Willie P. Coleman, Jr. v. United States , 318 F.3d 754 ( 2003 )

BAUER, Circuit Judge.

Petitioner-Appellant Willie P. Coleman, Jr. appeals the district court’s order denying his § 2255 motion to vacate, set aside, or correct his sentence. He argues that his guilty pleas were not intelligently and voluntarily entered as a consequence of the ineffective assistance of his counsel. Because we believe Coleman received effective assistance of counsel throughout the proceedings and intelligently and voluntarily entered his guilty pleas, we affirm the sentence imposed below.

I. BACKGROUND

Willie Coleman was indicted on April 8, 1997, after the government recovered 1370 grams of powder cocaine, $49,162 in United States currency, drug paraphernalia, and a loaded handgun from his Milwaukee home. This was followed by a superseding indictment on May 28, 1997. After the district court denied various motions, the case, originally set for trial, was set for a change of plea hearing. On September 19, 1997, Coleman entered a conditional plea to the six-count superseding indictment that charged him with multiple drug-trafficking offenses.

The parties attempted to devise a negotiated plea. The government gave Coleman two separate plea agreements which he rejected. When Coleman came to the change of plea hearing on September 17, there was no agreement in place. At the hearing, defense counsel expressed a willingness to enter a conditional plea; the government acquiesced, assuming the conditional plea was to all six counts. The district court approved the idea of a conditional plea and asked the government if it would accept the plea agreement. The prosecutor responded that the plea agreement did not include all six counts in the indictment, but that the other general provisions of the agreement were acceptable. This was highlighted in the following colloquy:

THE COURT: [T]he Court will proceed to take the plea. And there is no — I take it no disagreement that the conditions — and the understanding, of course, that the Government is not waiving its objection to the Court’s ruling relative to this conditional plea, but any of the other conditions in that are — and agreements are still going to be observed in the Plea Agreement as it was originally submitted?

THE GOVERNMENT: Other than the charges to which the Defendant is pleading guilty. Is that the question? Are the other factors that are set forth in the Plea Agreement still applicable? Is that your — is that what you’re asking me?

THE COURT: Yes.

THE GOVERNMENT: Yes.

One provision included in the plea agreement involved a stipulation regarding relevant conduct which stated:

That pursuant to Sentencing Guidelines Manual, Section 1B1.3, the sentencing judge will consider not only the weight of the drugs alleged in the offense, to which the defendant is pleading guilty, but also the weight of any other drugs that were involved as part of the same course of conduct or common scheme or plan as the offense of conviction; and the judge will use the total weight of the drugs involved in calculating the guideline range, even if not alleged in the offense of conviction; the parties stipulate that the weight of the drugs for the purpose of calculating the guideline range includes 3 kilograms of cocaine relative to the defendant’s conduct in or around March 1997, and an additional 14 ounces as a historical amount;

After this exchange between the court and the government, the district court advised Coleman of the statutory penalties for the crimes he was being charged with, asked him if he understood that he could still go to trial, and whether there was anything outside of the plea agreement that he had been promised. Coleman responded that he understood everything, that he had not been threatened or promised anything, and that he had nothing to discuss with his attorney or the court. Coleman proceeded to plead guilty and the court accepted the plea. The written plea agreement which had been the subject of repeated negotiations was never executed by the parties nor filed with the court.

At the sentencing hearing, the prosecution proffered that Coleman’s relevant conduct involved 11 kilograms of cocaine. The district court accepted the government’s position. On December 12, 1997, the district court sentenced Coleman to 135 months in prison, a fine of $3,000, 5 years of supervised release, and a forfeiture of $49,162 in drug proceeds.

Coleman appealed the judgments of conviction on various grounds he preserved for appeal. We affirmed the conviction on July 16, 1998. United States v. Coleman, 149 F.3d 674 (7th Cir.1998). On January 5, 2000, Coleman moved pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Coleman argued that he had not been effectively represented and that his guilty plea was not voluntarily and intelligently entered. On December 6, 2001, the district court denied Coleman’s petition. A week later, Coleman filed a motion for reconsideration and a supplement to his § 2255 motion.

In its opposition to Coleman’s motion, the government attached affidavits of Coleman’s trial counsel. It was through these affidavits that Coleman learned, for the first time, that his lawyer believed the government had erred when it failed to note that it would not be bound by the weight stipulation. Despite this newly discovered information, the district court denied the motion for reconsideration. The district court granted Coleman’s motion for a certificate of appealability on the issue of whether' his counsel was ineffective at sentencing but denied Coleman’s motion to include the issue of whethér his guilty plea was not voluntarily and intelligently entered. On June 25, 2002, • we granted Coleman’s motion to amend the certificate of appealability to include the issue of whether his counsel was ineffective during his plea hearing and whether, as a result of this deficient performance, his plea was involuntary.

