Gregory L. Payne v. RICHARD BROWN, Superintendent, Wabash Valley Correctional Facility

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1869
GREGORY L. PAYNE,
Petitioner-Appellant,
v.
RICHARD BROWN, Superintendent,
Wabash Valley Correctional Facility,
Respondent-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:09-cv-228-RLY-WGH—Richard L. Young, Chief Judge.
ARGUED OCTOBER 5, 2011—DECIDED NOVEMBER 10, 2011
Before EASTERBROOK, Chief Judge, and MANION and
ROVNER, Circuit Judges.
EASTERBROOK, Chief Judge. When pleading guilty to
four felony charges, Gregory Payne admitted that he
had forcibly detained a 17-year-old boy—threatening to
kill him if he resisted or tried to escape—and raped him
in the anus. Charges that Payne had raped a 13-year-old
boy were dismissed. The state judge sentenced him to

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2 No. 10-1869
50 years in prison in light of his prior felony convictions.
The sentence was affirmed on direct appeal, 838 N.E.2d
503 (Ind. App. 2005), and a collateral attack was re-
jected, 905 N.E.2d 68 (Ind. App. 2009) (table).
In this federal collateral proceeding under 28 U.S.C.
§2254, Payne contends, as he had argued in state court,
that he received ineffective assistance of counsel in two
respects: his lawyer did not ensure that the plea agree-
ment was reduced to writing, see Ind. Code §35-35-3-3(a),
and gave him incorrect advice about the sentence he
could receive.
In a hearing in state court, Payne testified that his
lawyer had told him that he could not receive more than
20 years’ imprisonment, while under Indiana law the
actual sentencing range ran from a low of 20 years to a
maximum of 86 (if the judge imposed the maximum on
all counts and ordered the sentences to be served con-
secutively). Counsel testified that he could not remem-
ber what he had told Payne. Payne may have misunder-
stood or misrepresented what counsel said. His lawyer
argued to the sentencing judge that, as a matter of
Indiana law, all four counts merged into a single charge
of criminal confinement, the maximum penalty for which
is 20 years. The judge rejected this argument, however,
holding that criminal confinement is a lesser included
offense of deviate sexual conduct, which carries a maxi-
mum penalty of 50 years. The judge imposed a 50-year
sentence for that crime, plus concurrent sentences on
two other charges, while withholding sentence on the
criminal-confinement charge. (Because criminal confine-

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No. 10-1869 3
ment is a lesser included offense, a separate sentence
would be appropriate only if the conviction on the
greater charge later is set aside.) But because counsel
did not remember whether he had told Payne that the
maximum is 20 years, or only that he would try to per-
suade the judge of this, the parties have assumed that
Payne’s professed understanding is correct.
After the hearing, the state judge declined to set
aside the plea, concluding that Payne had not suffered
prejudice because the correct sentencing options had
been stated in open court. The judge ordered resen-
tencing because of a different problem: the plea agree-
ment included a pledge by the prosecutor not to make
a recommendation about the appropriate sentence, a
pledge that had been broken. After a new proceeding
at which the prosecutor stood mute, the state judge
again imposed a 50-year sentence, explaining that the
prosecutor’s recommendation in the original sen-
tencing had not affected his decision.
The state’s appellate court affirmed, but with a dif-
ferent explanation for the lack of prejudice. The appellate
court concluded that Payne surely would have been
convicted, had he stood trial, so that it just didn’t matter
what his lawyer said or what he believed. The federal
district judge denied Payne’s petition with the same
explanation.
That was a mistake. Hill v. Lockhart, 474 U.S. 52, 58–59
(1985), holds that a person who contends that ineffective
assistance of counsel induced him to plead guilty estab-
lishes “prejudice” by demonstrating that, but for coun-

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4 No. 10-1869
sel’s errors, he would have insisted on a trial. The state’s
appellate court relied on Segura v. State, 749 N.E.2d 496
(Ind. 2001), and State v. Van Cleve, 674 N.E.2d 1293 (Ind.
1996), in which the Supreme Court of Indiana concluded
that the Supreme Court of the United States couldn’t
have meant what it said in Hill. Relying in part
on Lockhart v. Fretwell, 506 U.S. 364 (1993), the state
court reasoned that unless a proceeding is fundamentally
unfair or unreliable, there cannot be “prejudice” for the
purpose of the ineffective-assistance inquiry. And when
a person is certain to be convicted at trial, a sentence
imposed following a guilty plea—which after all rests
on the accused’s admission that he committed the
crime—must be reliable, the state court decided.
The understanding of Fretwell reflected in Segura and
Van Cleve did not survive the decisions in Williams v.
Taylor, 529 U.S. 362 (2000), and Glover v. United States, 531
U.S. 198 (2001), which establish that Fretwell must not be
understood to change the prejudice inquiry otherwise
appropriate under Strickland v. Washington, 466 U.S. 668
(1984), and Hill. The situation in Fretwell was unusual: a
federal court of appeals reached an erroneous decision,
which it soon overruled. Fretwell contended that he
received ineffective assistance because his lawyer had
failed to take advantage of that decision during the win-
dow between its announcement and its overruling.
The Justices responded that no one suffers a legal
injury when the courts apply the correct rule of law.
That’s what Fretwell meant in saying that the defendant
had not suffered a fundamentally unfair or unreliable
outcome. Fretwell did not change the prejudice standard

