James R. Todd v. KESS ROBERSON, Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3430
J AMES R. TODD,
Petitioner‐Appellant,
v.
KESS R OBERSON, Warden,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 14 C 50072 — Frederick J. Kapala, Judge.
____________________
A RGUED J UNE 3, 2016 — D ECIDED J ULY 1, 2016
Before W OOD, Chief Judge, and P OSNER and R OVNER , Cir‐
cuit Judges.
P OSNER , Circuit Judge. In 2010 James R. Todd, having
pleaded guilty in an Illinois state court to a drug offense (he
had sold 22.1 grams of cocaine to an undercover police of‐
ficer), and having a criminal record that included five prison
sentences totaling 22 years (though he hadn’t actually served
all that time), was sentenced to 25 years in prison for selling
cocaine. He appealed on the ground that his lawyer at trial
had been ineffective because he’d induced him to plead

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2 No. 14‐3430
guilty by telling him the government would recommend no
more than a 10‐year sentence. The Illinois appellate court re‐
jected his argument and the Illinois Supreme Court denied
him leave to appeal.
Four years later he sought habeas corpus in federal dis‐
trict court on the ground that he’d pressed unsuccessfully in
his state court appeal. The district court ruled against him,
and he has appealed to us.
Before Todd had pleaded guilty in the state criminal pro‐
ceeding, the prosecutor had told his lawyer, Daniel Radako‐
vich, that if Todd agreed to plead guilty the state would rec‐
ommend an 18‐year prison sentence plus fines. In response
Radakovich had asked the prosecutor to consider recom‐
mending a 10‐year sentence—to which the prosecutor had
replied that he wouldn’t be doing his job if he recommended
a sentence shorter than 15 years.
Just days before the plea hearing the prosecutor wrote
Radakovich that it was his (the prosecutor’s) understanding
that Todd would enter an “open plea” of guilty—that is, a
plea not conditioned on sentence length—and that in return
the government would drop another charge against Todd
and, pending sentencing, reduce his $250,000 bond—which
he could not meet—to $20,000, subject to certain conditions,
such as that he submit to drug testing at least twice a week.
An attorney named Thomas Murray stood in for Rada‐
kovich at the plea hearing, at which Todd entered an open
plea of guilty and acknowledged that he could be sentenced
to anywhere between 6 and 60 years in prison and fined as
much as $500,000. The judge asked Todd whether any prom‐
ises had been made to him other than that his bond would

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No. 14‐3430 3
be reduced and another pending charge against him
dropped, and he said “no.”
The day before Todd was to be sentenced, Radakovich
had written the prosecutor asking “would the State be inter‐
ested in a sentence lower than the ten (10) year sentence that
has been negotiated in consideration for a higher fine in this
matter?” The prosecutor, not acknowledging any such nego‐
tiation, responded that Todd’s open plea had made him sub‐
ject to a prison sentence of anywhere between 6 and 60
years. Radakovich, replying to the prosecutor, did not disa‐
gree but merely asked: “What is your position re: Sentenc‐
ing, fine, etc.?” The prosecutor replied that he hadn’t yet
read the probation service’s presentence report but thought
“my recommendation will be for a significant number of
years.”
The sentencing hearing was delayed, and during the in‐
terim Todd moved to enforce what he claimed was the
state’s agreement to a “10‐year cap” on its sentencing rec‐
ommendation. The judge (a different judge from the one
who had accepted Todd’s guilty plea) held an evidentiary
hearing at which Radakovich, who had withdrawn as a law‐
yer for Todd so that he could become a witness for him, tes‐
tified that it was his recollection that in a phone call with the
prosecutor more than two years earlier he had proposed that
Todd’s “sentence would be, although not firmly decided or
agreed upon, … capped at ten years,” and that it was his
understanding that the prosecutor had agreed. Yet when
asked on cross‐examination to explain “with specificity and
completeness, each and every thing that [the prosecutor]
said that he would do in exchange for that plea of guilty,”
Radakovich did not mention any 10‐year cap, only “a signif‐

