                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-28-2008

USA v. Lilly
Precedential or Non-Precedential: Precedential

Docket No. 06-2613




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"USA v. Lilly" (2008). 2008 Decisions. Paper 748.
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                                             PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 06-2613


               UNITED STATES OF AMERICA

                                v.

                      CLAYTON LILLY,

                                     Appellant



           Appeal from the United States District Court
            for the Western District of Pennsylvania
            (D.C. Criminal Action No. 01-cr-00144)
            District Judge: Honorable Alan N. Bloch


                     Argued April 15, 2008


  Before: AMBRO, FISHER, and MICHEL,* Circuit Judges



       *
       Honorable Paul R. Michel, Chief Judge, United States
Court of Appeals for the Federal Circuit, sitting by designation.
                    (filed: July 28, 2008)

Lisa B. Freeland, Esquire (Argued)
   Federal Public Defender
Office of Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222-0000

      Counsel for Appellant

Mary Beth Buchanan
   United States Attorney
Kelly R. Labby
   Assistant U.S. Attorney
Robert L. Eberhardt (Argued),
   Executive Assistant U.S. Attorney
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219-0000

             Counsel for Appellee



                OPINION OF THE COURT


AMBRO, Circuit Judge

      Clayton Lilly appeals to us from the District Court’s


                              2
denial of his petition for habeas corpus. He argues that the
District Court should have granted him an evidentiary hearing
to develop his claim that his counsel was ineffective in failing
to advise him adequately about waiving his right to a jury trial.
We disagree, and thus affirm the petition’s denial.

                               I.

        In 2001, law enforcement officials began investigating
Lilly after they received information from a confidential
informant that he was selling crack cocaine over the counter of
the clothing store he owned and operated. After police observed
Lilly engage in a variety of drug transactions, they applied for
a warrant to search him, his store, and his car. To avoid
destruction of evidence, police detained Lilly while waiting for
the search warrant. Upon executing the warrant, police found
crack cocaine in Lilly’s store as well as in his car and on his
person. Lilly then stated, “It’s hard selling these clothes. The
guys aren’t buying these clothes. I have to support myself.”
Lilly was arrested. Police subsequently secured a search
warrant for Lilly’s home, where they discovered large amounts
of crack cocaine. The combined searches yielded 162.54 grams
of crack cocaine.

       A grand jury indicted Lilly for possession with intent to
distribute in excess of 50 grams of a substance containing
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(iii). Prior to trial, Lilly’s attorney, William E.
Stockey, Esq., filed a motion to suppress the evidence police had

                               3
seized. Because the evidence in support of the motion to
suppress was almost identical to the evidence that would be
presented at trial, the parties allegedly agreed to proceed with a
non-jury trial where the District Court would hear the evidence
on the suppression motion and the trial together. However, Lilly
and his attorney did not sign a written waiver of his jury-trial
right pursuant to Federal Rule of Criminal Procedure 23(a) until
some six weeks after the non-jury trial was completed, but
before the District Court rendered a verdict.

       In November 2001, the District Court conducted a one-
day joint pre-trial hearing and non-jury trial where it heard all of
the evidence. At the beginning of the proceedings, the Court
confirmed with the parties their intent to have a non-jury trial:

    The Court: I think the record should show that both the
    government and the defendant have requested a non-
    jury trial; is that correct?

    [Government] That’s correct for the government, Your
    Honor.

    Mr. Stockey: Correct for the defendant, Judge.

Mr. Lilly was present for this interchange, but he did not speak
up, nor did the Court ask him directly to confirm his desire to
waive a jury trial.

       The Court then heard evidence on the suppression motion

                                 4
and the case simultaneously. The Government based its case on
the cocaine that police had seized in its searches of Lilly’s
person, business, car, and home. Lilly conceded that the
searches had yielded a large quantity of cocaine, but argued that
the search warrants were unsupported by probable cause
because the police officers and the confidential informant were
not credible. He further argued that the Government had not
established beyond a reasonable doubt that Lilly was guilty
because, among other things, it had not called the confidential
informant to testify, nor had it established that Lilly had the
lavish lifestyle one would expect of a drug dealer.

