Payne v. Brown

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1869

G REGORY L. P AYNE,

Petitioner-Appellant,

v.

R ICHARD B ROWN, Superintendent,

Wabash Valley Correctional Facility,

Respondent-Appellee.

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 2:09-cv-228-RLY-WGH—Richard L. Young, Chief Judge.

A RGUED O CTOBER 5, 2011—D ECIDED N OVEMBER 10, 2011

Before E ASTERBROOK, Chief Judge, and M ANION and

R OVNER, Circuit Judges.

E ASTERBROOK, Chief Judge. When pleading guilty to

four felony charges, Gregory Payne admitted that he

had forcibly detained a 17-year-old boy—threatening to

kill him if he resisted or tried to escape—and raped him

in the anus. Charges that Payne had raped a 13-year-old

boy were dismissed. The state judge sentenced him to

2 No. 10-1869

50 years in prison in light of his prior felony convictions.

The sentence was affirmed on direct appeal, 838 N.E.2d

503 (Ind. App. 2005), and a collateral attack was re-

jected, 905 N.E.2d 68 (Ind. App. 2009) (table).

In this federal collateral proceeding under 28 U.S.C.

§2254, Payne contends, as he had argued in state court,

that he received ineffective assistance of counsel in two

respects: his lawyer did not ensure that the plea agree-

ment was reduced to writing, see Ind. Code §35-35-3-3(a),

and gave him incorrect advice about the sentence he

could receive.

In a hearing in state court, Payne testified that his

lawyer had told him that he could not receive more than

20 years’ imprisonment, while under Indiana law the

actual sentencing range ran from a low of 20 years to a

maximum of 86 (if the judge imposed the maximum on

all counts and ordered the sentences to be served con-

secutively). Counsel testified that he could not remem-

ber what he had told Payne. Payne may have misunder-

stood or misrepresented what counsel said. His lawyer

argued to the sentencing judge that, as a matter of

Indiana law, all four counts merged into a single charge

of criminal confinement, the maximum penalty for which

is 20 years. The judge rejected this argument, however,

holding that criminal confinement is a lesser included

offense of deviate sexual conduct, which carries a maxi-

mum penalty of 50 years. The judge imposed a 50-year

sentence for that crime, plus concurrent sentences on

two other charges, while withholding sentence on the

criminal-confinement charge. (Because criminal confine-

No. 10-1869 3

ment is a lesser included offense, a separate sentence

would be appropriate only if the conviction on the

greater charge later is set aside.) But because counsel

did not remember whether he had told Payne that the

maximum is 20 years, or only that he would try to per-

suade the judge of this, the parties have assumed that

Payne’s professed understanding is correct.

After the hearing, the state judge declined to set

aside the plea, concluding that Payne had not suffered

prejudice because the correct sentencing options had

been stated in open court. The judge ordered resen-

tencing because of a different problem: the plea agree-

ment included a pledge by the prosecutor not to make

a recommendation about the appropriate sentence, a

pledge that had been broken. After a new proceeding

at which the prosecutor stood mute, the state judge

again imposed a 50-year sentence, explaining that the

prosecutor’s recommendation in the original sen-

tencing had not affected his decision.

The state’s appellate court affirmed, but with a dif-

ferent explanation for the lack of prejudice. The appellate

court concluded that Payne surely would have been

convicted, had he stood trial, so that it just didn’t matter

what his lawyer said or what he believed. The federal

district judge denied Payne’s petition with the same

explanation.

That was a mistake. Hill v. Lockhart, 474 U.S. 52, 58–59

(1985), holds that a person who contends that ineffective

assistance of counsel induced him to plead guilty estab-

lishes “prejudice” by demonstrating that, but for coun-

4 No. 10-1869

sel’s errors, he would have insisted on a trial. The state’s

appellate court relied on Segura v. State, 749 N.E.2d 496

(Ind. 2001), and State v. Van Cleve, 674 N.E.2d 1293 (Ind.

1996), in which the Supreme Court of Indiana concluded

that the Supreme Court of the United States couldn’t

have meant what it said in Hill. Relying in part

on Lockhart v. Fretwell, 506 U.S. 364 (1993), the state

court reasoned that unless a proceeding is fundamentally

unfair or unreliable, there cannot be “prejudice” for the

purpose of the ineffective-assistance inquiry. And when

a person is certain to be convicted at trial, a sentence

imposed following a guilty plea—which after all rests

on the accused’s admission that he committed the

crime—must be reliable, the state court decided.

The understanding of Fretwell reflected in Segura and

Van Cleve did not survive the decisions in Williams v.

