. Consequently, for
ease of reading, and to reduce confusion, this opinion will refer
only to the pleadings of the record on appeal of district court
case number 05-1077. The transcripts of the evidentiary hear-
ing are identical in all respects and, therefore, transcript
references can be found in either supplemental volume of the
transcript.
4 Nos. 05-3835 & 05-3836
(R. at10, Ex. D, p.3 & Ex. A, p.32-33, 39-40)3. The court did
not review the letter, but it was entered into the record
under seal, over the State’s objection.
Julian filed timely direct appeals and motions for post-
conviction relief that raised the issue of ineffective assis-
tance of counsel. In those appeals, Julian argued that his
attorney was ineffective when he advised Julian that he
could not receive more than a thirty-year sentence be-
cause of limitations set forth in Apprendi. He also con-
tended that he would have accepted the plea offer of
twenty-three years had he known that his potential
sentence could have exceeded thirty years.
During the evidentiary hearing held during the post-
conviction proceedings, both Julian and Sheehan testified
about the Apprendi issue. Sheehan’s version of the facts
differs from Julian’s only in the level of certainty Sheehan
provided regarding the thirty-year sentence. Julian
described Sheehan’s advice as a guarantee as shown in
the following exchange:
Q: And did Mr. Sheehan advise you what the absolute
maximum sentence would be that you could re-
ceive?
A: Yes, sir.
Q: And what did he tell you the absolute maximum
sentence you could receive would be on these
cases?
3
At the sentencing hearing, defense counsel informed the
court that the defendant had prepared a written statement for
the court, which included arguments that defense counsel did
not believe were appropriate for him to argue to the court. The
letter appears to be a letter of direction from Julian to defense
counsel. (R. at 10, Ex. A., p.39-40). The trial judge allowed the
letter to be made a part of the record, although he did not look
at it.
Nos. 05-3835 & 05-3836 5
A: 30 years.
Q: Did he cite any particular case that you remember
in support of his statements to you?
A: Yes, sir.
Q: What was that?
A: The Apprendi vs. New Jersey.
Q: And what was your—from what he told you during
these meetings on this issue, what was your
understanding of that?
A: My understanding was that due to the way I was
improperly—
Q: I’m sorry, let me cut you off. What did Mr.
Sheehan tell you regarding that, to the best of your
recollection, Apprendi?
A. He told me, due to the Apprendi, that I have
guaranteed myself no more than 30 years.
(Tr. 3/13/03 at 6-7). Sheehan testified about the Apprendi
advice as follows:
First, on direct examination the following exchange
occurred:
Q: And did you ever advise or make a statement to
Mr. Julian to the effect that because of this
Apprendi Case, that he was guaranteed or that
the most he could get was 30 years in the Depart-
ment of Corrections?
A. No.
(Tr. 3/17/03 at 12). On cross-examination, he elaborated
further:
Here is what I remember telling him about it. I re-
member saying to him that my reading of the Apprendi
6 Nos. 05-3835 & 05-3836
Case indicated to me that since there wasn’t an
additional clause in the Bill of Indictment that made
comment about his first conviction for armed robbery,
that under those circumstances it would seem to me
that based upon a reading of Apprendi, he couldn’t get
anything more than 30. That’s basically what I told
him.
(Tr. 3/17/03 at 25). On re-direct examination, Sheehan
testified as follows:
Q: . . . [D]id you ever tell Mr. Julian then that based
on that case and based on your interpretation of
that case [Apprendi], would be held here in the
State of Illinois, that he was guaranteed to only
get 40 [sic] years?
A: . . . [T]he answer to that question is no. I indicated
to him that it was for the Court to make a determi-
nation as to his penalty and certainly not myself.
(Tr. 3/17/03 at 31-32).
Julian’s friend, Richye Herlihy, testified that Sheehan
told her that Julian could get up to thirty years in prison,
but no more. (Tr. 3/13/03 at 50).
Julian and Sheehan agree that, prior to the decision in
Apprendi, at his first court appearance on May 3, 2000,
both Sheehan and the trial Judge informed Julian that
he was eligible for a term of up to sixty years. Julian
testified, however, that Sheehan later informed him that
Apprendi had altered the landscape and changed the
maximum he could receive. (Tr. 3/13/03 at 45-46, 55).
