Percell Dansberry v. RANDY PFISTER , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3723
PERCELL D ANSBERRY ,
Petitioner-Appellant,
v.
R ANDY PFISTER , Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 8719 — James F. Holderman, Judge.
____________________
A RGUED J ANUARY 23, 2015 — DECIDED S EPTEMBER 15, 2015
____________________
Before WOOD, Chief Judge, and K ANNE and TINDER , Circuit
Judges.
K ANNE, Circuit Judge. Petitioner Percell Dansberry pled
guilty to murder and related charges in Illinois state court.
During Dansberry’s plea colloquy, the trial court, in violation
of his constitutional rights, erroneously admonished him
about the mandatory minimum sentence he faced. Dansber-
ry petitioned for a writ of habeas corpus under 28 U.S.C.
§ 2254, arguing that the state court’s error requires automatic

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2 No. 13-3723
reversal of his conviction and a chance to re-plead. The dis-
trict court denied Dansberry’s petition because it found that
the error was harmless. We affirm.
I. BACKGROUND
The Supreme Court held in Boykin v. Alabama, 395 U.S.
238 (1969), that the Constitution prohibits a court from ac-
cepting a criminal defendant’s guilty plea “without an af-
firmative showing that it was intelligent and voluntary.” Id.
at 242. The Court demanded “the utmost solicitude” to en-
sure that the defendant “has a full understanding of what
the plea connotes and of its consequences.” Id. at 243–44. A
few years later, the Court reiterated in Brady v. United States,
397 U.S. 742 (1970), that the defendant must be “fully aware
of the direct consequences” of his plea, id. at 755 (citation
omitted), including the “permissible range of sentences,”
Boykin, 395 U.S. at 244 n.7 (citation omitted).
The federal courts and many states responded to Boykin
by adopting or modifying procedural rules designed to en-
sure compliance with due process when accepting guilty
pleas. The federal system adopted a more robust Federal
Rule of Criminal Procedure 11, and Illinois adopted Su-
preme Court Rule 402. See United States v. Wagner, 996 F.2d
906, 913 (7th Cir. 1993) (recognizing that the new Rule 11
“codified the requirements of Boykin”); People v. Burt, 658
N.E.2d 375, 382 (Ill. 1995) (“Rule 402 was adopted to insure
compliance with these due process requirements.”).
In this case, the state trial court admonished Dansberry,
as required by due process and Illinois Supreme Court Rule
402, before accepting his guilty plea. But the court erred
when explaining what possible sentences he faced.

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No. 13-3723 3
A. State Court Proceedings
Dansberry shot and killed 18-year-old Antonio Bass dur-
ing an attempted armed robbery in Chicago in 1997. An
eyewitness saw the crime, and when questioned by police,
Dansberry admitted his culpability. Dansberry was charged
in state court with first-degree murder and attempted armed
robbery. He initially pled not guilty. But on the day his crim-
inal trial was scheduled to begin, Dansberry changed his
mind and entered a “blind” plea of guilty (meaning he did
not know what his sentence would be).
The trial court held a change-of-plea hearing. The court
advised Dansberry on the record about the rights he was
giving up, the charges against him, and the range of possible
sentences. The court explained that the murder conviction
carried a prison term of 20 to 60 years, life, or the death pen-
alty. On the attempted armed robbery charge, he faced an-
other 6 to 30 years of incarceration. The court added that it
was “possible” the two sentences could run consecutively.
By the court’s calculations, then, Dansberry faced a mini-
mum of 20 years in prison up to 90 years, life imprisonment,
or death. Dansberry said he understood.
In fact, however, the court’s calculations were incorrect.
On the low end, because 730 ILCS 5/5-8-4 made consecutive
sentences mandatory (not merely “possible,” as the court
mistakenly said), Dansberry faced a minimum prison term
of 26 years, not 20. On the upper end, Dansberry was eligible
for an extended prison term of up to 100 years for first-
degree murder, see 730 ILCS 5/5-8-2; 730 ILCS 5/5-4.5-20,
bringing his maximum term to 130 years, not 90. The court
was correct, however, about the possibility of life imprison-
ment or the death penalty.

