Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division.
No. 94 C 325--William C. Lee, Judge.
Before CUMMINGS, MANION, and KANNE, Circuit Judges.
ARGUED SEPTEMBER 21, 1995
The defendant filed a motion under 28 U.S.C. sec. 2255 seeking to vacate his sentence on the grounds that he received constitutionally ineffective assistance of counsel and his guilty plea was not knowingly and intelligently made. The district court denied the motion because it found that by failing to raise his claims on direct appeal, the defendant had procedurally defaulted his right to raise it under sec. 2255. The question before us is whether the defendant has shown cause and prejudice to excuse that default.
Daryl Oscar McCleese entered into a written plea agreement in which he admitted to conspiring to distribute more than five kilograms of cocaine and to using or carrying two firearms during and in relation to the drug conspiracy. The district court sentenced him to 235 months of incarceration and four years of supervised release on the conspiracy count and 60 months of incarceration on the firearms count, with both sentences to run consecutively. McCleese was also fined $250,000.
McCleese, represented by different counsel, appealed to this court arguing that the district court erred in not allowing him to withdraw his guilty plea and in making certain findings at sentencing. We affirmed the conviction and sentence. United States v. Cooper, 942 F.2d 1200 (7th Cir. 1991), cert. denied, 503 U.S. 923 (1992).
McCleese subsequently filed a motion under 28 U.S.C. sec. 2255 seeking to vacate his sentence on two grounds. First, he argued that he was denied his Sixth Amendment right to effective assistance of counsel when his trial counsel: (1) incorrectly advised him that the conspiracy count carried a statutory ten-year mandatory minimum sentence, when no mandatory minimum applied, and (2) failed to inform him that he was subject to a term of supervised release. Second, he argued that the district court failed to follow the mandate of FED. R. CRIM. P. 11(c) when it incorrectly informed him during the plea hearing: (1) that a statutory ten-year mandatory minimum sentence applied to the drug conspiracy count, when no mandatory minimum applied, and (2) that no term of supervised release could be imposed, when in fact it could--these errors resulting in an unknowing and involuntary guilty plea.
In its answer to McCleese's motion, the government conceded that McCleese's trial counsel and the district court incorrectly informed McCleese that a statutory ten-year mandatory minimum sentence applied to the conspiracy count and that a term of supervised release could not be imposed. The government argued, however, that because McCleese had failed to bring his claims on direct appeal he was procedurally barred from raising them in a sec. 2255 motion.
The district court agreed with the government that McCleese had procedurally defaulted. Because McCleese had different counsel on appeal, the district court found that he could not show cause for not bringing his two claims on direct appeal. Even if McCleese could show cause, the district court held that he could not show prejudice from the failure to raise the claims on direct appeal. The district court found that McCleese knew, at the time of entering his plea, that the sentencing guidelines would be used to determine his sentence and that the preliminary guidelines computation resulted in a minimum sentence on count one of 151 months or twelve and a half years. *fn1 The district court found that the incorrect information could not reasonably be said to have influenced his decision to plead guilty because (1) the inapplicable ten-year mandatory minimum was below the minimum he knew he would receive and (2) the sentence imposed, including the four years of supervised release, was less than the statutory maximum McCleese was made aware of at the time he entered his plea. As a result, the district court found that McCleese had failed to show prejudice to justify his procedural default. Even if he could show cause and prejudice, the district court found that the errors of McCleese's trial counsel did not qualify as ineffective assistance of counsel and that its own errors under Rule 11 were harmless. The district court denied the sec. 2255 motion without holding an evidentiary hearing.
McCleese appeals the district court's denial of his sec. 2255 motion and argues that the district court erred in finding that he had not shown cause and prejudice to justify the procedural default. He also appeals the district court's determinations that, even if he were found not to have procedurally defaulted, his trial counsel was not ineffective and the Rule 11 errors were harmless. ...