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Habeas – Evidentiary Hearing

William Kerr v. Thurmer, 7th Cir No. 09-1032, 3/28/11 – Part III

7th circuit decisionon habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part I (IAC – adequate provocation defense) is here; Part II (default; standard of review), here.

Habeas – Evidentiary Hearing

Kerr argues that he rejected a plea offer to reduce the charge of 1st-degree intentional homicide to 2nd-degree, only because his attorney erroneously advised that the reduced charge carried a maximum of life with a minimum term of 13 years, when in fact it carried a maximum of 40 years, with parole eligibility after 10. The difference in penalty structure between the lesser and the charged offense (mandatory life) is enough to establish prejudice from the misadvice – if that is what it was. The claim was unresolved by the state court, and Kerr is entitled to an evidentiary hearing on habeas review to determine whether he was in fact so misadvised.

In his affidavit, Kerr asserts that he would have accepted the state’s plea offer rather than going to trial if his attorneys had accurately conveyed the correct sentencing range carried by first-degree reckless homicide . Kerr acknowledges that his own sworn statement is not enough to show prejudice without some objective corroborating information. See, e.g., Bethel v. United States, 458 F.3d 711, 718 (7th Cir. 2006). But he has pointed to corroborating evidence. The district court found that one of the lawyers (Gerald Boyle) told Kerr that he would have to plead to life imprisonment with a 13-year statutory minimum. This is at least some evidence that Kerr’s accusation that he was given erroneous advice is well founded. We have already described how Kerr’s evaluation of the plea would have been distorted by an error of such proportions. Such advice easily could have removed any incentive to take the plea, because it would have made it seem as if he had little to lose by going to trial. See Julian, 495 F.3d at 498-99 (petitioner rejected a plea because his lawyer told him he would face a maximum 30 years after trial and 23 if he pleaded guilty, when in fact he faced 60 years if convicted); Moore v. Bryant, 348 F.3d 238, 240 (7th Cir. 2003) (petitioner accepted a plea after his lawyer said petitioner would face 22-27 years if convicted and 10 if he pleaded guilty, when actually he only risked 12-15 years at trial). We think that the combination of Kerr’s affidavit, the district court’s finding that apparently incorrect advice was actually given, and the large disparity between the sentence his lawyers thought would be required under the plea and the true sentence is enough to demonstrate a serious question on the issue of prejudice. We are not prepared, however, to say that this is enough to carry the day for Kerr. …

An  evidentiary hearing will also give the state an opportunity to present its evidence on exactly what crime (if any) it was prepared to permit Kerr to plead guilty to. Kerr alleges that it was first-degree reckless homicide. … Without evidence of the crime that was the basis of the plea agreement, we cannot assess whether Kerr’s lawyers performed deficiently or whether Kerr suffered prejudice.

Kerr, then, wins the battle. But he faces a two-front war. First, as the quote suggests, he may simply lose on the facts, a mundane outcome. At least Kerr has the opportunity to shape that particular battlefield, to show that the plea offer was indeed for 2nd-degree. The other front is well beyond his control: Lafler v. Cooper, 10-209, currently pending in the Supreme Court, raises the question of whether a fair trial eliminates the possibility of challenge to counsel’s representation in pretrial plea bargaining.

… We have considered whether to hold this case pending the decision in Lafler, but in the interest of efficiency, we have decided not to do so. The record is not sufficiently developed to permit a decision in Kerr’s case, if the Court rules such a case may proceed at all. We think it best to move forward now, recognizing that if the Court rules that the later trial erases any possible claim relating to potential plea bargains, then it is likely that Kerr’s case will have to be dismissed at that time.

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