Taylor, 529 U.S. 362 (2000), and Glover v. United States, 531

U.S. 198 (2001), which establish that Fretwell must not be

understood to change the prejudice inquiry otherwise

appropriate under Strickland v. Washington, 466 U.S. 668

(1984), and Hill. The situation in Fretwell was unusual: a

federal court of appeals reached an erroneous decision,

which it soon overruled. Fretwell contended that he

received ineffective assistance because his lawyer had

failed to take advantage of that decision during the win-

dow between its announcement and its overruling.

The Justices responded that no one suffers a legal

injury when the courts apply the correct rule of law.

That’s what Fretwell meant in saying that the defendant

had not suffered a fundamentally unfair or unreliable

outcome. Fretwell did not change the prejudice standard

No. 10-1869 5

of Strickland (for cases that proceed to trial) or Hill (for

cases resolved on guilty pleas). We therefore conclude

that the state court’s decision in Payne’s case was “con-

trary to . . . clearly established Federal law, as deter-

mined by the Supreme Court of the United States”. 28

U.S.C. §2254(d)(1). Hill supplies the rule for identifying

“prejudice.”

It does not follow, however, that Payne is entitled to

relief. Our conclusion does no more than lift the restric-

tions on collateral review that are part of §2254(d).

Relief still depends on a demonstration that Payne is “in

custody in violation of the Constitution . . . of the United

States.” 28 U.S.C. §2254(a). And that means performance

so deficient that the defendant did not receive the sort

of “counsel” of which the sixth amendment speaks, see

Strickland, 466 U.S. at 687–88, plus “prejudice” as defined

in Hill. The parties have assumed that Payne’s lawyer

erred, but they have not done what Strickland requires:

they have not analyzed what Payne’s lawyer did

for him. See Strickland, 466 U.S. at 690–96, discussed in

Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009) (“It

is essential to evaluate the entire course of the defense,

because the question is not whether the lawyer’s work

was error-free, or the best possible approach, or even

an average one”). Because the lawyers for Indiana have

not argued that “the entire course of the defense” shows

that Payne was adequately represented, we let this

subject pass—but without retreating from our estab-

lished view that it is rarely proper to examine par-

ticular claims of error in isolation.

6 No. 10-1869

Payne’s observation that the plea agreement was not

reduced to writing does not satisfy either the “perfor-

mance” or the “prejudice” component of Strickland

and Hill. Payne’s lawyer and the prosecutor had been

negotiating potential plea bargains for some time. Payne

had rejected every proposal until the morning when

trial was to begin. He changed his mind after the jury

had been selected and sworn. Payne told the state judge

that he had decided to plead guilty in large measure

in order to spare the two juvenile victims the pain of

testifying, and himself the embarrassment of having

the details spelled out in the courtroom. There wasn’t

time to prepare a detailed contract—and neither Payne

nor the prosecutor asked for a delay so that this could

be done. The judge would have been unlikely to grant

that request, which would have left the jurors and wit-

nesses cooling their heels for an indefinite period.

The terms of the plea bargain were stated on the

record, making a separate writing unnecessary. Payne

agreed to plead guilty to all counts relating to the 17-year-

old victim; the prosecutor agreed to dismiss all counts

relating to the 13-year-old victim and not to make a

recommendation about the appropriate sentence. The

prosecutor kept the former promise and broke the latter,

which was enforced by vacating the initial sentence and

providing Payne with a full resentencing. In this court,

Payne says that a separate written contract might have

contained information about the possible maximum

sentences, avoiding the misunderstanding that Payne

now says he labored under. Perhaps so; Indiana would

be well advised to take steps that prevent collateral

No. 10-1869 7

attacks such as the current one, which required an evi-

dentiary hearing in state court and now is before its

fourth judicial forum (trial and appellate courts in

Indiana, followed by federal district and appellate

courts). But the state judge gave Payne exactly the in-

formation that he says would have been in a written

plea agreement, which means that there was no preju-

dice—not on either of Payne’s theories.

We assume, as the parties have done, that Payne’s

lawyer told him that the maximum sentence could not

exceed 20 years, and not just that he would try to

persuade the judge that this was the limit. Attorneys

often are more confident of their position than the law

warrants; perhaps Payne’s lawyer failed to alert his

client to the risk that his argument would be rejected.

(It was a weak argument; counsel apparently got the

rules for lesser included offenses backward and as-

sumed that the greater offense merges into the lesser.) But

though Payne received bad advice from his lawyer, he

received the correct information from the judge. He

could have backed out when he heard the unwelcome

news—the lawyers, jury, and witnesses were ready to

proceed with trial—but he didn’t.

