Moore, Gregory J. v. Bryant, Steve

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1126
GREGORY J. MOORE,
Petitioner-Appellee,
v.
STEVEN C. BRYANT,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 00 C 2119—Michael P. McCuskey, Judge.
____________
ARGUED SEPTEMBER 5, 2003—DECIDED OCTOBER 23, 2003
____________
Before BAUER, POSNER, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. This petition for habeas corpus
brought by Gregory Moore under 28 U.S.C. § 2254 is be-
fore this court for the second time. In our prior opinion,
we held that Moore did not procedurally default his claim
of ineffective assistance of counsel in state court, and
we remanded the case for consideration of the merits of
his claim. Moore v. Bryant, 295 F.3d 771 (7th Cir. 2002). On
remand, the district court granted habeas relief, holding
that the state court decision rejecting his ineffectiveness
claim was an unreasonable application of established Su-
preme Court law, and that Moore’s counsel’s inaccurate
advice regarding Moore’s potential sentence was a mate-
rial factor that in all probability impacted his decision
2 No. 03-1126
to plead guilty. The state has appealed that determina-
tion by the district court, and we affirm.
The facts underlying Moore’s claim are set forth in our
prior opinion, and will be repeated here only to the extent
necessary for this appeal. At the age of 15, Moore was
charged as an adult with first degree murder. Although
the evidence demonstrated that Moore was not present
at the shooting and was not a shooter, the state’s theory
of criminal liability was based upon Moore’s involvement
as one of a group of individuals who chased the victim.
Moore maintained his innocence during the pre-trial
process. In May 1995, just before the case was scheduled
for trial, Moore pled guilty in exchange for the state’s rec-
ommendation that he receive the minimum 20-year prison
sentence. Shortly thereafter, however, Moore sought to
withdraw the plea. In his amended motion to withdraw
the guilty plea, Moore alleged that the plea was not know-
ing and voluntary for a number of reasons, including the
erroneous advice given to him by his attorney. He alleged
that his attorney had informed him that the law in Illi-
nois was changing and that good-time credits to which
he currently would be entitled were being limited. As a
result of that change in Illinois law, his attorney told him
that, if convicted, he would serve 85% of the sentence
imposed, whereas if he pled guilty immediately, he would
serve, under current Illinois law, only 50% of a 20-year
sentence. The attorney informed him that his sentence
if convicted would be between 25 and 30 years. Therefore,
based on the advice regarding the impending revision to
the good-time credit statute, Moore was faced with the
prospect of a 10-year sentence if he pled guilty, or a 22-27
year sentence if he proceeded to trial and was convicted.
That advice was erroneous. The revision to the good-time
credit statute was not retroactive, and the state does
not present any argument that the advice was a correct
interpretation of the law. Instead of facing the choice be-
No. 03-1126 3
tween a 10-year sentence and a 22-27 year sentence, Moore
in actuality was facing the choice between a 10-year
sentence and a 12½-15 year sentence. The difference is
substantial by any measure. Nevertheless, the state court
rejected Moore’s argument and the issue in this case is
whether the district court properly held that the state
court decision was an unreasonable interpretation of Su-
preme Court law.
We review this petition for habeas corpus under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). According to the AEDPA, Moore cannot suc-
ceed on his petition unless he can demonstrate that the
state court decision was contrary to or an unreasonable
application of clearly established Supreme Court law or
was based on an unreasonable determination of the facts
in light of the evidence presented in the state court pro-
ceeding. 28 U.S.C. 2254(d). A “ ‘state court decision that
correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case’
qualifies as a decision involving an unreasonable applica-
tion of clearly established federal law.” Boss v. Pierce, 263
F.3d 734, 739 (7th Cir. 2001), quoting Williams v. Taylor,
529 U.S. 362, 407-08 (2000).
The state first asserts that Moore’s counsel did not ad-
vise Moore that he would serve 85% of his sentence if he
lost after a trial. That argument is belied by the record.
Moore submitted an affidavit stating that he was so
informed, and that was corroborated by his attorney.
Specifically, Moore’s trial attorney stated that in his
conversation with Moore prior to Moore’s decision chang-
ing his plea.
[O]ne concern I had and one concern Greg had was if
he accepted the plea, how long would he be in prison. At
that time, in [1995], the law regarding good time
was changing . . . . At the time I was discussing the of-
4 No. 03-1126
fer with Greg, it wasn’t clear whether that law was
going to be retroactive, whether legally it could be
retroactive. I had some concerns about it.
So, in discussing the plea with Greg, that issue came
up. I didn’t have the statute in front of me. It hadn’t
become law yet.
