Abraham Estremera v. United States , 724 F.3d 773 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2043
A BRAHAM E STREMERA,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 6519—James F. Holderman, Judge.
A RGUED JULY 9, 2013—D ECIDED JULY 30, 2013
Before E ASTERBROOK, Chief Judge, and P OSNER and
W ILLIAMS, Circuit Judges.
E ASTERBROOK, Chief Judge. Abraham Estremera was
sentenced to life imprisonment following his convictions
for conspiring to distribute cocaine plus possessing a
firearm despite an earlier felony conviction. We
affirmed his convictions and sentence, along with those
of some confederates. United States v. Bustamonte, 493
F.3d 879 (7th Cir. 2007). Estremera then sought collateral
2 No. 12-2043
relief under 28 U.S.C. §2255, contending that his lawyer
had misstated the terms of a plea bargain proposed by
the prosecutor. Had the lawyer done his job, Estremera
insisted, he would have pleaded guilty and could have
received a lower sentence. The district court denied the
petition without holding a hearing. 2012 U.S. Dist. L EXIS
28468 (N.D. Ill. Mar. 2, 2012).
The United States asks us to affirm on the ground
that the district court erred by reaching the merits while
a question of timeliness remained unresolved. Estremera’s
direct appeal ended on February 27, 2008, when the
Supreme Court denied his petition for certiorari, see
Clay v. United States, 537 U.S. 522 (2003), but he did not
invoke §2255 until October 13, 2009. Section 2255(f) sets
a limit of one year unless one of four circumstances
restarts the clock, and the United States maintains
that none of these four obtains. The district court
bypassed the subject, concluding that it would be neces-
sary to hold a hearing before resolving the limitations
defense, while the judge thought that the merits could
be resolved without a hearing.
Federal statutes of limitations do not affect the
tribunal’s subject-matter jurisdiction, see Arbaugh v. Y&H
Corp., 546 U.S. 500 (2006) (general proposition); Day v.
McDonough, 547 U.S. 198, 205 (2006) (application to col-
lateral attacks), so the district court was right to con-
clude that it is permissible to reject a petition on the
merits without resolving a limitations defense. There is
no necessary priority among non-jurisdictional reasons
for rejecting a suit or claim. It makes sense to tackle
No. 12-2043 3
the merits first when they are easy and the limitations
question hard, just as it makes sense (and is permissible)
to reject a collateral attack on the merits while other
procedural defenses, such as waiver, default, or lack of
exhaustion, remain in the background. 28 U.S.C.
§2254(b)(2).
The district judge also was right to conclude that this
petition could not be dismissed as untimely without
a hearing. Estremera contends that he told his lawyer
to file a collateral attack, and that counsel failed to
keep the promise to do so—and that not until the year
had almost expired did Estremera realize that he had
been left in the lurch. Abandonment by counsel can toll
the limitations period. See Holland v. Florida, 130 S. Ct.
2549 (2010). Holland deals with state prisoners’ petitions
under §2254, but its conclusion is equally applicable
to federal prisoners’ petitions under §2255. The Justices
stated that not all shortcomings by counsel meet the
standard required for tolling: “(1) that [the prisoner] has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and pre-
vented timely filing.” 130 S. Ct. at 2562, quoting from
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). It would
take an evidentiary hearing (or an exchange of
affidavits revealing the absence of a material factual
dispute) to learn whether Estremera had been pursuing
his rights diligently and whether whatever counsel did
or didn’t say or do put an “extraordinary” obstacle in
his path, given the conclusion in Holland that a lawyer’s
“garden variety” negligence does not justify tolling.
130 S. Ct. at 2564. On the current state of the record, we
4 No. 12-2043
have no idea what happened, so the legal standard
cannot be applied. And the record also does not permit
a court to determine whether Estremera acted diligently
after counsel bugged out. See, e.g., Tucker v. Kingston,
538 F.3d 732, 734–35 (7th Cir. 2008).
Estremera contends that diligence on his part was
not required because he gets extra time under
§2255(f)(2), which starts a new one-year clock on “the
date on which the impediment to making a motion
created by governmental action in violation of the Con-
stitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action”. He contends that, by the time
he realized that his lawyer had abandoned him, he was
in his prison’s “special management unit” and could not
use its law library. He characterizes the lack of library
access between June 2008 and July 2009 as an “impedi-
ment” of the government’s creation and contends that
a new one-year period began once this impediment
was “removed” by restoration of access.
