Rollie M. Mitchell, Plaintiff-Appellant,
United States of America, Defendant-Appellee.
November 3, 2016
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:12-cv-01002-SEB-TAB - Sarah Evans Barker, Judge.
Bauer, Manion, and Hamilton, Circuit Judges.
his conviction for cocaine distribution, Petitioner Rollie
Mitchell appealed his sentence; this Court affirmed.
Petitioner then filed a motion for postconviction relief
under 28 U.S.C. § 2255, claiming that he received
ineffective assistance of counsel. He argued that, prior to
trial, his attorney failed to inform him adequately of the
details of the government's plea offer and failed to
advise him of the potential ramifications of rejecting the
offer and proceeding to trial. The district court denied the
motion, finding that counsel's performance was adequate
and that Petitioner could not demonstrate that, absent any
deficient performance, he would have accepted the plea offer.
2006, Petitioner sold 144 grams of cocaine base to a police
informant named Tony Hurd. Hurd also purchased cocaine base
from two of Petitioner's associates, Billy Hicks and
Tyree Smith. All three were charged in Indiana state court
with controlled substance offenses. As part of the state
court proceedings, the county clerk's office made the
error of including Hurd's name on a public filing. Hurd
soon began receiving threats, and in August 2006, he was shot
and killed at a gas station in Ohio.
Hurd's murder, Petitioner was indicted on federal drug
charges. The government also had reason to believe that
Petitioner was involved in Hurd's murder. In June 2009,
the district court appointed public defender Bruce Brattain
to represent Petitioner. As the trial date approached,
Brattain had discussions with the Assistant United States
Attorney handling the case about a potential plea agreement.
The AUSA informed Brattain that the government was willing to
recommend a 20-year sentence in exchange for Petitioner's
full cooperation with the government's investigation into
Hurd's murder. The government never put this offer in
communicated to Petitioner the terms of the offer both orally
and in writing. According to Brattain's affidavit
submitted to the district court, he met with Petitioner and
discussed the proposal on October 19, October 23, and
November 5, 2009, and Petitioner repeatedly rejected the
potential agreement. On October 29, 2009, Brattain sent
Petitioner a letter in which he outlined the principal terms
of the government's offer and advised Petitioner that it
was in his best interest to consider it before trial.
sent another letter on November 3, 2009, in which he informed
Petitioner that the government's evidence made it
"almost absolutely certain" that he would be
convicted at trial on the drug charge. This letter also
referenced a new witness who would corroborate the
government's theory that Petitioner was involved in
Hurd's murder. The letter informed Petitioner that if the
court found the witness to be credible by a preponderance of
the evidence, Petitioner was likely to face a life sentence
upon his conviction. Finally, this letter advised Petitioner
that if he wished to negotiate a lesser sentence, "now
is the time to do it."
again rejected the government's offer and his case went
to trial on November 9 and 10, 2009. The jury found him
guilty of distributing 50 grams or more of cocaine base in
violation of 21 U.S.C. § 841(a)(1). The district court
held a sentencing hearing on April 1, 2010, during which the
government presented evidence of Petitioner's involvement
in Hurd's murder. The court found, by a preponderance of
the evidence, that Petitioner participated in the murder, and
applied the murder cross-reference under the United States
Sentencing Commission Guidelines, § 2D1.1(d)(1). The
court sentenced Petitioner to life imprisonment, which was
the resultant Guidelines range after the application of the
murder cross- reference. Petitioner appealed the sentence,
and we affirmed. United States v. Mitchell, 635 F.3d
990, 991 (7th Cir. 2011).
then filed a motion for post-conviction relief under 28
U.S.C. § 2255, contending that Br attain provided
ineffective assistance of counsel by not producing the
government's plea offer in writing and by not advising
him adequately on its substance and effects. The district
court rejected these arguments. The court found that the
government never submitted its proposal in writing and that,
even if it had done so, Petitioner could not demonstrate that
he would have accepted the offer. The court held that Br
attain's communication and advice regarding the proposed
plea deal did not constitute ineffective assistance. The
court also rejected Petitioner's request for an
evidentiary hearing on the issue, finding that the record and
filings conclusively showed that Petitioner was not entitled
to relief. The denial of his motion and his request for an
evidentiary hearing form the basis for this appeal.
reviewing the denial of a petition under 28 U.S.C. §
2255, we review the district court's legal conclusions
de novo and its factual findings for clear error.
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