Kafo, Saidi v. United States , 467 F.3d 1063 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3034
SAIDI KAFO,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 701—Amy J. St. Eve, Judge.
____________
ARGUED SEPTEMBER 11, 2006—DECIDED NOVEMBER 3, 2006
____________
Before RIPPLE, KANNE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Saidi Kafo appeals the denial of a
motion brought pursuant to 28 U.S.C. § 2255. The district
court denied the motion without an evidentiary hearing and
further denied a certificate of appealability. On October 25,
2005, we granted a certificate of appealability on the issue of
“whether [] counsel was ineffective for failing to file an
2 No. 05-3034
appeal.”1 Kafo v. United States, No. 05-3034 (7th Cir. Oct. 25,
2005) (unpublished order). We further instructed the parties
to address whether Mr. Kafo had presented enough evidence
on this issue to warrant an evidentiary hearing.2 We conclude
that the amended motion submitted by Mr. Kafo was insuffi-
cient because it was not submitted under oath or accompa-
nied by an affidavit. Following the course recommended by
the Advisory Committee Notes to the Rules Governing Section
2255 Proceedings for the United States District Courts, we vacate
the decision of the district court and remand the case with
instructions that the court give the petitioner an opportunity
to file such a verified pleading or affidavit.
I
BACKGROUND
A. Facts
In November 2003, Mr. Kafo pleaded guilty to three
counts of uttering a forged document. Subsequently, the
district court sentenced him to 48 months’ imprisonment. He
did not file a direct appeal. Soon thereafter, however, Mr. Kafo
1
Section 2253(c)(2) of Title 28 authorizes this court to grant a
certificate of appealability upon a “substantial showing of the
denial of a constitutional right.”
2
We have held that, when a certificate of appealability is granted
on a constitutional issue, the court also may address issues
necessary to a just resolution of that constitutional issue. See, e.g.,
Owens v. Boyd, 235 F.3d 356, 358 (7th Cir. 2001) (“If the prisoner’s
underlying constitutional objection to his conviction is itself
substantial, then the district court may issue a certificate on that
issue . . . and append the statutory ground as an antecedent issue
to be resolved on appeal if it, too, is substantial.”).
No. 05-3034 3
did file a § 2255 motion. In the original version of that motion,
he conceded that he had filed no direct appeal, but contended
that he had asked his attorney to do so. His principal ground
for relief was his contention that Blakely v. Washington, 542 U.S.
296 (2004), and United States v. Booker, 543 U.S. 220 (2005),
required that certain facts found in calculating his sentence
should have been submitted to the jury.3 The Government
responded that Blakely and Booker have been held not to apply
retroactively and that Mr. Kafo’s conviction became final
before the Supreme Court rendered these decisions.
Mr. Kafo later moved to amend his § 2255 motion. In this
amendment, he expanded on his earlier statement that,
despite his request, his attorney had failed to file a direct
appeal. Neither Mr. Kafo’s original motion nor his amend-
ment was signed under penalty of perjury as required by Rule
2(b)(5) of the Rules Governing Section 2255 Proceedings for the
United States District Courts. Neither document was submitted
on the forms appended to the Rules or provided by local rule.
See Rule 2(c) (requiring the motion to “substantially follow”
one of the above forms).
In responding to Mr. Kafo’s amended motion, the Govern-
ment addressed his claims on the merits.4 The Government
noted that Mr. Kafo had submitted no evidence in support
3
Mr. Kafo’s brief largely cites Blakely v. Washington, 542 U.S. 296
(2004), and mentions United States v. Booker, 543 U.S. 220 (2005),
in passing. We, like the district court, consider his argument to be
raising a Booker claim, as he was convicted in a federal court and
sentenced in accordance with the federal sentencing guidelines.
4
The Government also argued one potential procedural bar:
that the amendment should not be allowed because it did not
“relate back.” The district court disagreed. R.13 at 1-2. This matter
is not before us on appeal.
4 No. 05-3034
of his ineffective assistance claim and contended that, “even
if [the district court] were to consider defendant’s [] motion,
defendant should be required to submit affidavits or other
evidence in order to present a colorable claim.” R.11 at 4.
After receiving the Government’s response, the district
court granted Mr. Kafo’s motion to amend his petition, but
then denied, without a hearing, any further relief.5 In
denying relief, the district court construed broadly the
pleadings of Mr. Kafo, a pro se litigant, and examined both
the Booker and ineffective assistance claims. The court first
determined that the Booker claim was not meritorious under
McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005).6
Turning to the ineffective assistance of counsel claim, the
court noted that a failure to take an appeal despite a defen-
dant’s request is ineffective assistance per se in this circuit.
