Nathan Gillis v. Gregory Grams

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 15, 2009
Decided November 5, 2009
Before
KENNETH F. RIPPLE, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08‐2580
NATHAN GILLIS,
Petitioner‐Appellant,
v.
GREGORY GRAMS,
Respondent‐Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 08 CV 117
Barbara B. Crabb,
Chief Judge.
O R D E R
Nathan Gillis, a Wisconsin prisoner, pleaded guilty to two counts of sexual assault
and one count each of reckless endangerment, kidnaping, and false imprisonment. In
exchange for his plea, the prosecutor agreed to recommend no more than 12 years’
imprisonment. She kept her promise at Gillis’s sentencing hearing, and the state court
sentenced him to a total prison term of 12 years on the sexual‐assault and reckless‐
endangerment charges, but withheld sentence and imposed probation on the remaining
charges. Gillis completed his prison sentence but later violated the terms of his probation.
Although the prosecutor recommended 20 years’ imprisonment at the post‐revocation
sentencing hearing on the kidnaping charge, the court imposed a 12‐year sentence. After
exhausting his state remedies, Gillis filed a petition for a writ of habeas corpus, 28 U.S.C.
§ 2254, arguing, among other things, that the state breached the plea agreement by
recommending imprisonment beyond the 12 years he had already served. The district court
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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denied the petition, but we granted a certificate of appealability. We affirm the judgment of
the district court.
I. Background
Gillis’s victim testified at trial that she was walking home at night when Gillis
grabbed her from behind, forced her into his apartment, and raped her. Gillis insisted that
the victim was a prostitute and the sex was consensual, but he nevertheless decided
midway through the trial to enter an Alford plea on each of the five counts, meaning he
pleaded guilty but maintained his innocence. See North Carolina v. Alford, 400 U.S. 25 (1970).
He faced a maximum prison sentence of 47 years, but, in exchange for his plea, the state
agreed to recommend no more than 12 years in prison. The terms of the plea agreement
were not put in writing, but the prosecutor announced them on the record:
[T]he state has agreed that it will not recommend more than twelve years in
prison on one or more of the counts—a cap of twelve years in prison. But also
it is agreed the defendant will accept probation on any or all the counts that
the state argues for probation on, and any length of time in terms of probation
can be argued.
At sentencing the state recommended that the court impose consecutive sentences of
five years’ imprisonment on each of the sexual‐assault charges and two years’
imprisonment on the reckless‐endangerment charge, for a total of 12 years, and withhold
sentence but impose concurrent terms of 20 years’ probation on the kidnaping charge and
six years’ probation on the false‐imprisonment charge. The court adopted the
recommendation.
Gillis served his 12‐year prison sentence and was released in September 2005, but
when he refused to register as a sex offender, he was detained at Wisconsin’s Dane County
jail, where his disorderly conduct led to revocation of his probation. At sentencing on the
withheld kidnaping charge, the state recommended 20 years’ imprisonment, the statutory
maximum, and the court imposed a 12‐year prison sentence.
On direct appeal Gillis argued, as relevant here, that the state violated the plea
agreement by recommending a 20‐year prison term at the post‐revocation sentencing
hearing. The state, he asserted, had agreed to recommend a total of 12 years’ imprisonment
for all five counts. And, because Gillis had already served his 12‐year prison term, he
argued, any further sentencing recommendation violated the plea agreement. The
Wisconsin Court of Appeals disagreed, explaining that when a plea agreement does not

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No. 08‐2580 Page 3
expressly extend beyond the original sentencing, its terms do not apply to sentencing after
revocation of probation. The Wisconsin Supreme Court denied Gillis’s petition for review.
Gillis filed a petition for a writ of habeas corpus attacking his sentence, but the
district court denied the petition. We granted a certificate of appealability on the question
whether Gillis’s sentence violated his right to due process because the state breached the
plea agreement by recommending a 20‐year sentence at his postrevocation sentencing
hearing.
II. Analysis
We review de novo the district court’s decision to deny Gillis’s petition for a writ of
habeas corpus. See Pole v. Randolph, 570 F.3d 922, 933‐34 (7th Cir. 2009). To prevail, Gillis
must demonstrate that the Wisconsin appellate court’s decision either was based on an
unreasonable determination of the facts in light of the evidence, or was contrary to or
involved an unreasonable application of clearly established federal law as determined by
the Supreme Court. See 28 U.S.C. § 2254(d)(1)‐(2); Hartjes v. Endicott, 456 F.3d 786, 789‐90
(7th Cir. 2006).
In pursuing his due‐process argument, Gillis first contends that the Wisconsin
appellate court’s conclusion that the terms of the plea agreement were limited to the
original sentencing proceeding is an unreasonable determination of fact. The terms of a
plea agreement are questions of fact, United States v. Williams, 198 F.3d 988, 992 (7th Cir.
1999), and we presume a state court’s factual findings to be correct absent clear and
convincing evidence to the contrary, § 2254(e)(1).
At Gillis’s change‐of‐plea hearing, the prosecutor stated on the record that she would
“not recommend more than twelve years in prison on one or more of the counts.” Gillis
interprets this to mean that the state’s promise was linked, not to the original sentencing,
but instead to the counts of conviction. Thus, according to Gillis, the state’s promise to
restrict its sentencing recommendation was binding at any future sentencing related to those
counts. And, because the prosecutor recommended 12 years—the promised maximum—at
his original sentencing, Gillis insists that the state could not recommend additional
imprisonment under any circumstances.
Even assuming that Gillis’s interpretation of the plea agreement is plausible, he has
not presented any convincing evidence, as he must, that the Wisconsin appellate court’s
contrary interpretation is unreasonable. A plea agreement is a contract, and its terms are
interpreted according to ordinary contract principles. United States v. Artley, 489 F.3d 813,