The United States offers two responses: first, that lack
of library access never supports a reset of the time
under §2255(f)(2); second, that Estremera’s prison offered
electronic access to persons in the special management
unit, so there was no obstacle. Unfortunately, the
record does not demonstrate what sort of electronic
access was available and whether it was enough for
any particular prisoner. Estremera is literate in English,
but we don’t know whether he would be competent to
use Westlaw or Lexis without assistance. Librarians and
No. 12-2043 5
experienced prisoners help the inmates use physical
law libraries; this record does not tell us whether
electronic access was an adequate substitute. So the
second argument is premature.
And the first is wrong. Lack of library access can,
in principle, be an “impediment” to the filing of a
collateral attack. The United States’ contrary position
assumes that all a prisoner need do is narrate the facts;
legal argument and analysis comes later. Indeed, the
form that all prisoners must use when applying for
relief under §2255 tells them to stick to the facts: “Do not
argue or cite law. Just state the specific facts that
support your claim.” If legal argument and citation are
forbidden, the United States contends, prisoners don’t
need law libraries to file collateral attacks—though
they may need law libraries later, in order to support
collateral attacks already on file.
This argument supposes that “fact” and “law” can be
neatly separated. They can’t. The form tells prisoners
to “state the specific facts that support your claim.”
But how does a prisoner know what facts establish a
“claim”? Estremera contends that his lawyer misrepre-
sented the requirements of the proposed plea agree-
ment. If the lawyer erred, Estremera knew it without
needing a law library. But does such an error establish
a good “claim” for relief? That requires some legal knowl-
edge.
Prisoners who file collateral attacks without doing
legal research face two dangers. First, the district judge
may dismiss the petition summarily on screening
6 No. 12-2043
under Rule 4(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts. A pris-
oner’s failure to allege all that is necessary to a valid
claim may cause him to lose a winnable petition. Second,
a prisoner who files a §2254 or §2255 petition based on
a bad legal theory may doom his chance to prevail on
a good one, for the law allows just one petition as of
right. Second or subsequent petitions are possible
only under the conditions specified in 28 U.S.C. §§ 2244(b)
or 2255(h). Thus filing a petition without research is
risky: a good claim may be lost as undeveloped, or a
bad claim may be advanced and rejected, blocking relief
on a good claim later.
Our opinion in Moore v. Battaglia, 476 F.3d 504, 508
(7th Cir. 2007), reserved the question whether lack of
library access ever allows more time under §2255(f)(2).
We now join other circuits in holding that it may. See,
e.g., Egerton v. Cockrell, 334 F.3d 433, 438 (5th Cir. 2003);
Whalem v. Early, 233 F.3d 1146 (9th Cir. 2000) (en banc).
The United States observes that Jones v. Hulick, 449 F.3d
784, 789 (7th Cir. 2006), and Tucker v. Kingston, supra,hold that lack of library access does not justify
equitable tolling on the facts of those cases, but Estremera
doesn’t propose common-law tolling; he invokes
§2255(f)(2). That makes it unnecessary to decide when
equitable tolling (more properly equitable estoppel,
the doctrine that concerns one side’s obstruction of an-
other’s potential litigation) would be available.
To hold that the absence of library access may be
an “impediment” in principle is not necessarily to say
No. 12-2043 7
that lack of access was an impediment for a given pris-
oner. “In principle” is a vital qualifier. Perhaps Estremera
had no need of a library. Would he have jeopardized a
good claim—or advanced a bad one, closing the door to
a good claim later—if he had filed without consulting
a library? Did he consult one before filing this petition?
(The prosecutor maintains that he did not even ask
for library access until April 2009, more than a year
after his conviction became final.) If he didn’t want or
need a law library during the year after his conviction
became final, its unavailability (if it was unavailable)
would not have been an impediment. These and other
subjects—in addition to the questions what access
Estremera had, and w hen— w ou ld req uire an
evidentiary hearing to explore.
