Robert J. Paters v. United States , 159 F.3d 1043 ( 1998 )

ESCHBACH, Circuit Judge.

Robert Paters was convicted by a jury of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a) and 846, and was sentenced to 121 months’ imprisonment. We affirmed Paters’ conviction and sentence. United States v. Paters, 16 F.3d 188 (7th Cir.1994). He now seeks vacation of his conviction, under 28 U.S.C. § 2255, on the ground that he received ineffective assistance from his attorney during the plea negotiation process. The district court found as a matter of law that Paters could not establish prejudice and denied Paters’ motion. Since the district court applied an erroneous standard for determining prejudice, we vacate the judgment of the district court and remand the case for further proceedings.

I. HISTORY

In December 1991, Paters was charged with conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a) and 846. He hired defense counsel to represent him. A jury found Paters guilty as charged, and the district court sentenced him to 121 months’ imprisonment.

On May 13, 1996,¹ Paters filed this § 2255 motion, asserting that his sentence should be vacated because defense counsel rendered ineffective assistance during the plea negotiation process. Paters asserted that defense counsel told him that he could be held responsible only for the two kilograms of cocaine with which he was caught. Defense counsel also allegedly told Paters that the result would be the same whether he pleaded guilty or went to trial, and therefore Paters had “nothing to lose” by going to trial. Finally, Paters claimed that three days before the trial was scheduled to begin, defense counsel informed him that the government had offered a five-year deal² in exchange for his guilty plea. Again, defense counsel allegedly advised Paters that he could only be held responsible for the drugs he actually possessed (two kilograms of cocaine) and that he had nothing to lose by going to trial. Paters also alleged that defense counsel “did not explain the Sentencing Guidelines, especially the impact of relevant conduct, foreseeability, acceptance of responsibility, etc. on the sentence.”

Paters claimed that defense counsel’s erroneous advice concerning the proposed plea agreement was objectively unreasonable and that any reasonably competent attorney would have discussed the impact of relevant conduct and acceptance of responsibility on his sentence. He also claimed any reasonably competent attorney would have advised him to accept the proposed plea agreement. Additionally, Paters claimed that there was no viable theory of defense and, therefore, no reasonable basis for a recommendation to take the case to trial. With regard to the prejudice prong, Paters asserted that had defense counsel competently performed his duties regarding the proposed plea agreement, Paters would have accepted the plea agreement and received a sentence half as long as that which resulted from going to trial. In a signed “declaration” accompanying his motion, he claims he would have accepted the plea agreement but for his attorney’s advice.

Surprisingly, the government conceded all of the relevant facts for purposes of Paters’ § 2255 motion. It conceded that defense counsel “advised Mr. Paters that he could be held responsible for the two kilograms with which he was involved and no more whether he stood trial or pled guilty.” Government’s Response at 2. The government also conceded that “[defense counsel] told Mr. Paters that he had nothing to lose by going to trial.” Id. Although the government did not expressly concede the first prong of the Strickland test (objectively deficient representation), it remained silent on that issue.

The government relied on the prejudice prong instead. It asserted that, “[e]ven accepting the proposition that Mr. Paters’ attorney acted incompetently in advising his client to proceed to trial,” Paters could not establish prejudice. Accordingly, the government maintained that Paters did not sufficiently allege a Sixth Amendment violation and that his § 2255 motion should be denied.

We note that there was no § 2255 hearing. Instead, the district court assumed the truth of Paters’ factual allegations. Although the district court made no express conclusion about the first prong of the Strickland test, the court treated the government’s silence on the issue as a waiver. The court stated, “The government’s response assumes that [defense counsel’s] alleged error was objectively unreasonable.” Order of April 29, 1997 at 4.

With regard to the prejudice prong, the district court said that Paters failed to allege a sufficiently prejudicial result of the assumed deficient performance. The court reasoned that, had Paters been sentenced under the alleged proposed plea agreement, his offense level would have been 28 (the level prescribed for defendants accountable for two to three and a half kilograms of cocaine) and the sentencing range would have been 78-97 months.³ Although the court cited no cases specifically on point, it concluded that the difference between the actual sentencing range of 121-151 months and the potential range of 78-97 months was not “significant” under Durrive v. United States, 4 F.3d 548 (7th Cir.1993), and thus it was insufficient to establish prejudice. The court denied Paters’ § 2255 motion without holding an evidentiary hearing, but issued a certificate of appealability on the issue of ineffective assistance.