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No. 10-1869 5
of Strickland (for cases that proceed to trial) or Hill (for
cases resolved on guilty pleas). We therefore conclude
that the state court’s decision in Payne’s case was “con-
trary to . . . clearly established Federal law, as deter-
mined by the Supreme Court of the United States”. 28
U.S.C. §2254(d)(1). Hill supplies the rule for identifying
“prejudice.”
It does not follow, however, that Payne is entitled to
relief. Our conclusion does no more than lift the restric-
tions on collateral review that are part of §2254(d).
Relief still depends on a demonstration that Payne is “in
custody in violation of the Constitution . . . of the United
States.” 28 U.S.C. §2254(a). And that means performance
so deficient that the defendant did not receive the sort
of “counsel” of which the sixth amendment speaks, see
Strickland, 466 U.S. at 687–88, plus “prejudice” as defined
in Hill. The parties have assumed that Payne’s lawyer
erred, but they have not done what Strickland requires:
they have not analyzed what Payne’s lawyer did
for him. See Strickland, 466 U.S. at 690–96, discussed in
Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009) (“It
is essential to evaluate the entire course of the defense,
because the question is not whether the lawyer’s work
was error-free, or the best possible approach, or even
an average one”). Because the lawyers for Indiana have
not argued that “the entire course of the defense” shows
that Payne was adequately represented, we let this
subject pass—but without retreating from our estab-
lished view that it is rarely proper to examine par-
ticular claims of error in isolation.

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6 No. 10-1869
Payne’s observation that the plea agreement was not
reduced to writing does not satisfy either the “perfor-
mance” or the “prejudice” component of Strickland
and Hill. Payne’s lawyer and the prosecutor had been
negotiating potential plea bargains for some time. Payne
had rejected every proposal until the morning when
trial was to begin. He changed his mind after the jury
had been selected and sworn. Payne told the state judge
that he had decided to plead guilty in large measure
in order to spare the two juvenile victims the pain of
testifying, and himself the embarrassment of having
the details spelled out in the courtroom. There wasn’t
time to prepare a detailed contract—and neither Payne
nor the prosecutor asked for a delay so that this could
be done. The judge would have been unlikely to grant
that request, which would have left the jurors and wit-
nesses cooling their heels for an indefinite period.
The terms of the plea bargain were stated on the
record, making a separate writing unnecessary. Payne
agreed to plead guilty to all counts relating to the 17-year-
old victim; the prosecutor agreed to dismiss all counts
relating to the 13-year-old victim and not to make a
recommendation about the appropriate sentence. The
prosecutor kept the former promise and broke the latter,
which was enforced by vacating the initial sentence and
providing Payne with a full resentencing. In this court,
Payne says that a separate written contract might have
contained information about the possible maximum
sentences, avoiding the misunderstanding that Payne
now says he labored under. Perhaps so; Indiana would
be well advised to take steps that prevent collateral

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No. 10-1869 7
attacks such as the current one, which required an evi-
dentiary hearing in state court and now is before its
fourth judicial forum (trial and appellate courts in
Indiana, followed by federal district and appellate
courts). But the state judge gave Payne exactly the in-
formation that he says would have been in a written
plea agreement, which means that there was no preju-
dice—not on either of Payne’s theories.
We assume, as the parties have done, that Payne’s
lawyer told him that the maximum sentence could not
exceed 20 years, and not just that he would try to
persuade the judge that this was the limit. Attorneys
often are more confident of their position than the law
warrants; perhaps Payne’s lawyer failed to alert his
client to the risk that his argument would be rejected.
(It was a weak argument; counsel apparently got the
rules for lesser included offenses backward and as-
sumed that the greater offense merges into the lesser.) But
though Payne received bad advice from his lawyer, he
received the correct information from the judge. He
could have backed out when he heard the unwelcome
news—the lawyers, jury, and witnesses were ready to
proceed with trial—but he didn’t.
The state judge conducted a thorough interrogation
before accepting the guilty plea; it covers 46 pages of
transcript. The judge twice informed Payne about
possible sentences. The first time, the judge said: “A Class
A felony, which is Count IV in the actual information,
has what’s called a standard term of imprisonment of
30 years.” Payne replied: “All right.” The judge con-

