Bridgeman, Vance v. United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1877
VANCE BRIDGEMAN,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:98-CV-198 RM--Robert L. Miller, Jr., Judge.
Submitted July 21, 2000--Decided October 2, 2000
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. After promising in a plea
agreement not to contest his "sentence" either by
direct appeal or in a collateral proceeding,
Vance Bridgeman pleaded guilty to armed bank
robbery and was sentenced to 103 months in
prison. Bridgeman then filed a motion under 28
U.S.C. sec. 2255, alleging that his counsel was
ineffective in inaccurately advising him on how
much time he would serve, thus rendering his
guilty plea involuntary, as well as in failing to
call an eyewitness (whose testimony the
government stipulated to) at the sentencing
hearing. The district court denied Bridgeman’s
motion, apparently interpreting the plea-
agreement waiver as encompassing any sec. 2255
challenge but reasoning that Bridgeman’s
ineffective assistance claim survived as an
exception to the waiver. The court went on to
conclude that counsel’s advice did not render
Bridgeman’s plea involuntary, nor did the absence
of the witness at sentencing prejudice him. We
affirm, although on a different ground.
In December 1996, Bridgeman, Dawan Anderson and
Jessie Parker entered the Community Wide Credit
Union in South Bend, Indiana. Bridgeman demanded
money from a teller as Anderson pointed a gun at
her head. When the teller insisted she had no
money, Anderson and Parker jumped the counter and
took over $9,000 from the teller drawers. The
three then fled in Bridgeman’s car.
Bridgeman executed a written plea agreement that
included the following term:
I expressly waive my right to appeal my sentence
on any ground, including any appeal right
conferred by Title 18, United States Code,
Section 3742. I also agree not to contest my
sentence or the manner in which it was determined
in any post-conviction proceeding, including but
not limited to, a proceeding under Title 28,
United States Code, Section 2255.
After Bridgeman pleaded guilty, the probation
officer who prepared his presentence
investigation report recommended a seven-level
upward adjustment pursuant to U.S.S.G. sec.
2B3.1(b)(2)(A) for discharging a firearm in
connection with the robbery. The PSR noted that
co-defendant Dawan Anderson had admitted at his
own plea hearing that Bridgeman took the gun from
him as they fled the bank and fired a shot at the
pursuing bank manager. Bridgeman countered that
he merely displayed the gun, thus warranting only
a five-level adjustment under sec.
2B3.1(b)(2)(C).
At sentencing, the government acknowledged that
the bank manager could not recall being shot at.
Dawan Anderson testified, however, that Bridgeman
grabbed the gun from him, pointed it at the
manager, and fired a shot up into the air when
the manager did not stop. Jessie Parker, who did
not object to a seven-level upward adjustment at
his own sentencing, testified that he never heard
a gunshot but did recall Anderson commenting
later that they had gone to the bank with one or
two bullets in the gun but returned home with it
empty. The district court believed Anderson and
Parker, finding it "more likely than not that
Bridgeman discharged the firearm to effectuate
the getaway from the bank." The court thus
increased Bridgeman’s offense level by seven
levels under sec. 2B3.1(b)(2)(A) and denied any
reduction for acceptance of responsibility
pursuant to U.S.S.G. sec. 3E1.1(a) because
Bridgeman had not been truthful regarding the
discharge of the firearm.
Four months after his sentencing, Bridgeman
filed a sec. 2255 motion alleging that his
counsel rendered ineffective assistance.
Bridgeman asserted that counsel had rendered his
guilty plea involuntary by misadvising him that
the plea agreement would produce a 57-month
sentence, and had failed to call the bank manager
to testify at the sentencing hearing. The
government responded that Bridgeman’s plea-
agreement waiver barred his sec. 2255 motion,
though the district court allowed the case to
proceed on the theory that the government had not
argued that Bridgeman waived the right to present
a claim that he was denied effective assistance
of counsel. Nonetheless, the court denied
Bridgeman’s motion on the merits, reasoning that
his sworn statements at the change of plea
hearing belied his contention that counsel’s
advice rendered his plea involuntary. The court
went on to conclude that counsel’s failure to
call the bank manager at sentencing did not
prejudice Bridgeman, since the government had
conceded that the manager never heard a shot.
On appeal, the government renews its argument
that in the plea agreement Bridgeman waived his
right to pursue a sec. 2255 motion, even though
at the same time the government explicitly
acknowledges that Bridgeman’s allegations about
counsel relate to his guilty plea as well as his
sentence. Plainly the government mischaracterizes
the scope of the waiver at issue. A plea
agreement that also waives the right to file a
sec. 2255 motion is generally enforceable unless
the waiver was involuntary or counsel was
ineffective in negotiating the agreement. Mason
v. United States, 211 F.3d 1065, 1069 (7th Cir.
