7th Circuit rejects ineffective-assistance claim on direct appeal

A federal inmate who chose to raise an ineffective-assistance claim on direct appeal has lost his bid to overturn his guilty plea, with the 7^th Circuit Court of Appeals finding that his strategic decision to raise the issue on direct appeal led to a lack of sufficient evidence.

In United States of America v. Marvin Cates, 19-1042, Marvin Cates was pulled over while transporting drugs from Chicago to South Bend. When the sheriff’s deputy approached Cates’ vehicle — which did not have rear license plate lights — he saw a revolver on the passenger seat.

Cates admitted he did not have a license for the gun, and he was eventually charged with being a felon in possession of a firearm. Cates agreed to plead guilty to the firearm charge in exchange for the government not bringing other changes, and he also agreed to waive his right to appeal “on any ground other than a claim of ineffective assistance of counsel.”

The plea was accepted by Northern Indiana District Court Senior Judge Robert Miller Jr. on Oct. 3, 2018, but on Oct. 16, his attorney left the case. A new lawyer moved to withdraw the guilty plea, claiming Cates had pleaded “under duress because he was threatened with new charges and was given only one hour to accept the plea deal or face the risk of additional prison time.”

Cates likewise testified that he had told his original lawyer of his desire to withdraw the plea, but his lawyer had said it was too late. Miller denied the motion, finding Cates was not under duress or undue pressure because five days passed between the submission of the plea and the subsequent hearing. He was then sentenced to nearly 22 years.

On appeal, Cates argued his Sixth Amendment right to counsel was violated when his trial lawyer failed to move to withdraw his plea. That issue, the 7^th Circuit noted, falls within the exception of his waiver to his right to appeal.

“Unless the issue was raised and a full record developed in the trial court, an appellate court cannot determine on direct appeal whether counsel’s assistance was ineffective,” Judge David Hamilton wrote in a Tuesday opinion upholding the denial of Cates’ motion to withdraw. “Essential evidence of counsel’s actions and reasoning will simply be lacking. By raising an ineffective-assistance claim prematurely, on direct appeal, a defendant can easily throw away any chance he has at success because the claim may not be presented a second time on collateral attack … .”

Instead, Hamilton said, Cates should have raised his Sixth Amendment claim under 28 U.S.C. § 2255, repeatedly citing to Massaro v. United States, 538 U.S. 500 (2003). Because he failed to do so, the judge said, “we cannot determine whether Cates’s representation was deficient and whether he was prejudiced by it.”

“If Cates had saved his ineffective-assistance claim for a collateral attack under § 2255, the district judge would have been able to hear the lawyer’s side of the story and to consider any other relevant evidence. Perhaps counsel might have conceded that he erroneously informed Cates that he could not withdraw his guilty plea,” Hamilton wrote. “On the other hand, he might instead have contested Cates’s story, requiring the factfinder to decide whom to believe. On direct appeal, we lack the information necessary to make such determinations.

“… We asked counsel at oral argument whether Cates was aware of the risk inherent in direct appeal. She said that he was,” Hamilton continued. “After oral argument, we gave Cates one last opportunity to withdraw his ineffective-assistance claim, instructing his appellate lawyer to confer with him once more and to advise the court of his decision. Counsel reported that she explained the strategic reasons to resolve the issue under § 2255 rather than on direct appeal, but that Cates chose to forward with the appeal, as is his right.”