January 4, 2018
from the United States District Court for the Southern
District of Illinois. No. 3:14-cv-00281-DRH - David R.
Wood, Chief Judge, and Hamilton and Barrett, Circuit Judges.
Barrett, Circuit Judge
Learn died after Joseph Per-rone injected her with 7.5 grams
of cocaine. Perrone pleaded guilty to a single count of
unlawful drug distribution and stipulated that his
distribution of the cocaine had caused Learn's death. In
accordance with Perrone's plea agreement, the district
court applied a statutory sentencing enhancement that
mandates a twenty-year minimum term of impris- onment if
unlawful drug distribution results in death. The Supreme
Court has since clarified that this provision requires a
defendant's drugs to be a but-for cause of the death, not
merely a contributing cause. Perrone filed a petition for
relief under 28 U.S.C. § 2255 on the ground that the
Court's narrowed interpretation of the enhancement
reveals that he is actually innocent of causing Learn's
death. In addition, he asserts that his counsel was
ineffective for failing to advise him of a Seventh Circuit
case decided on the day before his sentencing that
interpreted the "death results" enhancement the
same way that the Court ultimately did. He claims that if he
had known that the enhancement required the government to
show that his cocaine was the but-for cause of Learn's
death, he would have sought to withdraw his plea. The
district court denied Perrone's petition, and we affirm
approximately 4 a.m. on April 17, 2008, Terry Learn and her
coworker Madonna Narog went to Narog's hotel room, where
they did heroin and cocaine for several hours. They left the
hotel around 8 a.m. to purchase more cocaine, about fifty
dollars' worth for Learn and twenty-five dollars'
worth for Narog. They returned to the hotel and did cocaine
until close to noon, when Learn left for her shift at
Roxy's Night Club. Narog saw Learn again around 2 p.m.,
when Narog went to the club to pick up some money, and again
at 8 p.m., when Narog was beginning her shift and Learn was
her shift, Learn met her boyfriend, Joseph Perrone, and went
back to his home. According to Perrone, the two made a
suicide pact. After watching Learn inject herself with a
mixture of cocaine and water, Perrone told her that she had
not taken enough to kill herself. He then prepared and
injected 7.5 grams of cocaine into Learn. Perrone later told
the police that Learn convulsed, fell to the floor, and died
immediately after he injected her for the last time. He did
not specify the time at which he administered the final
injection, but he said that it happened on April
18th. It was therefore at least four hours after
Narog saw Learn at the shift change and at least twelve hours
after Narog last saw her do any drugs not distributed by
moved Learn's body to her apartment. He wiped his
fingerprints off the syringe and put it into Learn's
hand. As he stipulated in his plea agreement, he aimed
"to create the false impression that Terry Learn had
died alone in her own residence." The body was not
discovered until April 26th, when a concerned
neighbor flagged down police to report that she had not seen
Learn in several days. Police officers discovered Learn's
body in her apartment. According to the coroner's report,
the cause of death was "[c]ombined tox-icity with
cocaine, ethanol and opiates."
months later, Perrone was arrested on an unrelated firearms
charge. He chose that time to confess to police that he had
killed Learn, describing what he had done as
"premeditated murder." During this interview, he
told the police that he gave Learn one injection of an
unspecified amount of cocaine; during a second interview a
few weeks later, he said that he injected Learn with 7.5
grams of cocaine in three separate injections of 2.5 grams
government obtained an indictment against Perrone for
distributing a controlled substance in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). The indictment
specified that Learn died as a result of Perrone's
distribution, which, if proved, would enhance his statutory
sentencing range under § 841(b)(1)(C). That provision
mandates a twenty-year minimum sentence if "death or
serious bodily injury results from the use" of the
unlawfully distributed substance.
pleaded guilty. In his plea agreement, he admitted that his
conduct had violated the "death results"
provision-namely, he stipulated that "the ingestion of
the controlled substance distributed by the Defendant caused
the death of another person." He also signed a
stipulation of facts admitting that he "injected Terry
Learn with a syringe containing cocaine" and that she
"died immediately after receiving the injection."
At his plea hearing a few weeks later, Perrone stated that he
had read the documents, that he understood them, and that
they were accurate.
day before Perrone was sentenced, the Seventh Circuit decided
United States v. Hatfield, 591 F.3d 945 (7th Cir.
2010), which held that the "death results"
enhancement requires the government to prove that
"ingestion of the defendants' drugs was a 'but
for' cause of the death." Id. at 948.
Hatfield rejected jury instructions that used
vaguer, less demanding language to describe the necessary
causal relationship; it said that the district court could
not summarize the "death results" enhancement as
requiring the jury to find only that the illegal drugs
"played a part" in the victim's death.
Id. at 949.
sentencing the next day, the district court applied the
"death results" enhancement and sentenced Perrone
to 240 months' imprisonment. Before imposing the
sentence, the district judge said that he had reviewed
Perrone's Stipulation of Facts to see "what impact,
if any, the Rex Hatfield case was going to have on this
case." Perrone's attorney did not engage this point
with the judge, nor did he inform Perrone about
Hatfield. Instead, he once again agreed that the
sentencing enhancement applied. Perrone did not appeal his
sentence. He eventually received an 80-month reduction of his
sentence for assistance to the government, a possibility
contemplated by the plea agreement and that Perrone and the
district court had discussed at his sentencing hearing.
years later, the Supreme Court decided Burrage v. United
States, 134 S.Ct. 881 (2014), which effectively ratified
Hatfield's standard of causation. The Court held
that the "death results" enhancement ordinarily
requires the government to prove that the victim would have
lived but for the unlawfully distributed drugs. Id.
at 888. In Burrage, the victim died with multiple
drugs in his bloodstream, including metabolites from heroin
that had been distributed by the defendant. Although
morphine, a heroin metabolite, was the only drug present at a
level above the therapeutic range, the government's
experts could not say whether the victim would have lived if
he had not taken the heroin. They testified only that heroin
was a "contributing factor" to a death caused by
"mixed drug intoxication." That testimony
dovetailed with instructions requiring the jury to find
"that the heroin distributed by the Defendant was a
contributing cause of [the victim's] death."
Id. at 886. The Court said that the statute requires
the government to show more than that the distributed drug
contributed to the victim's death. The enhancement
applies when "death or serious bodily injury results
from the use of [the distributed] substance, " which
means that the substance must be a "but for" cause
of the death. Id. at 887-88.
a month of Burrage, Perrone filed a petition to
vacate or alter his sentence pursuant to 28 U.S.C. §
2255. His initial petition asserted that the new
interpretation of the "death results" enhancement
announced in Burrage renders him actually innocent
of causing Learn's death. In his reply brief below,
Perrone added a claim that his attorney had been
constitutionally ineffective for not telling him about
district court dismissed Perrone's claims with prejudice.
We granted a certificate of appealability on three questions:
whether Perrone was actually innocent of his sentence under
Burrage, whether Perrone's sentencing counsel
had been constitutionally ineffective for failing to address
the issue of causation in light of Hatfield, and