The state post-conviction court denied Julian’s request
for post-conviction relief, finding clear evidence that both
the court and Julian’s counsel advised Julian that he was
eligible for an extended term of up to sixty years. (R. at 10,
Ex. H, p.1). Julian’s appeal to the state appellate court
Nos. 05-3835 & 05-3836 7
resulted in a similar conclusion (R. at 10, Ex. L), and the
Illinois Supreme Court denied his petition to appeal (R.
at 10, Ex. N).
On petition for a writ of habeas corpus, the district court
below concluded that there was no clear and convincing
evidence that the state court’s factual determination—that
Julian’s counsel did not erroneously inform him that he
could not receive a sentence greater than 30 years—was
unreasonable based on the record. Our review of the
district court’s decision to deny the petition for writ of
habeas corpus is de novo. Barrow v. Uchtman, 398 F.3d
597, 602 (7th Cir.), cert. denied, 126 S. Ct. 153 (2005).
II.
Our review of this habeas petition, like all habeas
petitions, is limited by the terms of the Antiterrorism
and Effective Death Penalty Act (AEDPA). Habeas relief
must not be granted unless the state court’s adjudica-
tion of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Su-
preme Court of the United States; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). In assessing the reasonableness of the
state court’s decision, the federal court assumes that the
state courts’ factual determinations are correct unless the
defendant rebuts them with clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
Our review of this case utilizes both prongs of the
§ 2254(d). We begin with a discussion of the state court’s
8 Nos. 05-3835 & 05-3836
fact-finding. The state post-conviction court’s complete
discussion of the evidence on this matter consisted of the
following four sentences:
Evidence was clear that Mr. Julian was advised by his
attorney and by the court that he was eligible for an
extended term of up to 60 years in the Illinois Depart-
ment of Corrections. Mr. Sheehan did state that when
discussing a plea negotiation offer by the state he
[Sheehan] opined that the sentence might be 30 years.
He never stated that that was the maximum sentence
or that a sentence could not be longer. Mr. Julian
knew, because both the court and his attorney told
him, that he was eligible for an extended term.
(R. at 10, Ex. H, at p.1). The appellate court came to two
conclusions based on the trial court’s scant discussion.
First, the appellate court concluded that “the postcon-
viction court found that the defendant was advised both by
his attorney and the trial court that he faced a maximum
penalty of 60 years’ imprisonment.” Second, it concluded
that “[t]he postconviction court found that Sheehan merely
expressed his opinion concerning the effect of Apprendi,
and did not guarantee that the defendant’s sentence would
not exceed 30 years.” (R. at 10, Ex. L, p.7). In sum, the
post-conviction appellate court’s conclusion that Sheehan’s
counsel was not ineffective appears to be based on two
distinct theories. The first is that Sheehan did not err. He
correctly informed Julian that he could receive up to a
sixty year sentence. The second is that because Sheehan
merely expressed an opinion about the effect of Apprendi,
and did not guarantee Julian thirty years, his misinforma-
tion about Apprendi did not constitute ineffective assis-
tance of counsel.
The conclusion that the defendant was advised effec-
tively both by his attorney and the trial court that he
faced a maximum penalty of 60 years’ imprisonment
constitutes an unreasonable determination of the facts
Nos. 05-3835 & 05-3836 9
in light of the evidence presented in the state court
proceeding. See 28 U.S.C. § 2254(d)(1). It is true that, at
one time, both Sheehan and the court advised Julian that
the maximum sentence he could receive would be sixty
years. Both of these admonishments, however, came before
the Apprendi decision was released. There is no dispute
that after the Apprendi decision Sheehan discussed the
case with Julian and told him that the law had changed.
Julian and Sheehan’s testimony aligned on this point. See
(Tr. 3/13/03 at 45-46); (Tr. 3/17/03 at 24-25): Julian
testified that his lawyer’s information changed after the
Apprendi case was decided:
Q: . . . [B]efore you received the first 40-year sen-
tence, at any point did he tell you you could get
over 30 years?
