Chicago, Illinois 60604 Submitted March 20, 20081 Decided April 18, 2008 Before… v. No. 03 C 3265 UNITED STATES OF AMERICA, Jeanne E. Scott

1 After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 20, 20081
Decided April 18, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐2130
ROBERT SCOTT, Appeal from the United States District
Petitioner‐Appellant, Court for the Central District of Illinois.
v. No. 03 C 3265
UNITED STATES OF AMERICA, Jeanne E. Scott,
Respondent‐Appellee. Judge.
O R D E R
Robert Scott was convicted by a jury of conspiracy to possess with intent to
distribute marijuana and cocaine; he was sentenced to 326 months imprisonment. On
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07-2130 2
direct appeal, Scott‐‐through new counsel‐‐raised, among other things, an ineffective
assistance of counsel claim. At oral argument, we cautioned Scott’s attorney that an
ineffective assistance claim was almost impossible to sustain on a direct appeal and
that, if it failed, Scott could not again raise the claim in a later collateral attack. Scott’s
counsel responded that his client was aware of the risks but wanted to proceed with the
claim. We subsequently rejected Scott’s appeal, finding nothing in the record to rebut
the presumption that his trial counsel’s performance was reasonable. United States v.
Scott, 284 F.3d 758, 761 (7th Cir. 2002).
Scott now brings a collateral attack under 28 U.S.C. § 2255, arguing that his
appellate counsel was ineffective for raising on direct appeal Scott’s claim that his
former counsel was ineffective at trial. After conducting an evidentiary hearing, the
district court found that Scott’s appellate counsel properly informed Scott of the risks of
raising an ineffective assistance claim on direct appeal, but Scott nevertheless instructed
his counsel to proceed. The court accordingly dismissed Scott’s petition, finding no case
law to support the proposition that an appellate counsel must refuse to follow his
client’s informed instructions. Scott v. United States, No. 03‐CV‐3265, 2007 WL 853967,
at *4 (C.D. Ill. Mar. 16, 2007).
We agree that Scott’s ineffective assistance of counsel claim cannot succeed. As
the district court correctly noted, a lawyer may be entitled to disregard a client’s
direction to present an issue on appeal but is not constitutionally required to do so. See
Wallace v. Davis, 362 F.3d 914, 920 (7th Cir. 2004). Scott’s argument here‐‐that his
appellate counsel did not fully inform him of the consequences of his decision‐‐simply
restates his testimony at the evidentiary hearing, which the district court found not
credible. This factual determination was not clearly erroneous. See Menzer v. United
States, 200 F.3d 1000, 1003 (7th Cir. 2002).
Finally, Scott’s appellate counsel was not ineffective in failing to raise a
Confrontation Clause violation argument, where we affirmed, on direct appeal, the
district court’s finding that Scott wrongfully caused the unavailability of a government
witness.
Accordingly, the judgment of the district court is AFFIRMED.

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