5
Cf. Bruce v. United States, 256 F.3d 592, 596 (7th Cir. 2001)
(describing proceedings in which the district court instructed a
pro se petitioner to supplement his motion with additional facts
before determining whether the threshold standard for an
evidentiary hearing had been satisfied).
6
Booker, 543 U.S. 220, held that when the resolution of factual
disputes could increase the maximum punishment under the
then-mandatory sentencing guidelines, the Sixth Amendment
required those disputes be resolved by a jury, id. at 243-44; to
render the guidelines consistent with this holding, the Court
excised the provisions that declared the guidelines to be manda-
tory, id. at 258.
This court later held in McReynolds v. United States, 397 F.3d 479
(7th Cir. 2005), that Booker was a procedural decision, and thus
did not create a new rule of law to be applied retroactively on
collateral review of criminal convictions. Id. at 481. McReynolds
therefore limited Booker to cases not yet made final on direct
review on Booker’s release date of January 12, 2005. Id.
No. 05-3034 5
See Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).7
The court went on to note, however, that the essential
inquiry in determining the viability of a Castellanos claim is
whether the defendant comes forth with evidence that he
had expressed his desire to appeal. R.13 at 4 (relying on Roe
v. Flores-Ortega, 528 U.S. 470, 485 (2000), which stated that
evidence “that the defendant in question promptly ex-
pressed a desire to appeal will often be highly relevant” to
a determination of ineffectiveness); see also Castellanos, 26
F.3d at 719 (“[The defendant’s] ‘request’ [for an appeal] is an
important ingredient in this formula.”). The court found no
evidence in the record to support the claim, and further
noted that the allegations in the motion were not made
under oath. Characterizing Mr. Kafo’s allegations as
“unsubstantiated,” R.13 at 5, the motion was denied without
an evidentiary hearing.
7
In Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994), we
held that, when a defendant’s request for an appeal is disre-
garded, the constitutional violation is established. The defendant
need not demonstrate that the prejudice prong of Strickland v.
Washington, 466 U.S. 668 (1964), is satisfied. We remanded those
cases, consolidated in Castellanos, in which the district courts had
denied relief on the basis of the defendants’ failure to establish
prejudice, and noted the appropriate outcome:
We vacate the judgments of the district court and remand so
that the courts may determine whether [the defendants]
timely told their lawyers that they wanted appellate review.
If the answer is yes, then the court should enter an order
providing the appropriate relief for the ineffective assistance:
the defendant receives the right to an appellate proceeding,
as if on direct appeal, with the assistance of counsel. Page v.
United States, 884 F.2d 300 (7th Cir. 1987).
Castellanos, 26 F.3d at 720.
6 No. 05-3034
II
DISCUSSION
We review the district court’s decision to deny an eviden-
tiary hearing for an abuse of discretion. Bruce v. United
States, 256 F.3d 592, 597 (7th Cir. 2001). The governing
statute, 28 U.S.C. § 2255, provides, in pertinent part:
Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief, the court shall cause notice thereof to be served
upon the United States attorney, grant a prompt hearing
thereon, determine the issues and make findings of fact
and conclusions of law with respect thereto.
(emphasis added). We have interpreted this provision as not
requiring an evidentiary hearing when a petitioner’s
allegations are “vague, conclusory, or palpably incredible
rather than detailed and specific.” Bruce, 256 F.3d at 597
(internal citations and quotation marks omitted). Con-
versely, we have held that a district court must grant an
evidentiary hearing when the petitioner “alleges facts that,
if proven, would entitle him to relief.” Id. (internal citations
and quotation marks omitted). Mr. Kafo relies upon this
latter language in Bruce and claims that the denial of a
hearing was error.
We cannot accept Mr. Kafo’s argument. As he admits, we
also have stated that “[i]t is the rule of this Court that in
order for a hearing to be granted, the petition must be
accompanied by a detailed and specific affidavit which
shows that the petitioner had actual proof of the allegations
going beyond mere unsupported assertions.” Prewitt v.
United States, 83 F.3d 812, 819 (7th Cir. 1996). We have
referred to the affidavit as a threshold requirement; its
absence precludes the necessity of a hearing. Galbraith v.
