In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3656

Anthony D. Taylor,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 98-4207 WLB--William L. Beatty, Judge.

Argued April 1, 2002--Decided April 25, 2002



  Before Easterbrook, Diane P. Wood, and
Evans, Circuit Judges.

  Easterbrook, Circuit Judge. Anthony
Taylor is serving 360 months’
imprisonment for distributing crack
cocaine. After we affirmed his conviction
and sentence, see United States v.
Taylor, 116 F.3d 269 (7th Cir. 1997), he
filed a collateral attack under 28 U.S.C.
sec.2255. Of the grounds that Taylor
presented to the district judge, only one
survived to this appeal: a contention
that counsel failed to inform him point
blank not only that he was entitled to
testify at his trial (he did not take the
stand) but also that he alone held the
power to decide. Lawyers make many of the
strategic and tactical decisions at
trial, but this decision lies in the
hands of the defendant personally. See
Rock v. Arkansas, 483 U.S. 44 (1987);
United States v. Curtis, 742 F.2d 1070,
1076 (7th Cir. 1984). Taylor contends
that, even if he knew that he could
testify, and even if he actually made the
decision, he is entitled to a new trial
unless either the judge or his lawyer
relayed that information in unmistakable
language. Taylor contends that the advice
should be delivered by the judge and a
waiver elicited in open court, but he
will settle for delivery by defense
counsel.
  In the district court Taylor filed two
affidavits and his trial counsel one. The
district court declined to hold an
evidentiary hearing, writing: "Although
there are conflicting affidavits of
[Taylor] and his attorney in the record
before the court, the court finds that
the ultimate decision not to testify was
one made by [Taylor], after consultation
with his attorney." On the basis of this
"finding" the district court denied the
petition. There are two problems with
that approach. The first is that, if the
record contains an evidentiary conflict
on a material issue of fact, a judge must
hold an evidentiary hearing to decide who
is telling the truth. It is not sound to
say that, in every conflict between a
prisoner and a lawyer, the lawyer must be
believed. Second, the district court’s
conclusion--that "the ultimate decision
not to testify was one made by" Taylor--
does not respond to his legal theory.
What Taylor argues is that even if he
made the decision, he is entitled to a
new trial unless he received formal
notice and waived his right to testify,
preferably on the record in open court.

  After denying Taylor’s petition, the
district court issued a certificate of
appealability "on the issue of whether
this court should have conducted an
evidentiary hearing on [Taylor’s] claim
that counsel was constitutionally
ineffective" for failing to provide
adequate advice. This does not comply
with 28 U.S.C. sec.2253(c)(1)(B)(2),
which says that a certificate "may issue
. . . only if the applicant has made a
substantial showing of the denial of a
constitutional right." Subparagraph (3)
requires the certificate to identify the
issue about which the substantial showing
has been made. Whether a court must hold
an evidentiary hearing is a question
about how courts resolve collateral
attacks, not about constitutional law. It
may be presented incident to a
substantive decision, if a substantial
showing has been made, see Slack v.
McDaniel, 529 U.S. 473, 483-85 (2000),
but the district court did not find that
Taylor’s theory is substantial. As is
common, the prosecutor ignored this
shortcoming, forfeiting any entitlement
to dismissal of the appeal for
noncompliance with sec.2253(c)(1)(B). See
Ramunno v. United States, 264 F.3d 723
(7th Cir. 2001); United States v.
Marcello, 212 F.3d 1005 (7th Cir. 2000).
After one round of briefing, a panel of
this court implicitly amended the
certificate of appealability, directing
the parties to address several issues
related to the merits and application of
the harmless-error doctrine.

  The second round of briefs devotes
considerable attention to the question
whether Underwood v. Clark, 939 F.2d 473
(7th Cir. 1991), is consistent with
notice pleading. See Swierkiewicz v.
Sorema N.A., 122 S. Ct. 992 (2002). We
said in Underwood that to obtain an
evidentiary hearing on a theory that
counsel prevented him from testifying in
his own defense, a prisoner waging a
collateral attack must be specific in his
affidavits; generalities (such as his
impression of what happened, rather than
exactly what counsel said) will not
suffice. Taylor sees his loss in the
district court as an application of
Underwood and asks us to overrule that
decision as inconsistent with
Swierkiewicz and other opinions
deprecating heightened pleading
requirements. See, e.g., Leatherman v.
Tarrant County, 507 U.S. 163 (1993). This
is a puzzling request, if only because
Taylor does not contend that his lawyer
"prevented" him from testifying; his
argument is that counsel did not go
through a Miranda-like advice-and-waiver
formula. No one argues that Underwood
deems an affidavit of the sort "counsel
never, ever said X" to be insufficient,
if the Constitution requires the lawyer
to say the magic word X.

