Curtis J. Pidgeon v. Judy P. Smith , 785 F.3d 1165 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3158
CURTIS J. PIDGEON,
Petitioner-Appellee,
v.
JUDY P. SMITH, Warden,
Respondent-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 13-cv-57 — Barbara B. Crabb, Judge.
____________________
ARGUED FEBRUARY 25, 2015 — DECIDED MAY 13, 2015
____________________
Before BAUER, FLAUM, and MANION, Circuit Judges.
FLAUM, Circuit Judge. Curtis Pidgeon is currently con-
fined in a Wisconsin prison after pleading guilty to a sexual
assault charge in Dodge County. He now seeks to withdraw
that plea, arguing that he agreed to a plea bargain only be-
cause of incorrect—and, he claims, constitutionally ineffec-
tive—advice from his attorney. After exhausting his state
remedies, Pidgeon filed a petition for a writ of habeas corpus
in the Western District of Wisconsin. He claims that the per-
2 No. 14-3158
formance of his trial counsel, Joseph Fischer, was constitu-
tionally ineffective because he incorrectly advised Pidgeon
that he would face a mandatory sentence of life imprison-
ment without the possibility of parole if convicted in both
the Dodge County case and a pending case in Columbia
County. Attorney Fischer was under the mistaken impres-
sion that Pidgeon had previously been convicted of one “se-
rious felony,” as defined by Wisconsin’s “persistent repeat-
er” law, Wis. Stat. § 939.62(2m)—an aggravated battery con-
viction in Dane County—and therefore that convictions in
Dodge and Columbia Counties would be his second and
third serious felony offenses, resulting in a mandatory life
term pursuant to the persistent repeater law. After receiving
this advice from counsel, Pidgeon agreed to a plea bargain
which required him to serve a prison sentence of ten years,
but also required the State to refrain from prosecuting him in
the Columbia County case, thereby eliminating the possibil-
ity of a mandatory life sentence. In fact, however, this advice
was incorrect—the Dane County conviction did not qualify
as a serious felony offense, meaning that Pidgeon did not
face the possibility of life imprisonment. In his habeas peti-
tion, Pidgeon alleges that he would not have accepted the
plea agreement had he received correct legal advice.
The district court found that an evidentiary hearing was
necessary to determine whether Pidgeon’s constitutional
right to effective assistance had been violated. Pidgeon testi-
fied at this hearing, but his trial counsel did not. The district
court found that the trial counsel’s performance had been
constitutionally ineffective, and granted a writ of habeas
corpus allowing Pidgeon to withdraw his plea and instead
proceed to trial. Respondent—Pidgeon’s custodian Judy
Smith—now appeals the grant of the writ, arguing that
No. 14-3158 3
Pidgeon did not satisfy his burden of proving that his trial
counsel had been ineffective because Pidgeon failed to call
him as a witness during the evidentiary hearing, as would
have been required in an ineffective assistance hearing held
in Wisconsin state court. We disagree. There is no require-
ment that federal courts assessing an ineffective assistance
claim follow state evidentiary procedure, and the district
court judge did not abuse her discretion by declining to en-
force her earlier order which arguably called for the presen-
tation of the trial counsel’s testimony at the evidentiary hear-
ing. We affirm the judgment of the district court.
I. Background
In October 2007, Pidgeon was charged in Dodge County
with four counts of second-degree sexual assault of a child
and two counts of fourth-degree sexual assault. He eventual-
ly agreed to a plea bargain—from which he now seeks to
withdraw—in which he pled no contest to one count of sec-
ond-degree sexual assault of a child; the other counts were
dismissed and read in. Pursuant to the terms of that plea
bargain, Pidgeon was sentenced to ten years of confinement
and ten years of extended supervision. Pidgeon claims that
he accepted this plea due to incorrect information provided
to him by his trial counsel. It is uncontested that counsel—as
well as the prosecutor—told Pidgeon that, if he did not ac-
cept the plea bargain, he faced the possibility of life in prison
under the Wisconsin persistent offender law. See Wis. Stat.