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824 (7th Cir. 2007). The state’s obligations under a plea agreement “are limited by what the
parties in fact agreed to.” United States v. Lezine, 166 F.3d 895, 901 (7th Cir. 1999). Here, the
plea agreement did not expressly restrict the prosecutor’s freedom to recommend a
particular sentence in the event that Gillis’s probation was revoked, and there is no evidence
of an off‐the‐record agreement that the state would remain silent at a post‐revocation
sentencing hearing. Indeed, Gillis’s suggested interpretation would render the plea
agreement internally inconsistent. Although the prosecutor agreed to recommend no more
than 12 years in prison, she reserved the right to recommend any length of probation on the
remaining counts. If Gillis’s interpretation of the plea agreement is correct, the state
reserved its right to recommend a 20‐year term of probation while simultaneously
promising not to recommend further imprisonment if Gillis’s probation was revoked—a
result that would seemingly undermine the purpose of recommending probation at all. See
United States v. Barnett, 415 F.3d 690, 692 (7th Cir. 2005) (explaining that plea agreement
should not be interpreted in manner that would produce result the parties were unlikely to
have agreed to).
The Wisconsin Court of Appeals based its decision on state precedent that the terms
of a plea agreement do not extend to a sentencing after revocation of probation absent an
express agreement otherwise. See State v. Windom, 485 N.W.2d 832, 835 (Wis. Ct. App.
1992). The same conclusion has been reached by the supreme courts of at least two other
states. See People v. Segura, 188 P.3d 649, 658 (Cal. 2008); Peltier v. State, 657 N.W.2d 238, 244
(N.D. 2003). Further, several courts have rejected a defendant’s proffered interpretation of a
plea agreement where, as here, that reading would undermine the purpose of probation.
See United States v. Gerace, 997 F.2d 1293, 1295 (9th Cir. 1993) (“Probation would be a useless
implement in the criminal justice process if it could not be revoked. It would be
inconsistent for the prosecution to agree to a bargain that would defeat the purpose of
probation.”); United States v. Brown, 583 F.2d 915, 917 (7th Cir. 1978) (“If revoking probation
when a defendant violates its terms breaches a plea bargain granting probation, then
restrictions on probation in effect would be unenforceable.”); United States v. Chen, 837
F. Supp. 1225, 1227 (S.D. Fla. 1993) (“[I]t would be an inconsistent, and counter‐intuitive
interpretation of the plea agreement to rule that the prosecution had agreed to a bargain
that defeats the very purpose of the sentence that they sought to obtain.”), aff’d without
opinion by 25 F.3d 1061 (11th Cir. 1994). Given the weight of authority supporting the
Wisconsin appellate court’s conclusion that the plea agreement did not extend beyond the
original sentencing, Gillis cannot demonstrate that the determination was unreasonable.
This conclusion forecloses Gillis’s second argument—that the outcome reached by
the Wisconsin Court of Appeals is contrary to the Supreme Court’s decision in Santobello v.
New York, 404 U.S. 257 (1971). In exchange for the defendant’s guilty plea in Santobello, the

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prosecutor agreed to refrain from making a sentencing recommendation. Id. at 258. That
prosecutor, however, was replaced before sentencing, and the new prosecutor
recommended the maximum sentence, which the court imposed. Id. at 259‐60. The
Supreme Court remanded the case to the state courts, concluding that “when a plea rests in
any significant degree on a promise or agreement of the prosecutor, so that it can be said to
be part of the inducement or consideration,” the prosecutor must fulfill that promise. Id. at
262. Santobello thus stands for the general proposition that the government must keep its
end of a plea bargain; it does not address the more narrow question whether the terms of a
plea agreement extend to sentencing after revocation of probation. And because the
Wisconsin appellate court reasonably determined that the terms of the plea agreement in
this case were limited to the original sentencing proceeding, its conclusion that the
government satisfied its obligations under the plea agreement is not at odds with Santobello.
See Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009) (explaining that when Supreme Court
precedent establishes general standard, state courts have greater latitude to reasonably
determine that defendant has not satisfied that standard).
III. Conclusion
Accordingly, we AFFIRM the judgment of the district court.

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