        After hearing all of the evidence, the Court found the
police officers to be credible and denied Lilly’s motion to
suppress. In late December 2001, the Court issued its findings
of fact and found Lilly guilty. At sentencing, the Pre-Sentence
Investigation Report classified Lilly as a career offender under
the United States Sentencing Guidelines, giving him a
Guidelines range of 360 months to life imprisonment. Lilly
filed a motion for downward departure on the basis that the
career-offender designation overrepresented his criminal history.
The Court granted the motion and sentenced Lilly to a 188-
month term of imprisonment.

        Lilly appealed his conviction. Stockey, his trial counsel,
initially represented Lilly on appeal, but then withdrew because
Lilly and his family could no longer afford his representation.
Our Court appointed new appellate counsel. We affirmed
Lilly’s conviction in March 2003.

                                5
        In March 2004, Lilly filed a pro se habeas petition under
28 U.S.C. § 2255. In it, Lilly alleged, inter alia, that Stockey
had been ineffective in failing to advise him of his right to a jury
trial and in failing to obtain from him a written, signed waiver
of that right. Lilly further alleged that Stockey had “tricked”
him into signing the written waiver six weeks after trial.

        One month after filing the initial pro se petition, Lilly
filed a supplemental pro se habeas petition alleging that he was
denied his constitutional right to a jury trial when his counsel
waived it without his consent.1 He further asserted that the
District Court would have learned all of this had it conducted a
colloquy with him directly before accepting his waiver. The
Government filed a single response to both petitions contending
that Lilly had been informed of his right to a jury trial and had
knowingly and voluntarily waived it.

        The District Court treated Lilly’s multiple filings as a
single, all-inclusive § 2255 petition so that Lilly would not run
afoul of the Antiterrorism and Effective Death Penalty Act
(AEDPA)’s prohibition on filing second or successive habeas
petitions.2 The District Court also appointed habeas counsel.


         1
          Lilly subsequently made two further supplemental
filings in his § 2255 action, but these raised issues not relevant
to this appeal.
         2
             AEDPA amended § 2255 to “bar[] second or successive
habeas        petitions absent exceptional circumstances and

                                  6
While Lilly’s petition was pending before the District Court, his
trial counsel submitted a voluntary affidavit stating that he had
informed Lilly of his right to a jury trial and that Lilly had
waived it. In pertinent part, the affidavit stated:

    3. I am aware that Mr. Lilly has filed a Motion to
    Vacate under 28 U.S.C. § 2255 . . . . I am also aware
    that Mr. Lilly claims that I did not advise him of his
    right to a jury trial in the present case.

    4. I did inform Mr. Lilly that he had a right to trial by
    jury. On September 28, 2001 and at subsequent
    meetings I also advised him to waive that right and
    proceed with a bench trial.

    5. Mr. Lilly took my advice. He knowingly and
    willingly waived his right to jury trial. In fact, he even
    signed a written waiver of his right to jury trial that I
    filed with this court before a verdict was entered in this
    case.

       The District Court concluded that an evidentiary hearing


certification by the appropriate court of appeals. . . . To avoid
making successive claims, petitioners must marshal in one §
2255 writ all the arguments they have to collaterally attack their
convictions.” United States v. Miller, 197 F.3d 644, 649 (3d
Cir. 1999).


                                7
was not necessary and denied Lilly’s § 2255 petition in its
entirety. With regard to Lilly’s claims about his waiver of a jury
trial, the District Court understood him to be making two
distinct arguments that his counsel was ineffective (1) in failing
to advise him that he had a right to a jury trial, and (2) in failing
to have him sign a written Rule 23(a) waiver of a jury trial
before trial began. The Court found that the record belied
Lilly’s assertion that he was never advised of his right to a jury
trial. Specifically, it reasoned that Lilly’s signed waiver post-
trial, his trial counsel’s affidavit saying that Lilly had knowingly
and willfully waived a jury trial, and the District Court’s pre-
trial oral confirmation of Lilly’s waiver “demonstrate[d]
indisputably that [Lilly] was well-aware of his right to a jury
trial.” United States v. Lilly, 2006 WL 566499, at *4 (W.D. Pa.
2006). The District Court continued that Lilly “simply cannot
get a second chance with a jury after taking his chances with the
Court based on a self-serving claim, wholly refuted by the
record, that he was not advised of his right to a jury trial.” Id.