§ 939.62(2m). Under that law, a third “serious felony” con-
viction results in mandatory life imprisonment without the
possibility of parole. Id. Pidgeon’s counsel apparently
thought that (1) Pidgeon’s 1991 Dane County aggravated
battery conviction constituted a serious felony offense; (2)
4 No. 14-3158
the Dodge County charges would constitute a second seri-
ous felony offense if Pidgeon were convicted; and (3) Pidg-
eon faced a third possible serious felony conviction (for
third-degree sexual assault of an adult) in a Columbia Coun-
ty case in which Pidgeon was a suspect but had not yet been
charged. Pidgeon’s plea deal in the Dodge County case was
designed to avoid life imprisonment under this calculation—
if Pidgeon agreed to the plea bargain, the Columbia County
district attorney’s office agreed not to prosecute its case
against him.
However, both Pidgeon’s counsel and the prosecutor
were wrong about Pidgeon’s exposure to life imprisonment.
As respondent now concedes, Pidgeon’s 1991 Dane County
conviction for aggravated battery does not constitute a seri-
ous felony offense under the persistent repeater law. 1 There
1Wisconsin penalizes battery and aggravated battery under Wis. Stat.
§ 940.19. Pidgeon’s 1991 Dane County conviction fell under subsection
(3) of the 1991 version of that section. Pidgeon’s Dodge County plea oc-
curred in 2008; neither the current version of § 940.19 nor the 2008 ver-
sion includes any subsection (3), but subsection (6) in both versions ap-
pears to be materially equivalent to the subsection (3) under which Pidg-
eon was convicted in 1991. Compare Wis. Stat. § 940.19(3) (1991–92), avail-
able at https://docs.legis.wisconsin.gov/1991/statutes/statutes/940.pdf,
with Wis. Stat. § 940.19(6) (2015), and Wis. Stat. § 940.19(6) (2007–08),
available at https://docs.legis.wisconsin.gov/2007/statutes/statutes/940/II/19.
The current Wisconsin persistent repeater statute includes one form of
battery in its enumerated list of serious felonies: battery under
§ 940.19(5). Subsection (5) appears to be the contemporary equivalent of
1991’s subsection (2). Compare Wis. Stat. § 940.19(2) (1991–92) with Wis.
Stat. § 940.19(5) (2015). The current version of the persistent repeater
statute does not list Pidgeon’s 1991 crime of conviction—§ 940.19(3)—or
its contemporary equivalent, § 940.19(6), as a serious felony. See Wis.
Stat. § 939.62(2m) (2015). The same was true of the 2008 version of the
persistent repeater statute. See Wis. Stat. § 939.62(2m) (2007–08). Put dif-
No. 14-3158 5
is also doubt as to whether the possible charges in Columbia
County could have led to a serious felony conviction be-
cause, in that case, Pidgeon was being threatened with
charges of only third-degree sexual assault, which is not de-
fined as a serious felony offense. 2 Pidgeon, though, did not
know of his counsel’s error, and he accepted the plea bar-
gain. Neither Pidgeon nor respondent provided the district
court with any information regarding what sentence Pidg-
eon would have been exposed to had he been convicted after
a trial in Dodge or Columbia County.
ferently, a battery does not constitute a serious felony unless it “causes
great bodily harm” and was done “with intent to cause great bodily
harm.” See Wis. Stat. § 940.19(5) (2015). Pidgeon’s 1991 conviction re-
quired a lesser showing—that he “intentionally cause[d] bodily harm to
another by conduct which creates a high probability of great bodily
harm.”
2 According to Pidgeon, there is a third, more technical, reason why his
counsel was wrong to believe that Pidgeon faced life imprisonment un-
der the persistent repeater statute. Under that law, a person convicted of
a third serious felony is a persistent repeater only if he “has been con-
victed of a serious felony on 2 … separate occasions at any time preceding
the serious felony for which he or she presently is being sentenced.” Wis.