No. 05-3034 7
United States, 313 F.3d 1001, 1009 (7th Cir. 2002). Specifi-
cally, in Galbraith, we said that:
While [the petitioner] is correct that this court requires
a district court to grant an evidentiary hearing if a
§ 2255 petitioner alleges facts that, if proven would
entitle him to relief, the threshold determination that the
petitioner has sufficiently alleged such facts requires the
petitioner to submit a sworn affidavit showing what
specific facts support the petitioner’s assertions.
Id. (emphasis added) (internal citations and quotation marks
omitted).
Our insistence that a petition under 28 U.S.C. § 2255
include an affidavit setting forth the specific basis for relief
is nothing more than our enforcement of Rule 2 of the Rules
Governing Section 2255 Proceedings for the United States
District Courts. That Rule provides as follows:
Rule 2. The Motion
(a) Applying for Relief. The application must be in
the form of a motion to vacate, set aside, or correct the
sentence.
(b) Form. The motion must:
(1) specify all the grounds for relief available to the
moving party;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten;
and
8 No. 05-3034
(5) be signed under penalty of perjury by the
movant or by a person authorized to sign it for the
movant.
(c) Standard Form. The motion must substantially
follow either the form appended to these rules or a
form prescribed by a local district-court rule. The
clerk must make forms available to moving parties
without charge.
(d) Separate Motions for Separate Judgments. A
moving party who seeks relief from more than one
judgment must file a separate motion covering each
judgment.
There are salutary reasons for requiring strict observance of
the affidavit requirement. Motions to vacate a conviction or
sentence ask the district court to grant an extraordinary
remedy to one who already has had an opportunity for full
process. See Prewitt, 83 F.3d at 816 (“Habeas corpus relief
under 28 U.S.C. § 2255 is reserved for extraordinary
situations.”). Before this remedy can be invoked, a district
court must assure itself that a threshold showing has been
made that justifies the commitment of judicial resources
necessary to accomplish this delicate and demanding task.
In this respect, the verification requirement serves to ensure
that a petitioner can provide some evidence beyond
conclusory and speculative allegations, even if that evidence
is his verified statement alone.8 Requiring either that the
8
See Goodwin v. Johnson, 132 F.3d 162, 177-85 (5th Cir. 1997)
(reversing the district court’s denial of an evidentiary hearing on
a Fifth Amendment claim, where the petitioner offered only his
own affidavit to support his contention that he requested an
(continued...)
No. 05-3034 9
motion be signed under penalty of perjury or be accompa-
nied by an affidavit is thus not a mere technicality of
pleading; once a pleading is submitted in this form, the
8
(...continued)
attorney during police questioning).
At least one district in this circuit recently has indicated that
the sworn statement of a petitioner itself could constitute
sufficient evidence to preclude denial without a hearing. In
ordering a petitioner raising a Castellanos claim in an untimely
appeal to file a § 2255 motion on the form provided by the court,
that court noted:
In addition, he will have to submit an affidavit either sworn
or signed under penalty of perjury, in which he states
whether he asked his attorney to take an appeal and, if so,
what steps he took to consult with his attorney about the
appeal. If the affidavit suggests the likelihood that counsel
failed to carry out his responsibility to defendant to take an
appeal, I will set the matter for an evidentiary hearing to
determine whether this is true in fact. If I find that defendant
was denied his right to an appeal, I will proceed to consider
the § 2255 motion on its merits.
United States v. Phillips, 2004 WL 66767, at *1 (W.D. Wis. Jan. 9,
2004). See also United States v. Phillips, 2004 WL 2491594, at *3
(W.D. Wis. Oct. 28, 2004) (stating that, on the basis of the defen-
dant’s allegations that he told counsel of his desire to appeal,
even without alleging details as to where or when, the court
would “allow him an opportunity to testify on the issue”);
Agunloye v. United States, 999 F. Supp. 1182, 1184 (N.D. Ill. 1998)
(ruling on a § 2255 motion based on a Castellanos claim only after
first holding an evidentiary hearing, where the petitioner
submitted his own “sworn memorandum in which he claims that
he ‘repeatedly’ asked [his trial counsel] to file an appeal on his
behalf,” and the government submitted a conflicting sworn
affidavit from the petitioner’s trial counsel).
10 No. 05-3034
allegations contained therein become evidence and permit
the district court to evaluate properly the movant’s allega-
tions and to determine whether a sufficient threshold
showing has been made to warrant further proceedings.
The allegation in the amended motion presented by Mr.