        With regard to Lilly’s claim about the timing of the
written waiver, the Court held that Rule 23(a) does not require
that a written jury-trial waiver be filed at any particular time.
Thus filing the waiver after trial but before verdict was
appropriate. Even assuming that the late waiver showed
incompetence by Lilly’s attorney, the Court found no prejudice
because it had orally confirmed the waiver with Lilly’s counsel
prior to trial in Lilley’s presence.

       Finally, the Court noted that it was under no duty to

                                 8
conduct an on-the-record colloquy with Lilly prior to accepting
his waiver of the jury-trial right. See United States v. Anderson,
704 F.2d 117, 119 (3d Cir. 1983). As will be discussed below,
while an on-the-record colloquy is preferred, it is not
constitutionally required. Id.

        Lilly filed a motion for reconsideration on the jury-
waiver claim, which the District Court denied. In the opinion
and order denying reconsideration, the Court considered
whether Lilly’s petition could be read as raising a due process
claim in addition to an ineffective assistance of counsel
claim—namely, that his waiver was not knowing, intelligent,
and voluntary. The Court went on to find Lilly’s due process
claim procedurally defaulted because he had failed to raise it on
direct appeal.

        Lilly filed a timely notice of appeal and a request for a
certificate of appealability with our Court. In his counseled
application for a certificate of appealability, he renewed his
ineffective assistance and due process claims. We granted a
certificate of appealability on the ineffective assistance claim,
reasoning that jurists could disagree with the District Court’s
holding that Lilly’s counsel was ineffective if he failed to advise
Lilly properly of his right to a jury trial and could debate
whether the Court should have conducted an evidentiary hearing
before denying the claim. We declined to issue a certificate of
appealability on the due process claim because it was
procedurally defaulted, as it was not raised on direct appeal.


                                9
                                II.

        The District Court had jurisdiction over Lilly’s § 2255
petition pursuant to 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a). “In a federal habeas
corpus proceeding, we exercise plenary review of the district
court’s legal conclusions and apply a clearly erroneous standard
to the court’s factual findings.” Lambert v. Blackwell, 134 F.3d
506, 512 (3d Cir. 1997). We review the District Court’s denial
of an evidentiary hearing in a habeas case for abuse of
discretion. United States v. Booth, 432 F.3d 542, 545 (3d Cir.
2005).

                                III.

        Lilly’s sole contention on appeal is that the District Court
abused its discretion in not granting an evidentiary hearing on
his claim that counsel was ineffective for failing to advise him
properly of his right to a jury trial.3 While the District Court has
discretion to conduct an evidentiary hearing on a § 2255 claim,
exercise of that discretion has been constrained by our case law.
See id. “The District Court is required to hold an evidentiary
hearing ‘unless the motion and files and records of the case
show conclusively that the movant is not entitled to relief.’” Id.


       3
         Lilly does not appear to renew on appeal his claim that
his counsel was ineffective for failing to file the signed waiver
of a jury trial until six weeks after the bench trial (though before
the verdict was rendered by the District Judge).

                                10
(quoting Gov’t of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d
Cir. 1989)). This is not a high bar for habeas petitioners to
meet. See id. Moreover, “[i]n considering a motion to vacate a
defendant’s sentence, ‘the court must accept the truth of the
movant’s factual allegations unless they are clearly frivolous on
the basis of the existing record.’” Id. (quoting Forte, 865 F.2d
at 62).

        With this in mind, the District Court’s decision not to
hold an evidentiary hearing will be an abuse of discretion unless
it can be conclusively shown that Lilly cannot make out a claim
for ineffective assistance of counsel. It is well-established that
the standard for judging ineffective assistance of counsel comes
from Strickland v. Washington, 466 U.S. 668 (1984): Lilly must
show (1) that his counsel’s performance was deficient; and (2)
that he was prejudiced by it. Id. at 687; Booth, 432 F.3d at 546.
To succeed on the first prong, Lilly must show that his counsel’s
representation “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688; see also Weeks v.
Snyder, 219 F.3d 245, 257 (3d Cir. 2000). To prove prejudice,
Lilly must show that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694.