So, for a while, that was an issue, would he have to
spend 85 percent of 20 years, 100 percent of 20 years,
50 percent of 20 years. And that we spent a long time
discussing that aspect of it.
Hearing on Amended Motion to Withdraw Guilty Plea at
28. Moore’s attorney, then, acknowledged discussing at
length the impact of the impending change in good-time
credits, and even listed the options considered. Although
Moore’s attorney does not identify the conclusion he
reached on the issue or the advice ultimately given, Moore’s
affidavit that he was informed he would likely face 85%
of a 25-30 year sentence is consistent with his attorney’s
testimony. Although the testimony quoted above recites
percentages of a 20-year sentence, Moore’s attorney fur-
ther testified that he told Moore that if Moore lost at
trial, the sentence “would of necessity be higher than 20
years.” Hearing at 29-30. Therefore, Moore’s details of
the conversation are indeed consistent with the testimony
of his attorney. There is thus no record support for the
state’s contention that Moore’s attorney never so ad-
vised Moore.
We turn, then, to the question of whether that advice
constituted ineffective assistance of counsel, and whether
the state court was unreasonable in determining that it
did not. In order to demonstrate ineffective assistance in
the context of a guilty plea, Moore must demonstrate that
his counsel’s advice regarding the plea was objectively
unreasonable and that there is a reasonable probability
that, but for counsel’s error, Moore would not have pled
No. 03-1126 5
guilty, but would have insisted upon a trial. Hill v. Lock-
hart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466
U.S. 668 (1984). We have identified the criteria that
apply regarding an attorney’s advice concerning an offer
of a plea agreement. A reasonably competent counsel will
attempt to learn all of the facts of the case, make an
estimate of a likely sentence, and communicate the re-
sults of that analysis before allowing his client to plead
guilty. United States v. Barnes, 83 F.3d 934, 939 (7th Cir.
1996). “Although the attorney’s analysis need not provide
a precisely accurate prediction of the respective conse-
quences of pleading guilty or going to trial, the scrutiny
must be undertaken in good faith.” Id. at 939-40. When the
attorney fails to do so and that failure is the decisive fac-
tor in the decision to plead guilty, the Sixth Amendment
is violated and the defendant may withdraw his plea. Id.
at 940. The district court properly held that this stan-
dard was met here.
The state does not contend that Moore’s counsel was
legally correct when he advised Moore that the good-
time credits could severely lengthen his sentence if he
proceeded to trial and lost. The statute ultimately passed
was not retroactive, and Illinois Supreme Court caselaw
in existence at the time the advice was given held that
such changes in good-time credits could not be retroac-
tively applied. Barger v. Peters, 645 N.E.2d 175, 177
(Ill. 1994). Nor does the state demonstrate that Moore’s
counsel made a reasoned legal decision based on the
relevant factors. We have noted that the deficient perfor-
mance prong is met where 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.” Bridgeman v. United States, 229 F.3d 589, 592
(7th Cir. 2000). The record in this case illustrates such
deficient performance. Moore’s counsel acknowledged that
he did not have the statute with him when providing the
6 No. 03-1126
advice, and he acknowledged that he was uncertain as to
its effect. There is no evidence that he subsequently ex-
amined the statute, nor is there evidence that he analyzed
the caselaw regarding the retroactivity issue, which would
have resolved his concerns as there was a very recent
Illinois Supreme Court decision on point. Where errone-
ous advice is provided regarding the sentence likely to be
served if the defendant chooses to proceed to trial, and
that erroneous advice stems from the failure to review
the statute or caselaw that the attorney knew to be rele-
vant, the attorney has failed to engage in the type of good-
faith analysis of the relevant facts and applicable legal
principles, and therefore the deficient performance prong
is met.
The state argues that an attorney is not required to
inform himself of pending legislative changes in order to
meet the standard of competence, but we need not even
consider that issue. Here, we are not presented with an
attorney’s failure to inform a client of an impending
legislative change, but rather with misinformation pro-
vided by an attorney on an issue that is certainly critical
to the plea decision—the length of the sentence that the
defendant faces—and that misinformation is the result
of the attorney’s failure to examine the statute and the
law that the attorney himself identified as relevant.
Regardless of whether an attorney must anticipate legis-
lative changes, if an attorney chooses to provide such
information, his/her conduct may be considered objec-
tively unreasonable if the attorney fails to conduct a good-
faith inquiry and that information is materially false.