Q: A long time before that, before he ever told me
about the Apprendi.
Q: So sometime between your first appearance and
when he told you about Apprendi?
A: Yes. After that, it was never an issue. he told me
I couldn’t get more than thirty years.
(Tr. 3/13/003 at 45). On re-cross-examination, Julian
elaborated:
Q: I just want to make sure I heard this correctly. Did
I understand you to say, Mr. Julian, that at some
point Mr. Sheehan did tell you that you could get
60 years and then afterwards he said you could
only get 30 years based on Apprendi?
A: Yes.
Q: And that is—
A: After he told me about the Apprendi and that
I could get no more than 30 years, he never dis-
cussed an extended term again.
10 Nos. 05-3835 & 05-3836
Q: Okay, so it did come up? It did come up, then, prior
to your first trial with Mr. Sheehan that you could
get 60 years? You are just saying that he then
said something different after that, but again,
prior to the first trial?
A: He told me a long time before my first trial, yes,
that I could get an extended term. Then after he
learned of the Apprendi, he told me that due to
the Apprendi, a new Supreme Court ruling, I could
get no more than 30 years. I have guaranteed
myself no more than 30 years.
(Tr. 3/13/03 at 46).
Sheehan testified consistently with Julian as follows:
A: When we spoke about this case originally, and
when I found out what his prior criminal record
was, and that he was on parole for an armed
robbery, I was telling him that he was eligible for
the 60 year sentence.
Q: Okay. But you had also just answered me, that you
couldn’t specifically remember saying those words,
in the context of that discussion, but you could get
60, correct?
A: That’s right.
Q: So at some point it came up, but maybe not every
time you discussed the possible sentence.
A: That’s also correct.
***
Q: Did you ever mention the Apprendi case to Mr.
Julian and what you believed it represented?
A: I remember having a brief discussion with him
about it.
Nos. 05-3835 & 05-3836 11
Q: Okay. And in that discussion, if you recall, do you
recall telling him that it would preclude an ex-
tended term sentence in this case?
A: Here is what I remember telling him about it. I
remember saying to him that my reading of the
Apprendi Case indicated to me that since there
wasn’t an additional clause in the Bill of Indict-
ment that made comment about his first convic-
tion for armed robbery, that under those circum-
stances it would seem to me that based upon a
reading of Apprendi, he couldn’t get anything more
than 30. That’s basically what I told him.
(Tr. 3/17/03 at 23-25).
This is not, as the State asserts, a swearing match
between Julian and Sheehan. And we need not redeter-
mine credibility. See Marshall v. Lonberger, 459 U.S. 422,
434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas
courts no license to redetermine credibility of witnesses
whose demeanor has been observed by the state trial court,
but not by them.”). The state court simply ignored a key
piece of evidence that reconciled both Julian and Sheehan’s
testimony. The government cites several pages from the
transcript which indicate that Sheehan informed Julian
that he was eligible for a sixty year sentence. (Brief of the
Appellee at 19-20, 21, 24), but each of these statements
refers to information Sheehan gave to Julian before the
Apprendi decision was released. Consequently, any
admonishments that Julian received prior to Apprendi
became moot in Julian’s eyes after Sheehan informed
Julian that Apprendi changed the playing field. The post-
conviction court’s determination that “Mr. Julian knew . . .
that he was eligible for an extended term” was against the
clear weight of the evidence and, therefore, an objec-
tively unreasonable determination of undisputed facts.
See Ben-Yisrayl v. Davis, 431 F.3d 1043, 1048 (7th Cir.
2005).