II. ANALYSIS

In this appeal, Coleman contends his counsel was ineffective at both the plea hearing and at sentencing while the government argues that counsel’s actions were entirely reasonable. Like two ships that pass in the night, both parties focused on entirely different matters, failing to address the core arguments of their respective opponent. Nevertheless, we first examine Coleman’s ineffective assistance claim as it relates to counsel’s performance at the plea hearing. We will then consider Coleman’s claim that his counsel’s assistance was ineffective at his sentencing hearing. We review a district court’s ruling on ineffective assistance of counsel de novo under the principles set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A. Ineffective Assistance of Counsel at the Plea Hearing

Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), held that the Strickland analysis applies to counsel’s conduct during the pleading phase. To mount a successful claim that counsel was ineffective at the pleading stage, Coleman must first show his attorney performed in a deficient manner, Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, and then prove that “but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 58-59, 106 S.Ct. 366. Our scrutiny of counsel’s performance is highly deferential. United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir.1990). Coleman also has a difficult burden of proof as he must overcome the strong presumption that his attorney’s performance was effective. Chichakly v. United States, 926 F.2d 624, 627 (7th Cir.1991). To meet this burden, Coleman must establish specific acts or omissions of his counsel which constitute ineffective assistance. We then determine whether these acts or omissions were made outside the wide range of professionally competent assistance. Menzer v. United States, 200 F.3d 1000, 1003 (7th Cir.2000). To find that Coleman’s guilty plea was involuntary as a result of ineffective assistance of counsel, his attorney must have given advice that falls below prevailing professional norms. Chichakly v. United States, 926 F.2d 624, 628 (7th Cir.1991).

Coleman offers little as to why he was denied the effective assistance of counsel during the plea colloquy. Moreover, he fails to apply the Strickland test, making only a passing reference to the case. Coleman’s treatment of Strickland and its progeny as negligible points of law cannot be emphasized enough. This is especially true, given his approach of relying on con-clusory assertions in lieu of any reasonable Strickland analysis.

Despite these analytical missteps, Coleman attempts to establish a specific omission of his counsel which constitutes ineffective assistance. Specifically, he argues that defense counsel erred when he failed to speak to Coleman after the prosecutor neglected to include the weight stipulation as one of the provisions in the plea agreement to which the government would not be bound. According to Coleman, defense counsel was either not paying attention during the exchange between the court and the government or counsel believed that the prosecutor’s omission was inadvertent. He contends that either circumstance constitutes ineffective assistance of counsel. Coleman contends that the failure of counsel to fully inform him that there would not be a limit on the drug weight resulted in a guilty plea entered with a substantial misunderstanding of the consequences of his plea.

Coleman bases his ineffective assistance claim on what is essentially a phantom mistake with no adverse consequences to him. During the plea colloquy, it was a foregone conclusion that Coleman wanted to plead guilty. The record clearly supports this finding. In his affidavit, Coleman’s defense counsel stated that he repeatedly told Coleman that he was in severe jeopardy of a lengthy sentence unless the amount of drugs involved in the case was limited. He swore that he explained to Coleman that he could achieve such a result only by a plea of guilty. Coleman’s defense counsel also stated that he advised his client that unless there was a plea agreement, his sentence would be longer and he would lose point reductions by not pleading guilty.

Apparently, Coleman took this advice to heart. The case was twice scheduled for trial, however, Coleman eventually requested a change of plea hearing. Considering the underlying circumstances of the case, it would seem that Coleman’s best option was to plead guilty. This would be true regardless of how the prosecutor answered the question about the plea provisions. While her answer could, at its worst, be considered vague, there was nothing fallacious about the statement or the underlying plea provisions.

The strategy of Coleman’s counsel was perfectly reasonable. He tried to make the best of a bad situation for his client by attempting to minimize the sentence and help effectuate an earlier release. In essence, Coleman got exactly what he bargained for. As we explain below, Coleman’s claim is based on the faulty premise that paragraph 6(h) placed a cap on Coleman’s relevant conduct. Counsel’s reading that paragraph 6(h) was not a cap gave effect to the plain meaning of the words, and thus, is correct. Given his interpretation of this unambiguous language, counsel had little reason to speak with Coleman about it. Considering the “conduct from counsel’s perspective at the time,” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, we believe counsel’s actions fall within the wide range of reasonable professional assistance. Because Coleman failed to meet the requisite burden of proof with regard to the first prong of Strickland, we are required to go no further in our analysis. See Hough v. Anderson, 272 F.3d 878, 890 (7th Cir.2001).

