CA7 remands for hearing on federal prisoner’s claim regarding failure to file appeal.

Dowell v. United States, No. 10-2912 (7th Cir. Sept. 17, 2012) (Williams, J.) — The Seventh Circuit held that a collateral-attack waiver in a federal prisoner’s plea agreement could not be enforced where (1) the defendant had reserved the right to appeal a certain issue and (2) the defendant sought to litigate, in § 2255 proceedings, whether his lawyer was ineffective for failing to file a notice of appeal. The court then remanded the case for an evidentiary hearing under Roe v. Flores-Ortega, 528 U.S. 470 (2000).

The petitioner had been charged with possessing 50 grams or more of crack cocaine with intent to distribute. In a plea agreement, the petitioner specifically reserved the right to challenge his designation as a career offender under U.S.S.G. § 4B1.1, but otherwise agreed to waive his right to file a § 2255 motion to challenge his conviction or sentence (including the manner in which the sentence was determined). The district court computed his Guidelines range at 262-327 months but ultimately imposed a sentence of 180 months’ imprisonment.

Counsel failed to file a notice of appeal within the 10-day period (the sentence was imposed in 2008). The petitioner submitted a letter to the district court some five months after sentencing, asking it to treat the letter as a notice of appeal because his lawyer did not follow his instructions to file a notice of appeal. The district court ultimately determined that the letter was untimely if construed as a notice of appeal, and so the Seventh Circuit dismissed the attempted direct appeal for lack of jurisdiction. The petitioner then sought postconviction relief on the ground that his lawyer was ineffective for failing to timely file a notice of appeal, but district court later dismissed the petitioner’s § 2255 motion as barred by the waiver provision in the plea agreement.

The Seventh Circuit vacated and remanded for further proceedings. The court concluded that the petitioner had voluntarily entered into the plea agreement, including the waiver provision, but noted that the waiver was enforceable only to the extent that the petitioner’s claims fell within its scope. Here, because the petitioner had expressly reserved the right to appeal the career-offender designation, the parties necessarily expected that the petitioner would have a meaningful opportunity to raise that claim. “A meaningful opportunity to appeal includes the effective assistance of counsel in filing the appeal.” Because the petitioner contended that he did not receive effective assistance in filing the appeal, the court held that his claim was not barred by the waiver provision in his plea agreement. On the merits, the court noted that the record was inadequately developed with regard to the petitioner’s instructions to his trial lawyer, the court remanded for a hearing.

CA7 remands for hearing on effect of extrinsic information on jury deliberations.

Hall v. Zenk, No. 11-3911 (7th Cir. Aug. 29, 2012) (Flaum, J.) — The Seventh Circuit vacated a district court’s decision to grant an Indiana state prisoner’s § 2254 petition and remanded the case to the district court with instructions to conduct another evidentiary hearing (beyond the one that the state courts held) to determine whether the petitioner was prejudiced by the jury’s receiving extrinsic information regarding his guilt.

The petitioner was charged with murdering his five-year-old stepson. One of the trial jurors had a son who was in the same jail where the petitioner was held during trial. The juror’s son first told the juror that he believed the petitioner to be innocent, and then later the juror’s son told the juror that the people on his cellblock had decided that the petitioner was guilty. The juror shared these thoughts with the jury. The petitioner was convicted and sentenced to 65 years in prison.

After denying the petitioner’s motion to depose all the jurors, the trial court held a hearing on the question of whether the juror’s relaying this information from the jail prejudiced the deliberations. The trial judge found that extrinsic information reached the jurors, but that the petitioner was not prejudiced. Focusing on where the burden of proof lies in cases such as these, the Court of Appeals of Indiana affirmed the decision because it read state law as placing the burden on the defendant to prove prejudice. See Griffin v. State, 754 N.E.2d 899 (Ind. 2001).

After unsuccessfully seeking postconviction relief, the petitioner filed a § 2254 petition in federal court. The district court ruled that a presumption of prejudice applied in this situation, see Remmer v. United States, 347 U.S. 227 (1954), and that the Indiana courts’ decision instead to require the petitioner to prove prejudice was contrary to Remmer. Moreover, the district court found that the jury was influenced by the extrinsic information from the jail, and granted relief. The State then appealed the grant of relief.

In analyzing the parties’ arguments, the court asked and answered three questions. First, is the Remmer presumption of prejudice “clearly established federal law” that the Indiana courts were bound to follow? Second, if so, did the Indiana courts either contravene or unreasonably apply that clearly established federal law by placing the burden on the petitioner to show prejudice? And third, did the jury’s receipt of the extrinsic information have a substantial and injurious effect on its deliberations?

Much of the court’s discussion reads as an explication of the Supreme Court’s decisions on this point. The court had no doubt that Remmer established a presumption of prejudice whenever extrinsic information reaches the jury. The question was whether the subsequent decisions in Smith v. Phillips, 455 U.S. 212 (1982), and United States v. Olano, 507 U.S. 725 (1993), undermined this holding. Surveying the decisions of other courts of appeals on the question, the court ultimately sided with the Ninth Circuit and held that the Court of Appeals of Indiana contravened the Remmer presumption when it placed the burden on the petitioner to prove prejudice.

The district court concluded that the Indiana courts had made a factual finding that the state could not overcome the presumption of prejudice if it were required to do so, and granted relief after deferring to that factual finding as AEDPA requires. The Seventh Circuit took a different approach, concluding that the Indiana courts had “decided not to decide” whether the petitioner was prejudiced from the jury’s receipt of the extrinsic information from the jail. Faulting the district court for not requiring the petitioner to prove prejudice and the state courts for not making any factual determination in that regard, the Seventh Circuit was left with “grave doubt,” O’Neal v. McAninch, 513 U.S. 432 (1995), about whether the extrinsic information affected the jury’s deliberations. Consequently, it remanded the case to the district court to hold a hearing on whether the extrinsic information affected the jury’s deliberations.