Stat. § 939.62(2m)(b)(1) (emphasis added). Pidgeon reads this to mean
that the conduct at issue in the third prosecution must occur subsequent
to the first two convictions. Because the conduct at issue in the threat-
ened Columbia County case preceded Pidgeon’s Dodge County convic-
tion, Pidgeon therefore would not have been a persistent offender under
this reading of the statute even if he had been convicted in all three cases
and even if all three convictions counted as serious felony offenses. We
refrain from deciding whether this statutory argument is correct, howev-
er, because it is clear that counsel’s advice was incorrect for other, more
obvious reasons.
6 No. 14-3158
After he began his term of incarceration, Pidgeon learned
of his counsel’s mistake and filed a post-conviction motion in
state court seeking to withdraw his plea or, alternatively, for
a hearing on his claim of ineffective assistance. In Wisconsin,
such a hearing is known as a Machner hearing; the name re-
fers to State v. Machner, 285 N.W.2d 905 (Wis. Ct. App. 1979).
The state circuit court denied Pidgeon’s motion, stating that
it saw no evidence of deficient performance. Pidgeon ap-
pealed this decision to the Wisconsin Court of Appeals. It
affirmed and denied Pidgeon a Machner hearing. The Court
of Appeals assumed without deciding that trial counsel’s
performance had been deficient, but found that Pidgeon had
not shown any evidence of prejudice, as is required under
the familiar two-prong test of Strickland v. Washington, 466
U.S. 668 (1984). Pidgeon’s petition for review to the Wiscon-
sin Supreme Court was denied.
Pidgeon then filed a petition for a writ of habeas corpus
in the Western District of Wisconsin. In a December 13, 2013
order, the district court ruled that the Wisconsin Court of
Appeals unreasonably applied Strickland and the related
precedent of Hill v. Lockhart, 474 U.S. 52 (1985)—which holds
that the Strickland test applies to guilty plea challenges based
on ineffective assistance—when it denied Pidgeon’s request
for a Machner hearing. As respondent does not appeal this
determination, we omit further details of the district court’s
legal analysis on this matter.
After ruling that the state court had unreasonably ap-
plied federal law, the district court determined that an evi-
dentiary hearing was necessary to determine whether the
writ should be granted. In ordering a hearing, the district
court stated that “Petitioner will have to introduce all the ev-
No. 14-3158 7
idence he would have presented had the state court allowed
him a Machner hearing, explaining in detail counsel’s defec-
tive advice and the way in which it prejudiced him.” Pidgeon
v. Smith, No. 13-cv-57, slip op. at 19 (W.D. Wis. Dec. 13,
2013). According to respondent, this statement imposed a
requirement that Pidgeon call his trial counsel as a witness
during the federal evidentiary hearing because, under Wis-
consin law, “[w]here an ineffective assistance of counsel
claim is raised, trial counsel must be informed and his or her
presence is required at any hearing in which counsel’s con-
duct is challenged.” State v. Allen, 682 N.W.2d 433, 437 n.3
(Wis. 2004) (emphasis added).
The evidentiary hearing was held on April 25, 2014.
Pidgeon was the only witness. He testified about the incor-
rect information given to him by his trial counsel. He also
stated that when he signed the plea offer, he included the
small capital letters “T,” “D,” and “C,” which he said re-
ferred to the fact that he was entering the plea under “threat,
duress, and coercion”—specifically, the threat of a life sen-
tence. (Those letters do indeed appear within his signature
on the plea agreement form.) Pidgeon also testified that he
took the plea only because he believed he was facing a life
sentence, and that had he known that he did not in fact face
a life sentence, he would have proceeded to trial in both
Dodge and Columbia Counties. After Pidgeon testified, he
rested his case, and respondent’s attorney stated that he had
no witnesses to call. At that point, Judge Crabb seemed sur-
prised that neither party had called the trial counsel. Judge
Crabb was also concerned by the fact that neither party had
provided any information regarding the sentence Pidgeon
would have faced had he been convicted at trial in Dodge or
Columbia County.
