Appeal from the United States District Court for the Central District of Illinois. No. 00-CV-2119-Michael P. McCuskey, Judge.
Before Cudahy, Ripple and Rovner, Circuit Judges.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Illinois inmate Gregory Moore brought a petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that his trial counsel was ineffective for incorrectly advising him about the sentencing consequences of pleading guilty. The district court denied the petition on the ground that Mr. Moore had procedurally defaulted his ineffective assistance claim in state court, but granted Mr. Moore a certificate of appealability. For the reasons set forth in this opinion, we reverse the judgment of the district court and remand the case for further proceedings.
A. State Court Proceedings
In 1994, when Mr. Moore was 15 years old, he was charged as an adult with first-degree murder for his involvement in a shooting. Attorney James Kuehl was appointed to represent Mr. Moore. In May 1995, just before the case was scheduled to go to trial, Mr. Moore pleaded guilty in exchange for the state's recommendation that he receive the minimum twenty-year prison sentence. The trial court accepted the guilty plea and sentenced Mr. Moore to 20 years of imprisonment. Shortly thereafter, however, Mr. Moore moved to withdraw his plea, and the trial court appointed another attorney, Sherman Brown, to represent him. Attorney Brown then filed an amended motion to withdraw the guilty plea. That motion submitted that Mr. Moore's plea was not knowingly or voluntarily made because, among other things, Attorney Kuehl had told Mr. Moore that, if he were convicted after a trial, Illinois' newly enacted good-time credit statute would require that he serve 85% of the sentence imposed. By comparison, if he pleaded guilty immediately, he would serve, under the then-current Illinois law, 50% of a twenty-year sentence. However, Mr. Moore did not face the choice posed to him by his counsel. The new good-time statute, 730 ILCS 5/3-6-3(a)(2), only applied to offenses committed after its passage in August 1995, and thus did not apply to Mr. Moore's 1994 offense.
At the hearing on the amended motion to withdraw his guilty plea, Mr. Moore testified that, about a week before trial was to begin, Attorney Kuehl told him that he thought Mr. Moore would lose at trial and that a new good-time statute was going into effect soon that would require him to serve 85% of his sentence. Attorney Kuehl told Mr. Moore that, if convicted, the court would impose a sentence within the range of 25 to 30 years of which he would have to serve 22 to 27 years; if he accepted the plea offer, he would only have to serve 10 years of a twenty-year sentence. Attorney Kuehl therefore had recommended that Mr. Moore accept the state's offer.
Mr. Moore testified that he was scared at the time. He did not want to accept the offer, but did not know what else to do. Mr. Moore's mother corroborated her son's testimony. Attorney Kuehl also testified at the hearing. He stated that he indeed was concerned about Mr. Moore's having to serve more time if he was convicted after the new good-time statute became effective and that he had discussed those concerns with Mr. Moore. Attorney Kuehl, however, said that, at the time he gave the advice, he did not have a copy of the statute and was unsure whether it would apply to Mr. Moore. Attorney Kuehl testified that Mr. Moore ultimately decided that it was in his best interest to accept the plea offer, but did so reluctantly.
The trial court denied the motion to withdraw the plea; it concluded that Mr. Moore had entered his plea knowingly and voluntarily. The Illinois Appellate Court affirmed his conviction in June 1997. The appellate court noted that Mr. Moore had waived his ineffective assistance claim by failing to argue it in the trial court, but the court then went on to reject the claim on the merits. Mr. Moore then petitioned the Supreme Court of Illinois for leave to appeal. The court denied leave to appeal, but vacated part of the appellate court's decision denying Mr. Moore presentence credit. In May 1998, Mr. Moore filed a timely pro se petition for postconviction relief under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq. In the petition, he primarily alleged that he was denied effective assistance of counsel because of Attorney Kuehl's incorrect advice regarding his potential sentence. The trial court dismissed this petition as frivolous, holding that, because the appellate court had addressed this ineffective assistance argument on direct appeal, Mr. Moore was barred by the res judicata doctrine from asserting the issue again in his post-conviction petition. In July 1999, the appellate court affirmed, and the Supreme Court of Illinois denied leave to appeal in October 1999.
B. District Court Proceedings
In May 2000, Mr. Moore filed his petition for a writ of habeas corpus under § 2254, again raising his ineffective assistance of counsel claim. The district court denied the petition without reaching the merits; it concluded that the Illinois state courts had rejected the claim based on the independent and adequate state procedural grounds of waiver and res judicata. Therefore, federal review was barred. The district court, however, granted Mr. Moore a certificate of appealability because "jurists of reason" would find it debatable whether Mr. Moore was denied his constitutional right to effective assistance of counsel and whether the court's procedural ruling was correct. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). When, as here, both constitutional and procedural issues are certified for appeal, we resolve the procedural issue first. See id. at 485.
We review the district court's procedural default ruling de novo. See Franklin v. Gilmore, 188 F.3d 877, 882 (7th Cir. 1999). Mr. Moore submits that he did not procedurally default his ineffective assistance claim because, on direct review, the Illinois Appellate Court did not clearly rely on waiver as an independent and adequate ...