       Lilly asserts that his counsel was ineffective in not
explaining to him what waiving a jury trial meant, such that his
waiver was “not ‘done with sufficient awareness of the relevant
circumstances and likely consequences.’” Appellant’s Br. 22
(quoting Brady v. United States, 397 U.S. 742, 748 (1970)). He

                               11
further asserts that he was prejudiced by his attorney’s failure
because, but for the alleged ineffective assistance, he would not
have waived his right to a jury trial.

       Our Court has “endorsed the practical suggestion in
Strickland [that we may] consider the prejudice prong before
examining the performance of counsel prong ‘because this
course of action is less burdensome to defense counsel.’”
Booth, 432 F.3d at 546 (quoting United States v. McCoy, 410
F.3d 124, 132 n.6 (3d Cir. 2005)); see also Strickland, 466 U.S.
at 697 (“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.”). We again follow
that suggestion here.

       Lilly argues that the relevant prejudice inquiry is whether
he would have opted for a jury trial over a bench trial had his
counsel adequately informed him of this constitutional right. He
grounds his argument on Hill v. Lockhart, 474 U.S. 52 (1985),
where the Supreme Court applied Strickland in the context of a
defendant’s decision to plead guilty. There the Court explained
that the requisite showing for prejudice is “that there is a
reasonable probability that, but for counsel’s errors, [the
defendant] would not have pleaded guilty and would have
insisted on going to trial.” Id. at 59. Lilly argues that the guilty
plea context is an appropriate analog to the present context, and
thus we should find prejudice if it can be established that he
would have insisted on a jury trial if he had been adequately
advised. The Government disputes Lilly’s reliance on Hill and

                                12
suggests that the proper inquiry is whether, “in the absence of
counsel’s advice, another fact finder (i.e., a jury) would have
been reasonably likely to arrive at a different outcome . . . .”
Gov’t Br. 25. This argument accords with Strickland, where the
Supreme Court defined the defendant’s burden in establishing
prejudice as a showing “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at
694 (emphasis added).

        In determining whether prejudice exists we must assume,
absent some allegation to the contrary, “that the judge or jury
acted according to law.” Id. Moreover, “[t]he assessment of
prejudice should proceed on the assumption that the
decisionmaker is reasonably, conscientiously, and impartially
applying the standards that govern the decision. It should not
depend on the idiosyncracies of the particular decisionmaker,
such as unusual propensities toward harshness or leniency.” Id.
at 695. Here, the Government’s evidence was more than
sufficient for either a judge or jury, acting in accordance with
law, to find Lilly guilty. The Government put on evidence of
numerous drug sales and Lilly’s own incriminating statement.
Lilly has not presented any evidence that the judge was biased
or that the trial was conducted in a manner that was unfair. In
this context, he has not demonstrated a “reasonable probability”
that the proceeding would have been different had he not waived
his right to a jury trial on advice of counsel.

       In so holding, we are mindful of the limits of the

                              13
certificate of appealability in this case. We are not deciding
whether Lilly’s waiver of his right to a jury trial was knowing
and voluntary as a matter of due process because that claim was
procedurally defaulted when it was not raised on direct appeal.
We are merely considering whether Lilly was entitled to an
evidentiary hearing on his claim that counsel was ineffective in
advising him to waive his right to a jury trial. Because Lilly has
failed to establish that this advice prejudiced him in a way that
“undermine[s] confidence in the outcome,” Strickland, 466 U.S.
694, we conclude that the District Court did not abuse its
discretion in declining to hold an evidentiary hearing before
denying his claim.

                                IV.

        As a final matter, we observe for future cases that much
of the doubt in this case could have been avoided had the
District Court conducted a thorough, on-the-record colloquy
with Lilly directly before accepting his attorney’s statement that
Lilly wished to waive his right to a jury trial. While no such
colloquy is required under Rule 23(a) or constitutional law, see
United States v. Anderson, 704 F.2d 117, 119 (3d Cir. 1983),
one can be helpful to assure that a criminal defendant is properly
advised of his right to be tried by a jury. This also helps insulate
a jury-trial waiver from later attack by a defendant who claims
he did not fully understand the nature of the right before he
forfeited it. As has been noted, an on-the-record colloquy will
“create a record capable of withstanding subsequent challenges,
satisfy the court’s responsibility, facilitate intelligent appellate

