Harry Powell v. Donald Enloe

NONPRECEDENTIAL DISPOSITION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
Submitted February 10, 2015*
Decided April 14, 2015
Before
FRANK H. EASTERBROOK, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14-2766
HARRY POWELL, Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:13-cv-00075
DONALD ENLOE,
Respondent-Appellee. Matthew F. Kennelly,
Judge.
ORDER
Harry Powell, an Illinois prisoner, challenges the denial of his petition for a writ
of habeas corpus, see 28 U.S.C. § 2254, principally claiming that the judge who presided
over his state prosecution for multiple burglaries coerced him to plead guilty. That claim
was rejected in state postconviction proceedings, and the district judge concluded that
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 14-2766 Page 2
the state decision is not contrary to, and does not involve an unreasonable application of,
clearly established federal law. We agree with the district court and affirm the judgment.
In August 2009, Powell faced charges on four counts of burglary in the Circuit
Court of Cook County. Through counsel, he asked the presiding judge to conduct a
conference with his lawyer and the prosecutor concerning the possibility of reaching a
plea agreement. This practice was authorized, and still is, by Illinois rules of procedure.
See ILL. S. CT. R. 402(d)(2) (2009) (current version effective July 1, 2012). Before the judge
became involved in negotiations, he personally addressed Powell in open court and
explained:
I’ll learn information about yourself, family, education, military, or
employment backgrounds, including the facts of these four cases and any
criminal or traffic record you might have. Ordinarily, I would not be
entitled to learn all that information unless the matter were to go to a
hearing or trial. Now, at the conference will be your attorney, the assistant
state’s attorney, myself. You will not be present. After those discussions, I
next will offer you a penalty in exchange for a plea of guilty, except if you
refuse to accept the penalty, that will not be a good reason for you to get
another Judge.
With Powell’s consent, the judge and lawyers then met privately and discussed
plea options off the record and outside Powell’s presence. The lawyers and judge agreed
on a total of 30 years’ imprisonment (10 years on one count followed by three,
concurrent 20-year terms). Powell’s lawyer communicated that proposal to him.
One month later, on the Friday before his Monday trial date, Powell appeared
with counsel and personally asked the judge to consider sentencing him to probation
because of his drug addiction. See 20 ILCS 301/40-10. The judge refused:
No. No. Now, here is the deal. I spoke at a 402 conference. I heard
from the government. I heard from your attorney. I weighed the mitigation
and aggravating factors. On all of these cases your penalty will be 20 years.
....
. . . You are going to do 20 years on these three recent cases, and you
are going to do a ten-year sentence on the old case. They are going to run at
No. 14-2766 Page 3
the same time. The offer will never be less. It will be more, if certain things
happen other than your acceptance of this offer. Or we can go to trial as
soon as Monday if you don’t want to accept the offer on any one of these
cases that the government elects on.
Powell responded that he wished to proceed to trial, and the judge scheduled the trial
for the next business day.
That weekend Powell’s attorney advised him to plead guilty. When the parties
reconvened on Monday, defense counsel informed the judge that Powell had decided to
accept the proposed plea agreement. Powell then pleaded guilty to all four burglaries.
During the plea colloquy, he assured the judge that no one had forced or threatened him
to plead guilty. Powell waived his right to a presentence investigation, and the judge
imposed the agreed, 30-year total sentence.
Powell did not file a direct appeal but did seek postconviction relief. He claimed,
in part, that the presiding judge had coerced his guilty pleas by injecting himself directly
in the parties’ plea negotiations and by threatening a longer sentence if he opted for trial.
Powell raised this claim of coercion for the first time in appealing the circuit court’s
denial of his postconviction petition, but nonetheless the appellate court rejected the
claim on the merits. The appellate court reasoned that in Illinois a circuit judge may
participate in plea negotiations, that there is nothing inherently coercive about this
practice or about a judge telling a defendant that he might be worse off by rejecting a
proposed plea agreement, and that all the presiding judge did was confirm for Powell
that he would receive 30 years’ imprisonment if he pleaded guilty to the pending
charges. See People v. Powell, No. 1-10-1182, slip op. at 5–6 (Ill. App. Ct. May 11, 2012)
(unpublished decision). The Supreme Court of Illinois denied leave to appeal. See People
v. Powell, 979 N.E.2d 885 (Ill. 2012).
