NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 26, 2010
Decided April 19, 2010
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09‐2873
ANDRE WELCH, Appeal from the United States District
Petitioner‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:07‐cv‐04333
UNITED STATES OF AMERICA,
Respondent‐Appellee. Blanche M. Manning,
Judge.
O R D E R
Andre Welch was found guilty by a jury of bank robbery, see
18 U.S.C. § 2113(a), and
sentenced to 160 months in prison. After his conviction and sentence were affirmed on direct
appeal, Welch filed a motion to vacate under
28 U.S.C. § 2255. He claimed that the federal
public defender who represented him at trial was ineffective because he either mishandled a
plea offer from the government or else failed even to pursue plea negotiations with prosecutors.
After an evidentiary hearing, the district court denied Welch’s motion. The court found that
the government had never proposed, and defense counsel had never solicited, a plea
agreement, and that counsel for Welch had acted reasonably given Welch’s insistence on going
to trial and the relative weakness of the government’s case against him. We affirm the
judgment.
No. 09‐2873 Page 2
Although no eyewitness identified him and no physical evidence at the bank tied him
to the robbery, Welch was convicted in 2003 based on the testimony of his ex‐wife, a former
roommate, and a former coworker, all of whom identified Welch as the man in the grainy
photographs taken by surveillance cameras at the bank. Welch’s direct appeal took a long time
to resolve because Booker was decided while the case was pending. See United States v. Welch,
368 F.3d 970 (7th Cir. 2004); United States v. Welch,
429 F.3d 702 (7th Cir. 2005). In 2007, after
the direct appeal had finally concluded, Welch filed a pro se § 2255 motion that included the
first iteration of his ineffective‐assistance claim against his public defender, Imani Chiphe. This
pro se motion, as well as the amended version filed after the district court had appointed
counsel, centered on a claim that Chiphe had misadvised Welch about a plea proposal from the
government that would require him to serve only 48 months in prison. Welch alleged that he
became aware of this offer only because Chiphe had discussed it with his wife. He was not
interested, he explained, in the offer because Chiphe also communicated, first to his wife and
later to him directly, that at most he could get 60 to 72 months in prison even if he went to trial.
But Welch added that he would have accepted the proposed deal if Chiphe had not
misrepresented the maximum prison exposure and also failed to anticipate upward
adjustments that would be applied for several uncharged robberies and obstruction of justice.
The district court conducted an evidentiary hearing to explore whether the 48‐month
plea deal had actually been offered and what, if any, discussions occurred between Chiphe and
Welch regarding potential sentencing issues and the decision to go to trial. At the hearing,
Welch contradicted the allegations in his pro se and counseled § 2255 motions. Now he
testified that he never talked to Chiphe at all about the possibility of pleading guilty, despite
his contrary descriptions of the allegedly mishandled 48‐month plea deal. According to Welch,
Chiphe never discussed with him potential sentencing scenarios, and, in particular, Chiphe
never explained the possibility of getting credit for acceptance of responsibility if he pleaded
guilty. Welch did concede, however, that he never told Chiphe he was interested in negotiating
a plea agreement. And, despite his admission that he is familiar with plea negotiations after
having entered guilty pleas in three previous cases, Welch also conceded that he never asked
Chiphe about the possibility of pleading guilty nor did he tell Chiphe to contact the prosecutor
to find out about a plea deal.
For his part, Chiphe testified that he and the prosecutor never discussed a possible plea
agreement—48 months or otherwise. From the very beginning, Chiphe recounted, Welch had
vehemently maintained his innocence and had agreed with Chiphe that, given the weakness
of the government’s evidence, the case could be won at trial. Chiphe explained that “Mr. Welch
was never seriously contemplating pleading guilty,” and that all along their plan was to go to
trial. Chiphe did not remember whether Welch ever specifically told him not to engage in plea
discussions with the government, but he added that he “had a client who was telling me he was
No. 09‐2873 Page 3
innocent, so, I mean, that’s kind of the same thing.” When Welch “told me he was innocent and
told me he wanted to go to trial,” Chiphe continued, “I took that to mean that he did not want
to plea[d].” Chiphe disputed Welch’s testimony that they did not discuss different sentencing
scenarios; although he could not remember the specific dates, Chiphe confirmed that he
engaged in extensive discussions with Welch about possible guidelines outcomes and their
consequences, including his eligibility for an acceptance reduction under U.S.S.G. § 3E1.1.
