Devon Groves v. United States , 755 F.3d 588 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-3253
DEVON GROVES,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:11-cv-00089-RLM — Robert L. Miller, Jr., Judge.
____________________
ARGUED DATE MAY 23, 2014 — DECIDED JUNE 19, 2014
____________________
Before BAUER and EASTERBROOK, Circuit Judges, and
ST. EVE, District Judge. ∗
ST. EVE, District Judge. A jury convicted Petitioner Devon
Groves for possession of a firearm by a felon and possession
of ammunition by a felon in violation of 18 U.S.C.
∗ The Honorable Amy J. St. Eve, of the United States District Court for
the Northern District of Illinois, sitting by designation.
2 No. 12-3253
§ 922(g)(1), and the district court sentenced him to the statu-
tory maximum of 240 months in prison—120 months on
each count—to run consecutively. This court affirmed the
judgment. See United States v. Groves, 559 F.3d 637 (7th Cir.
2009). On March 2, 2011, Groves filed a motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
The district court denied Groves’s § 2255 motion, and we af-
firm.
I. PROCEDURAL BACKGROUND
In his § 2255 motion, Groves made the following argu-
ments relevant to this appeal: (1) his trial counsel was consti-
tutionally ineffective for failing to object to the Presentence
Investigation Report’s (“PSR”) characterization of his 1995
burglary conviction as a crime of violence under U.S.S.G.
§§ 2K2.1(a), 4B1.2(a)(2); and (2) his trial counsel was consti-
tutionally ineffective “in failing to fulfill movant’s intention
to plead guilty.” In an October 5, 2011, Opinion and Order,
the district court concluded that counsel was not constitu-
tionally ineffective for failing to object to the use of the 1995
burglary conviction as a basis for enhancing Groves’s sen-
tence under U.S.S.G. § 2K2.1(a). The district court reserved
its ruling on Groves’s claim that trial counsel was constitu-
tionally ineffective for failing to pursue plea negotiations.
The district court then held an evidentiary hearing on Au-
gust 2, 2012. On August 17, 2012, the district court entered
an Opinion and Order concluding that Groves’s third court-
appointed trial counsel was not constitutionally ineffective
for failing to tell the government that Groves wanted to ac-
cept the government’s plea offer. The district court entered
judgment denying Groves’s § 2255 motion on August 21,
2012.
No. 12-3253 3
On September 19, 2012, Groves filed a notice of appeal
and a motion for a certificate of appealability pursuant to 28
U.S.C. § 2253(c)(2) in the district court. On October 1, 2012,
the district court denied the motion for a certificate of ap-
pealability. On February 14, 2013, we granted a certificate of
appealability as follows: “We find that Groves has made a
substantial showing that he received ineffective assistance of
trial counsel. In addition to any other alleged errors by coun-
sel that Groves wishes to argue, the parties should specifical-
ly address whether counsel was ineffective by failing to ob-
ject to the use of Groves’s prior burglary conviction to in-
crease his base offense level under U.S.S.G. § 2K2.1(a).”
II. FACTUAL BACKGROUND
Relevant to the present appeal, H. Jay Stevens represent-
ed Groves during his criminal proceedings from June to Sep-
tember 2006. During Stevens’s representation, Groves wrote
five letters to the district court concerning Stevens’s conduct
and other legal issues. Stevens moved to withdraw as coun-
sel based on Groves’s belief that Stevens was lying to him
and withholding discovery. The district court granted Ste-
vens’s motion to withdraw on September 25, 2006.
The district court then appointed Anthony Kowals to
represent Groves on October 5, 2006. On October 13, 2006,
Groves informed Kowals that he was not interested in a plea
agreement “because it would violate his state probation and
he would be looking at an eight-year sentence” and because
he believed “he would win at trial.” Thereafter, Groves ac-
cused Kowals of mishandling his suppression motion and
also accused Kowals of communicating privileged infor-
mation to the government. Kowals moved to withdraw as
counsel on November 6, 2006. The next day, the government
4 No. 12-3253
gave Kowals an unsolicited plea offer for Groves. Kowals
then gave Groves a copy of the plea agreement on Novem-
ber 8, 2006. Also on November 8, the district court conduct-
ed a hearing on Kowals’s motion to withdraw. On Novem-
ber 9, the district court denied the motion to withdraw.
On November 20, 2006, Groves informed Kowals that
“he was interested in getting a computation with regard to a
plea,” although he also expressed his interest in going to tri-
al. Two days later, Kowals provided Groves with a computa-
tion of the guidelines range under the plea agreement. At
that time, Groves also informed Kowals of the witnesses he
wanted to call at trial. After discussing these witnesses,
Groves told Kowals that he did not want him to be his attor-
ney.
On November 22, 2006, Kowals filed his second motion
to withdraw. Also in November 2006, Groves sent the dis-
trict court a letter explaining that Kowals talked to him
about a plea agreement informing him about the prison time
he would face if he went to trial and told Groves to take the
plea agreement. In his letter to the district court, Groves stat-
ed that he was not interested in the plea agreement. Thereaf-
ter, Groves spoke to a fellow inmate who advised him to
take the plea. At that point, Groves maintains that he decid-
ed to plead guilty and signed the proposed agreement. The
signed plea agreement never reached Kowals nor the district
court.
