Marvel Thompson v. United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2814
MARVEL THOMPSON,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 3454 — Elaine E. Bucklo, Judge.
ARGUED OCTOBER 8, 2013 — DECIDED OCTOBER 18, 2013
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
PER CURIAM. Marvel Thompson pleaded guilty to conspir-
ing to possess and distribute cocaine and heroin, see 21 U.S.C.
§§ 846, 841(a)(1), and was sentenced to 540 months in prison.
This court affirmed the judgment. See United States v. White, 582
F.3d 787 (7th Cir. 2009). Thompson then filed a motion to
vacate under 28 U.S.C. § 2255 alleging that (1) the government
breached agreements with him (and two others who cooper-
ated on his behalf) to recommend that he serve between 108
2 No. 12-2814
and 135 months in prison, and (2) his attorneys rendered
ineffective assistance at the time he pleaded guilty, at sentenc-
ing, and on appeal. The district court denied his motion, and
we affirm.
I. BACKGROUND
In 2004, Thompson was charged by indictment along with
45 others for participating “in a long-running conspiracy
involving the distribution of vast amounts of cocaine, heroin,
and marijuana by the Black Disciples street gang in Chicago.”
White, 582 F.3d at 793. Thompson was the gang’s leader
(known as a “king”), who oversaw the South Side drug
operations, and used guns and ordered violence to further the
gang’s interests. Id. at 793–94.
After his arrest Thompson immediately began negotiating
a plea agreement with the government, hoping to limit his
sentence to 10 years’ imprisonment and secure the return of
more than $300,000 worth of property that the government had
seized. He claims the government “tentatively agreed” to these
terms with him and his first attorney. But when Thompson’s
second attorney, Jack Friedlander, presented Thompson with
a draft of the finalized plea agreement offered by the govern-
ment, the terms were less favorable. Specifically the factual
basis of the agreement required Thompson to admit that he
had been the king of the Black Disciples, had used guns to
further the conspiracy’s objectives, and was responsible for
greater drug quantities than Thompson was willing to ac-
knowledge. Moreover, the government was only willing to
recommend a sentence of 15, rather than 10, years and refused
to return Thompson’s seized property.
No. 12-2814 3
Thompson informed Friedlander that “under no circum-
stances” would he agree to the terms of the written plea
agreement, but nevertheless proceeded with a change of plea
hearing. When Thompson arrived for the hearing, the district
judge allowed him an opportunity to speak with Friedlander
and his family, who all urged Thompson to accept the written
plea agreement. After that conversation, Friedlander advised
the judge that Thompson would not accept the written
agreement, but that “against [counsel’s] advice” he wished to
enter a “blind plea.” Thompson told the judge: “I want to plead
guilty to the things that I done, and things in that plea I can’t
plead guilty to it because I didn’t do it.” Concerned that
Thompson was affected by the emotional conversation he had
with his family, the judge recessed the hearing until later in the
afternoon.
Thompson alleges that during the recess he spoke with
Friedlander and the prosecutor and reached an agreement to
plead guilty to a limited factual basis if the government would
agree to a Guidelines range of 108 to 135 months’ imprison-
ment. When the hearing resumed Friedlander expressed
concern that, despite his efforts to explain the nature of the
conspiracy charge, Thompson’s understanding of conspiracy
and the law of conspiracy were “two different things.” The
court conducted a thorough colloquy as required by Federal
Rule of Criminal Procedure 11, advising Thompson of the
minimum and maximum penalties he would face, ensuring
that no promises had induced his plea, and warning him that
the government at sentencing would seek to increase his
Guidelines imprisonment range by proving the aggravating
factors that Thompson refused to admit. Thompson then
4 No. 12-2814
pleaded guilty to the conspiracy charge, and though he would
not admit to the entire factual basis offered by the government,
he did admit having sold more than five kilograms of cocaine
and one kilogram of heroin to two members of the conspiracy,
Donnell Jehan and Kenyatta Coates, knowing that they would
resell the drugs. Thompson also explicitly acknowledged that
the government would attempt to prove additional facts at
sentencing. The district court accepted his plea.
Thompson also claims that the government had agreed
with two individuals to recommend that Thompson receive a
sentence of about 10 years if those individuals would partici-
pate in a government investigation, which they did.
Shortly after pleading guilty, Thompson hired Andrea
Gambino to replace Friedlander. Thompson now complains
that Gambino refused to present evidence about the agree-
ments between the government and the individuals cooperat-
ing on his behalf or argue that the government had breached
those agreements. But in fact Gambino did call one of the
individuals to testify at the sentencing hearing. This individual
explained that she cooperated with the government because “it
was supposed to help” Thompson. But Gambino clarified,
without objection from Thompson, that no formal agreement
was ever reached enabling Thompson to receive credit for this
cooperation. The government recommended a life sentence
(based in part on an offense level increased by more significant
drug quantities than Thompson had pleaded to, as well as
adjustments for Thompson’s leadership role and possession of
guns) and, although it acknowledged the cooperating individ-
ual’s work, argued that Thompson should receive no leniency
No. 12-2814 5
because he was never forthcoming and truthful with the
government.