  Taylor’s position is doubly puzzling
because neither Underwood nor this case
was decided at the pleading stage. Rule 2
of the Rules Governing Section 2255
Proceedings for the United States
District Courts is the closest parallel
to Fed. R. Civ. P. 8, which creates a
notice-pleading system for civil
litigation. Rule 2(b) departs from Rule 8
by requiring some fact pleading. (It says
that a motion "shall specify all the
grounds for relief which are available to
the movant and of which he has or, by the
exercise of reasonable diligence, should
have knowledge and shall set forth in
summary form the facts supporting each of
the grounds thus specified.") What is
more, the district judge did not deny
Taylor’s motion at the pleading stage; he
received affidavits from both sides and
then determined, by parallel to Fed. R.
Civ. P. 56, that no disputed issue of
material fact calls for an evidentiary
hearing. Pleadings are irrelevant at the
summary judgment stage. Fed. R. Civ. P.
56(e). Once the affidavits and other
materials are on file, the question is
not what the pleadings say but what the
evidence shows. Underwood holds that to
create a material dispute the evidence at
the collateral-attack analog to summary
judgment must be specific. This has
nothing to do with notice pleading, so
Swierkiewicz and like cases would not
call for a reassessment of Underwood’s
holding even if Rule 2 were identical to
Rule 8--which it is not.

  But it is not Underwood that sinks
Taylor’s claim. His problem is that a
notice-and-waiver regimen is unnecessary.
There may be a factual dispute about
whether counsel told Taylor in so many
words that the accused alone makes the
decision whether to testify, but this
dispute is not material. We held in
Liegakos v. Cooke, 106 F.3d 1381, 1386
(7th Cir. 1997), that the Constitution
does not require the judge to tell the
accused in open court that he is entitled
to testify, and to obtain a formal waiver
of this right. See also United States v.
Manjarrez, 258 F.3d 618, 623-24 (7th Cir.
2001); United States v. Thompson, 944
F.2d 1331, 1345 (7th Cir. 1991). Nor does
the Constitution require an attorney to
provide this advice in some prescribed
formula. What Rock holds is that the
accused may not be prohibited from
testifying--not by a judge, not by a
lawyer. So if a defendant’s theory were
that he told his lawyer that he wanted to
testify, but that his lawyer refused to
allow this (for example, flatly refused
to call his client to the stand without
suggesting the possibility, if he thought
that his client’s testimony would be
perjury, that he could withdraw and allow
the accused to represent himself, see Nix
v. Whiteside, 475 U.S. 157 (1985)), this
would be a sound constitutional claim.
Yet Taylor does not contend that he told
his lawyer that he wanted to testify and
that counsel frustrated this objective,
or even that he was ignorant of his right
to testify. To the contrary, Taylor’s
affidavits show that he discussed this
possibility with counsel and decided not
to testify after counsel pointed out the
risks. There were many, not only the
certainty of impeachment with prior
convictions of which the jury otherwise
would not learn but also exposure to a
two-level increase in offense severity
for obstruction of justice (if the judge
should conclude that the testimony was
materially false), see United States v.
Dunnigan, 507 U.S. 87 (1993), and the
rule that counsel must alert the court to
any known falsehoods in his client’s
testimony, see Nix, 475 U.S. at 166-71.
For someone in Taylor’s position, two
extra levels for obstructing justice
could have increased his sentence from
360 months to life in prison.

  Nothing in the Constitution (or any
decision of the Supreme Court) justifies
meddling with the attorney-client
relationship by requiring advice to be
given in a specific form or compelling
the lawyer to obtain a formal waiver.
Dealings between lawyer and client are
supposed to be confidential from the
government, not to be regulated by the
state with an accompanying duty of
oversight. Undue formality might
undermine confidence between an accused
and his client--either directly or
through the effect of counsel’s belief
that whatever was said or done would
become the subject of a judicial inquiry,
such as the one Taylor wants the district
court to conduct. Perhaps a statute or
rule could require warnings and waivers
despite these costs, but no such statute
or rule is on the books. The Constitution
of its own force does not require them.
Advice of rights and formal waivers are
not essential to voluntary decisions.
See, e.g., Ohio v. Robinette, 519 U.S. 33
(1996); Schneckloth v. Bustamonte, 412
U.S. 218 (1973).

  Counsel may deem it prudent to put
waivers on the record. In some state and
federal courts defense counsel regularly
inform the judge (outside the jury’s
presence) that the possibility of the
accused’s testifying has been discussed,
and that the accused personally has
decided not to take the stand. Putting
this information on the record may avoid
later collateral attacks, but the
Constitution does not command all
potentially prudent steps. (Having this
process initiated by counsel avoids the
risk, discussed in Liegakos and other
cases, that a judge-initiated inquiry
will interfere with the attorney-client
relationship.)

  Taylor’s affidavits (which we accept as
true, given the posture of the case) tell
us that counsel (1) pointed out the risks
of testifying, and (2) did not
specifically tell Taylor that the
decision whether to testify was Taylor’s
alone. The first of these is some
distance from a lawyer’s action to impede
the defendant from testifying, and the
second does not identify a legal
shortcoming. Perhaps Taylor’s best theory
would have been that counsel furnished
ineffective assistance by neglecting to
discuss with him the advantages of
testifying. Whether there were any
advantages is unclear on this record--as
is the question whether counsel covered
that subject in discussions with Taylor--
but it is not necessary to hold an
evidentiary hearing to explore that
subject. The brief filed by Taylor’s
appellate counsel does not make an
ineffective-assistance argument. Taylor’s
initial pro se brief (filed before we
recruited counsel to assist him) does
advert to an ineffective-assistance
theory, but he does not contend that
additional facts that could be developed
at a hearing would demonstrate advantages
from testifying to which an attorney
should have alerted his client. Nothing
we have seen (and nothing in Taylor’s
affidavits and brief) suggests that
counsel’s advice not to testify was
anything less than the best professional
assistance.

Affirmed