On December 5, 2006, the district court granted Kowals’s
motion to withdraw and appointed Brian J. May as defense
counsel for Groves. Kowals gave May the entire defense case
file. Kowals testified at the § 2255 evidentiary hearing that he
thought a copy of the plea offer was in the file, but May testi-
No. 12-3253 5
fied that he did not recall seeing one. In any event, May did
not have any conversations about a plea with Groves. Ac-
cording to May, “Mr. Groves wanted a trial. Mr. Groves
didn’t do what he was accused of, according to Mr. Groves.”
May further testified, “the only thing I ever got from Groves
was, ‘Trial.’”
III. ANALYSIS
Groves’s § 2255 claims concern whether his trial counsel
was constitutionally ineffective in violation of the Sixth
Amendment. To establish constitutionally ineffective assis-
tance of counsel, Groves must show that (1) his trial attor-
ney’s performance “fell below an objective standard of rea-
sonableness,” and (2) “but for counsel’s unprofessional er-
rors the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “To
reflect the wide range of competent legal strategies and to
avoid the pitfalls of review in hindsight, our review of an
attorney’s performance is highly deferential and reflects a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Yu Tian Li
v. United States, 648 F.3d 524, 527−28 (7th Cir. 2011). To estab-
lish prejudice, Groves must “show that there is a reasonable
probability that, but for counsel’s errors, the result of the
proceedings would have been different, such that the pro-
ceedings were fundamentally unfair or unreliable.” Blake v.
United States, 723 F.3d 870, 879 (7th Cir. 2013). If Groves is
unable to make a sufficient showing of one of the Strickland
prongs, we need not consider the other. See Strickland, 446
U.S. at 697; Atkins v. Zenk, 667 F.3d 939, 946 (7th Cir. 2012).
Groves first contends that May’s performance was objec-
tively unreasonable because he failed to discuss the govern-
6 No. 12-3253
ment’s November 2006 plea offer with him. Groves, howev-
er, does not argue that the district court’s adverse credibility
determinations or detailed factual findings made after the
August 2, 2012, evidentiary hearing are clearly erroneous.
Instead, he relies on his version of the events in making his
appellate arguments. Nevertheless, we turn to the district
court’s findings made after the evidentiary hearing, in which
the court found that on December 14, 2006, May retrieved
Groves’s defense file from Kowals and that the file did not
contain a signed plea agreement. The district court also cred-
ited Kowals’s and May’s testimony that Groves never men-
tioned his intention to plead guilty over Groves’s contradict-
ing testimony. Further, the district court concluded that alt-
hough for a brief moment in November 2006, Groves want-
ed to plead guilty after talking to a fellow inmate, by the
next time Groves communicated with Kowals, he told Kow-
als that he did not want to plead guilty. In fact, the record is
replete with Groves’s statements to both Kowals and May
that he wanted to go to trial.
In addition, Groves wrote a letter to the district court in
November 2006 informing the court that Kowals had dis-
cussed a plea with him and he “wasn’t interested in a plea at
all.” Groves sent the district court at least five additional let-
ters. In these letters, Groves never complained to the court
that he did not want to proceed to trial or that his counsel
failed to discuss the plea agreement with him.
On appeal, Groves argues that pursuant to recent Su-
preme Court precedent, May was required to pursue the
plea agreement despite the fact that Kowals discussed the
plea agreement with him after which he rejected it. See Mis-
souri v. Frye, 132 S.Ct. 1399, 1408 (2012) (defense counsel
No. 12-3253 7
have a duty “to communicate formal offers from the prose-
cution to accept a plea on terms and conditions that may be
favorable to the accused.”); Lafler v. Cooper, 132 S.Ct. 1376,
1387 (2012) (“[i]f a plea bargain has been offered, a defend-
ant has the right to effective assistance of counsel in consid-
ering whether to accept it”). In short, the Supreme Court in
Lafler and Frye held “that lawyers must tell their clients
about offers of plea bargains.” Estremera v. United States, 724
F.3d 773, 778 (7th Cir. 2013). Here, Kowals did just that and
Groves rejected the offer. Assuming May was aware that the
government had made a plea offer prior to his appointment
as Groves’s defense counsel, Lafler and Frye do not require
subsequent counsel to press a plea offer on a defendant who
has already rejected any such offer—nor is it per se prejudice
for failing to do so, as Groves asserted at oral argument. In-
deed, the Supreme Court set forth a complicated test for
prejudice under the circumstances. See Frye, 132 S.Ct. at 1409.
In sum, May’s failure to discuss the November 2006 plea of-
fer after Groves had rejected it earlier in his criminal pro-
ceedings and repeatedly insisted on going to trial was not
ineffective assistance of counsel.