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4 No. 13-3723
After accepting Dansberry’s plea, the court held a sen-
tencing hearing. It found him eligible for the death penalty
but sentenced him instead to consecutive prison terms of 65
years for murder and 15 years for the robbery charge, for a
total of 80 years.
Dansberry later moved to withdraw his guilty plea on
the ground that (1) his plea was involuntary and unknow-
ing, and (2) trial counsel was constitutionally ineffective. The
trial court held a hearing on the motion. The evidence
showed that leading up to the trial, the State had pressed for
the death penalty. Trial counsel told Dansberry that he could
be sentenced to more than 60 years of incarceration, life, or
death. Dansberry’s main concern, according to counsel, was
to avoid execution. That is what drove his decision to plead
guilty. Dansberry says his attorney told him to expect a sen-
tence of around 40 years in exchange for his plea, though his
attorney denied making any such prediction. Dansberry lat-
er told a friend that he “took the 40.”
The trial court denied Dansberry’s motion to withdraw
his plea. The Illinois Appellate Court affirmed. People v.
Dansberry, No. 97 CR 17153, slip op. (Ill. App. Ct. Oct. 18,
2010) (“Dansberry I”). Citing Boykin, the appellate court not-
ed that “[i]n order to satisfy due process, a guilty plea must
be affirmatively shown to have been made voluntarily and
intelligently.” Id. at 13. The court noted further that Illinois
“Supreme Court Rule 402 was adopted to ensure compliance
with these due process requirements” by, inter alia, requiring
the trial court to admonish a defendant about the “minimum
and maximum sentence prescribed by law.” Id. at 13–14
(quoting Ill. Sup. Ct. R. 402(a)(2)).

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No. 13-3723 5
The state appellate court found that the trial court “sub-
stantially complied” with Rule 402 and due process because
it told Dansberry that he could face a sentence longer than 60
years and because an ordinary person in his position would
have understood that he “could be subjected to a minimum
sentence of 26 years.” Id. at 15–16. Moreover, the court found
no showing by Dansberry “as to how he was denied real jus-
tice or suffered prejudice.” Id. at 16. One of the justices dis-
sented, arguing that prejudice is inherent when a defendant
“has not been informed of the full consequences of his guilty
plea.” Id. at 24 (Hall, P.J., dissenting). The Illinois Supreme
Court denied Dansberry’s petition for leave to appeal. People
v. Dansberry, 943 N.E.2d 1103 (Ill. 2011).
B. Federal Habeas Proceedings
After losing his state-court appeal, Dansberry filed a ha-
beas corpus petition under 28 U.S.C. § 2254 in the Northern
District of Illinois challenging both his trial counsel’s per-
formance and the validity of his guilty plea. The district
court rejected both arguments, but only the latter one is be-
fore us on appeal.
The district court disagreed with the Illinois Appellate
Court, holding that “[t]o the extent [it] found no due process
violation in Dansberry’s case,” that was “an unreasonable
application of clearly established Supreme Court precedent.”
Dansberry v. Pfister, No. 11 C 8719, 2013 U.S. Dist. LEXIS
159811, at *22 (N.D. Ill. Nov. 8, 2013) (“Dansberry II”). The
district court held that the state trial court violated Boykin
and Brady. Id. Specifically, the trial court incorrectly led
Dansberry to believe that his minimum prison sentence was
20 years when in fact, considering that consecutive sentences
were mandatory, he faced at least 26 years. There was no ev-

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6 No. 13-3723
idence that Dansberry was otherwise aware of the correct
figure. Following the Third Circuit in Jamison v. Klem, 544
F.3d 266 (3d Cir. 2008), the district court held that because
Dansberry was “unaware of a mandatory minimum sen-
tence,” he “cannot be said to have been fully aware of the
direct consequences of his … guilty plea.” Dansberry II at *21
(internal quotation marks and citation omitted).
The district court found no constitutional error, however,
in the trial court’s admonition concerning the upper end of
Dansberry’s sentencing range. Although the trial court mis-
takenly understated the maximum statutory prison term
(which was 130 years rather than 90), it did tell Dansberry
that he faced a possible life sentence or the death penalty.
Following our decision in Steward v. Gilmore, 80 F.3d 1205,
1214 (7th Cir. 1996), the district court held that this was
enough to apprise the defendant of his maximum possible
sentence and to comport with due process. Dansberry II at
*16–18.
Having found that the trial court erred in admonishing
Dansberry about his mandatory minimum sentence, the dis-
trict court nevertheless denied his petition for habeas relief.
That is because the district court concluded: (1) that the
Boykin error was subject to review for harmlessness; and
(2) that the error here was harmless. Id. at *13–18. Dansberry
challenges both of those holdings on appeal.1
1 The other arguments Dansberry raises in his briefs are outside the
scope of the certificate of appealability, which we decline to enlarge. This
opinion therefore does not address those additional arguments. See 28
U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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No. 13-3723 7
II. A NALYSIS
We review the denial of a habeas petition de novo. Smith v.
McKee, 598 F.3d 374, 381 (7th Cir. 2010). A state prisoner may
seek habeas relief on the ground that his detention violates
the federal Constitution or laws. 28 U.S.C. § 2254(a). But un-
der the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), a federal court may not grant habeas relief
on any claim that has already been adjudicated on the merits
in state court unless the adjudication “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” or “was based on an unreasonable determina-
tion of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). Under AEDPA, habe-
as relief from a state-court judgment is “not easy to come
by.” Kamlager v. Pollard, 715 F.3d 1010, 1015 (7th Cir. 2013)
(internal quotation marks and citation omitted).
The decision under review is “the decision of the last
state court to adjudicate the merits of the petitioner’s claim.”
Id. “Clearly established federal law” for AEDPA purposes
“refers to the holdings, as opposed to the dicta, of [the Su-
preme] Court's decisions as of the time of the relevant state-
court decision.” Carey v. Musladin, 549 U.S. 70, 74 (internal
quotation marks and citation omitted). But later Supreme
Court decisions and decisions by lower courts may also be
helpful in determining the content or application of clearly
established federal law. See, e.g., id. at 76–77 (treating diver-
gence among lower courts as evidence that there was no
clearly established federal law).