2000). But Bridgeman only agreed not to contest
his sentence; the plea agreement is silent as to
a waiver of any challenge to his underlying
conviction. Compare id. at 1067 n.3 ("I also
agree not to contest my sentence or the manner in
which it was determined in any post-conviction
proceeding, including, but not limited to a
proceeding under [28 U.S.C. sec. 2255]") with
Jones v. United States, 167 F.3d 1142, 1143 n.1
(7th Cir. 1999) ("your client knowingly and
voluntarily waives the right to appeal or contest
directly, under 18 U.S.C. sec. 3742 or 18 U.S.C.
sec. 2255, or otherwise, his conviction and the
eventual sentence . . . on any grounds"). See
also United States v. Anglin, 215 F.3d 1064, 1067
(9th Cir. 2000) (scope of waiver is shown by
express language of plea agreement and
government, as drafter, must be held to
agreement’s literal terms). Nowhere does the
government attempt to explain how Bridgeman’s
collateral attack on the voluntariness of his
guilty plea--a challenge to his conviction, not
his sentence--is foreclosed by the language of
the waiver in this case./1 See Blacharski v.
United States, 215 F.3d 792, 793-94 (7th Cir.
2000) (where appellant only waived right to
challenge sentence, he was free to appeal
validity of plea agreement). Likewise, the
district court misconstrued the plea waiver,
interpreting it as an agreement not to file any
sec. 2255 petition. Because Mr. Bridgeman never
waived his right to challenge his conviction, his
claim that his plea was involuntary because his
lawyer misadvised him as to the guideline range
is not precluded by the plea agreement.
But although he did not waive it, Bridgeman’s
claim is patently without merit. Under Strickland
v. Washington, 466 U.S. 668, 687-91 (1984),
Bridgeman was required to show that his counsel
was both incompetent and that, but for his
deficient performance, the result would have been
different. To demonstrate prejudice arising from
a guilty plea allegedly rendered involuntary by
counsel’s deficient performance, a petitioner
must establish that counsel’s performance was
objectively unreasonable and that, but for
counsel’s erroneous advice, he would not have
pleaded guilty. United States v. Martinez, 169
F.3d 1049, 1052-53 (7th Cir. 1999). Bridgeman
falters on the first prong of the Strickland
test; counsel’s alleged miscalculation, standing
alone, could never suffice to demonstrate
deficient performance unless the inaccurate
advice resulted from the attorney’s failure to
undertake a good-faith analysis of all of the
relevant facts and applicable legal principles.
See United States v. Gwiazdzinski, 141 F.3d 784,
790 (7th Cir. 1998); United States v. Barnes, 83
F.3d 934, 939-40 (7th Cir. 1996). Bridgeman has
failed to allege facts demonstrating that his
counsel’s prediction was not undertaken in good
faith.
Further, Bridgeman’s argument that his counsel’s
advice rendered his plea unwitting and
involuntary is belied by his own statements at
the change of plea hearing, which are presumed
truthful. See United States v. Standiford, 148
F.3d 864, 868 (7th Cir. 1998). Even after
Bridgeman acknowledged that he had read the plea
agreement, the court went through the agreement
with him paragraph by paragraph to ensure that he
understood it. Bridgeman acknowledged in the
written agreement that the parties’ guidelines
calculations did not have to be accepted by the
court, and that, if not accepted, could not be a
basis for withdrawing the plea. During the plea
colloquy, the court carefully explained to
Bridgeman that whatever counsel had advised him
as to the guideline range was subject to revision
by the court, and what the court would determine
"may be very different from what you expect" but
could not be a basis for withdrawing his plea.
Bridgeman was aware of the consequences of his
guilty plea despite counsel’s alleged prediction;
thus, his attorney’s representation did not
render his plea unwitting or involuntary.
As to Bridgeman’s allegations about counsel’s
performance at sentencing, however, the plea-
agreement waiver is effective. See Mason, 211
F.3d at 1069; see also United States v. Joiner,
183 F.3d 635, 645 (7th Cir. 1999). Bridgeman’s
specific complaint that counsel did not call the
bank manager at sentencing has nothing to do with
the voluntariness of his waiver, and although the
district court did not have the benefit of our
Jones decision, we held in that case that even an
ineffective assistance claim cannot survive a
waiver unless the claim relates specifically to
the voluntariness of the waiver itself. Jones,
167 F.3d at 1145.
Bridgeman also raises two other alleged
instances of deficient performance by counsel at
sentencing that he never brought to the attention
of the district court. Arguments never presented
to the district court cannot be presented to us
for the first time, and so these allegations are
not properly before us. See Pierce v. United
States, 976 F.2d 369, 371 (7th Cir. 1992) (per
curiam).
Accordingly, we affirm the district court’s
denial of Bridgeman’s sec. 2255 petition.
/1 See, e.g., United States v. Cupit, 169 F.3d 536,
539 (8th Cir. 1999) (language of plea agreement
waiving right to challenge sentence did not
specifically show that parties agreed that
restitution award could not be reviewed); United
States v. Smith, 160 F.3d 117, 120-21 (2d Cir.
1998) (plea agreement waived only right to appeal
sentence; challenge to factual basis of plea was
not foreclosed); United States v. Zink, 107 F.3d
716, 718 (9th Cir. 1997) (waiver of right to
challenge sentence did not preclude appeal of
restitution order).