That does not end the inquiry, however, because Moore
must also establish that there was a reasonable probabil-
ity that, but for the erroneous advice, he would not have
pled guilty. Hill, 474 U.S. at 59. Moore submitted an
affidavit in which he contended that he pled guilty be-
cause of his attorney’s advice regarding the impact of the
No. 03-1126 7
good-time credits and the resulting disparity in sentence
between the guilty plea and a conviction. That is consis-
tent with his testimony at the hearing on his motion to
withdraw the plea. Furthermore, that contention is sup-
ported by the history of the pre-trial process in this case.
Throughout the process prior to that discussion, Moore
maintained his innocence and refused a guilty plea. As the
case was about to proceed to trial, his attorney again
discussed the possibility of a plea with him. Moore’s trial
counsel testified that at that time, he and Moore dis-
cussed at length the potential sentencing impact of the
legislative revisions to the good-time credits. His attorney’s
advice dramatically altered the choice faced by Moore.
Instead of serving 10 years if he pled guilty, or 12½-15
if he lost at trial, Moore was presented with the prospect
of serving 10 years if he pled guilty or 22-27 years if he
was convicted at trial. That difference nearly doubled the
amount of time he would face if he proceeded to trial, and
that is precisely the type of information that is likely to
impact a plea decision. After that discussion, Moore
changed his plea, although he did so reluctantly. In fact,
at the first change of plea hearing, he said he did not
wish to proceed, and shortly after entering the guilty
plea he moved to withdraw it. Therefore, the record evi-
dence, the history of the plea discussions, and the nature
of the misinformation establish that there was a reason-
able probability that but for the erroneous advice, Moore
would not have pled guilty.
The final question is whether the state court acted
unreasonably in determining otherwise. The state court
rejected the ineffective assistance claim on two grounds.
First, the court held that the trial court “thoroughly and
completely admonished defendant as to the consequences
of his guilty plea.” and the “defendant’s responses to the
court’s questions do not reveal any misunderstanding
or hesitancy in his decision to plead guilty.” That observa-
8 No. 03-1126
tion by the court, however, is irrelevant to the issue pre-
sented here, which is whether the erroneous advice pro-
vided by counsel caused Moore to enter a plea he other-
wise would not have entered, because it assumes that
Moore was aware of the error in that advice at the time
he entered the plea of guilty. If, as the record establishes,
Moore was not aware that the sentence advice was er-
roneous, then his responses concerning the voluntariness
of his plea and his acknowledgment of his rights do noth-
ing to address the underlying problem. Nothing in that
colloquy addressed whether his plea was based upon
any predictions as to his sentence, nor did it otherwise
alert Moore to the possibility that he was misinformed as
to the choice he faced. Because nothing in the plea col-
loquy addressed the length of sentence or the impact of
good-time credits that he was likely to face if he went
to trial and lost, that sequence of questions did nothing
to ameliorate the adverse impact of his counsel’s misin-
formation. The state court’s reliance on the plea colloquy
as a panacea for Moore’s attorney’s deficient performance
is without legal precedent where the colloquy did not
even address the basis for that deficient performance,
and thus is an unreasonable application of the Strickland
test.
The alternative basis provided by the court fares no
better. The court held that the prejudice prong was not
met because the record did not show that the alleged
misunderstanding regarding good-time credit “in any way”
affected the voluntariness of Moore’s guilty plea. The
court did not base that opinion upon any credibility deter-
mination, but rather appeared to believe that the record
contained no support for his claim that his plea decision
was based on the misinformation. At the hearing for the
change of plea, however, the first issue raised by Moore
in discussing his decision to plead guilty was the advice
his attorney gave him regarding the impact of the upcom-
No. 03-1126 9
ing change in good-time credits on the sentence he was
likely to serve. Moore further noted that this conversation
occurred approximately a week before trial, and prior to
that conversation he had refused to plead guilty, and
that he always has maintained his innocence of the charges.
The testimony by Moore’s attorney confirms that the ef-
fect of the good-time credit statute on his potential sen-
tence was a key issue in their discussions prior to
Moore’s decision to plead guilty, and that they discussed
the issue at length. The state court made no attempt to
reconcile its holding with those statements by Moore or
the corroboration by Moore’s attorney. Absent some cred-
ibility determination, the state court’s statement that
the record does not show that the misunderstanding in
any way affected the voluntariness of his plea is an unrea-
sonable application of the facts to the law. Therefore,
we agree with the district court that the state court’s
rejection of his ineffective assistance claim was contrary
to, or an unreasonable application of, clearly established
Supreme Court law. The decision of the district court
granting the writ of habeas corpus under 28 U.S.C. § 2254is AFFIRMED. The State shall have 120 days from the
date of the issuance of this opinion to release or retry
Moore.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-23-03