8 No. 14-3158
On August 29, 2014, the district court granted a writ of
habeas corpus to Pidgeon. The court concluded that Pidg-
eon’s trial counsel had been deficient because “reasonable
counsel would have investigated petitioner’s prior felony
conviction in Dane County to determine whether it would
qualify as a serious felony under the persistent repeater stat-
ute before telling petitioner that he faced a life sentence if he
did not plead guilty in Dodge County.” Pidgeon v. Smith, No.
13-cv-57, slip op. at 9 (W.D. Wis. Aug. 29, 2014). Moreover,
the court stated that “a reasonably capable lawyer would
have made inquiries about the nature of the [Columbia
County] conduct to determine the likelihood that it would be
charged as a serious felony. He would not tell a client that he
faced a mandatory life sentence without undertaking an in-
vestigation to determine that the advice was accurate.” Id.
Regarding prejudice, the district court stated that Pidg-
eon had shown “a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different.” Id. (quoting Strickland, 466 U.S.
at 694). “The only evidence on this point is petitioner’s unre-
butted testimony: he would have taken his chances at trial in
Dodge County had his counsel not told him, inaccurately,
that he ran a strong risk of getting a life sentence under the
persistent repeater statute.” Id. “Respondent,” the court con-
tinued, “has neither adduced any evidence that would tend
to call petitioner’s testimony into question nor suggested
that even if counsel misrepresented the potential sentence
petitioner could receive, it was not significantly different
from what he could actually have received. I find petitioner’s
testimony credible.” Id.
No. 14-3158 9
II. Discussion
Respondent does not appeal the district court’s determi-
nation that the Wisconsin Court of Appeals unreasonably
applied clearly established federal law when it denied Pidg-
eon an evidentiary hearing on his ineffective assistance
claim. Rather, the only issue on appeal is whether Pidgeon,
at the federal evidentiary hearing, met his burden of proving
ineffective assistance. When a district court has held an evi-
dentiary hearing in a habeas case, we review its factual de-
terminations for clear error and its legal decision that a pris-
oner’s custody violates the Constitution de novo. Quintana v.
Chandler, 723 F.3d 849, 852 (7th Cir. 2013).
Respondent’s argument centers on the fact that Pidgeon
did not call his trial counsel as a witness during the federal
evidentiary hearing. In respondent’s brief, she argues that
this doomed Pidgeon’s case for two reasons. First, Pidgeon
would have been required to present the testimony of his
trial counsel at a Machner hearing—the Wisconsin analogue
to the federal ineffective assistance hearing held in this case.
Second, the district court’s December 13, 2013 order stated
that, at the evidentiary hearing, Pidgeon would have to “in-
troduce all the evidence he would have presented had the
state court allowed him a Machner hearing.”
At oral argument, counsel for respondent rightly conced-
ed that, normally, federal courts do not have to follow state
procedural rules when holding evidentiary hearings for inef-
fective assistance claims. The reason for this is clear: an inef-
fective assistance claim is a claim under the United States
Constitution. See Strickland, 466 U.S. at 687 (noting that the
right to effective assistance of counsel stems from the Sixth
Amendment). States may devise their own procedures for
10 No. 14-3158
determining whether a counsel’s performance was constitu-
tionally ineffectual, as long as they abide by Supreme Court
precedent. But such procedures are in no way binding on
federal courts. Nothing in Strickland or its progeny requires
prisoners seeking to prove ineffective assistance to call the
challenged counsel as a witness. Although Wisconsin courts
have chosen to mandate this procedure, that choice has no
bearing on what federal courts must do.
Respondent’s second argument—that the judge’s earlier
order required Pidgeon to call his trial counsel as a wit-
ness—has more bite, though we ultimately do not think that
it requires reversal. In evaluating respondent’s claim, we
must determine whether Judge Crabb’s interpretation and
application of her December 13, 2013 order was an abuse of
discretion. Chi., Rock Island & Pac. R.R. Co. v. Atchison, Topeka
& Santa Fe Ry. Co. 860 F.2d 267, 272 (7th Cir. 1988) (“We will
not reverse a district court’s interpretation of its own order
unless the record clearly shows an abuse of discretion.” (cita-
tion and internal quotation marks omitted)). There was no
abuse of discretion here.