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8 No. 13-3723
A. Availability of Harmless-Error Review
Dansberry contends that the trial court’s Boykin error re-
quires automatic reversal of his conviction and a chance to
re-plead. The Illinois Appellate Court rejected that argument
and instead undertook a harmless-error analysis. Dansberry I
at 14–18. Although the court did not explain its reasons, we
still afford AEDPA deference to its conclusion. See Harrington
v. Richter, 562 U.S. 86, 99 (2011) (presuming state court adju-
dicated claim on the merits in the absence of any indication
to the contrary). We therefore need only determine whether
the state appellate court’s decision was contrary to or an un-
reasonable application of clearly established Supreme Court
precedent. See 28 U.S.C. § 2554(d)(1). The district court below
held that it was not. Dansberry II at *22–25. We agree.
In the context of criminal trials, the Supreme Court “has
recognized that most constitutional errors can be harmless.”
Arizona v. Fulminante, 499 U.S. 279, 306 (1991). “If the de-
fendant had counsel and was tried by an impartial adjudica-
tor, there is a strong presumption that any other constitu-
tional errors … are subject to harmless-error analysis.” Neder
v. United States, 527 U.S. 1, 8 (1999) (internal punctuation and
citation omitted). The Court has proven this maxim by ap-
plying harmless-error analysis to a wide variety of constitu-
tional transgressions. Fulminante, 499 U.S. at 306–07 (collect-
ing cases). “[O]nly in a very limited class of cases” has the
Court found an error to be “structural,” requiring automatic
reversal. Neder, 527 U.S. at 8 (internal quotation marks and
citation omitted).
An error is structural when it “def[ies] analysis by ‘harm-
less-error’ standards” because it “affect[s] the framework
within which the trial proceeds” and is not “simply an error

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No. 13-3723 9
in the trial process itself.” Fulminante, 499 U.S. at 310. Such
errors include the denial of a defendant’s right to counsel, to
self-representation, to a public trial, or to a trial by jury. Unit-
ed States v. Gonzalez-Lopez, 548 U.S. 140, 149 (2006) (citations
omitted). Other errors, such as the erroneous deprivation of
a defendant’s counsel of choice, are structural because their
effects are “necessarily unquantifiable and indeterminate.”
Id. at 150 (internal quotation marks and citation omitted).
We are aware of no Supreme Court decision directly ad-
dressing whether a Boykin error is structural. But at least one
of our sister circuits has held that it is not. See United States v.
Johns, 625 F.2d 1175, 1176 (5th Cir. 1980) (holding that
“[e]ven if the district court erred under Boykin … it would
not be reversible error” because the record established that it
was “harmless beyond a reasonable doubt”). And this court,
in Steward v. Peters, rejected a due process claim where the
court erroneously admonished the defendant about his
mandatory minimum sentence but the error was immateri-
al—i.e., it would not have changed the defendant’s plea. 958
F.2d 1379, 1385 (7th Cir. 1992).
Similarly, we think an erroneous admonishment of the
kind we have here—an incorrect statement of a defendant’s
mandatory minimum sentence—is nonstructural. It does not
affect the entire proceedings in the way that, e.g., an outright
denial of counsel would. Cf. Gonzalez-Lopez, 548 U.S. at 149
(giving examples of structural errors). And its effects are
likely to be identifiable and measurable. Cf. id. at 150 (find-
ing structural error where the effects are “necessarily un-
quantifiable and indeterminate”). In short, an erroneous
admonishment about a mandatory minimum sentence does
not defy analysis for harmless error.