The state judge conducted a thorough interrogation

before accepting the guilty plea; it covers 46 pages of

transcript. The judge twice informed Payne about

possible sentences. The first time, the judge said: “A Class

A felony, which is Count IV in the actual information,

has what’s called a standard term of imprisonment of

30 years.” Payne replied: “All right.” The judge con-

8 No. 10-1869

tinued: “If there are aggravating circumstances in a

particular case, the maximum sentence on a Class A

felony is a 50-year term of imprisonment. If there were

mitigating circumstances, the minimum sentence on a

Class A is a 20-year term of imprisonment.” Payne said:

“Right.” These brief replies do not suggest that Payne

was sleepwalking through the hearing; he frequently

asked the judge for more information or inquired about

what would happen next, and he sometimes volunteered

information. But when the judge said that the “standard”

sentence on one count alone could be 30 years, with a

maximum of 50 years, Payne acknowledged the infor-

mation without suggesting that it contradicted his ex-

pectations.

Ten transcript pages later, the judge returned to the

subject of the potential sentence. The judge told Payne

that, after a guilty plea to four charges, there could be

four separate sentences, and that he could make these

sentences consecutive. The judge told Payne that this

means “one after the other.” Payne said: “Right; right.”

The judge added: “Or I can run them concurrently,

which is at the same time.” Payne: “Right.” Thus Payne

knew that the maximum time in prison could exceed

50 years; he acknowledged the information with-

out claiming to have a contrary understanding. A defen-

dant’s statements made in open court control over later,

contradictory contentions. See, e.g., Hutchings v. United

States, 618 F.3d 693, 699 (7th Cir. 2010). No one can get

collateral relief by insisting that his earlier statements to

a judge were false—certainly not after a court has held

a hearing and decided that the statements made at the

time of the plea were true.

No. 10-1869 9

Payne observes that the judge did not ask him whether

he had any beliefs or expectations that induced him to

plead guilty. Such a question might have elicited a

reply related to the sentence, even though the judge’s

advice about maximum and consecutive sentences did

not. We grant the possibility. Judges who take guilty

pleas can forestall collateral attacks such as this—pro-

ceedings that can be hard to resolve because defendants

may misunderstand or misrepresent oral advice, and

attorneys may be unable to remember years later what

they said—by asking the defendant to narrate in his own

words what he understands or expects will happen. See

Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). But

the trial judge here did ask a closely related question:

he asked Payne why he was pleading guilty. Payne

might have replied “because my sentence can’t exceed

20 years.” But he didn’t. What he actually said was that

“I really want to have the plea accepted [s]o we can get

it over with, and we ain’t got to drag these people

into court. It’s all really embarrassing, each way. And

we just don’t need to make a mockery out of it or just

make a mess out of it. . . . I just wish to just go ahead

and take a plea and hope that the Court won’t at least

kill me with time. And we ain’t got to drag these guys

[the victims] into court and make them put their

business up and, you know, just embarrass them.”

This statement not only provides a reason unrelated to

a belief that the maximum term is 20 years but also

implies that Payne did not have such a belief. He said

that he hoped that “the Court won’t . . . kill me with time.”

That’s very different from his currently professed belief

10 No. 10-1869

that the judge could not sentence him to more than 20 years.

What happened at sentencing fortifies the inference

that Payne knew that the maximum was well over

20 years. When the judge pronounced a 50-year sen-

tence, Payne stood silent. He did not protest or ask to

withdraw his plea. He did not use allocution to proclaim

a belief that 20 years was the maximum. Soon after sen-

tencing, he did protest the 50-year sentence on the

ground that the prosecutor had made a recommenda-

tion. The state judge vacated the sentence and started

from scratch. At the second proceeding, Payne again did

not use allocution to tell the judge that he thought

20 years the maximum, and when the judge re-imposed

a 50-year sentence, Payne again did not protest or ask

to withdraw his plea. That motion came two weeks

later—a curious delay if Payne had then the belief he

now claims to have had.

According to Payne, however, this inference that he

knew what penalties were possible is unsound because

he had turned down plea offers that would have

produced a sentence as low as 30 years. Why reject 30 years

only to enter a plea that led to a sentence of 50 years?

Payne’s current lawyers ask us to answer that question

by concluding that Payne must have believed that the

maximum sentence was lower than 30 years. That’s not

necessarily so, however. The state judge told him that

his sentence could be as low as 20 years; perhaps Payne

hoped for that outcome, which would have been better

than 30 years with certainty. Or perhaps the approach of

trial concentrated the mind, and Payne was honest

when he told the judge that he wanted to avoid embar-

No. 10-1869 11

rassing the victims (and himself) at trial. It is unneces-

sary to decide why Payne turned down the 30-year

offer only to enter a plea that lacked a cap on the sentence.

The record shows us that Payne knew that his time in

prison could be 50 years (or more with consecutive sen-

tences). No more is necessary to show that the judgment

must be

AFFIRMED .

11-10-11