Thompson now says that he was so frustrated with
Gambino, even at that time, that he attempted to file his own
brief on appeal focusing on the government’s breach of its
agreements. The pro se brief that Thompson in fact submitted
(and that this court refused to accept for filing), however,
nowhere mentions any agreements between Thompson or the
other individuals and the government. This court upheld
Thompson’s sentence, concluding that the government
submitted a “mountain of evidence” in support of the adjust-
ments for Thompson’s leadership role and possession of guns.
See White, 582 F.3d at 794–98. Given the ample evidence against
Thompson and his continued insistence that he was barely
involved with the Black Disciples or the distribution of drugs,
this court repeatedly characterized him as having lied to or
misled the district court, so much so as to warrant an obstruc-
tion of justice enhancement. See id. at 796–97.
Thompson, who eventually retained counsel, argued in his
§ 2255 motion that (1) the government breached its deals with
him and the other two individuals, (2) his guilty plea was not
knowing and voluntary, and (3) Friedlander and Gambino
rendered ineffective assistance. The district court denied
Thompson's motion and refused to grant a certificate of
appealability, concluding that he failed to support his allega-
tions with evidence sufficient to require an evidentiary
hearing, let alone a grant of relief. Specifically, the court
reasoned that Thompson's guilty plea was knowing and
voluntary because his claims about breached agreements and
Friedlander's failure to explain the consequences of his plea
6 No. 12-2814
were belied by Thompson's assurance at the colloquy that no
promises had induced his plea and the court's own explanation
to Thompson of the sentencing process. Because Thompson
could not establish that any agreements induced his plea, the
court concluded, he also could not claim that Gambino
rendered ineffective assistance by failing to address those
alleged agreements at sentencing or on appeal. This court then
granted a certificate of appealability inviting Thompson to
address (1) whether his guilty plea was knowing and volun-
tary, and (2) whether Friedlander adequately explained the
consequences of pleading guilty to a conspiracy.
II. ANALYSIS
Thompson first cursorily argues that Friedlander was
ineffective because he failed to investigate the “tentative”
agreement Thompson’s first attorney had been negotiating
with the government. According to Thompson’s own filings,
however, Friedlander was aware of the negotiations between
Thompson and the government. And, again according to
Thompson, that agreement was never finalized and thus could
not have induced his plea. See Marby v. Johnson, 467 U.S. 504,
510 (1984). Moreover, Thompson cannot now claim, this late in
the game, that the agreement was final and binding on the
government because he acknowledged under oath at the plea
colloquy that no promises had been made to him to induce a
plea. And “a motion that can succeed only if the defendant
committed perjury at the plea proceedings may be rejected out
of hand unless the defendant has a compelling explanation for
the contradiction.” United States v. Peterson, 414 F.3d 825, 827
(7th Cir. 2005); see also United States v. Jones, 381 F.3d 615, 619
(7th Cir. 2004).
No. 12-2814 7
Thompson’s bald explanation—that he was simply con-
fused and did not realize that the term “promises” encom-
passed the oral agreement he allegedly reached with the
government—is insufficient to overcome the presumption of
veracity which attaches to Thompson’s sworn assurances,
especially in light of his subsequent filings in his criminal case.
See Hutchings v. United States, 618 F.3d 693, 697–699 (7th Cir.
2010). He never moved to withdraw his guilty plea, nor did he
mention any deals in his various opportunities to address the
district court directly. He did attempt to file a brief on appeal
in the hopes of striking his attorney’s brief and proceeding
pro se. But, contrary to Thompson’s current representations,
even that voluminous filing, and for that matter his pro se
petition for rehearing, never addresses any deal with the
government.
Thompson next argues that Friedlander was ineffective
because his inadequate advice about the sentencing conse-
quences of the “blind plea” led Thompson to believe that by
pleading only to selling cocaine and heroin to Jehan and Coates
he could avoid responsibility for the other drugs in the
conspiracy, as well as for the use of guns and his leadership
role as a “king” of the Black Disciples. He contends that, had
Friedlander effectively explained that the government could
still seek to enhance his Sentencing Guidelines range based on
facts he did not admit to during his plea colloquy, he would
have proceeded to trial or agreed to the written plea agreement
proposed by the government.
To succeed on his ineffective assistance claim Thompson
must show deficient performance; namely, that Friedlander
grossly mischaracterized the sentencing consequences of
8 No. 12-2814
pleading guilty to conspiracy. See Julian v. Bartley, 495 F.3d 487,
496–97 (7th Cir. 2007); United States v. Cieslowski, 410 F.3d 353,
358-59 (7th Cir. 2005). Thompson admits, however, that
Friedlander urged him to accept the written plea agreement,
and Friedlander stated at the hearing that by not signing the
written agreement and proceeding with a blind plea, Thomp-
son was acting “against his advice.” Even if Friedlander’s
advice somehow led Thompson to believe that he could
effectively cabin his sentence by admitting to a limited factual
basis, Thompson cannot demonstrate the requisite prejudice
to succeed on his ineffective assistance claim because his
evidence does not show that, but for Friedlander’s failings, he
would have accepted the written plea agreement, see Missouri
v. Frye, ––– U.S. –––, 132 S. Ct. 1399, 1409 (2012), or proceeded
to trial, see Hill v. Lockhart, 474 U.S. 52, 59 (1985).
