                               UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53




           United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                              Submitted March 9, 2006*
                               Decided June 21, 2006

                                        Before

                   Hon. DANIEL A. MANION, Circuit Judge

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-3562
                                              Appeal from the United States District
STEPHEN CLARK WIELAND,                        Court for the Southern District of
    Petitioner-Appellant,                     Indiana, Indianapolis Division

      v.                                      No. 1:04-cv-0991-DFH-VSS

EDWARD BUSS,                                  David F. Hamilton,
    Defendant-Appellee.                       Judge.


                                      ORDER

      Indiana prisoner Stephen Wieland filed a habeas corpus petition under 28
U.S.C. § 2254 attacking his guilty plea on grounds of ineffective assistance of counsel
and involuntariness. The district court judge denied the petition; Wieland now
appeals the ineffectiveness claim. We reverse and grant the writ because Wieland
has shown a reasonable probability that with effective counsel he would not have
pleaded guilty.


       *
         After an examination of 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).
No. 05-3562                                                                       Page 2


       In 1997, Wieland allegedly attacked three people with a box cutter during a
bar altercation. He was arrested and charged with two counts of aggravated battery,
two counts of felony battery (a lesser included offense of aggravated battery), along
with one count of resisting law enforcement and one count of misdemeanor battery.
Wieland’s counsel did not dispel his mistaken impression—which the trial judge did
not correct—that if Wieland went to trial he could be convicted and sentenced on both
the aggravated battery charges and their lesser included offenses. These charges
cumulatively would expose him to a possible 59 ½ year sentence. Wieland agreed to
plead guilty to the two counts of aggravated battery if the government dismissed all
the remaining charges, in part because he was advised that the maximum possible
sentence if he pleaded guilty was forty years’ imprisonment. After Wieland entered
his plea, the trial court imposed the 40-year maximum sentence. Wieland soon
discovered, however, that his actual maximum sentencing exposure if he had
proceeded to trial was only 43 ½ years’ imprisonment.

       Wieland filed a state postconviction petition, arguing, as related to this appeal,
that his counsel was ineffective for failing to advise him that he could not be
sentenced on all four felony battery counts and that his maximum possible sentence
after trial was only 43 ½ years, not 59 ½. Because of counsel’s failure, Wieland
contends, he thought he was pleading guilty to avoid nearly 20 additional years if
convicted after trial. In reality, he argues, he saved only 3 ½ years by pleading
guilty. The state court found that counsel failed to tell Wieland that he could not be
sentenced on all four felony battery counts, a finding we accept, see 28 U.S.C.
§ 2254(e)(1), but ultimately denied his petition. The court reasoned that Wieland
could not demonstrate prejudice because he did not show that a “reasonable
defendant would not have entered a plea had the error in advice not been committed”
and because he still received the benefit of a lesser sentence by pleading guilty.
Wieland v. State, No. 49A05-0306-PC-300 (Ind. Ct. App. Feb. 26, 2004) (unpublished
decision).

       Wieland then filed this § 2254 petition, arguing, as related to this appeal, that
the standard applied by the state court, whether “a reasonable defendant would not
have entered a plea had the error in advice not been committed,” was contrary to
Strickland v. Washington, 466 U.S. 668 (1984). The district court disagreed and
dismissed the petition, but issued a certificate of appealability as to whether the state
court unreasonably applied Strickland to Wieland’s ineffective assistance of counsel
claim.

       Wieland argues that the state court’s standard, whether but for counsel’s
errors, “a reasonable defendant would not have accepted the plea agreement,” was
contrary to Strickland, which requires that the defendant show only a reasonable
probability that he would not have pleaded guilty if not for counsel’s bad advice.
No. 05-3562                                                                       Page 3

Wieland is right, the appropriate standard asks whether a reasonable probability
exists that Wieland himself would not have pleaded guilty. See Hill v. Lockhart, 474
U.S. 52 (1984); Gallo-Vasquez v. United States, 402 F.3d 794, 798-99 (7th Cir. 2005)
(conducting particularized inquiry); Moore v. Bryant, 348 F.3d 238, 242-43 (7th Cir.
2003) (same). Because the state court’s analysis is contrary to clearly established
federal law, see Van Patten v. Deppisch, 434 F.3d 1038, 1042 (7th Cir. 2006), our
review is de novo.

