Gilbert Spiller v. United States

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 15-2889

GILBERT SPILLER,

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. 14 C 7821 — Charles P. Kocoras, Judge.

____________________

ARGUED APRIL 5, 2017 — DECIDED APRIL 28, 2017

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Before WOOD, Chief Judge, and FLAUM and HAMILTON, Cir-

cuit Judges.

FLAUM, Circuit Judge. Gilbert Spiller pled guilty to drug

and firearm charges. He later filed a petition under 28 U.S.C.

§ 2255, arguing that his counsel was constitutionally ineffec-

tive during the plea-bargaining process. The district court de-

nied Spiller’s petition without holding an evidentiary hear-

ing. We affirm.

2 No. 15-2889

I. Background

On July 13 and 21, 2011, Gilbert Spiller sold a total of 121

grams of crack cocaine for $5,000 to an undercover confiden-

tial informant. Spiller later sold a loaded .40 caliber handgun

for $500 to the same informant, whom Spiller knew to be a

felon who planned to use the gun to protect his drug opera-

tion from rival gang members. The government proceeded to

charge Spiller with two counts of distributing a controlled

substance, in violation of 21 U.S.C. § 841(a)(1) (“Counts One

and Two”), and one count of selling a firearm to a felon, in

violation of 18 U.S.C. § 922(d)(1) (“Count Three”). The gov-

ernment also filed a notice, pursuant to 21 U.S.C. § 851, that it

would seek an enhanced mandatory minimum sentence

based on Spiller’s three prior drug felonies.

On July 30, 2012, the government sent Spiller’s counsel a

proposed plea agreement, under which Spiller would plead

guilty to Count One and acknowledge that the conduct un-

derlying Counts Two and Three was relevant for sentencing

purposes, pursuant to U.S.S.G. § 1B1.3. Under the proposed

agreement, Spiller would also stipulate to the government’s

Guidelines calculation, including a “career offender” en-

hancement pursuant to § 4B1.1.

Defense counsel responded to the government’s proposal

on August 8 with the following inquiry:

Mr. Spiller has asked a great question and one

that I cannot seem to answer for him: what ex-

No. 15-2889 3

actly does he gain if he proceeds by plea agree-

ment, as opposed to a blind plea.[1] Is the gov-

ernment withdrawing the 851? Can you tell me

one concession the government makes in the

draft plea you sent over? I want to make sure I

am not missing something.

That same day, the government responded, in relevant part:

The government is not withdrawing the 851 no-

tice. You ask a good question, and I admit that

the plea agreement does not offer a whole lot

beyond a blind plea. There are a few minor ben-

efits: we would dismiss two counts so he would

save himself $200 in special assessments. He

also gets the recognition in the plea agreement

that, as things currently stand, he is entitled to

acceptance of responsibility ….

Spiller rejected the government’s proposed plea agree-

ment and, instead, executed a blind plea. In relevant part,

Spiller pled guilty to all three counts and “expressly re-

serve[d] the right to disagree with the government's guide-

lines calculation.”

At Spiller’s sentencing hearing on February 27, 2013, the

parties did not dispute that Spiller’s Guidelines range was 262

to 327 months’ imprisonment—accounting for Spiller’s con-

duct, his status as a career offender, and his acceptance of re-

sponsibility. While the government sought a sentence within

the Guidelines range, however, defense counsel sought the

1 A “blind plea” is a “guilty plea made without the promise of a con-

cession from either the judge or the prosecutor.” Blind Plea, BLACK’S LAW

DICTIONARY (10th ed. 2014).

4 No. 15-2889

120-month mandatory minimum, highlighting the well-

known crack-cocaine disparity and Spiller’s troubled up-

bringing. Ultimately, the district court sentenced Spiller to 240

months’ imprisonment, and we affirmed on appeal. United

States v. Spiller, 732 F.3d 767 (7th Cir. 2013).

On October 6, 2014, Spiller filed a pro se petition under

28 U.S.C. § 2255, contending, in relevant part, that his attorney

had been constitutionally ineffective by counseling him to ex-

ecute a blind plea rather than the government’s proposed plea

agreement. The district court denied Spiller’s petition, with-

out holding an evidentiary hearing, and denied him a certifi-

cate of appealability. We granted it, however, and this appeal

followed.

II. Discussion

“When reviewing the denial of a federal prisoner’s § 2255

petition, we review the district court’s legal conclusions de

novo, its factual findings for clear error, and its decision to

forgo holding an evidentiary hearing for abuse of discretion.”

Martin v. United States, 789 F.3d 703, 705–06 (7th Cir. 2015) (cit-

ing Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008)).

“The district court’s decision must strike us as fundamentally

wrong for an abuse of discretion to occur.” Williams v. Chi. Bd.

of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (citation omitted).

