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Ineffective Assistance of Counsel – Guilty Pleas – Prejudice

Gregory L. Payne v. Basinger, 7th Cir No. 10-1869, 11/10/11

seventh circuit decision

Ineffective Assistance of Counsel – Guilty Pleas – Prejudice 

The state court erroneously concluded that, because Basinger would have been convicted anyway had he gone to trial, he suffered no prejudice from counsel’s erroneous advice as to the maximum sentence he faced on acceptance of the plea bargain:

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 establishes “prejudice” by demonstrating that, but for counsel’s errors, he would have insisted on a trial. …

… We therefore conclude that the state court’s decision in Payne’s case was “contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States”. 28 U.S.C. §2254(d)(1). Hill supplies the rule for identifying “prejudice.”

However, the state court’s analytical mistake doesn’t equate to outright relief but, rather, “does no more than lift the restrictions on collateral review.” The court isn’t explicit on the point, but it’s obvious that this means de novo rather than deferential review. Same holds, incidentally, where the state court failed to reach an issue under habeas review: Porter v. McCollum, 130 S. Ct. 447, 452 (2009) (“Because the state court did not decide whether Porter’s counsel was deficient, we review this element of Porter’s Strickland claim de novo.“) Basinger’s claim nonetheless falls short:

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. … 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… .

… Thus Payne knew that the maximum time in prison could exceed 50 years; he acknowledged the information without claiming to have a contrary understanding. A defendant’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.

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