Chiphe explained that Welch was “well aware” of the possibility of guidelines adjustments
based on obstruction and the uncharged robberies because he had been “very involved in the
litigation of [his] case.”
The prosecutor corroborated Chiphe’s testimony. He explained that he never made a
plea offer because it was his practice to wait for the defendant to approach him, which never
happened in this case.
After the evidentiary hearing, Welch’s lawyers abandoned his allegations about a
48‐month plea offer. Instead, in post‐hearing submissions, Welch offered an entirely new legal
theory: Chiphe’s failing was not that he mishandled a 48‐month deal, but that he never initiated
plea negotiations in the first place. The district court acknowledged this about‐face when the
judge rejected Welch’s claim of ineffective assistance and denied his § 2255 motion. The judge
highlighted Welch’s shifting and contradictory assertions and determined, based on Chiphe’s
credible testimony corroborated by the prosecutor, that there never had been a plea offer.
Regarding Welch’s new theory that Chiphe should have initiated plea negotiations, the court
concluded that Chiphe’s decision not to approach the government did not constitute deficient
performance. Welch had maintained his innocence and insisted on a trial, the court reasoned,
so there was no reason for Chiphe to have believed that he would agree to a plea bargain. The
court noted the weakness of the government’s case and the reasonable chance of an acquittal
at trial, and also gauged as significant that Welch never asked Chiphe about the possibility of
a plea bargain despite his considerable experience with the criminal justice system, including
the three cases that had ended with guilty pleas.
In this court Welch argues that Chiphe’s performance was deficient because, says Welch,
the lawyer unilaterally decided not to initiate plea negotiations. In defining what he believes
to have been counsel’s unfulfilled obligation, Welch insists that Chiphe either should have
independently pursued a plea deal with the government or else conferred with him before
deciding against that plan of action. On appeal from the denial of § 2255 relief, we review
issues of law de novo and issues of fact for clear error. Bednarski v. United States,
481 F.3d 530,
534 (7th Cir. 2007).
Defendants have a constitutional right to effective assistance of counsel during plea
negotiations. Hill v. Lockhart,
474 U.S. 52, 58‐59 (1985). To have prevailed on a claim of
No. 09‐2873 Page 4
ineffective assistance of counsel, Welch was required to establish that counsel’s performance
“fell below an objective standard of reasonableness” and caused him prejudice. Strickland v.
Washington,
466 U.S. 668, 687 (1984). We give great deference to counsel’s judgment,
recognizing that there is a wide range of reasonable defense strategies,
id. at 689; United States
v. Recendiz,
557 F.3d 511, 531 (7th Cir. 2009), and we analyze the reasonableness of counsel’s
performance in the context of the facts of the particular case, Strickland,
466 U.S. at 688‐89.
Under the circumstances, Chiphe’s decision not to initiate plea negotiations was
reasonable and in accordance with Welch’s own insistence on going to trial. It is well‐
established, and Welch concedes, that counsel does not have an absolute obligation to pursue
plea negotiations in every case. See United States v. Wells,
394 F.3d 725, 735 (9th Cir. 2005);
Armienti v. United States,
313 F.3d 807, 814‐15 (2d Cir. 2002); United States v. Boone,
62 F.3d 323,
327 (10th Cir. 1995); Beans v. Black,
757 F.2d 933, 936 (8th Cir. 1985); Dillon v. Duckworth,
751 F.2d
895, 901 (7th Cir. 1985). Nonetheless, Welch maintains that in this case it was unreasonable for
Chiphe not to approach the government about a potential plea deal because Chiphe made that
decision without consulting him or even discussing the possibility of a plea. Because the
prosecutor had a policy of waiting for defense counsel to initiate plea negotiations, Welch says,
the only way he could have found out about the benefits of a plea agreement is if his lawyer
had approached the government. Welch implicitly argues that Chiphe failed to properly
inform Welch of his options and thus his decision to go to trial was ill‐advised.