Spiller argues that the district court abused its discretion

by denying his petition without holding an evidentiary hear-

ing. “The petitioner’s burden for receiving an evidentiary

hearing is relatively light ….” Torres-Chavez v. United States,

828 F.3d 582, 586 (7th Cir. 2016) (citation omitted). A district

court must grant a hearing if the petitioner alleges facts that,

if proven, would entitle him to relief. Martin, 789 F.3d at 706

No. 15-2889 5

(citation omitted). “It is well-established,” however, “that a

district court need not grant an evidentiary hearing in all

§ 2255 cases.” Id. For instance, a hearing is not required if “the

motion and the files and records of the case conclusively show

that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

Additionally, if the record contains sufficient facts to explain

counsel’s actions as “tactical,” generally no hearing is re-

quired. See Osagiede, 543 F.3d at 408 (citation omitted). Finally,

a hearing is unnecessary if the petitioner makes allegations

that are “vague, conclusory, or palpably incredible,” rather

than “detailed and specific.” Martin, 789 F.3d at 706 (quoting

Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006)).

Spiller alleged below that his lawyer was constitutionally

ineffective for failing to investigate the facts and law relevant

to his case, and for giving “deficient” advice regarding his

plea options.2 The Sixth Amendment provides that, “[i]n all

criminal prosecutions, the accused shall enjoy the right to …

have the Assistance of Counsel for his defence.” U.S. Const.

amend. VI. This right extends to the plea-bargaining process.

2 At the outset, the district court concluded that the government’s pro-

posed plea agreement was not a formal plea offer, but merely a draft

agreement, as it did not have a “fixed expiration date.” Thus, concluded

the district court, all of Spiller’s arguments regarding his counsel’s inef-

fective assistance at the plea-bargaining stage were inapposite. The court

then addressed the merits of Spiller’s ineffective-assistance claim, how-

ever, and determined that defense counsel’s performance was not defi-

cient and did not prejudice him. Spiller stresses that there is no “fixed ex-

piration date” requirement, making the district court’s initial ruling a legal

error that warrants remand. Even assuming this ruling was incorrect, it

constitutes harmless error in light of the court’s subsequent rulings on the

merits. See Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1079

(7th Cir. 2016) (“An error is harmless if it does not affect a party’s substan-

tial rights.”) (citation omitted).

6 No. 15-2889

Martin, 789 F.3d at 706 (citing Lafler v. Cooper, 566 U.S. 156, 162

(2012)); see also Missouri v. Frye, 566 U.S. 133, 140–42 (2012). To

demonstrate that his lawyer was constitutionally ineffective,

Spiller must “satisfy the familiar two-prong test set forth in

Strickland v. Washington.” Makiel v. Butler, 782 F.3d 882, 897

(7th Cir. 2015) (citing Strickland, 466 U.S. 668 (1984)). First,

Spiller must show that his counsel’s performance fell below

an objective standard of reasonableness. Strickland, 466 U.S. at

687–88. Second, he must show that counsel’s deficient perfor-

mance prejudiced the defense, which means there is a reason-

able probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. Id. at

691–92, 694. “When applying Strickland to the facts of a par-

ticular case, ‘there is no reason for a court … to approach the

inquiry in the same order or even to address both components

of the inquiry if the defendant makes an insufficient showing

on one.’” McDaniel v. Polley, 847 F.3d 887, 893 (7th Cir. 2017)

(quoting Strickland, 466 U.S. at 697) (alteration in original).

Here, we need go no further than Strickland’s performance

prong. In the plea-bargaining context, “we have noted that a

reasonably competent lawyer will attempt to learn all of the

relevant facts of the case, make an estimate of a likely sen-

tence, and communicate the results of that analysis to the cli-

ent before allowing the client to plead guilty.” Bethel v. United

States, 458 F.3d 711, 717 (7th Cir. 2006) (citing cases). The rec-

ord, taken as a whole, demonstrates that Spiller’s counsel did

just that.

First, as reflected in her inquiry to the government, de-

fense counsel discussed the proposed plea agreement with

Spiller. His attorney then considered the government’s pro-

posal and emails and determined that Spiller would be better

No. 15-2889 7

off pleading blindly. According to Spiller’s affidavit, which he

attached to his petition, his lawyer recommended that he ex-

ecute a blind plea declaration, explaining to him that he

would “get a better sentence with pleading blindly” and that

a blind plea would “get [him] a better deal [and] is more fa-

vorable than the government’s offer.” The resulting plea dec-

laration distinguishes this case from others where attorneys

have advised clients to not plead guilty. In those instances,

there may be a natural gap in the record: The attorney recom-

mends that the client reject the government’s offer, and the cli-

ent proceeds to trial. Here, Spiller did plead guilty, and his

counsel drafted an eleven-page plea declaration illustrating

her and Spiller’s understanding of the relevant facts and law

underlying the case. Indeed, the signed agreement states, in

relevant part:

Defendant GILBERT SPILLER, after extensive

consultation with his attorney, … acknowledges

and states the following: … Mr. Spiller has read

the charges against him contained in the indict-

ment, and those charges have been fully ex-

plained to him by his attorney. Mr. Spiller fully

understands the nature and elements of the

crimes with which he has been charged….Mr.