On appeal Paters argues that the district court should have compared Paters’ actual sentence of 121 months with the 60-month deal allegedly promised in the proposed plea agreement. In the alternative, he argues that, even if the theory behind the district court’s calculations was correct, Paters would have been entitled to at least a two-level reduction for acceptance of responsibility. Thus, the appropriate comparison should have been the difference between a sentencing range of 121-151 months and 63-78 months (the range for offense level 26). Finally, Paters asserts that, even if the district court compared the correct figures, the difference between a sentencing range of 121-151 months and 78-97 months is significant and sufficient to establish prejudice.

II. ANALYSIS

This court reviews de novo a district court’s judgment denying relief under 28 U.S.C. § 2255. In order to prevail in this court on his Sixth Amendment claim, Paters must show that his attorney rendered substandard assistance and that Paters was prejudiced as a result. E.g., Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Griffin v. United States, 109 F.3d 1217, 1219 (7th Cir.1997). In the proceedings below, the government and the district court assumed that defense counsel’s alleged error was objectively unreasonable. Since neither party has addressed the perfor-manee prong on appeal, only the prejudice prong remains.

The district court relied on Durrive, 4 F.3d at 548 for the prejudice analysis. It concluded that the correct test was whether the attorney’s error rendered a “significantly” harsher sentence than if no error had occurred. In Durrive, we said that in order to establish prejudice resulting from mistakes made by counsel at sentencing, the defendant must show that the sentencing proceeding was unreliable or fundamentally unfair. Durrive, 4 F.3d at 550-51 (relying on Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)). We held that a defendant could meet this standard only by establishing that the attorney’s error produced a significant effect on his sentence. Id. at 551. We conclude that the district court erred in applying the Durrive test in this case.

This court has decided very few cases involving allegations of attorney incompetence resulting in the defendant’s rejection of a plea agreement proposal. See, e.g., United States v. Golden, 102 F.3d 936 (7th Cir.1996); Toro v. Fairman, 940 F.2d 1065 (7th Cir.1991); Johnson v. Duckworth, 793 F.2d 898 (7th Cir.1986). Of those eases Golden and Johnson were decided based on the performance prong of the Strickland test. Golden, 102 F.3d at 943; Johnson, 793 F.2d at 902. Johnson addresses the prejudice prong, but only in dicta. Johnson, 793 F.2d at 902 n. 3. Therefore, only Toro addresses the issue on point.

The Toro test has two parts. The court should consider whether Paters established (1) through objective evidence that (2) there is a reasonable probability that he would have accepted the alleged proposed plea agreement absent defense counsel’s advice. Toro, 940 F.2d at 1068; see Johnson, 793 F.2d at 902 n. 3 (in dicta, doubting defendant’s ability to establish prejudice because he “does not argue or allege ... that there is a reasonable probability that, but for counsel’s errors, he would have accepted the plea agreement”).

In Toro, unlike Durrive, we focused exclusively on the objective evidence standard and disregarded the degree of disparity between the six-year proposed plea agreement and twenty-year actual sentence. Toro, 940 F.2d at 1066. Since Toro produced no objective evidence, we held that his “statement [that he “would have had to be insane not to accept the plea agreement’] is self-serving and alone, insufficient to establish ... a reasonable probability that he would have accepted the plea.” Id. at 1068. Similarly, in Johnson, we ignored the difference between the plea agreement’s fifteen-year sentence and the defendant’s actual sentence of thirty years when discussing, in dicta, the prejudice component of Strickland. 793 F.2d at 902 n. 3. Instead, we stated that the defendant could not prove that he probably would have pleaded guilty. Id.

We find Durrive distinguishable on several grounds.⁴ First, whereas Durrive merely sought a two level adjustment in his sentence, Paters challenges an aspect of the plea bargaining process. Cf. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989) (“A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.”); Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir.1996) (“The decision whether to plead guilty or contest a criminal charge is ordinarily the most important single decision in any criminal case.”).

Second, in Durrive we emphasized that the challenge should have been raised on direct appeal, and that the petitioner was merely attempting to avoid his default by bringing his claim under the Sixth Amendment. See Durrive, 4 F.3d at 551 (“Adjusting the offense level by two or three steps is exactly the routine decision that is supposed to be handled at sentencing and on direct appeal.”). Unlike the claim involved in Dur-rive, Paters’ claim could not have been raised on direct appeal because it relies upon proof not in the record on direct appeal. On appeal Paters could not have pointed to evidence in the record describing defense counsel’s advice, nor did the record contain evidence of the government’s alleged plea offer. Paters is not using an ineffective-assistance claim to circumvent his failure to bring some other claim on direct appeal. Durrive is thus distinguishable on this ground as well.