We now briefly address a separate argument by Coleman that is intertwined with his ineffective assistance claim. Coleman says that the district court erred when it refused to consider a letter sent by the prosecutor to Coleman on August 11, 1997. Coleman argues the letter corroborates his interpretation that paragraph 6(h) was intended to be a cap on his relevant conduct. Coleman misconstrues the import of the letter. The district court found that the government wrote the letter to induce Coleman to accept the plea agreement and that his rejection of the proposal in the letter was a rejection of all of its inducements. There is little dispute as to what the letter intended. It unambiguously asserted that Coleman “would remain in the ‘not less than two and not more than 3.5’ kilogram range in the sentencing guidelines.” We do not dispute Coleman’s contention that this letter corroborates his interpretation of paragraph 6(h). However, once Coleman rejected the offer in the August 11, 1997 letter, the parties went back to the drawing board. Coleman cannot now retrieve any contemplated plea agreements to prove that the government maintained a certain tactical position throughout the negotiations.¹ Thus, the district court did not commit clear error in its refusal to consider the government’s letter.

B. Ineffective Assistance of Counsel at Sentencing

Coleman’s claim of ineffective assistance of counsel is not confined to the plea phase of the proceedings. He also claims that his counsel’s conduct during the sentencing hearing was ineffective assistance. The district court found that the unexecuted plea agreement did not contain a limit on the drug weight attributable to Coleman and that defense counsel’s failure to object at sentencing was not ineffective assistance of counsel.

Our analysis of Coleman’s claim of ineffective assistance at the sentencing stage is similar to our approach with regard to the plea hearing. For Coleman to prevail, he must first demonstrate that his counsel’s performance fell below an objective standard of reasonableness, Strickland, 466 U.S. at 688, 104 S.Ct. 2052, and that he suffered prejudice by the deficient performance. Id. As we previously noted, Coleman must show his counsel’s representation fell below an objective standard of reasonableness. Hough v. Anderson, 272 F.3d 878, 890 (7th Cir.2001). We measure reasonableness under the standard of prevailing professional norms. Id. To meet the prejudice prong of Strickland, Coleman must show that but for counsel’s unprofessional error, the results would have been different.

Coleman contends the prosecutor had a commitment to honor the supposed stipulated cap on relevant conduct. Coleman concludes that the failure to object amounted to ineffective representation of counsel. It is unclear what basis defense counsel would have had for an objection. Counsel correctly interpreted the plain import of paragraph 6(h) and came to a plausible conclusion: the proposed plea agreement did not cap the relevant conduct; moreover there was no plea agreement; it had been rejected.

And, as we noted with his ineffective assistance claim at the plea phase, the difficulty Coleman faces is the content of paragraph 6(h) of the plea agreement. If the paragraph in fact unequivocally limited the drug weight he might have some argument. However, the paragraph instead clearly set forth that the drug weight would include 3 kilograms, 14 ounces. There was not a single word or inference that suggested the relevant conduct was limited to this weight. It was reasonable for Coleman’s counsel to conclude that there was no agreement between Coleman and the government regarding a drug weight cap.

The government argues that a provision intending to cap a drug amount should read “includes but does not exceed” or “is limited to” instead of “includes.” We agree. The word “includes” does not suggest limitation. In fact, the word is defined “comprises as a part of the whole.”² Given the context of the plea agreement and the underlying factual background, we cannot read the term “includes” to mean a limitation.

There is one final point we must address. Coleman attempts to manufacture an argument concerning an alleged breach of the plea agreement by the government. He contends that this breach resulted in an involuntary plea. This issue is not before this court. Coleman never raised the issue on direct appeal and thus his argument is procedurally defaulted. A § 2255 motion is not a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir.1995). Accordingly, we Affirm the district court’s order denying Coleman’s motion for § 2255 relief.

1 . Coleman cites United States v. Mankiewicz, 122 F.3d 399, 403 (7th Cir.1997), where we noted that, because plea agreements “implicate the deprivation of human freedom, the rules governing their interpretation, although having their roots in the principles of contract law, also acknowledge that concern for due process outweighs concern for freedom of contract.” (internal quotes omitted). We do not stray from this proposition. However, no plea agreement was ever entered into.

2 . Merriam Webster's Collegiate Dictionary 588 (10thed.l996).