                                14
review, conserve scarce judicial resources, and enhance the
finality of criminal convictions.” United States v. Martin, 704
F.2d 267, 274 (6th Cir. 1983). While we are mindful that our
colleagues in the District Courts face large dockets, we believe
the burden of conducting a waiver colloquy is far outweighed by
the benefits. As the Court of Appeals for the Ninth Circuit aptly
put, “[t]here is ... every reason for district courts to conduct a
colloquy ... and no apparent reason for not doing so.” United
States v. Cochran, 770 F.2d 850, 852 (9th Cir. 1985).

        Some form of waiver colloquy has been endorsed by the
Courts of Appeals for the First, Second, Fourth, Sixth, Seventh,
Ninth, Tenth, and D.C. Circuits, as well as by our own. See
United States v. Leja, 448 F.3d 86, 96 (1st Cir. 2006) (“[H]ad
the court in open court spoken directly to the defendant himself
on the record, rather than just with counsel, this would have
reinforced the judge’s subsequent observations that the
defendant had assented to his counsel’s waiver of a jury trial.”);
Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993) (“[W]e
suggest the district courts individually inform each defendant,
on the record, of the fundamental attributes of a jury trial before
accepting a waiver.”); Anderson, 704 F.2d at 119 (“[W]e believe
that a colloquy between the district judge and the defendant is
preferable to the mere acceptance by the court of a written
waiver and the filing of it in the record of the case.”); United
States v. Boynes, 515 F.3d 284, 286 (4th Cir. 2008) (“[Though
not a constitutional imperative, i]t is much preferable for a
district court to [assure] itself on the record before accepting the
defendant’s jury waiver . . . .”); Martin, 704 F.2d at 274 (“We

                                15
implore the district courts to personally inform each defendant
of the benefits and burdens of jury trials on the record prior to
accepting a proffered waiver.”); United States v. Rodriguez, 888
F.2d 519, 527 (7th Cir. 1989) (“[While not constitutionally
required, a colloquy] should occur before the court accepts a
waiver of the right to trial by jury.”); Cochran, 770 F.2d at 853
(“Like the Sixth Circuit, we ‘implore’ district courts to [conduct
a waiver colloquy.]”); United States v. Robertson, 45 F.3d 1423,
1432 (10th Cir. 1995) (“In recognition of the importance of a
colloquy between the defendant and district court regarding the
decision to waive the right to trial by jury, we join those circuits
that . . . strongly urge district courts personally to inform each
defendant of the nature of jury trials on the record before
accepting a proffered waiver.”); United States v. David, 511
F.2d 355, 361 (D.C. Cir. 1975) (“Many courts—including our
own—have indicated that trial judges would be well-advised to
directly question the defendant in all cases to determine the
validity of any proffered waiver of jury trial.”).

       The District Court is, of course, free to fashion the
colloquy in the way it sees fit. See Anderson, 704 F.2d at 119
(“[W]e shall continue to rely on the district courts to employ the
means most appropriate to a particular case in order to [e]nsure
that a defendant’s waiver of the right to a trial by jury is
knowingly and intelligently made.”). Courts may gain guidance
from Martin, which explains:

    At a minimum, a defendant should be informed that a
    jury is composed of 12 members of the community, he

                                16
    may participate in the selection of jurors, the verdict of
    the jury must be unanimous, and that a judge alone will
    decide guilt or innocence should he waive his jury trial
    right.

704 F.2d at 274–75; see also United States v. Delgado, 635 F.2d
889, 890 (7th Cir. 1981). Moreover, it behooves the District
Judge to conduct the colloquy with the defendant himself, rather
than his attorney, to avoid later conflict between the defendant
and his attorney as to what the defendant actually understood.
See 2 Charles Alan Wright, Federal Practice & Procedure:
Criminal § 372 (3d ed. 2000). What we suggest now, as we and
other circuit courts have done in the past, is what we believe
best to assure that jury-trial waivers are knowing and voluntary.

                               ***

        In this context, we affirm the District Court’s dismissal
of Lilly’s § 2255 petition without an evidentiary hearing.




                               17