Since Fretwell and Durrive, we have continued to apply the Toro standard for analyzing prejudice in the context of ineffective assistance of counsel during plea negotiations. Although such cases involve attorney errors leading to the acceptance of a plea (rather than rejection as in this case), they rely on Toro and the Toro standard. See McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir.1996) (“In order to show prejudice from ineffective assistance of counsel that led to the entering of a plea, the defendant must establish through objective evidence a reasonable probability that, but for counsel’s advice, he would not have accepted the plea,” and citing Toro.); see also United States v. Woolley, 123 F.3d 627, 635 (7th Cir.1997); United States v. Jackson, 93 F.3d 335, 337 (7th Cir.1996). In addition, other courts of appeals have employed the Toro prejudice standard. See Boria v. Keane, 99 F.3d 492, 497 (2d Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997); Engelen v. United States, 68 F.3d 238, 241 (8th Cir.1995).

The district court applied the wrong prejudice analysis in this ease. In order to establish prejudice, Paters must show (1) through objective evidence that (2) there is a reasonable probability that, but for counsel’s inadequate performance, he would have accepted the government’s offer. Paters has certainly met the second prong of that test. He has alleged a reasonable probability that, but for counsel’s inadequate performance, he would have accepted the government’s offer. Declaration in Support of § 2255 Motion at 3 (“Under more befitting legal guidance, I am certain that I would have been amenable to conditions of the plea bargain.”).

Thus, we must ascertain whether objective evidence shows that there is. a reasonable probability that Paters would , have accepted the plea deal but for his attorney’s advice. In support of his motion, Paters submitted affidavits from his parents. His parents attest that they personally attended pre-plea offer conferences in which defense counsel said that Paters’ sentence could not exceed 5 years.⁵ See, e.g., Affidavit of Mary Paters (“Together, with my husband, I was present at meetings between my son and his attorney .... On those occasions, [defense counsel] described a' maximum of sixty months of incarceration as the related punishment for Robert’s crime.”).

Such evidence is certainly not overwhelming. And it does not prove the ultimate question—that there is a reasonable probability that Paters would have accepted the plea deal but for his attorney’s advice. Instead, it only shows that the alleged advice was in fact offered.⁶

However, when we view such evidence in conjunction with the government’s factual concessions, we think a hearing is warranted. Government’s Response to § 2255 Motion at 2 (accepting as true that defense counsel told Paters he could be held responsible for no more than two kilograms whether he stood trial or pled guilty); see also Dist. Ct. Order of April 29, 1997 at 3 (“The government accepts Paters’ version of the relevant facts as true for purposes of this motion.”). For purposes of Toro’s objective evidence test, the concessions and the affidavits together are sufficient to warrant a hearing.

Although Judge Coffey compares this case to Prewitt v. United States, 83 F.3d 812 (7th Cir.1996), the cases are readily distinguishable. In Prewitt, petitioner claimed that the prosecutor intentionally delayed his indictment in order to deny him the benefit of a guideline provision that was amended during the interim. In Prewitt, the government did not concede, but vigorously challenged Prew-itt’s version of the facts. The court said that “Prewitt’s lack of submission must be contrasted with the facts as the government has relayed them.” Id. at 819. Turning to the facts of this case, however, the government appears to relay the very same facts listed on Paters’ § 2255 petition. The concessions by the government lower the petitioner’s eviden-tiary burden.⁷ Cf. United States v. Marvin, 135 F.3d 1129, 1139 (7th Cir.1998) (“[Stipulations of fact ... obviate the need for appellate review of factual findings .... ”).

In addition, Prewitt had absolutely no personal knowledge regarding the facts underlying his allegation. He did not know why the indictment was delayed, but could only speculate. Therefore, his affidavit could not constitute evidence supporting his claim. Thus, Prewitt offered absolutely no proof — no evidence — in support of his allegation that the prosecutor delayed the indictment in order to deny Prewitt the benefit of a guideline provision that was amended during the interim. In Paters’ case, however, we have parental affidavits and government concessions which tend to support Paters’ claim. The “search for the truth” to which Judge Coffey refers can best be completed by conducting a hearing.

.Although the district court said that the government conceded all relevant facts, it is not clear whether the government has conceded the ultimate issue — that there is a reasonable probability that Paters would have accepted the plea deal but for his attorney’s advice. We remand for a hearing on this issue. We also note that at this procedural posture, the district court has a variety of options at its disposal. See, e.g., Rule 7, Rules Governing Section 2255 Proceedings (permitting parties to expand the record). The district court’s order is Vacated and the case is Remanded.

1 . Although the Anliterrorism and Effective Death Penalty Act of 1996 added a one-year statute of limitations for commencing collateral attacks, we stated in O'Connor v. United States, 133 F.3d 548 (7th Cir.1998) that no collateral attack filed by April 23, 1997 may be dismissed under § 2244(d) and the parallel provision added to 28 U.S.C. § 2255 by § 105 of the 1996 Act. Id. at 550 (quoting Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.1996) (en banc), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)).