12 Nos. 05-3835 & 05-3836
Even if it were not, in formulating its alternate theory,
the post-conviction appellate court unreasonably applied
the United States Supreme Court’s clearly established
law on ineffective assistance of counsel claims. Recall
that the post-conviction appellate court’s other (and
perhaps primary) conclusion was that “Sheehan merely
expressed his opinion concerning the effect of Apprendi,
and did not guarantee that the defendant’s sentence would
not exceed 30 years.” (R. at 10, Ex. L, p.7).4 From this, the
court could conclude that “Sheehan did not provide the
defendant with ineffective assistance at trial.” Id.A state court must analyze a claim of ineffective assis-
tance of counsel pursuant to the guidelines set forth in
Strickland v. Washington, 466 U.S. 668 (1984). Strickland
requires that a petitioner demonstrate first that counsel’s
performance was deficient in an objectively unreasonable
manner, and, second, that the deficient performance
resulted in prejudice. Id. at 687-88, 693. A habeas peti-
tioner who brings an ineffective assistance of counsel claim
under the AEDPA must demonstrate that the state court
unreasonably applied Strickland in evaluating his claim of
ineffective assistance of counsel. The state court’s applica-
tion of Strickland must be objectively unreasonable and
not merely erroneous. Yarborough v. Gentry, 540 U.S. 1, 5
(2003).
4
The appellate court’s factual findings differ slightly from the
brief factual findings of the post-conviction court. Nevertheless,
the state appellate court can make its own factual determina-
tions which are owed the same deference as a trial court’s find-
ing of fact. Miranda v. Leibach, 394 F.3d 984, 999 (7th Cir. 2005).
See also Sumner v. Mata, 449 U.S. 539, 547 (1981) (“Section
2254(d) by its terms thus applies to factual determinations
made by state courts, whether the court be a trial court or an
appellate court.”)
Nos. 05-3835 & 05-3836 13
The Strickland test applies where a defendant chal-
lenges the legal assistance received during plea negotia-
tions. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Indeed the
first prong of the Strickland test emanates from an earlier
Supreme Court case in which the Court held that a
defendant challenging a guilty plea based on ineffective
advice from his lawyer must demonstrate that the advice
was not within the range of competence demanded of
attorneys in criminal cases. McMann v. Richardson, 397
U.S. 759, 770-71 (1970).
This court previously has identified some of the specific
criteria that constitute objectively reasonable representa-
tion in the context of advice concerning a plea agreement.
A reasonably competent attorney will attempt to learn all
of the facts of the case, make an estimate of the likely
sentence, and communicate the result of that analysis
before allowing the client to plead guilty. Bethel v. United
States, 458 F.3d 711, 717 (2006), cert. denied, 127 S. Ct.
1027 (2007); Moore, 348 F.3d at 241; Barnes, 83 F.3d at
939. The attorney need not be 100% correct in her predic-
tion of the consequences of pleading guilty and of going to
trial, as a mistake, in and of itself is not proof of deficient
performance. Moore, 238 F.3d at 241; Barnes, 83 F.3d at
939-40. The leeway given counsel stems from the general
concept that a court must start with the “presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Davis v. Lambert, 388 F.3d 1052,
1059 (7th Cir. 2004). Because reasonable attorneys may
have a great deal of disagreement about appropriate
strategy or tactics, a defendant challenging the effective-
ness of counsel must show more than that counsel made
poor choices. Woods v. McBride, 430 F.3d 813, 821 (7th Cir.
2005), cert. denied, 127 S. Ct. 391 (2006). Consequently,
although a mistaken prediction is not sufficient to show
deficient performance, (Barnes, 83 F.3d at 940), in some
cases it may be such a gross mischaracterization that it
14 Nos. 05-3835 & 05-3836
provides a “strong indication of constitutionally deficient
performance.” United States v. Martinez, 169 F.3d 1049,
1053 (7th Cir. 1999). A court may factor the magnitude of
the error into its assessment of whether the legal advice
was that of a reasonably competent attorney. See McMann,
397 U.S. at 769-71.
The state appellate court, therefore, was headed in the
wrong direction when it determined that Sheehan did
not provide ineffective assistance of counsel because he
“merely expressed his opinion . . . and did not guarantee
that the defendant’s sentence would not exceed 30 years.”
