# Dennis Wayne Williams v. United States

> Court of Appeals for the Seventh Circuit · November 24, 1986 · 805 F.2d 1301

URL: https://www.frixlaw.com/law-library/cases/9475585

## Case

- **Full name:** Dennis Wayne WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** November 24, 1986
- **Citations:** 805 F.2d 1301; 55 U.S.L.W. 2332; 1986 U.S. App. LEXIS 34091
- **Precedential status:** Published
- **Opinion:** Concurrence by Cudahy
- **Judges:** Wood, Cudahy, Flaum
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475585

## How later opinions describe it (automated extraction)

- applying cause and prejudice standard in section 2255 proceedings

## Opinion text

CUDAHY, Circuit Judge,
concurring in the result:
I agree that Norris v. United States, 687 F.2d 899 (7th Cir.1982), might permissibly be applied to bar collateral review under the facts of this case. I write separately, however, because I question the wisdom and fairness of applying Norris here.
Certainly this court has held for a number of years that a defendant’s failure to raise constitutional claims on direct appeal from a conviction bars the defendant from raising those claims on collateral review, absent a showing of cause and actual prejudice. United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc) ( 28 U.S.C. § 2254 proceeding); Norris v. United States, 687 F.2d 899 (7th Cir.1982) ( 28 U.S.C. § 2255 proceeding). I have in the past questioned whether Spurlark and Norris are fully supported by Supreme Court authority, see Spurlark, 699 F.2d at 362 (Cudahy, J., concurring in part and dissenting in part); Norris, 687 F.2d at 904 (Cudahy, J., concurring), but they must, of course, be regarded as the well-established law of this circuit. See, e.g., United States v. Bailey, 763 F.2d 862 (7th Cir.1985); Clay v. Director, Juvenile Div., Dep’t of Corrections, 749 F.2d 427 (7th Cir.1984). In applying Norris and Spurlark to guilty-plea situations, however, I think we may be losing track of the principles expounded in their putative source, United States v. Frady, 456 U.S. 152 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982), which spoke to finality and judicial economy in criminal proceedings.
The majority recognizes that the two other circuits that have considered an asserted waiver of claims for purposes of section 2254 and section 2255 proceedings after a guilty plea have both concluded that a failure to appeal a sentence or to challenge it under Rule 35 should not waive claims on collateral attack. See United States v. Baylin, 696 F.2d 1030 (3d Cir.1982); United States v. Corsentino, 685 F.2d 48 (2d Cir.1982); see also Diggs v. United States, 740 F.2d 239 (3d Cir.1984). In both Baylin and Corsentino the Third and Second Circuits, respectively, concluded that there was no waiver when a defendant who pleaded guilty failed to appeal or to utilize Rule 35 and then brought a collateral challenge to his sentence or plea. Baylin, 696 F.2d at 1035 ; Corsentino, 685 F.2d at 50-51 .
As a practical matter, a defendant who pleads guilty and receives a sentence is simply not in a position comparable to a defendant who is convicted after a trial. The interests of finality and efficiency may permit us to require a convicted defendant to continue to assume on direct appeal the adversarial stance assumed at trial or lose his claims. But this expectation seems less appropriate after sentencing on a plea of guilty or in the context of a motion for discretionary reduction of sentence. Cf. Baylin, 696 F.2d at 1036 (distinguishing a guilty plea from a conviction and a sentencing procedure from a trial); Corsentino, 685 F.2d at 51 (direct appeal from a guilty plea “is not the traditional appellate review after trial contemplated by Frady ... [and a Rule 35 motion] seeking an exercise of the District Court’s discretion to reduce [a] sentence, is not a waiver of defects that are normally presented upon a collateral attack”). Nor is a defendant who pleads guilty normally apprised of his right to appeal. See Fed.R.Crim.P. 32(a)(2). The majority notes that a defendant who pleads guilty undoubtedly has the right to challenge a pre-sentence report, to pursue a direct appeal of a sentence and to bring a Rule 35 motion. But it seems unrealistic to expect many defendants to recognize or raise constitutional challenges in the circumstances that surround the taking of a guilty plea. And, since appeals are rarely taken from guilty pleas, allowing claims on collateral review would not result in piecemeal proceedings.
I would therefore decline to find waiver here but would follow the path of the district court, which reached the merits and found them wanting. See United States v. *1312 Williams, No. 83-C-79, slip op. at 2-6 (E.D.Wis. Dec. 18, 1985). I therefore concur in the result but find the discussion of Norris and its explicit extension to guilty pleas unnecessary and a questionable application of doctrines having their roots in Frady .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475585. Public record. Not legal advice.