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4 No. 14‐3430
icant lowering of Mr. Todd’s bond … and [ ] we would see
what the sentence ultimately would be.” He acknowledged
that the prosecutor had not stated agreement to a 10‐year
sentencing cap.
The judge concluded that there had never been such an
agreement and proceeded to sentence Todd to 25 years (as
we noted at the beginning of this opinion) on the basis of his
“significant history of criminal activity” and “the significant
amount of cocaine that was sold here.”
This wasn’t the end of the state‐court proceeding. In re‐
sponse to a motion by Todd to reconsider the sentence or va‐
cate the guilty plea, the state court convened a further evi‐
dentiary hearing, at which lawyer Murray, who had stood in
for Radakovich at the plea hearing, testified that Radakovich
had not mentioned a 10‐year cap and that he (Murray) had
told Todd that he would be “pleading open.” Todd testified
that the day before his plea hearing Radakovich had told
him that “him [Radakovich] and [the prosecutor] had a plea
negotiation of a ten year cap” and that he (Todd) “would
have never pled guilty to an open six to 60”—though of
course he had pleaded guilty to exactly that range. And on
cross‐examination he admitted that he’d agreed to “pleading
guilty open,” that he knew what that meant, that he’d heard
the judge explain that the possible penalties at the plea hear‐
ing were from “6 years to 60 years in the Department of Cor‐
rections … and a possible fine of up to $500,000,” and that
he’d been promised nothing in exchange for his plea aside
from the concessions relating to the bond and the dismissal
of another charge.
Unsurprisingly the state trial judge found that the 10‐
year cap was “a fantasy … not based in any fact whatsoev‐

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No. 14‐3430 5
er.” He also found that Todd had not been confused about
the terms of the plea agreement—that there was “absolutely
no basis whatsoever [ ] to support a finding that [Todd] did
not make a knowing and voluntary plea.” The judge also
found “no evidence to suggest, whatsoever, that Mr. Rada‐
kovich [had been] ineffective in any way.” This may seem a
surprising finding, given the “fantasy” character of the 10‐
year cap, but Radakovich had conceded that the prosecutor
had never agreed to a 10‐year cap. And Murray, who had
represented Todd at the plea hearing, had never heard of the
cap and Todd had acknowledged not mentioning it in any of
his court appearances, even though the court had made clear
that he was facing a maximum sentence not of 10 but of 60
years.
There is no doubt that Radakovich had fabricated (we
don’t know whether deliberately or because of a failure of
memory) the 10‐year sentence cap; he confused his propos‐
ing it to the prosecutor with the prosecutor’s accepting it. If
as a consequence of Radakovich’s fabrication Todd had
pleaded guilty rather than invoke his right to a trial at which
he might conceivably (if improbably) have been acquitted,
he might have a claim to have been harmed by ineffective
assistance of counsel and to be entitled therefore to a do‐over
of his state‐court proceeding that had culminated in the 25‐
year sentence. See Strickland v. Washington, 466 U.S. 668
(1984); Hill v. Lockhart, 474 U.S. 52 (1985); cf. 28 U.S.C.
§ 2254(d). But his briefs nowhere mention the possibility of
an acquittal, nor has he ever presented evidence that he
would have gone to trial had it not been for his belief (if he
did believe) that by pleading guilty he would get his sen‐
tence capped at 10 years. It’s true that he’d said that he
“would have never pled guilty to an open six to 60,” and if

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6 No. 14‐3430
he hadn’t pleaded guilty he would have gone to trial, but his
statement was bluster: he did “plead guilty to an open six to
60.”
Even if we assume that he believed in the 10‐year cap, he
either lied or was confused in replying “no” when asked by
the judge whether any promises had been made to him other
than that his bond would be reduced and the other charge
against him dropped. If he lied, he has no right to change his
story and get a trial. If he was confused and still believed
there was a sentencing cap, the trial judge disabused him of
his mistake by telling him he could be sentenced to any‐
where from 6 to 60 years even if he pleaded guilty—which is
what he did, with his eyes open. See Hutchings v. United
States, 618 F.3d 693, 699 (7th Cir. 2010).
A FFIRMED

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