(R. at 10, Ex. L, p.7). The only query we make is whether
the attorney’s actions in learning the facts, analyzing the
law, and communicating the results of that analysis to
the client, were objectively reasonable. Moore, 229 F.3d at
241. And so in Moore, where the attorney discussed the
possible ramifications of the sentence with a client but
did not have the relevant statute with him and was
uncertain as to its effect, this court concluded that his
conduct was objectively unreasonable, notwithstanding the
fact that the attorney never identified the conclusion he
reached or the advice ultimately given to the client. Moore,
348 F.3d at 241-42. Consequently, the appellate court’s
conclusion that because Sheehan provided an opinion
rather than a guarantee, he could not have provided
ineffective assistance of counsel is a non-sequitur. (R. at
10, Ex. L, p.7). What Sheehan told Julian about a thirty-
year maximum for his sentence was clearly wrong and
therefore objectively unreasonable. In fact one would be
hard pressed to find a lawyer who guaranteed a client
anything. Guarantees in the law are hard to come by,
particularly in the topsy-turvy world of sentencing. Were
we to constrain claims for ineffective assistance of counsel
only to those who received guarantees from their lawyers,
we surely would eviscerate the law regarding the right
to effective counsel.
Nos. 05-3835 & 05-3836 15
The first prong of the state court’s Strickland analysis,
therefore, should have focused not on whether Sheehan
offered advice or a guarantee, but rather on whether
Sheehan’s advice was that of a reasonably competent
defense lawyer.5 In this case, it will be helpful to our
assessment of Sheehan’s analysis of the facts and law, and
his efforts to communicate the results of his analysis to
revisit the key facts leading up to the rejection of the plea.
They are as follows:
On May 3, 2000 Julian was brought before a judge on
charges that he had committed a robbery that same day.
The judge advised Julian that the usual sentencing range
for the offense was six to thirty years imprisonment, but
that if Julian had “been convicted of the same or greater
class offense within the past 10 years excluding any time
spent in custody, that could be extended as high as 60
years.” (R. at 10, Ex. L, p.1-2). Sheehan similarly advised
Julian that his maximum sentence could be sixty years.
(Tr. 3/17/03 at 10). Fifty-four days later, on June 26, 2000,
the Supreme Court released its decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000). Seven weeks after that,
on August 15, 2000, Julian and his counsel entered the
plea hearing. At or before this hearing, Sheehan discussed
5
The State contends that prior to the briefing in the appellate
court Julian consistently alleged ineffective assistance of counsel
based on counsel’s advice, rather than a guarantee. Conse-
quently, the State argues that Julian cannot now claim that
counsel was ineffective for making an erroneous prediction. Our
task, on review of this habeas petition, is to determine whether
the state court properly applied Strickland. In the case of an
ineffective assistance claim, the first prong of Strickland requires
a court to analyze whether the attorney gave objectively reason-
able advice, not whether he guaranteed an outcome or merely
opined about a possible outcome. Julian thus correctly notes
that the distinction is irrelevant under his theory of the case.
16 Nos. 05-3835 & 05-3836
the effect of the Apprendi decision on Julian’s sentence,
and, Sheehan told Julian that under his “reading of the
Apprendi case . . . since there wasn’t an additional clause
in the Bill of Indictment that made comment about his
first conviction for armed robbery, that under those
circumstances it would seem to me that based upon a
reading of Apprendi, he couldn’t get anything more than
30.” (Tr. 3/17/03 at 25).