The district court’s decision therefore cannot be
affirmed on the ground that the petition was untimely,
and we must take up the merits. Estremera filed an af-
fidavit stating that, every time he met with his lawyer,
he told counsel “that I wanted to plead guilty and
accept responsibility for my own conduct, but I would
not agree to give information about, or testify against
anyone else.” Estremera and his confederates all
belonged to the Latin Kings, a violent gang inclined
to retaliate against members who assist police or pros-
ecutors. The prosecutor’s early offers called for
Estremera to testify at other defendants’ trials; his
lawyer told the prosecutor that Estremera would not
do that. The prosecutor then made other proposals,
which were less beneficial to Estremera—he would not
8 No. 12-2043
get the potentially large reduction for substantial
assistance to the prosecution—but required less of him.
The prosecutor’s final proposal, which was in writing,
omitted a promise by Estremera to testify at anyone’s
trial or even to be debriefed. It extended three benefits
in exchange for the plea: the prosecutor would dismiss
the weapons charge, move for a three-level reduction
of Estremera’s offense level, see U.S.S.G. §3E1.1(b), and
recommend a sentence at the low end of the Guideline
range. Estremera would plead guilty to the drug
charge, acknowledge that the minimum sentence was
10 years and the maximum life, waive his rights to
appeal (reserving a right to contest the plea’s validity)
and collateral attack, and agree to the forfeiture of his
weapons and any property related to the drug crime.
Paragraph 15 of the draft, which deals with forfeiture,
contains this sentence: “Defendant will cooperate with
the United States during the ancillary stages of any for-
feiture proceedings to defeat the claim of a third-party
in the event a third-party files a claim.” That is the pro-
posal’s only reference to assistance.
According to Estremera’s affidavit, his lawyer gave
him a copy of this proposal but “did not discuss any-
thing in the agreement with me. He … simply told me
there was another plea offer and if I wanted to accept
it I would have to sign the agreement but if I did so
I would be required to cooperate with the government
against others.” When denying Estremera’s petition,
the district judge assumed that advice by the lawyer
that the prosecutor’s proposal entailed testifying
No. 12-2043 9
against others would have been ineffective assistance
of counsel. But the judge understood the affidavit to
distinguish “cooperation” from “testimony” and concluded
that the lawyer had used the former word but not the
latter. The draft agreement indeed required cooperation
in the forfeiture proceeding, the district judge observed,
so counsel’s advice was accurate.
This seems to us too sanguine a view of the matter.
Estremera is a prisoner, not a securities lawyer making
subtle linguistic distinctions in a bond indenture.
Against a background of negotiations in which his
lawyer told him that the prosecutor wanted Estremera’s
trial testimony, a statement that the latest draft still
called for him to “cooperate with the government
against others” readily could have been understood as
a reference to turning state’s evidence. Counsel could
have clarified by going through the proposal, but
Estremera avers that the lawyer did not discuss with
him “anything” in the agreement; Estremera thus did
not learn that cooperation would have been limited to
ensuring the forfeiture of Estremera’s property.
If Estremera read the proposal he would have come
across the phrase “the ancillary stages of any forfeiture
proceedings”. Would he have understood what an “ancil-
lary stage” is? A trial perhaps? Would he have been
confident that “any forfeiture proceedings” (emphasis
added) was limited to the forfeiture of his own prop-
erty? If “any” included forfeiture proceedings con-
cerning the property of other Latin Kings, then the co-
operation clause might well oblige him to testify. A
10 No. 12-2043
lawyer probably would read “any” in ¶15 to refer back
to ¶14, which described the property that would be
forfeited. But Estremera is not a lawyer, and to go by
his affidavit (which is all we have to go on) his lawyer
did not tell him what this commitment entailed. Nor
did counsel try to obtain clarification from the
prosecutor, even though that step could have put
Estremera’s mind at ease.
The Supreme Court held in Lafler v. Cooper, 132 S. Ct.
1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012),
that lawyers must tell their clients about offers of plea
bargains. Hare v. United States, 688 F.3d 878 (7th Cir. 2012),
concludes that these decisions do not create “new rules”
and therefore apply on collateral review. The parties
assume in this litigation, as we did in Overstreet v.