2 . Although neither the motion nor the appellate briefs are clear on this point, it appears that had Paters been held responsible only for two kilograms of cocaine his sentence would have been approximately five years. Paters’ criminal history category was I; if he was held accountable for two kilograms of cocaine his base offense level would have been 28. U.S.S.G. § 2Dl.l(c). Under these calculations, Paters’ sentencing range would have been 78-97 months. If Paters had also received a two-level decrease for acceptance of responsibility, his offense level would have been 26 and his sentencing range 63-78 months, or approximately five to six and a half years.

3 . The district court rejected Paters’ argument that the appropriate comparison was between his actual sentence of 121 months and the government's alleged proposed sentence of five years. "[T]he government cannot promise a defendant a particular sentence; instead, the appropriate sentencing guideline calculations are determined by the court after a defendant pleads guilty and are based on relevant conduct and the defendant’s criminal history, as well as other factors.” Order of April 29, 1997 at 7.

4 . Although we do not apply the Durrive test here, we note that the attorney's alleged error in this case wrought a more significant effect on defendant’s sentence than in Durrive. Durrive states that "the difference between 120 months and ... 98 ... does not demonstrate that the actual sentence is ‘unreliable ... or fundamentally unfair.’ ” Durrive, 4 F.3d at 551. In this case the actual sentencing range was 121-151 months and Paters' actual sentence was 121 months. The alleged plea agreement was for 60 months.

We acknowledge that the district judge would not have been required to accept the plea agreement. As the district court said,

Had Paters pled guilty instead of proceeding to trial, the evidence would have indicated, as Paters admits, that the appropriate quantity of drugs was at least two kilograms, which would have resulted in an offense level of 28. This difference would have reduced Paters's sentencing range from 121— 151 months to 78-97 months, leading to at least a twenty-four month reduction and at most a forty-three month reduction.

Order of April 29, 1997 at 7. Thus, regardless of which formula is adopted, the effect of the attorney’s alleged error in this case rendered a more "significant” effect than in Durrive.

5 . The affidavits from his parents also suggest that Paters received a plea offer and seriously considered it. However, these statements do not reflect personal knowledge on the part of the parents, but merely relate naked allegations of Paters himself. Such tenuous assertions fall short of being objective evidence.

Paters also submitted a “Declaration in Support of 28 U.S.C. § 2255 Motion” which he signed under penalty of perjury pursuant to 28 U.S.C. § 1746. However, this document does not constitute "objective evidence” under Toro.

6 . We think it would have been plausible for Paters to provide more compelling evidence that, but for his attorney’s advice, he' would have accepted the plea deal. Since the attorney-client privilege is petitioner's to waive, see Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 (7th Cir.1995) ("[T]he attorney-client privilege is generally waived when the client asserts claims or defenses that put his attorney’s advice at issue in the litigation.”), one way for Paters to establish his reaction to the plea would be to submit an affidavit from defense counsel. See United States v. Day, 969 F.2d 39 (3d Cir.1992) (stating that lawyer's corroboration "might qualify as sufficient confirming evidence" that petitioner would have accepted plea offer but for attorney’s advice). As another illustration, Paters could have submitted an affidavit from the Assistant U.S. Attorney establishing that the government in fact offered a plea agreement.

7 . Judge Coffey argues that the district court should not have ordered the government to answer the § 2255 petition on grounds that petitioner offered insufficient evidence to warrant an answer. See Judge Coffey's Opinion at 1051-52 (citing Rule 4(b) of the Rules Governing § 2255 Proceedings). However, since the government has not challenged the court’s order requiring an answer, the issue is waived. See Nichols v. United States, 75 F.3d 1137, 1145 n. 17 (7th Cir.1996) (stating that government waives non-jurisdictional argument by failing to raise it on appeal).

Even if the government had properly raised the issue, it is still not clear that we would review an erroneous order requiring the government to answer a § 2255 petition. Like a certificate of appealability, a judge’s initial consideration of a § 2255 petition under 4(b) is a screening device:

The certificate [of appealability] is a screening device, helping to conserve judicial (and prose-cutorial) resources .... Once a certificate has issued, however, the case proceeds to briefing and decision; the resources have been invested. It is too late to narrow the issues or screen out weak claims .... [0]nce the briefs have been written and the case heard, there is little point in scrutinizing the certificate of appealability. An obligation to determine whether a certificate should have been issued, even if the parties do not present this issue for decision — a step entailed by the conclusion that a proper certificate is a jurisdictional requirement — would increase the complexity of appeals in collateral attacks and the judicial effort required to resolve them, the opposite of the legislative plan. So we proceed to the merits as the parties have presented them.

Young v. United States, 124 F.3d 794, 799 (7th Cir.1997).