Kafo makes particularly clear the importance of the verifica-
tion requirement. The accusation that he levels against his
trial counsel is a grave one; indeed, under our precedent,
such a failure on the part of counsel is a per se constitutional
violation. Castellanos, 26 F.3d 717. If the allegation is proven,
Mr. Kafo has been deprived of an essential constitutional
guarantee. If the allegation is false, it could damage seri-
ously the professional reputation of counsel and disrupt the
finality of a most serious undertaking: vindication of the
public justice through a criminal conviction. Given the very
important concerns at stake, the rules sensibly require some
threshold showing, however minimal, of an evidentiary
basis before requiring a district court to undertake the task
of evaluating the allegations and determining whether relief
is warranted.
We note that, in addition to the verification requirement
contained explicitly in Rule 2(b)(5), the applicable local rule
also provides that a § 2255 motion should be filed on the form
provided by the court. See N.D. Ill. Local Rule 81.3(a).9 That
9
The language of the local rule is mandatory with respect to the
use of the form: “[M]otions filed pursuant to 28 U.S.C. § 2255
shall, when filed by persons in custody, be submitted on forms
approved by the Executive Committee.” N.D. Ill. Local Rule
81.3(a). We note that Rule 2 of the Rules Governing Section 2255
Proceedings for the United States District Courts originally contained
similar mandatory language, but such language was amended by
(continued...)
No. 05-3034 11
local form includes a declaration under penalty of perjury to
accompany the petitioner’s signature. Separate instructions for
§ 2255 petitioners also are available on the district court’s
website and specifically state that the petitioner “must attest
under penalty of perjury that [the] motion is true and correct.”
Instructions for Filing a Motion to Vacate, Set Aside, or
Correct a Sentence Pursuant to 28 U.S.C. Section 2255,
available at http://www.ilnd.uscourts.gov/PUBLIC/Forms
/2255inst.pdf (emphasis in original) (adopted Apr. 20, 2006).
Under these circumstances, the Rules themselves, along
with the accompanying forms, certainly give the pro se
petitioner adequate notice of the requirement that his
allegations be submitted under oath to satisfy due process.
We note, however, that, although the notice given by the
Rules is constitutionally adequate, the Advisory Committee
Notes accompanying the 2004 amendments to Rule 2
explicitly admonish that, when this rule is read in the
context of the relevant sections of the Federal Rules of Civil
Procedure, the better practice is to give a petitioner an
opportunity to conform his petition to procedural require-
ments:
Current Rule 2(d), which provided for returning an
insufficient motion has been deleted. The Committee
9
(...continued)
Congress to allow petitioners to file motions that “substantially”
follow either the federal or local form. See Pub. L. 94-426, § 3, 90
Stat. 1334 (1976). The accompanying Report from the House
Committee on the Judiciary states: “The Committee believes that
the rules as promulgated by the Supreme Court put too much
emphasis upon a strict compliance with the forms, perhaps
leading to a rejection of otherwise meritorious claims on the
ground of failure to adhere strictly to the form.” H.R. Rep. No.
94-1471, at 4 (1976), as reprinted in 1976 U.S.C.C.A.N. 2478, 2480.
12 No. 05-3034
believed that the approach in Federal Rule of Civil
Procedure 5(e) was more appropriate for dealing with
motions that do not conform to the form requirements
of the rule. That Rule provides that the clerk may not
refuse to accept a filing solely for the reason that it fails
to comply with these rules or local rules. Before the
adoption of a one-year statute of limitations in the
Antiterrorism and Effective Death Penalty Act of 1996,
110 Stat. 1214, the moving party suffered no penalty,
other than delay, if the motion was deemed insufficient.
Now that a one-year statute of limitations applies to
motions filed under § 2255, see 28 U.S.C. § 2244(d)(1),
the court’s dismissal of a motion because it is not in
proper form may pose a significant penalty for a mov-
ing party, who may not be able to file another motion
within the one-year limitations period. Now, under
revised Rule 3(b), the clerk is required to file a motion,
even though it may otherwise fail to comply with the
provisions in revised Rule 2(b). The Committee believed
that the better procedure was to accept the defective
motion and require the moving party to submit a
corrected motion that conforms to Rule 2(b).
Rules Governing Section 2255 Proceedings for the United States
District Courts, Rule 2, 2004 Amendments, advisory commit-
tee’s note.
