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Mitchell v. United States

United States Court of Appeals, Seventh Circuit

January 25, 2017

Rollie M. Mitchell, Plaintiff-Appellant,
United States of America, Defendant-Appellee.

          Argued November 3, 2016

         Appeal 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.

          Before Bauer, Manion, and Hamilton, Circuit Judges.

          Bauer, Circuit Judge.

         After 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. We affirm.

         I. BACKGROUND

         In June 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.

         After 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 writing.

         Brattain 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.

         Brattain 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."

         Petitioner 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).

         Petitioner 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.


         When 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. Martin v. United ...

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