First, Thompson cannot show that, had Friedlander better
advised him, he would have pleaded guilty pursuant to the
written plea agreement. During his plea hearing, Thompson
emphatically refused to admit to the factual basis of the
agreement. And he cannot show prejudice because, even now,
he refuses to acknowledge his full culpability as would be
required under the plea offer. See United States v. Parker, 609
F.3d 891, 895 (7th Cir. 2010).
Second, Thompson cannot show that Friedlander’s alleged
failure to clarify the sentencing consequences of pleading
guilty to conspiracy was a “decisive factor” in his decision to
forgo trial because the district court’s explanation of the
sentencing process at Thompson’s plea colloquy removed any
possible prejudice of Friedlander’s advice. See Wyatt v. United
States, 574 F.3d 455, 458–59 (7th Cir. 2009); Bethel v. United
No. 12-2814 9
States, 458 F.3d 711, 718–20 (7th Cir. 2006). Thompson relies
repeatedly on Friedlander’s statement at the colloquy that
“Mr. Thompson’s understanding of what a conspiracy is …
and what the law’s theory is, are two different things.” But he
completely ignores the district court’s numerous efforts during
his plea hearing to cure that discrepancy.
The district court, in direct response to Thompson’s
continued refusal to admit to the entire factual basis of the
proposed plea agreement, explained that the government
would try to increase Thompson’s sentence by presenting
evidence at his sentencing hearing about the drug quantities
and guns involved in the conspiracy as well as his role in the
offense. Moreover, the court also informed Thompson that it
would have the final say over the length of his sentence and
that, regardless of the limits of his plea, he faced a statutory
minimum of 10 years’ imprisonment and a statutory maximum
of life. The government also made clear its intention to prove
those additional facts at sentencing. And Friedlander asserted,
and Thompson agreed, that Thompson understood the pre-
ponderance standard that would apply to the government’s
efforts to prove aggravating factors at sentencing. Finally,
Thompson himself demonstrated an understanding of the
sentencing process, noting that issues about his use of guns
would be addressed during sentencing. Friedlander cannot be
blamed for Thompson’s willful ignorance in the face of these
robust warnings, or be said to have prejudiced him. See Wyatt,
574 F.3d at 458–59; Bethel, 458 F.3d at 718–20. And Friedlander
could do little else to protect his client who insisted on admit-
ting to at least some role in the charged drug conspiracy.
See Florida v. Nixon, 543 U.S. 175, 187 (2004) (defendant has
10 No. 12-2814
final say over fundamental trial decisions including whether to
plead guilty); Ward v. Jenkins, 613 F.3d 692, 699 (7th Cir. 2010)
(same).
To the extent that Thompson’s statement of facts and reply
brief (but not the argument section of his opening brief) can be
read to imply that he is also pursuing a claim that the govern-
ment breached the deal it allegedly entered into with him
during the recess of the plea hearing, that argument is waived.
See Reliable Money Order, Inc. v. McKnight Sales Co., Inc., 704
F.3d 489, 501 n.11 (7th Cir. 2013); Fox v. Hayes, 600 F.3d 819,
837–38 (7th Cir. 2010). The same is true of Thompson’s conten-
tion that his admissions during the plea colloquy were insuffi-
cient to establish a factual basis for conspiracy, as Thompson
waited until oral argument to explore the issue. See Veluchamy
v. F.D.I.C., 706 F.3d 810, 817 (7th Cir. 2013).
As the government notes, Thompson’s remaining claims
concerning Gambino’s performance at sentencing and on
appeal are beyond the scope of the certificate of appealability,
which invited Thompson to address only (1) whether his guilty
plea was knowing and voluntary, and (2) whether Friedlander
and the court adequately explained the consequences of
pleading guilty to a conspiracy. The additional claims, there-
fore, are not properly before this court. See 28 U.S.C. § 2253(c);
Bolton v. Akpore, ––– F.3d –––, 2013 WL 4840483, at *11 (7th Cir.
Sept. 12, 2013). If Thompson were proceeding pro se, this court
would construe his brief as an implicit request to amend the
certificate, see, e.g., Cosby v. Sigler, 435 F.3d 702, 705 (7th Cir.
2006), but Thompson is represented by counsel, and a lawyer
who wishes to raise claims that are outside the scope of the
certificate of appealability “should not simply brief the
No. 12-2814 11
additional claims, but should first request permission to do
so.” Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011). Thomp-
son’s attorney made no such request (even after seeing the
government’s argument), and so we will not consider the
claims about Gambino.
III. CONCLUSION
Accordingly, we AFFIRM the judgment of the district court.