In this case, in denying the petition on its merits without
an evidentiary hearing, the district court wrote:
Here, the key to the Court’s analysis is whether Kafo
offered any evidence substantiating his claim that he
requested his attorney to file an appeal. Simply put,
there is no evidence in the record, such as Kafo’s own affidavit
or an affidavit from family members, averring that Kafo
asked his counsel to file an appeal. Further, the Court notes
No. 05-3034 13
that Kafo did not make his allegations in his motion and
amended motion under oath.
R.13 at 4 (emphasis added). As evidenced by this statement,
the district court complied with the requirements of the
amended Rules 2 and 3, and accepted the petition despite
Mr. Kafo’s failure to submit it on the form required by local
rule and despite his failure to sign the motion under
penalties of perjury as required by Rule 2(b)(5) and the local
instructions. The court did not follow, however, the “better
practice,” suggested by the Advisory Committee Notes, of
instructing Mr. Kafo to amend his motion by submitting it
under oath or by attaching an affidavit. Had that practice
been followed, the statements Mr. Kafo made in his motion
would have constituted at least some evidence of his allega-
tions with respect to his counsel’s alleged failure to file a
direct appeal after being requested to do so by Mr. Kafo.
Certainly, the amended motion contains allegations of
sufficient specificity to permit the district court to make at
least a threshold evaluation of them.10 The amendments to
10
Mr. Kafo’s amended motion contains the following factual
statements concerning his interaction with his trial counsel in
regard to an appeal:
During the sentencing phase of the instant case, the Judge
pursuant to Rule 32(a)(2), informed petitioner of his right to
appeal, and that he had ten days to give notice to the court.
Petitioner immediately informed counsel that he wants an
appeal filed because the sentence imposed upon him went
beyond what counsel had told him to expect.
Counsel responded and told petitioner to call him later in
regards to an appeal. Petitioner followed up with several
phone calls, and counsel reassured petitioner that the appeal
(continued...)
14 No. 05-3034
the Rule, intended to ensure that technical failures did not
become a barrier to merits decisions, should not be read to
produce an opposite result. The amendments, reasonably
read, give meaning to two important principles:
unremedied technical failures should not become a trap to
avoid a merits adjudication; unverified allegations are
insufficient to invoke the process of collateral attack on a
final federal criminal conviction. The Advisory Committee
Notes, therefore, not only state the better practice, but
harmonize the pleading requirements of Rule 2 with the
independent standard that a petitioner must establish some
evidentiary basis for his claim before the district court is
required by law to hold a hearing.
10
(...continued)
will be filed appropriately. To be certain that counsel will
meet up with petitioner’s appeal request, petitioner in-
structed his family to call counsel in that regard, given that
the sentencing judge had given a ten day window to effect
notice of appeal to the court.
Few weeks after sentence, petitioner again called counsel
to find out the situation with this appeal, but counsel
responded by telling petitioner to file the appeal himself.
Petitioner in dismay and disbelief could not ascertain
counsel’s reason(s) for not effecting his appeal, as he had
promised. Thus prompting petitioner to file the habeas
corpus 2255 petition, now before this Honorable Court.
The fact is that petitioner is a layman, hence, does not
know how to tackle issues concerning the law, and whole
heartedly trusted and relied on counsel to carry out his
wishes, in regards to the appeal in question. Such failure by
counsel to fulfill petitioner’s request to file an appeal, despite
promises to do so, rendered counsel ineffective.
R.9 at 1-2.
No. 05-3034 15
We believe that had the petition been submitted under
oath, the district court might well have considered the
allegations sufficient to withstand, at this early stage of the
proceedings, a motion to dismiss.11 As we have noted
earlier, the amended petition submitted by Mr. Kafo,
although deficient because it was not signed under oath,
certainly provides a sufficient statement of his allegation to
permit further evaluation. Because the district court explic-
itly noted a complete lack of evidence of the claimed
ineffectiveness and because the petition itself would have
been at least some evidence had it appropriately been
verified, we cannot say that the district court would have
reached the same conclusion if Mr. Kafo had been instructed
to so amend his pleading. For this reason, we believe that
the appropriate course is to vacate the judgment of the
district court in order to permit that court to afford the
petitioner an adequate opportunity to submit a verified
version of the amended complaint or a supplemental
affidavit.
Conclusion
Accordingly, we vacate the district court’s judgment and
remand the case to the district court for proceedings
consistent with this opinion.
VACATED and REMANDED
11
See supra note 8.
16 No. 05-3034
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-3-06