Jermel Thomas v. United States , 606 F. App'x 840 ( 2015 )


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  •                         NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted April 7, 2015 *
    Decided April 8, 2015
    Before
    FRANK H. EASTERBROOK, Circuit Judge
    ANN CLAIRE WILLIAMS, Circuit Judge
    DAVID F. HAMILTON, Circuit Judge
    No. 13-3361
    JERMEL C. THOMAS,                              Appeal from the United States District
    Petitioner-Appellant,                     Court for the Northern District of
    Indiana, South Bend Division.
    v.
    No. 3:12-cv-236
    UNITED STATES OF AMERICA,
    Respondent-Appellee.                      Robert L. Miller, Jr.,
    Judge.
    ORDER
    Jermel Thomas pleaded guilty to possessing a firearm as a felon. See 
    18 U.S.C. § 922
    (g)(1). He was sentenced to 120 months’ imprisonment, the statutory maximum.
    We dismissed his direct appeal on the basis of the appeal waiver in his plea agreement.
    See United States v. Thomas, 
    639 F.3d 786
     (7th Cir. 2011). Thomas has now moved under
    
    28 U.S.C. § 2255
     to attack collaterally his conviction and sentence. The district court
    *
    After examining the briefs and record, we have concluded that oral argument is
    unnecessary. Thus the appeal is submitted on the briefs and record. See Fed. R. App. P.
    34(a)(2)(C).
    No. 13-3361                                                                       Page 2
    denied the motion but certified two issues for our review—ineffective assistance of
    counsel and judicial fact-finding. Thomas asks that we also certify for review three more
    issues. The district court correctly decided the two certified issues, and we decline to
    certify the other three. We therefore affirm the judgment of the district court.
    Thomas was involved in a shootout in 2009, and he later pleaded guilty to
    possessing a firearm as a felon. A DNA test of a revolver recovered from the crime scene
    revealed Thomas’s DNA on the trigger. Represented by Jay Stevens, a federal defender,
    Thomas signed a written plea agreement stating that he knowingly possessed the
    recovered revolver. Likewise, during his plea colloquy Thomas swore that he was guilty
    of possessing the gun. Thomas tells us now that, before he entered his guilty plea,
    Stevens had advised him that by pleading guilty his use of the gun during the shooting
    would not be an issue at sentencing. At the plea hearing, though, Thomas swore that he
    had received no sentencing predictions and he understood that, as the court had
    explained, the court could sentence him differently than he might expect, up to the
    statutory maximum of 10 years.
    About a month after the plea was accepted, but before sentencing, Jay Stevens
    moved to withdraw as counsel because he had just learned of a conflict of interest: A
    fellow federal defender in the same office was representing another man involved in the
    shootout, and the two defenders had acquired information that would benefit one client
    at the expense of the other. The motion was granted, and William Stevens (no relation)
    was appointed to represent Thomas.
    William Stevens represented Thomas at sentencing, where Thomas’s use of the
    gun was litigated. The probation office recommended that Thomas’s offense level be
    increased by four levels under U.S.S.G. § 2K2.1(b)(6) because Thomas had “used or
    possessed” a firearm in connection with “another felony.” Counsel objected to the
    enhancement for two reasons. First, counsel argued that the proposed increase was
    unconstitutional because the felonies (state-law battery and criminal recklessness) were
    uncharged and unproven to a jury. Second, counsel contended, Thomas did not qualify
    for the enhancement because he did not commit another felony. Thomas testified at
    sentencing that someone had handed him a gun at the shootout, but he held it only
    momentarily before giving it back unfired. And a forensics consultant opined, from
    examining the residue on Thomas’s jacket, that it was unlikely that Thomas had fired a
    gun. The government rebutted this evidence with a witness to the shootout who testified
    that Thomas had shot him, and by objecting to the forensic report because its author was
    not qualified and chain-of-custody problems with the jacket undermined the report’s
    No. 13-3361                                                                          Page 3
    conclusions. The district court admitted the report but disbelieved Thomas’s assertion at
    sentencing that he had not fired the gun. The court then ruled that, because Thomas’s
    sentencing testimony contradicted his plea-colloquy testimony by downplaying his
    responsibility for possessing the gun, the court would add two more offense levels for
    obstruction of justice, see U.S.S.G. § 3C1.1, in addition to the four-level enhancement
    under U.S.S.G. § 2K2.1(b)(6) for use or possession of a gun in connection with another
    felony. The enhancements pushed Thomas’s guideline range up to a single point—the
    statutory maximum of 120 months, as allowed by U.S.S.G. § 5G1.1(a). That is the
    sentence he received.