Second, Groves maintains that his trial counsel had a du-
ty to carefully review the PSR’s sentencing calculations, in-
vestigate and research issues that were potentially favorable
to him, and object to material errors or miscalculations. More
specifically, Groves argues that his trial counsel was consti-
tutionally ineffective for failing to object to the Probation Of-
fice’s characterization of his 1995 burglary as a crime of vio-
lence under U.S.S.G. § 4B1.2(a)(2).
Relevant to his convictions under 18 U.S.C. § 922(g)(1) is
U.S.S.G. § 2K2.1(a)(2), Unlawful Receipt, Possession, or
8 No. 12-3253
Transportation of Firearms or Ammunition; Prohibited
Transactions Involving Firearms or Ammunition, which
states in relevant part:
Base Offense Level (Apply the Greatest):
…
(2) 24, if the defendant committed any part of the
instant offense subsequent to sustaining at least
two felony convictions of either a crime of vio-
lence or a controlled substance offense.
Sentencing Guideline § 4B1.2(a)(2) defines “crime of vio-
lence” as “any offense under federal or state law, punishable
by imprisonment for a term exceeding one year,” that—
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion, in-
volves use of explosives, or otherwise involves con-
duct that presents a serious potential risk of physical
injury to another.
Groves’s PSR indicated that one of his prior felony con-
victions relevant to § 2K2.1(a)(2) included a 1995 burglary
that the Probation Office determined was a crime of violence
—based on the charging information—because the burglary
involved a dwelling. Groves, however, pleaded guilty to the
lesser offense of burglary of a building (a Class C offense)
under Indiana Code § 35-43-2-1, not to the Class B felony
burglary of a dwelling charged in the information. As such,
Groves argues that counsel should have objected to the
PSR’s recommendation because the Probation Office im-
No. 12-3253 9
properly relied upon Groves’s charging documents in de-
termining that the 1995 burglary was of a dwelling, and
therefore, a crime of violence.
Until at least 2009, confusion existed regarding the ap-
proach sentencing courts must take in determining whether
a prior conviction fits the definition of “crime of violence”
set forth in § 4B1.2(a)(2). See United States v. Woods, 576 F.3d
400, 405 (7th Cir. 2009). Prior to Woods, courts in this circuit
used different approaches, sometimes called the categorical
approach and the modified categorical approach, in deter-
mining whether a prior conviction constituted a “crime of
violence” under § 4B1.2(a)(2). See, e.g., United States v. New-
bern, 479 F.3d 506, 508 (7th Cir. 2007) (“Only where the statu-
tory elements and the content of the charging document do
not resolve whether the crime of conviction constitutes a
‘crime of violence’ should a court look further, and then only
to documents like plea agreements and transcripts of plea
colloquies, or to admissions by the defendant”), abrogated by
United States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008) (“This
rule is not meant to circumvent the categorical approach by
allowing courts to determine whether the actual conduct of
the individual defendant constituted a purposeful, violent
and aggressive act.”). In Woods, we clarified that sentencing
courts can only consult additional materials, such as charg-
ing instruments, if the criminal statute was divisible, name-
ly, if the offense covers a wide variety of conduct that poses
a risk of violence and also conduct that does not. See id. at
405. On the other hand, if a statute is indivisible or non-
divisible, sentencing courts must apply the categorical ap-
proach and look only to the statute and the judgment of
conviction in determining whether the statute is a “crime of
violence” for purposes of § 4B1.2(a)(2). See id. at 407. In 2013,
10 No. 12-3253
the Supreme Court adopted the divisible/indivisible distinc-
tion as discussed in Woods. See Descamps v. United States, 133
S.Ct. 2276, 2281 (2013). To date, the Supreme Court has not
made Descamps retroactive on collateral review.
In this context, counsel’s failure to object to the PSR’s
characterization of Groves’s 1995 burglary was not ineffec-
tive assistance of counsel under Strickland. The district court
sentenced Groves in May 2007, over two years before the
Woods decision and six years before Descamps. We cannot say
that counsel’s performance “fell below an objective standard
of reasonableness,” because counsel failed to anticipate De-
camps and future Seventh Circuit case law clarifying the ap-
plication of § 4B1.2(a)(2).
Even if counsel erred for failing to object to the PSR’s
characterization of Groves’s 1995 burglary conviction, we do
not examine this error in isolation, but instead analyze coun-
sel’s performance as a whole. See Williams v. Lemmon, 557
F.3d 534, 538 (7th Cir. 2009) (“It is essential to evaluate the
entire course of the defense, because the question is not
whether the lawyer’s work was error-free, or the best possi-
ble approach, or even an average one”). At Groves’s sentenc-
ing, trial counsel successfully challenged two enhancements
recommended in the PSR, thus reducing the advisory guide-
line calculations from 235−240 months to 151−188 months.
Counsel, for example, successfully argued against the ob-
struction of justice enhancement under U.S.S.G. § 3C1.1. In
light of counsel’s overall performance, his assistance of
counsel was constitutionally reasonable under Strickland. Be-
cause Groves has not established the performance prong of
No. 12-3253 11
Strickland, we need not consider whether counsel’s perfor-
mance prejudiced him.
AFFIRMED