Wilson, 686 F.3d 404 (7th Cir. 2012), that counsel’s obliga-
tion entails explaining the material terms of the pros-
ecutor’s offer. Given the parties’ mutual assumption,
here as in Overstreet we need not decide whether
counsel’s obligation extends to ensuring the client’s
understanding of each term’s significance—for the
problem here was not Estremera’s failure to grasp what
the lawyer told him, but the absence of a review of
the offer’s terms plus a false statement about a material
part of the offer. See also Julian v. Bartley, 495 F.3d 487(7th Cir. 2007) (misleading the defendant about an
offer’s terms can constitute ineffective assistance).
Estremera’s affidavit may not show the whole pic-
ture—indeed, it may contain falsehoods. The way to
find out what happened is to hold a hearing at which
No. 12-2043 11
both Estremera and his lawyer can testify about what
passed between them before Estremera rejected the
offer and decided to go to trial.
The prosecutor tells us that a hearing is unnecessary
because Estremera was sure never to plead guilty, and
his lawyer’s advice, even if bad, therefore did not
cause prejudice. The district judge agreed with this
view, thinking that Estremera suffers from regret after
being convicted and sentenced to life imprisonment. As
the district judge saw things, Estremera wants to have
his cake and eat it too, by getting a crack at acquittal
and only then seeking the (potentially) lower sentence
available to those who plead guilty. Yet Estremera’s
affidavit asserts that from the outset he wanted to
plead guilty and would have done so had he known
that the prosecutor’s final proposal did not require
him to testify against other gang members. That state-
ment may be false, as the district judge believed, but
it cannot be rejected without an evidentiary hearing.
Whether a prisoner’s statement that he would have
pleaded guilty requires corroboration in order to be
believed is an interesting question pending before the
Supreme Court in Burt v. Titlow, cert. granted, 133 S. Ct.
1457 (2013). See also Toro v. Fairman, 940 F.2d 1065,
1068 (7th Cir. 1991) (requiring corroboration). Suppose
counsel told Estremera that he was likely to be sen-
tenced to life imprisonment whether he pleaded guilty
or not—he was a big-time dealer, held accountable
for distributing more than 150 kilograms of cocaine, and
is a career offender to boot. That would make it hard
12 No. 12-2043
to see what he could have hoped to gain by pleading
guilty, and it would be correspondingly hard to find
that there was a “reasonable probability” (the legal stan-
dard, see Cooper, 132 S. Ct. at 1384–85) that he would
have entered a guilty plea had he received better
advice about what sort of cooperation the proposal re-
quired. Estremera was 35 at the time of trial, so an ex-
tended sentence (say, 480 months) could amount to a
life term as a practical matter. But we need not pursue
this topic; decision should await the results of the
hearing and the Supreme Court’s opinion in Titlow.
At any hearing, the judge should recognize that not
only Estremera’s testimony but also his former lawyer
may try to make himself look good, or have a faulty
memory, or both. Sometimes lawyers are tempted to
help out their former clients by admitting to nonexistent
failings. It can be hard to piece together what hap-
pened when only recollections are available; writings
exchanged before the trial would be more reliable. But
this is the district judge’s bailiwick, not ours.
Before we close, a few words are in order about the
remedy should the hearing on remand lead to conclu-
sions that the petition is timely and that counsel
furnished ineffective assistance. Estremera maintains
that, if he prevails at the hearing, the district court must
direct the prosecutor to offer the same plea agreement
that had been on the table before the trial. Cooper and
Frye mentioned this as a possible remedy—adding that
the judge would be free to reject the plea, the agreement,
or both, and stick with the original sentence—but did
No. 12-2043 13
not hold that it is the only permissible remedy. Cooper,
132 S. Ct. at 1389. Indeed, the second question presented
in Titlow is whether an obligation to offer the original
deal again is even an appropriate remedy when it is
no longer possible for the defendant to fulfil all of the
promises that would have been valuable to the
prosecutor, had a deal been struck before trial. The deal
offered to Estremera would have rewarded him for
saving the prosecutor the expense and effort of
preparing for and holding a trial, and for cooperating in
forfeiture proceedings. The time for cooperation is past,
the trial has been held, Estremera enjoyed the oppor-
tunity to be acquitted, and these things may affect the
remedy. The district court may think it prudent to
await the Supreme Court’s opinion in Titlow before
crafting a remedy, if the judge concludes that any
remedy is in order.
Circuit Rule 36 will apply on remand.
R EVERSED AND R EMANDED
7-30-13