    On appeal from the district court’s denial of the motion to vacate his sentence, we
    begin with the two issues that the district court certified. Thomas first argues that Jay
    Stevens rendered ineffective assistance when he advised Thomas that his use of a gun
    would not affect his sentence. The district court correctly observed, however, that an
    inaccurate sentencing prediction alone is not deficient performance, see Bridgeman v.
    United States, 
    229 F.3d 589
    , 592 (7th Cir. 2000); United States v. Barnes, 
    83 F.3d 934
    , 940
    (7th Cir. 1996), and even if it were, prejudice is missing for two reasons. First Thomas
    acknowledged to the court that, despite any predictions Stevens may have made,
    Thomas understood that he could receive a sentence up to the 120-month statutory
    maximum. Second, the enhancement to his guideline range for obstruction was the
    result not of using the gun but of Thomas’s decision to lie about it at the sentencing
    hearing. See Wyatt v. United States, 
    574 F.3d 455
    , 458–59 (7th Cir. 2009); Bethel v. United
    States, 
    458 F.3d 711
    , 718–19 (7th Cir. 2006); United States v. Martinez, 
    169 F.3d 1049
    , 1054
    (7th Cir. 1999).
    Thomas replies that he is not challenging Stevens’s forecast about the sentence’s
    length. Rather, he is contesting Stevens’s failure to warn him that the judge could find by
    a preponderance of evidence that he possessed or used the gun while committing a
    felony and then increase his sentence on that basis. Had Thomas received this advice, he
    concludes, he would not have pleaded guilty. But this gloss on Thomas’s argument fares
    no better. Even if we assume that Jay Stevens should have told Thomas about judicial
    fact-finding at sentencing, Thomas must still furnish evidence that, with the correct
    advice, he would likely have proceeded to trial. See Hill v. Lockhart, 
    474 U.S. 52
    , 58–59
    (1985); Hutchings v. United States, 
    618 F.3d 693
    , 697 (7th Cir. 2010); United States v.
    Cieslowski, 
    410 F.3d 353
    , 359 (7th Cir. 2005). He has not. To the contrary, the combination
    of his DNA on the gun and the witness who saw him use it constitutes “evidence
    proving the charged conduct”—possession of a firearm—and that evidence “was
    sufficient to ensure that no advantage would be gained by proceeding to trial.” United
    No. 13-3361                                                                             Page 4
    States v. Rodriguez-Luna, 
    937 F.2d 1208
    , 1214–16 (7th Cir. 1991). Accordingly Thomas has
    not shown prejudice.
    We turn to the second certified issue. Thomas argues that the factual predicate for
    enhancing his guideline range—that he possessed or used a firearm while committing
    another felony—must, under Alleyne v. United States, 
    133 S. Ct. 2151
     (2013), be proven to
    a jury beyond a reasonable doubt. We have not yet ruled whether Alleyne applies
    retroactively to cases on collateral review, see Simpson v. United States, 
    721 F.3d 875
    , 876
    (7th Cir. 2013), though other circuits have ruled that it does not, see Butterworth v. United
    States, 
    775 F.3d 459
    , 465 & n.4 (1st Cir. 2015) (citing cases), cert denied, No. 14-8251,
    
    2015 WL 459339
     (U.S. Mar. 2, 2015). But as the district court correctly observed, we have
    ruled that Alleyne does not require that facts that merely increase an advisory guideline
    range, as happened here, be found by a jury. See United States v. Volpendesto, 
    746 F.3d 273
    ,
    296 n.8 (7th Cir. 2014); United States v. Hernandez, 
    731 F.3d 666
    , 672 (7th Cir. 2013).
    Accordingly, Thomas’s second claim fails.
    That brings us to the three requests to expand the certificate of appealability. First,
    Thomas contends that because of Jay Stevens’s conflict of interest, he rendered
    ineffective assistance. Even if we assume that a conflict arose, the claim requires an
    additional showing. Either the conflict must have had an “adverse effect” on Jay
    Stevens’s representation (a reasonable likelihood that Stevens’s performance would
    have differed without the conflict), see Cuyler v. Sullivan, 
    446 U.S. 335
    , 348 (1980); Blake v.