But there is no factual support for Welch’s contention. The district court credited
Chiphe’s testimony and found that the lawyer had engaged in extensive conversations with
Welch about trial strategy, different sentencing scenarios (including the possibility of receiving
a reduction for acceptance of responsibility if Welch entered a plea), and the weaknesses of the
government’s case. The court also found that, throughout these discussions, Welch adamantly
maintained his innocence and consistently expressed his desire to have a trial. These findings
deserve great deference, see Bednardski,
481 F.3d at 534, and this evidence demonstrates that
Chiphe competently advised his client, see Davis v. Greiner,
428 F.3d 81, 88‐89 (2d Cir. 2005);
Moss v. United States,
323 F.3d 445, 475 (6th Cir. 2003); Purdy v. United States,
208 F.3d 41, 45 (2d
Cir. 2000). Based on his conversations with Welch, Chiphe reasonably understood that his
client had no interest in entering a guilty plea. Although in hindsight Welch may now regret
his choice, he received exactly the assistance he wanted at the time—an attorney who would
aggressively fight the bank‐robbery charge at trial. See Strickland,
466 U.S. 689‐90; McAfee v.
Thurmer,
589 F.3d 353, 356 (7th Cir. 2009).
To the extent that Welch argues that Chiphe should have ignored his protestations of
innocence and independently approached the government about a potential plea deal, his
position is untenable. We do not require counsel to do that which is futile, and thus we would
not mandate that counsel engage in the empty endeavor of negotiating a plea agreement for a
No. 09‐2873 Page 5
client who has made it clear that he has no interest in entering a guilty plea. See Wells,
394 F.3d
at 735 (rejecting defendant’s ineffective‐assistance claim when it was his unwillingness to plead
guilty that prevented counsel from initiating plea negotiations); Armienti,
313 F.3d at 814‐15
(same). More importantly, creating a rule that counsel should disregard his client’s wishes
would work the additional harm of jeopardizing the attorney‐client relationship and the trust
that counsel must establish to effectively represent his client. We would not require that
counsel engage in such a betrayal, which necessarily would demonstrate a lack of faith in his
client’s position and have the unintended effect of preventing counsel from providing the type
of reasonable assistance that the Sixth Amendment requires.
Because we agree with the district court that counsel’s performance was reasonable, the
prejudice prong of Strickland falls away. We note, however, that even now Welch continues to
insist that he is innocent, which makes it difficult to believe his assertion that he would have
accepted a plea deal if Chiphe had negotiated one. See, e.g., Humphress v. United States,
398 F.3d
855, 859 (6th Cir. 2005) (noting that defendant’s assertion of innocence undermined his
contention that he would have accepted a plea deal); Moss,
323 F.3d at 475 (rejecting
defendant’s ineffective‐assistance claim in part because defendant had maintained his
innocence and made clear that he would not plead guilty under any circumstances); Sanders v.
United States,
341 F.3d 720, 723 (8th Cir. 2003) (“A defendant who maintains his innocence at
all the stages of his criminal prosecution and shows no indication that he would be unwilling
to admit his guilt undermines his later § 2255 claim that he would have pleaded guilty if only
he had received better advice from his lawyer.”); United States v. Stevens,
149 F.3d 747, 748 (8th
Cir. 1998) (concluding that defendant could not establish prejudice when his post‐trial
assertions of innocence demonstrated that he would not have entered a guilty plea); United
States v. Stantini,
85 F.3d 9, 17 (2d Cir. 1996). But see Griffin v. United States,
330 F.3d 733, 738
(6th Cir. 2003) (explaining that declarations of innocence were not dispositive of whether
defendant would have accepted plea agreement); Mask v. McGinnis,
233 F.3d 132, 138 (2d Cir.
2000) (upholding district court’s conclusion that overwhelming evidence against defendant
might have prompted him to accept plea agreement despite protestations of innocence).
Moreover, Welch did not present any evidence that the government would have been amenable
to a plea deal or under what terms Welch would have accepted such an agreement. See Gallo‐
Vasquez v. United States,
402 F.3d 793, 798‐99 (7th Cir. 2005) (noting that defendant must provide
concrete evidence that a favorable plea offer would have been available to him); Prewitt v.
United States,
83 F.3d 812, 819 (7th Cir. 1996) (noting that defendant must do more than
speculate about potential benefits that he was denied). Thus, Welch’s claim also fails for lack
of prejudice.
Accordingly, we AFFIRM the judgment of the district court.