Of course, this reading of the Apprendi decision was
wrong. Apprendi clearly held that “Other than the fact
of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reason-
able doubt.” Apprendi, 530 U.S. at 490 (emphasis sup-
plied). Consequently, there was no need for the govern-
ment to include an additional clause in the indictment
that referenced Julian’s prior conviction for armed rob-
bery. Apprendi’s holding regarding prior convictions was
not new. In Jones v. United States, 526 U.S. 227, 243, n.6
(1999), decided the year before Apprendi, the court noted,
in a case construing a federal statute, that “under the
Due Process Clause of the Fifth Amendment and the
notice and jury trial guarantees of the Sixth Amendment,
any fact (other than prior conviction) that increases the
maximum penalty for a crime must be charged in an
indictment, submitted to a jury, and proven beyond a
reasonable doubt.” Id. And the year before that, in
Almendarez-Torres v. United States, 523 U.S. 224, 226-27
(1998) the Supreme Court held that Congress could treat
recidivism—that is, the fact of a prior conviction—as a
sentencing factor rather than an element of the crime, and
therefore it need not be set forth in the indictment. Id.It is true, as the government notes, that the Apprendi
opinion was fifty-three pages in length and contained two
concurrences and two dissents. Nevertheless, had Sheehan
Nos. 05-3835 & 05-3836 17
read only the syllabus or even just the one-sentence
(thirty-nine word) holding of Apprendi, demarcated in the
syllabus of the opinion by an italicized “Held:” he would
have known, without any doubt, that the fact of a prior
conviction need not be submitted to a jury and proved
beyond a reasonable doubt.6 The majority opinion con-
tains a lengthy discussion regarding the exception for the
“fact of a prior conviction” which includes a discussion of
why this particular type of fact is particularly reliable
and relevant and a clear announcement that the holding
of Almendarez-Torres, 523 U.S. 224 (1998) would stand.
Apprendi, 530 U.S. at 487-90. Following this discussion,
the court summarizes its holding, stating, “[o]ther than the
fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” Id. at 490. Despite the fact that there
were two concurrences and two dissents, the majority
opinion drafted by Justice Stevens was not a fractured
opinion in which only portions of the opinion held a
majority vote. Five members of the court agreed with the
whole of the majority opinion in Apprendi. In short, the
holding of Apprendi is clear on first, second, or third
glance, that the fact of a prior conviction need not be
submitted to a jury and proved beyond a reasonable doubt.
To his credit, Sheehan testified that he read Apprendi
before advising Julian, and in this respect his efforts
surpassed those of the attorney in Moore, who confessed
that he did not have the statute with him when providing
the advice and acknowledged that he was uncertain as to
6
Although the Supreme Court admonishes readers that the
syllabus “constitutes no part of the opinion of the court” it does
provide a convenient synopsis of the opinion and its holding, and
can quickly direct a reader to the relevant portion of the full
opinion.
18 Nos. 05-3835 & 05-3836
its effect. Nevertheless, given the clear exception for
prior convictions announced at several points in the
majority opinion of Apprendi (see Apprendi, 530 U.S. at
476, 488, 490), Sheehan’s reading of Apprendi in this
case simply cannot constitute an objectively reasonable
analysis of the law and his counsel therefore was
deficient.7 In sum, by focusing on Sheehan’s guarantee
rather than the analysis required by Strickland, the state
post-conviction court’s application of governing federal
law was objectively unreasonable.
None of that matters, however, if Julian cannot show
that but for his lawyer’s advice, he would have taken the
plea offer. Because the district court upheld the state
court conclusion that Sheehan did not provide erroneous
information, it did not have the opportunity to consider
whether the ill advice prejudiced Julian. Although we
could remand the issue to the district court so that it
might address this issue, the district court would merely
review the same post-conviction court record that we have
already scoured for evidence of prejudice. Because our
review is de novo and the issue has been fully briefed,
efficiency dictates that we resolve the question here. See
e.g., Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 749-
50 (7th Cir. 1993) (deciding an issue for the first time on
appeal where the matter has been fully briefed and the
appellate court’s review is plenary such that the district
7
By coming to this conclusion we do not mean to disparage
generally Mr. Sheehan’s skills as lawyer. Defense lawyers often
work long hours, for little money, at times for more clients than
they can reasonably handle. These conditions can lead to error.
Mr. Sheehan, like all lawyers at some point in their career, erred.
In this case, the error deprived Julian of effective assistance of
counsel. Our review of the record indicates that but for this
error, Mr. Sheehan admirably represented his client below.
Nos. 05-3835 & 05-3836 19
judge’s view could have no effect on review by the court of
appeals).
To meet the second of the Strickland prongs—preju-
dice—the defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to under-
mine confidence in the outcome.” Id. at 694. “[A] defendant
need not show that counsel’s deficient conduct more likely
than not altered the outcome in the case.” Id. at 693. The
chances of prejudice need be only better than negligible.