First, as we stated above, there is simply no requirement
that trial counsel testify during a federal ineffective assis-
tance evidentiary hearing. It would be odd to say that the
judge abused her discretion by excusing petitioner from an
added procedural burden that federal courts have long de-
clined to impose.
Moreover, we do not think that trial counsel’s testimony
would have been of great value in this case. In order to
demonstrate that he received constitutionally ineffective
counsel, Pidgeon was required to show that his counsel’s
performance “fell below an objective standard of reasona-
No. 14-3158 11
bleness” and that the deficient performance prejudiced his
defense such that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceed-
ing would have been different.” Strickland, 466 U.S. at 687–
88, 694.
Regarding the deficient performance prong, respondent
has not explained how trial counsel’s testimony could have
changed the district court’s conclusion. In Moore v. Bryant,
348 F.3d 238, 242 (7th Cir. 2003), we said that the deficient
performance prong is met where “erroneous advice is pro-
vided regarding the sentence likely to be served if the de-
fendant chooses to proceed to trial, and that erroneous ad-
vice stems from the failure to review the statute or caselaw
that the attorney knew to be relevant.” Here, trial counsel
did not verify the veracity of an immensely important fact—
whether his client could be sent to prison for the rest of his
life—even though doing so would have been simple. Even if
counsel reviewed the persistent repeater statute, we think
that a reasonably competent attorney would have realized
that Pidgeon’s 1991 conviction was not a serious felony.
Wisconsin’s persistent repeater statute is relatively
straightforward. It provides an exhaustive list of current
Wisconsin felonies that are defined as “serious.” However,
determining whether an older conviction—specifically one,
such as Pidgeon’s 1991 conviction, that occurred prior to
April 28, 1994—is a serious felony conviction is more com-
plicated. One must determine whether that crime is “compa-
rable” to one of the listed crimes. Wis. Stat. § 939.62(2m)(d). 3
3The same is true for convictions under federal law and under the law of
other states. Wis. Stat. § 939.62(2m)(d).
12 No. 14-3158
Perhaps counsel would have testified that he reviewed the
persistent repeater statute and that he believed that Pidg-
eon’s 1991 conviction was comparable to one of the listed se-
rious felonies. That assistance would have been better than
not checking the statute at all, but we still conclude it would
have been constitutionally ineffective. Any reasonably com-
petent attorney would have been able to determine that the
1991 conviction was not for a crime comparable to one of the
listed crimes. As we stated previously, the subsection under
which Pidgeon was convicted in 1991—§ 940.19(3)—has a
clear contemporary analogue—§940.19(6)—which is not
listed as a serious felony. And the only battery crime that is
listed as a serious felony—§ 940.19(5)—has a clear 1991 ana-
logue. See § 940.19(2) (1991).
As the Supreme Court has stated, “[w]hen the … conse-
quence” of a plea “is truly clear … the duty to give correct
advice is equally clear.” Padilla v. Kentucky, 559 U.S. 356, 369
(2010). We cannot think of any possible strategic explanation
for counsel’s mistake—he either neglected to read the statute
or interpreted it in an unreasonable manner. Nothing coun-
sel could have said at the evidentiary hearing would have
made this error reasonable. And, because the state concedes
that counsel did in fact give this erroneous advice, his testi-
mony was not necessary to test the veracity of Pidgeon’s
claim.
As for the prejudice prong, we similarly struggle to un-
derstand what value counsel’s testimony could have added.