       To prevail on an ineffective assistance of counsel claim, Wieland must show
that counsel’s advice was objectively unreasonable and that there is a reasonable
probability that he would not have pleaded guilty if not for counsel’s error. Moore,
348 F.3d at 241. Counsel’s performance was constitutionally deficient because of the
erroneous sentencing advice Wieland received. “Where erroneous advice is provided
regarding the sentence likely to be served if the defendant chooses to proceed to trial,
and that erroneous advice stems from the failure to review the statute or caselaw
that the attorney knew to be relevant, . . . the deficient performance prong is met.”
Id. at 242. We next examine whether Wieland showed a reasonable likelihood that
counsel’s error affected his decision to plead guilty. See id. at 243 (“[T]he issue
presented here . . . is whether the erroneous advice provided by counsel caused
[petitioner] to enter a plea he otherwise would not have entered . . . .”); Richardson v.
United States, 379 F.3d 485, 487 (7th Cir. 2004) (holding that Strickland requires
petitioner to prove that “but for counsel’s errors, he would not have pleaded guilty”).
To show prejudice, Wieland must present evidence to demonstrate that his lawyer’s
error was a “decisive factor in his decision to plead guilty.” United States v.
Cieslowski, 410 F.3d 353, 358-59 (7th Cir. 2005).

       The state argues that no evidence, other than Wieland’s own testimony,
supports his contention that the incorrect advice regarding his sentencing caused him
to plead guilty. See id. at 359 (“[T]his court has held that a mere allegation by the
defendant that he would have insisted on going to trial is insufficient to establish
prejudice.”). But Wieland’s assertion is buttressed by the sixteen-year disparity
between his perceived sentencing exposure at trial versus after a plea. And we have
previously accepted a comparable disparity between perceived and actual sentencing
as a means to show prejudice under Strickland. See Moore, 348 F.3d 242-43.

       In Moore, counsel wrongly advised the defendant that if convicted after trial,
he could be sentenced to 22-27 years’ imprisonment, but if he pleaded guilty,
sentenced to only 10. Id. at 240. The correct information would have described an
exposure of only 12 ½ to 15 years after trial, providing only a minimal benefit to
pleading guilty. Id. Thus Moore thought he was avoiding a possible additional
seventeen years in prison but in reality saved himself only 2 ½ to 5 years. In this
case, Wieland thought he pleaded guilty to avoid another sixteen but in reality saved
only three years. Furthermore, unlike the defendant in United States v. Berkey, 318
No. 05-3562                                                                     Page 4

F.3d 768 (7th Cir. 2003), the trial judge never advised Wieland of his correct sentence
exposure. Just as we concluded in Moore, we decide here that the erroneous advice
Wieland received could have reasonably caused him to plead guilty to avoid the
significantly harsher sentence. Accordingly, we REVERSE and REMAND with
instructions that the district court issue the writ of habeas corpus unless the State
shall have released or retried Wieland within 120 days from the date of the issuance
of this opinion.
       MANION, Circuit Judge, dissenting. Because I conclude that the district court
properly denied Stephen Wieland the writ of habeas corpus, I respectfully dissent.
This case largely turns on the standard by which we review the state court’s decision.
I agree with the district court that the Indiana Court of Appeals’ decision here was
not “contrary to” Strickland, Hill, or other United States Supreme Court precedents.
In addressing the central issue—whether, but for counsel’s erroneous sentencing
advice, Wieland would have insisted on going to trial—the state court here relied on
Willoughby v. State, 792 N.E.2d 560 (Ind. Ct. App. 2003), which held:

      Merely alleging that the petitioner would not have pled had the correct
      advice been given is insufficient. Rather, specific facts, in addition to the
      petitioner’s conclusory allegation, must establish an objective reasonable
      probability that competent representation would have caused the
      petitioner not to enter a plea. Consequently, [the] analysis . . . must
      focus on the specific facts proffered by the petitioner, which indicate that
      a reasonable defendant would have rejected the petitioner’s plea had the
      petitioner’s trial counsel performed adequately.

792 N.E.2d at 564 (emphasis added; internal quotations and citations omitted). The
district court, by prudently incorporating Willoughby into its review of this case,
correctly understood that the state court here used the phrase “reasonable defendant”
as an interchangeable equivalent to the Strickland phrase “reasonable probability.”
What is more, the substance of the state court’s analysis in this case is not materially
different from a traditional reasonable probability analysis. It is simply not “contrary
to” Strickland. Consequently, I agree with the district court that federal review here
should not be de novo but rather limited to the deferential “unreasonable application”
standard under § 2254(d)(1). Under that standard, moreover, the state court’s
treatment of the present ineffective assistance claim was reasonable. It is reasonable
to conclude that, unlike the situation in Moore, upon which this court so heavily
relies, there is insufficient evidence here to credit Wieland’s self-serving declarations
that, but for counsel’s error, he would not have pleaded guilty. Additionally, as the
state and district courts pointed out, not only did Wieland reduce his sentence by 3.5
years but, by pleading guilty, he gave himself a shot at a substantially lighter
sentence due to his acceptance of responsibility and a possibility of concurrent
sentences on the two counts. For all of these reasons, the district court’s decision to
deny Wieland’s habeas corpus petition should be affirmed.