Canaan v. McBride, 395 F.3d 376, 386 (7th Cir. 2005). In
the context of plea agreements, the prejudice prong focuses
on whether the deficient information was the decisive
factor in a defendant’s decision to plead guilty or to
proceed to trial. Hill, 474 U.S. 58-59; Moore, 238 F.3d at
241; Barnes, 83 F.3d at 940. It is only in this prejudice
context that consideration of advice versus a guarantee
warrants discussion. The strength of an attorney’s
prediction—that is whether it was billed as a guarantee,
advice, belief, or guess goes toward determining whether
the attorney’s statements were the decisive factor in the
defendant’s decision to take a plea or opt for trial. Obvi-
ously a guarantee of a particular sentence might be
more likely to affect a decision to take a plea or go to trial
than an attorney’s mere advice couched in all of the
usual disclaimers that attorneys are trained to assert.
Julian testified that he based his decision to go to trial
on the information provided by Sheehan: “I understood
that Mr. Sheehan told me I couldn’t get more than 30
years, and with the time I was being offered, it wasn’t very
much of a difference, seeing as how there was little extra
added to it that put me in a position that I might as well
take my chances since I couldn’t have gotten more than
30 years anyway.” (Tr. 3/13/03 at 42). During direct ex-
amination, the following exchange occurred:
20 Nos. 05-3835 & 05-3836
Q: Was your decision [not to take the plea and to go
to trial] based at least in part on your belief that
you would get no more than 30 years?
A: Sure.
Q: Had you been aware that you could have gotten
more than 30 years, in fact anywhere up to 60
years, would that have affected your decision to go
to trial or not?
A: Most definitely. I would have taken the 23, or the
offer.
Q: And so your decision was based on information Mr.
Sheehan provided to you—
A: Yes.
Q: —regarding that 30-year sentence?
A: Yes.
(Tr. 3/1/3/03 at 7).
The information Sheehan conveyed was “precisely the
type of information that is likely to impact a plea decision.”
Moore, 348 F.3d at 242-43. In finding this, we need not
disrupt the district court’s finding that Sheehan advised,
but did not guarantee Julian a thirty-year sentence. Even
assuming that Sheehan merely advised Julian that he
believed that the maximum sentence Julian could receive
was thirty years of incarceration, that legally erroneous
advice seems likely to have altered the outcome. The
government offered to recommend a sentence of twenty-
three years. Under this scenario Julian was faced with the
following choice: take the prosecutor’s recommendation of
twenty-three years or take a gamble and go to trial where
he might be exonerated and go home a free man or he
might face up to thirty years in prison. Julian believed he
was only risking seven additional years for a chance at
Nos. 05-3835 & 05-3836 21
acquittal (the difference between the twenty-three the
prosecutor offered to recommend and the thirty to which
he could be sentenced after trial). In actuality, Julian was
risking thirty-seven years for the chance at acquittal (the
difference between the twenty-three the prosecutor offered
and the sixty years to which he could be sentenced after
trial). To gamble with seven years for the slim chance of
acquittal might be a reasonable calculus for some. It is
hard to imagine, however, that any reasonable defendant
would be willing to risk thirty-seven years for the remote
chance of acquittal. After all, sixty years is a life sentence
for any defendant, particularly one who, like Julian, was
thirty-eight at the time of sentencing.
In Moore we found prejudice where the lawyer mistak-
enly doubled the sentence at risk when advising the
client to take a plea. Moore, 348 F.3d at 242-43. In that
case Moore’s counsel failed to inform himself, and hence
his client, about a change in the law critical to his client’s
plea decision. As a result, Moore’s counsel informed him
that he was facing a choice between ten years if he pled
guilty and between twenty-two and twenty-seven years if
he was convicted at trial. Id. at 242. In actuality, Moore
was facing a choice between ten years if he took the plea
and only twelve and a half to fifteen years if convicted at
trial. Id. The court concluded that “that difference nearly
doubled the amount of time he would face if he proceeded
to trial, and that is precisely the type of information that
is likely to impact a plea decision.” Id. at 242-43. Noting
the record evidence, the fact that Moore altered his plea
after being given the incorrect information, and the
severity of the misinformation, the court concluded that
but for the erroneous advice, Moore would not have pled
guilty. Id. at 243.