    United States, 
    723 F.3d 870
    , 880 (7th Cir. 2013), cert. denied, 
    134 S. Ct. 2830
     (2014), or the
    conflict must have prejudiced Thomas (a reasonable probability that, with the conflict
    removed, Thomas would not have pleaded guilty), see Hall v. United States, 
    371 F.3d 969
    ,
    975–76 (7th Cir. 2004); Moore v. Bryant, 
    348 F.3d 238
    , 241 (7th Cir. 2003). But Thomas has
    offered no evidence of either. Stevens moved to withdraw as soon as he learned that he
    and his fellow defender possessed information that could undermine one of their clients.
    Therefore Stevens’s advice to Thomas, all of which he rendered before the conflict
    emerged, was not affected by the conflict. Thomas replies with conclusory allegations of
    prejudice, but these are insufficient to show either an adverse effect or prejudice from the
    conflict. See Fuller v. United States, 
    398 F.3d 644
    , 652 (7th Cir. 2005) (noting that petitioner
    must support assertion of prejudice with specific evidence); Cieslowski, 
    410 F.3d at 359
    (same). He has thus failed to make “a substantial showing of the denial of a
    constitutional right.” Sandoval v. United States, 
    574 F.3d 847
    , 852 (7th Cir. 2009).
    Next, Thomas asks that we expand the certificate to include a claim that Jay
    Stevens rendered ineffective assistance by failing to communicate an earlier plea offer
    No. 13-3361                                                                           Page 5
    that was more favorable than the one Thomas later accepted. The record contains no
    proof to support this allegation. Thomas has appended to his appellate brief (and he
    unsuccessfully asked the district court to add to the record) emails showing
    communications between Jay Stevens and the prosecutor discussing the possibility of a
    plea deal. But even if we could consider the emails, they do not contain the terms of an
    earlier plea offer, let alone a more favorable one. Accordingly, Thomas has not made a
    substantial showing of prejudice in the form of a more favorable outcome from an
    uncommunicated plea. See Missouri v. Frye, 
    132 S. Ct. 1399
    , 1409 (2012).
    The third issue that Thomas asks us to certify is whether Jay Stevens rendered
    ineffective assistance by advising him to plead guilty without having first done three
    things: interview certain witnesses, discuss with him a preliminary report (different
    from the one later admitted) that gunshot residue on Thomas’s jacket was of uncertain
    origin, and preserve the jacket. To succeed on this claim, Thomas would have to show
    that, had Stevens taken these omitted steps, (1) a recommendation to plead not guilty
    would have been reasonable, see Warren v. Baenen, 
    712 F.3d 1090
    , 1097 (7th Cir. 2013);
    (2) Thomas would likely have accepted that recommendation, see Hill, 
    474 U.S. at
    58–59;
    and (3) a not-guilty trial verdict would have been reasonably likely, see 
    id. at 59
    . He has
    not. To begin, the record suggests that Stevens attempted to contact these witnesses, so
    Thomas’s claim that Stevens’s performance was deficient on this front is not
    substantiated. In any case Thomas cannot show prejudice. Acquittal was not reasonably
    likely because Thomas’s DNA was found on the gun recovered at the crime scene
    (establishing possession) and another participant in the shootout testified at sentencing
    that Thomas shot him in the foot (confirming possession). Furthermore, no prejudice
    resulted from Stevens’s failure to discuss the preliminary test results about the jacket. A
    completed forensic report was introduced at sentencing over the government’s
    objections and it opined—in Thomas’s favor—that it was unlikely Thomas fired a gun
    while wearing the jacket. Finally, because of the chain-of-custody problems with the
    jacket, preserving the jacket for additional testing likely would not have done Thomas
    any more good. Thus we decline to certify this issue.
    Finally, Thomas argues that the district court should have held an evidentiary
    hearing on each issue he asks us to certify. But no material factual disputes arose to
    warrant an evidentiary hearing, so the district court did not abuse its discretion in
    declining to conduct one. See Hutchings, 
    618 F.3d at
    699–700; Galbraith v. United States, 
    313 F.3d 1001
    , 1009 (7th Cir. 2002).
    No. 13-3361                                                                   Page 6
    Accordingly, the district court’s denial of Thomas’s § 2255 motion is AFFIRMED,
    and his request to expand the certificate of appealability is DENIED.