Spiller agrees that this Plea Declaration shall be

filed and become part of the record of the

case….Mr. Spiller further acknowledges that he

has read this Plea Declaration and carefully re-

viewed each provision with his attorney.

When assessed in its entirety, the record conclusively shows

that defense counsel discussed with Spiller his case and plea

options and advised him accordingly. This is constitutionally

8 No. 15-2889

sufficient. Consequently, the district court did not abuse its

discretion by concluding, without an evidentiary hearing,

that Spiller was not entitled to relief.

Spiller stresses the lack of evidence that his attorney inves-

tigated the differences between the two plea options, arguing

that the district court simply presumed that defense counsel’s

decision was tactical. Again, however, the record shows oth-

erwise. Contrary to Spiller’s assertion, counsel’s email to the

government evidences the very research he complains was

lacking: His attorney reviewed Spiller’s plea options, specifi-

cally inquired of the government whether there were differ-

ences, examined the government’s response, and suggested

that Spiller plead blindly. Further, the government conceded

to Spiller’s lawyer that its proposal did not “offer a whole lot

beyond a blind plea.” So, according to Spiller’s signed plea

declaration and affidavit, defense counsel reserved Spiller’s

right to challenge the government’s Guidelines calculation—

a right he otherwise would have sacrificed under the govern-

ment’s proposal—and believed that she could secure him a

“better sentence.” In all, the record was sufficient to explain

counsel’s decision as strategic, thereby eliminating the need

for an evidentiary hearing. See Osagiede, 543 F.3d at 408 (cita-

tion omitted).

Spiller takes issue with his attorney’s strategy for two rea-

sons—neither of which is convincing. First, he relies on Toro v.

Fairman, 940 F.2d 1065 (7th Cir. 1991), in questioning whether

it was reasonable for defense counsel to believe that challeng-

ing the government’s Guidelines calculation would have been

successful. In Toro, however, “counsel admitted that the deci-

sion to proceed to trial was not so much a rational, profes-

sional judgment, but an emotional one.” Id. at 1068. Not so

No. 15-2889 9

here: Spiller’s lawyer believed she could secure her client a

better sentence and reserved certain arguments to do just that.

This sounds in strategy rather than in emotion, and a “strate-

gic decision, even if clearly wrong in retrospect, cannot sup-

port a claim that counsel’s conduct was deficient,” United

States v. Yancey, 827 F.2d 83, 90 (7th Cir. 1987) (citing Strickland,

466 U.S. at 689–91). Second, Spiller highlights that defense

counsel did not, in fact, end up challenging the government’s

calculation; but he does not point to any authority for the

proposition that an attorney must adhere to an initial decision

throughout a case for that decision to qualify as tactical. Ra-

ther, we analyze whether that attorney’s decision is strategic

at the time she makes it. Strickland, 466 U.S. at 689 (“A fair as-

sessment of attorney performance requires that every effort

be made to eliminate the distorting effects of hindsight, to re-

construct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the

time.”). This is especially so in the plea-bargaining context.

See Bethel, 458 F.3d at 717 (highlighting “the many uncertain-

ties surrounding the difficult decision of whether to plead

guilty” (citing McMann v. Richardson, 397 U.S. 759, 769–70

(1970))).

Lastly, Spiller’s reliance on Moore v. Bryant, 348 F.3d 238

(7th Cir. 2003), and Jones v. Calloway, 842 F.3d 454 (7th Cir.

2016), is misplaced. In Moore, we focused on “inaccurate ad-

vice,” such as advice that “goodtime credits could severely

lengthen [a] sentence if [the client] proceeded to trial and

lost.” 348 F.3d at 241–42. Here, Spiller’s only argument resem-

bling a claim of inaccurate advice was that defense counsel

informed him that he would receive a more favorable sen-

tence if he pled blindly. We have clarified, though, that “[a]n

inaccurate prediction of a sentence alone is not enough to

10 No. 15-2889

meet the [Strickland] standard.” Bethel, 458 F.3d at 717 (cita-

tions omitted). Additionally, in Jones, we held that the trial

court had misapplied Strickland in finding that a defense at-

torney’s failure to call a particular witness constituted a stra-

tegic decision, in part because “the state appellate court had

no basis in the record to classify counsel’s failure to call [the

witness] as a strategic trial choice.” 842 F.3d at 464. Here, how-

ever, the district court did have a sufficient basis in the record

to characterize counsel’s decision as strategic: Her email,

Spiller’s affidavit, the government’s proposed plea agree-

ment, and Spiller’s Plea Declaration, taken together, obviated

the need for an evidentiary hearing.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.