Powell then filed his § 2254 petition. In denying relief the district court concluded
that the state appellate court’s decision is not contrary to, and does not involve an
unreasonable application of, clearly established federal law. The district court granted a
certificate of appealability, however, on the issue whether Powell’s guilty pleas were
coerced.
In this court Powell continues to challenge as improper the presiding judge’s
degree of involvement in the plea negotiations. He contends that the district court
erroneously evaluated his claim of coercion under the current version of Illinois
No. 14-2766 Page 4
Supreme Court Rule 402, which, unlike the earlier version, explicitly authorizes judges
to “participate in plea discussions.” See ILL. S. CT. R. 402(d)(1) (2012). Powell asserts that
the judge coerced his guilty pleas by participating directly in the negotiations and
making his own plea offer rather than simply voicing an opinion about a proposed deal
reached between the parties.
Powell is mistaken in thinking that the district court looked to the wrong version
of the rule; the court’s decision quotes in its entirety the pertinent section of Rule 402(d)
as it existed in 2009 when Powell pleaded guilty. And although that version does not say
explicitly that a judge may participate directly in plea negotiations, such participation was
sanctioned by Rule 402 even before the rule was amended in 2012. See United States ex rel.
Robinson v. Housewright, 525 F.2d 988, 989–91 (7th Cir. 1975); People v. Brock, 259 N.E.2d
12, 15 (Ill. 1970); People v. Smith, 941 N.E.2d 975, 984 (Ill. App. Ct. 2010). Anyway, Powell
consented to the judge’s participation after the judge explained what would happen
during the conference with counsel.
More importantly, § 2254 is not a remedy for violations of state law, Dellinger v.
Bowen, 301 F.3d 758, 764 (7th Cir. 2002), and thus Powell cannot base a claim for relief on
the state judge’s purported failure to adhere to what was authorized by the former
version of Rule 402. True, Federal Rule of Criminal Procedure 11(c)(1) prohibits federal
judges from participating in plea negotiations, but this is a prophylactic measure
designed to remove any possibility that a judge’s participation might coerce a
defendant’s decision to plead guilty. See United States v. Davila, 133 S. Ct. 2139, 2146
(2013); United States v. Baker, 489 F.3d 366, 370–71, 376 (D.C. Cir. 2007); United States v.
Markin, 263 F.3d 491, 497 (6th Cir. 2001); Frank v. Blackburn, 646 F.2d 873, 880 (5th Cir.
1980). The Constitution does not compel state courts to adopt similar constraints or
prohibit judicial participation in plea negotiations. See Davila, 133 S. Ct. at 2149; Stewart v.
Peters, 958 F.2d 1379, 1384–85 (7th Cir. 1992); Robinson, 525 F.2d at 990–91; Miles v. Dorsey,
61 F.3d 1459, 1465–67 (10th Cir. 1995); Frank, 646 F.2d at 880, 882; Toler v. Wyrick, 563 F.2d
372, 374 (8th Cir. 1977).
As for Powell’s claim that the presiding judge coerced his guilty pleas, the Illinois
appellate court’s conclusion that Powell entered his pleas voluntarily is not
unreasonable given the factual support in the record. Powell himself requested the
Rule 402 conference and consented to the presiding judge meeting with his lawyer and
the prosecutor outside his presence. After that conference, Powell’s lawyer conveyed the
30-year proposal that was on the table. And though Powell says he was coerced to accept
that deal, he initially declined it even after the presiding judge had purportedly
No. 14-2766 Page 5
“threatened” greater punishment if he went to trial.1 So our deferential review does not
allow us to set aside the state appellate court’s adjudication on the merits. See Ward v.
Sternes, 334 F.3d 696, 703–04 (7th Cir. 2003); Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.
2002).
We also have considered Powell’s motion for recruitment of counsel filed on
October 10, 2014, and deny the motion.
AFFIRMED.
1 The district court noted that the tenor of the presiding judge’s comments
suggests that he became angry and reacted inappropriately by scheduling the trial for
the next business day when Powell hesitated to accept the proposed plea. We share this
concern but agree with the district court that this possibility is not a basis to overturn the
state appellate court’s finding that the judge did not coerce the plea.