7th Circuit rejects collateral attack

The 7th Circuit Court of Appeals has rejected a man’s petition for collateral relief based on ineffective assistance of counsel because the man failed to allege facts that proved his public defender did not provide proper counsel.

In Willie Long v. United States of America, 15-2668, a Mishawka police officer found Willie Long asleep at the wheel of his car in a McDonald’s drive-thru lane. After learning that there was both marijuana and a firearm in the car and that Long had a prior felony conviction that precluded him from owning a gun, Long was arrested and charged as a felon in possession of a firearm.

H. Jay Stevens, an assistant federal public defender, was appointed to represent Long, and together the two men discussed the possibility of moving to suppress the gun evidence. However, Stevens opted not to file the motion because he “didn’t see any realistic hope in (Long) winning (it).”

Long later pleaded guilty and waived his right to appeal or collaterally attack his conviction and sentence. But after learning that his presentence report recommended a 4-level enhancement for possessing the firearm in connection with the marijuana, Long asked to withdraw his plea, saying Stevens told him that he would not have to deal with such an enhancement.

Stevens withdrew as counsel and Michael Rehak was appointed in his place. Rehak moved to withdraw Long’s plea, arguing that had he known of the enhancement, his client would have moved to suppress the gun evidence on the grounds of a lack of probable cause. However, Long eventually changed his mind and stuck with his guilty plea. The court overruled his objection but imposed a below-guidelines sentence of 51 months in prison.

Despite his plea agreement, Long moved for relief and alleged that he had told Stevens that the officers obtained the gun evidence in an unconstitutional manner and that Stevens provided ineffective assistance of counsel by failing to file the motion to suppress.  He also argued that his former counsel never fully explained the waiver in his plea agreement, but Judge Robert Miller Jr., of the U.S. District Court for the Southern District of Indiana, denied his motion without an evidentiary hearing on the basis of the collateral-attack waiver.

The 7th Circuit Court of Appeals affirmed in a Monday opinion, with Judge Michael Kanne writing that although Long’s allegations against Stevens might “open the door to collateral relief, they do not necessarily permit him to walk through it.”

Long alleged no facts that a motion to suppress the gun evidence would have succeeded on a Fourth Amendment claim, Kanne said, so he could not prove that the motion would have been meritorious had Stevens filed it. Further, Long testified at his change-of-plea hearing that if the case went to trial, the government would be able to prove that he had been found asleep at the wheel, so the caretaking doctrine also applied to the case, the judge wrote.

“Long has thus failed to ‘allege facts that, if proven, would entitle him to relief,’ and instead makes allegations that are ‘vague’ and ‘conclusory,’” Kanne wrote. “For that reason, he is not entitled to an evidentiary hearing.”

Finally, the circuit judge wrote that Long did not carry his burden to prove that but for Stevens’ ineffective counsel, he would not have pleaded guilty. Thus, the 7th Circuit affirmed the district court’s dismissal of Long’s case.

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