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8 No. 10-1869
tinued: “If there are aggravating circumstances in a
particular case, the maximum sentence on a Class A
felony is a 50-year term of imprisonment. If there were
mitigating circumstances, the minimum sentence on a
Class A is a 20-year term of imprisonment.” Payne said:
“Right.” These brief replies do not suggest that Payne
was sleepwalking through the hearing; he frequently
asked the judge for more information or inquired about
what would happen next, and he sometimes volunteered
information. But when the judge said that the “standard”
sentence on one count alone could be 30 years, with a
maximum of 50 years, Payne acknowledged the infor-
mation without suggesting that it contradicted his ex-
pectations.
Ten transcript pages later, the judge returned to the
subject of the potential sentence. The judge told Payne
that, after a guilty plea to four charges, there could be
four separate sentences, and that he could make these
sentences consecutive. The judge told Payne that this
means “one after the other.” Payne said: “Right; right.”
The judge added: “Or I can run them concurrently,
which is at the same time.” Payne: “Right.” Thus Payne
knew that the maximum time in prison could exceed
50 years; he acknowledged the information with-
out claiming to have a contrary understanding. A defen-
dant’s statements made in open court control over later,
contradictory contentions. See, e.g., Hutchings v. United
States, 618 F.3d 693, 699 (7th Cir. 2010). No one can get
collateral relief by insisting that his earlier statements to
a judge were false—certainly not after a court has held
a hearing and decided that the statements made at the
time of the plea were true.

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No. 10-1869 9
Payne observes that the judge did not ask him whether
he had any beliefs or expectations that induced him to
plead guilty. Such a question might have elicited a
reply related to the sentence, even though the judge’s
advice about maximum and consecutive sentences did
not. We grant the possibility. Judges who take guilty
pleas can forestall collateral attacks such as this—pro-
ceedings that can be hard to resolve because defendants
may misunderstand or misrepresent oral advice, and
attorneys may be unable to remember years later what
they said—by asking the defendant to narrate in his own
words what he understands or expects will happen. See
Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). But
the trial judge here did ask a closely related question:
he asked Payne why he was pleading guilty. Payne
might have replied “because my sentence can’t exceed
20 years.” But he didn’t. What he actually said was that
“I really want to have the plea accepted [s]o we can get
it over with, and we ain’t got to drag these people
into court. It’s all really embarrassing, each way. And
we just don’t need to make a mockery out of it or just
make a mess out of it. . . . I just wish to just go ahead
and take a plea and hope that the Court won’t at least
kill me with time. And we ain’t got to drag these guys
[the victims] into court and make them put their
business up and, you know, just embarrass them.”
This statement not only provides a reason unrelated to
a belief that the maximum term is 20 years but also
implies that Payne did not have such a belief. He said
that he hoped that “the Court won’t . . . kill me with time.”
That’s very different from his currently professed belief

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10 No. 10-1869
that the judge could not sentence him to more than 20 years.
What happened at sentencing fortifies the inference
that Payne knew that the maximum was well over
20 years. When the judge pronounced a 50-year sen-
tence, Payne stood silent. He did not protest or ask to
withdraw his plea. He did not use allocution to proclaim
a belief that 20 years was the maximum. Soon after sen-
tencing, he did protest the 50-year sentence on the
ground that the prosecutor had made a recommenda-
tion. The state judge vacated the sentence and started
from scratch. At the second proceeding, Payne again did
not use allocution to tell the judge that he thought
20 years the maximum, and when the judge re-imposed
a 50-year sentence, Payne again did not protest or ask
to withdraw his plea. That motion came two weeks
later—a curious delay if Payne had then the belief he
now claims to have had.
According to Payne, however, this inference that he
knew what penalties were possible is unsound because
he had turned down plea offers that would have
produced a sentence as low as 30 years. Why reject 30 years
only to enter a plea that led to a sentence of 50 years?
Payne’s current lawyers ask us to answer that question
by concluding that Payne must have believed that the
maximum sentence was lower than 30 years. That’s not
necessarily so, however. The state judge told him that
his sentence could be as low as 20 years; perhaps Payne
hoped for that outcome, which would have been better
than 30 years with certainty. Or perhaps the approach of
trial concentrated the mind, and Payne was honest
when he told the judge that he wanted to avoid embar-

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No. 10-1869 11
rassing the victims (and himself) at trial. It is unneces-
sary to decide why Payne turned down the 30-year
offer only to enter a plea that lacked a cap on the sentence.
The record shows us that Payne knew that his time in
prison could be 50 years (or more with consecutive sen-
tences). No more is necessary to show that the judgment
must be
AFFIRMED.
11-10-11

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