Although this court has stated that a “mere allegation
by the defendant that he would have insisted on going to
trial is insufficient to establish prejudice,” (United States
22 Nos. 05-3835 & 05-3836
v. Fudge, 325 F.3d 910, 924 (7th Cir. 2003)), we are not
faced with a mere allegation without more. In this case, as
in Moore, we are faced with several pieces of evidence
indicating that, but for the ill-advice, Julian would have
taken the plea. First, as we just noted, Julian testified that
he would not have gone to trial but for the misinformation.
Second, Julian, like Moore, altered course at the last
minute just after receiving the erroneous information.
Third, the information provided by Julian’s attorney
grossly misstated the risk of going to trial. Thus just as in
Moore, we have testimonial evidence, a history of the plea
discussions, and the type of mis-information likely to
impact a plea. Id. at 243.
The State attempts to chip away at Julian’s prejudice
showing by citing several cases which rejected particular
pieces of evidence presented to prove prejudice. These
cases, however, merely comment on the insufficiency of
solitary pieces of evidence—a naked declaration that but
for the erroneous advice, the defendant would have
altered his choice to take a plea or go to trial; a third party
affidavit stating the same; or after-the-fact evidence. Toro
v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (self
serving statement that the defendant would have ac-
cepted the plea insufficient to demonstrate prejudice);
Paters v. United States, 159 F.3d 1043, 1047 (7th Cir.
1998) (noting that affidavit by defendant’s parents stating
that he would have rejected the plea was, by itself, insuffi-
cient evidence of prejudice, but remanding for further
evidentiary hearing); Johnson v. Duckworth, 793 F.2d 898,
902 n.3 (7th Cir. 1986) (court, in footnote dicta casting
doubt on after-the-fact testimony by defendant that he
would have taken a plea). In none of these cases did the
court consider a package consisting of testimonial evi-
dence, a history of plea discussion, and the nature of the
misinformation as was presented both in this case and in
Moore, 348 F.3d at 242-43. Julian need not demonstrate
Nos. 05-3835 & 05-3836 23
that his counsel’s deficient conduct more likely than not
altered the outcome in the case. Strickland, at 693. He
need only demonstrate that the chances of prejudice
were better than negligible. Canaan, 395 F.3d at 386. This
he has done.
The decision of the district court denying the writ of
habeas corpus is reversed. Julian asks this court to order
the State to put forth the original plea offer of two, twenty-
three year concurrent terms of incarceration. The Supreme
Court has announced that where there has been a finding
of ineffective assistance of counsel in a § 2255 proceeding,
the remedy “should be tailored to the injury suffered from
the constitutional violation and should not unnecessarily
infringe on competing interest” including the competing
interest of preserving society’s interest in the administra-
tion of criminal justice. United States v. Morrison, 449 U.S.
361, 364 (1981). We do not think that requiring specific
performance of the plea agreement is the appropriate
remedy here. In this case, the State had no hand in
denying Julian his Sixth Amendment right to effective
assistance of counsel, and Julian never actually accepted
the terms of the original plea offer. But cf. Nunes v.
Mueller, 350 F.3d 1045, 1057 n.9 (9th Cir. 2003) (directing
state to offer the original plea despite the fact that defen-
dant had not actually accepted the plea). We do not mean
to imply that a court must order a new trial rather than
impose the terms of the original plea offer any time these
particular set of facts arise. A federal court has broad
discretion in conditioning a judgment granting habeas
relief (Gilmore v. Bertrand, 301 F.3d 581, 582 (7th Cir.
2002) (citing Hilton v. Braunskill, 481 U.S. 770, 775
(1987))) and in doing so must consider the totality of the
facts presented. In this case we believe that those facts
warrant retrial. Of course the State is free to propose
a plea agreement in lieu of trial as it sees fit. Conse-
quently, the State shall have 120 days from the date of the
24 Nos. 05-3835 & 05-3836
issuance of this opinion to release or retry the petitioner,
Julian.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-25-07