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10 No. 13-3723
In an analogous context, Federal Rule of Criminal Proce-
dure 11 requires the court, before entering a guilty plea, to
admonish the defendant about the minimum and maximum
penalties he faces (among other things). Fed. R. Crim. P.
11(b)(1)(H)-(I). If the court fails to do that, then Rule 11(h)
calls for harmless-error analysis. Fed. R. Crim. P. 11(h) (stat-
ing that a “variance from the requirements of this rule is
harmless error if it does not affect substantial rights”).
Courts regularly perform that analysis. See, e.g., United States
v. Padilla, 23 F.3d 1220, 1221–22 (7th Cir. 1994) (reviewing
failure to inform defendant about mandatory minimum sen-
tences for harmless error). This shows that such errors are
susceptible to, and do not defy, harmless-error review.
That is not to say that every Boykin error will always be
reviewed for harmless error. In United States v. Dominguez
Benitez, a case involving Rule 11 error, the Supreme Court
suggested in a footnote that some due process violations
during a plea colloquy might require automatic reversal of a
conviction. 542 U.S. 74, 84 n.10 (2004). For example, where
the record of the plea hearing “contains no evidence that a
defendant knew of the rights he was putatively waiving,” as
in Boykin itself, then “the conviction must be reversed.” Id.
The Court continued: “We do not suggest that such a convic-
tion could be saved even by overwhelming evidence that the
defendant would have pleaded guilty regardless.” Id.; cf.
Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993) (recogniz-
ing that “in an unusual case, a deliberate and especially

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No. 13-3723 11
egregious error of the trial type” might require automatic
reversal).2
This, however, is not such a case. Dansberry was aware of
the rights he waived by pleading guilty. The error here con-
cerned the precise penal consequences of his plea—a less
fundamental error. Moreover, the footnote in Dominguez Be-
nitez is dictum and therefore does not constitute “clearly es-
tablished” federal law for purposes of AEDPA. Musladin, 549
U.S. at 74.
For these reasons, we uphold the Illinois Appellate
Court’s conclusion that the Boykin error during Dansberry’s
plea colloquy did not require automatic reversal of his con-
viction but was instead subject to harmless-error review.
B. Harmless-Error Analysis
All that remains is to determine whether the error here
was harmless. The Illinois Appellate Court thought so, but it
applied the wrong standard, requiring Dansberry to show
that he was denied “real justice” or that he suffered “preju-
dice.” Dansberry I at 14, 16. The correct standard on direct
appeal of a constitutional claim is the Chapman standard:
whether the error was “harmless beyond a reasonable
2 Dansberry also cites the Third Circuit’s opinion in Jamison, supra, for the
proposition that he is entitled to automatic reversal even if the error was
harmless. But Jamison held no such thing. The Jamison court did not ad-
dress harmless error directly (apparently it was not at issue). But the
court did note the “distinct possibility that the failure to apprise Jamison
of the mandatory minimum sentence affected his willingness to plead
guilty when he otherwise would not have.” 544 F.3d at 277. In other
words, the error was likely harmful.

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12 No. 13-3723
doubt.” Johnson v. Acevedo, 572 F.3d 398, 403 (2009) (citing
Chapman v. California, 386 U.S. 18, 23 (1967)). Because the
state court applied a contrary standard, its conclusion merits
no AEDPA deference. Id. at 404; see also Ruhl v. Hardy, 743
F.3d 1083, 1091 (7th Cir. 2014). Instead, we make our own in-
dependent decision regarding harmless error, as if the state
court had never addressed the issue. Acevedo, 572 F.3d at 404.
On collateral review the Brecht standard applies: we ask
whether the error “had substantial and injurious effect or
influence” on the outcome of the proceeding. Id. at 403
(quoting Brecht, 507 U.S. at 623).
We are confident that the error here had no such effect on
Dansberry’s decision to plead guilty, for largely the same
reasons given by the district court. Dansberry II at *29–32.
The state trial and appellate courts found no evidence that
Dansberry would have changed his plea had he known that
he faced a mandatory minimum sentence of 26 years rather
than 20 years. And on habeas review, we presume that a
state court’s factual determinations are correct. 28 U.S.C.
§ 2254(e)(1).
What is more, the record shows that Dansberry’s mini-
mum sentence had little, if any, influence on his decision. He
was much more concerned about his maximum sentence; he
wanted to avoid being executed. He pled guilty largely be-
cause he expected he would receive about 40 years of incar-
ceration instead. When he did plead, he did so “blindly,”
without any promise of a particular sentence, even though
he had been informed that he could receive life imprison-
ment or even the death penalty. Ultimately, he was sentenced
to 80 years in prison. It is highly unlikely, and there is no ev-
idence in the record to suggest, that Dansberry’s mistaken

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No. 13-3723 13
belief that his minimum sentence was 20 years rather than 26
years had any effect on his decision to plead guilty.
III. CONCLUSION
The district court’s denial of Dansberry’s petition for a
writ of habeas corpus is AFFIRMED.

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