Respondent argues, basically, that Pidgeon received a favor-
able deal in this case, and that his testimony at the eviden-
tiary hearing was “self-serving.” First, though, it is difficult
for us to evaluate this claim, as respondent has not provided
No. 14-3158 13
us with any information regarding the sentences Pidgeon
would have faced had he proceeded to trial in Dodge and
Columbia Counties. Second, a defendant who foregoes trial
in favor of a plea deal based on incorrect advice can still
show prejudice even if the terms of the plea are highly fa-
vorable. The terms of a plea deal are admittedly relevant in
assessing the credibility of a petitioner’s claim that he would
have gone to trial had he received correct information at the
plea bargaining stage. 4 If a petitioner is found credible,
however, he can show prejudice even if he got a “good
deal”—that is, even if his expected sentence at trial (proba-
bility of conviction times the length of incarceration if con-
victed) was greater than what he received in a plea deal. The
correct prejudice inquiry is not whether he would have been
better off going to trial, but whether he would have elected
4 For example, if Pidgeon would have faced a very long sentence at tri-
al—say 70 years in prison—it would make his claim that he would have
gone to trial had he received correct advice less believable, as the choice
he actually faced (10 years versus a chance of 70) was, in practice, very
similar to the choice he thought he faced (10 years versus a chance of
life). In contrast, Pidgeon’s claim would be more credible if the actual
sentence he would have faced were much lower, for example 6 years. In
that case, it would seem more probable that his choice to accept a plea of
10 years was made only to avoid the possibility of a life sentence. Pidg-
eon has told us in his appellate briefs that the actual term he faced was
25 years. We are unsure of whether this refers only to the Dodge County
case or if it also includes the Columbia County case. Regardless, this in-
formation should have been presented to the district court at the eviden-
tiary hearing, not to this court. Though presentation of this evidence is a
best practice, we think that, for the reasons presented in the main text—
and in the absence of any evidence from respondent that Pidgeon would
have faced an extremely long sentence at trial—Pidgeon has carried his
burden of proving that trial counsel’s ineffective assistance resulted in
prejudice.
14 No. 14-3158
to go to trial in lieu of accepting a plea. See Ward v. Jenkins,
613 F.3d 692, 700 (7th Cir. 2010) (“We need not assess the
likely success of [petitioner’s] defense; [his] claim that he
would have insisted on going to trial to pursue it is enough
… .”). Pidgeon had a constitutional right to a trial; if his at-
torney’s deficient performance led him to forego that right,
that is prejudice in itself.
Respondent argues that Pidgeon’s testimony that he
would have gone to trial absent his counsel’s incorrect advice
is self-serving. His counsel, respondent advances, may have
testified that, at the time Pidgeon accepted the deal, Pidgeon
indicated that he would have accepted it even absent the
threat of a life sentence. While that is possible, we think it
highly unlikely given the multiple indications that Pidgeon’s
testimony is credible. Most obviously, Pidgeon’s claim is
supported by the common-sense notion that the threat of
spending the rest of one’s life in prison can induce a defend-
ant to agree to just about anything to avoid that outcome.
Thus, it is easy to believe that Pidgeon accepted the plea be-
cause of his counsel’s incorrect advice. Pidgeon’s testimony is
also supported by his addition of the letters “T,” “D,” and
“C” (standing, he says, for “threat, duress, and coercion”) to
his signature on the plea agreement form. Moreover, Pidg-
eon’s testimony is especially credible because he faces the
exact same decision today as he did when he initially accept-
ed the plea deal—to either spend ten years in prison pursu-
ant to the plea or to proceed to trial. The only difference is
that Pidgeon is now able to make that decision based on cor-
rect information. So, Pidgeon’s claim that he would have re-
jected the plea deal had he had the correct information is
credible, as he makes that exact same determination today;
unlike a defendant who has rejected a plea deal and then los-
No. 14-3158 15
es at trial, Pidgeon has no incentive to lie about his earlier
choice.
Regardless of whether his counsel’s testimony would
have helped defeat Pidgeon’s case, nothing prevented re-
spondent from calling him as a witness—or asking for a con-
tinuance in order to do so—during the evidentiary hearing.
It makes little sense to penalize Pidgeon for her failure to do
so.
III. Conclusion
We AFFIRM the judgment of the district court.