                               In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 16-2470

VICTOR D. JACKSON,
                                               Petitioner-Appellant,

                                 v.


UNITED STATES OF AMERICA,
                                               Respondent-Appellee.


        Appeal from the United States District Court for the
                      Central District of Illinois.
      No. 2:14-cv-02012-JES-JEH — James E. Shadid, Chief Judge.



     ARGUED JANUARY 12, 2017 — DECIDED JUNE 16, 2017


   Before BAUER, SYKES, and HAMILTON, Circuit Judges.
    BAUER, Circuit Judge. In 2011, Petitioner Victor Jackson and
codefendant Daniel Kelly were convicted of cocaine-related
offenses. Jackson was convicted by a jury while Kelly pleaded
guilty. Jackson was sentenced to 360 months’ imprisonment.
He appealed his conviction and sentence; we affirmed his
conviction but vacated his sentence, holding that he was
2                                                         No. 16-2470

entitled to be resentenced under the Fair Sentencing Act based
on the Supreme Court’s holding in Dorsey v. United States, 567
U.S. 260, 264 (2012). See United States v. Jackson, 491 F. App’x
738, 739 (7th Cir. 2012). On remand, with a new sentencing
Guidelines range of 262 to 327 months’ imprisonment, the
district court sentenced Jackson to 200 months’ imprisonment.
    On January 31, 2014, Jackson filed a pro se 28 U.S.C. § 2255
petition, arguing that he received ineffective assistance of
counsel on several grounds. Judge Michael McCuskey denied
the petition and did not issue a certificate of appealability.
Jackson v. United States, 2014 U.S. Dist. LEXIS 52283, at *26
(C.D. Ill. Apr. 16, 2014). But we granted a certificate on Jack-
son’s claim that prior counsel provided ineffective assistance
by misinforming him that he would not be eligible for a Fair
Sentencing Act (“FSA”) reduction if he pleaded guilty. Follow-
ing the filing of his opening appellate brief, Jackson and the
government filed a joint motion for summary reversal and
remand for an evidentiary hearing on the question presented
in the certificate of appealability. We granted the motion,
summarily vacated the district court’s judgment, and re-
manded the case for an evidentiary hearing on the issue. On
remand, the district court referred the case to a magistrate
judge for an evidentiary hearing, which was held on
December 11, 2015.1
    At the hearing, the magistrate judge observed the live
testimony of three witnesses: Jackson, Kelly, and Bruce

1
   Because Judge McCuskey retired, this matter was reassigned to Chief
Judge James Shadid on remand. Chief Judge Shadid referred this matter to
Magistrate Judge Jonathan E. Hawley.
No. 16-2470                                                      3

Ratcliffe, Jackson’s former counsel. Jackson testified to the
various instances that led to his decision to reject the govern-
ment’s plea offer and go to trial. He testified that he heard
about the FSA issue and asked Ratcliffe about it, but Ratcliffe
did not know about it. Jackson asserted that he rejected the
government’s plea offer because Ratcliffe advised him that the
only way to preserve a FSA claim was to go to trial. Jackson
testified that he went to trial based on Ratcliffe’s advice, but he
would have otherwise pleaded guilty.
     Kelly testified that he entered into a conditional plea in
which he reserved his right to argue on appeal that the FSA
applied to his case at sentencing. Kelly also testified that he
informed Jackson that he could enter into a plea agreement and
still preserve his right to argue that the FSA applied to him on
appeal. He testified that Jackson then wanted to discuss this
information with Ratcliffe.
   Ratcliffe testified that “Jackson never told [him] that he
wanted to explore plea agreements. It was trial the entire
time.”
    On December 30, 2015, the magistrate judge recommended
that Jackson’s § 2255 petition be granted, his sentence be
vacated, and that he be resentenced after awarding him
a three-point reduction for acceptance of responsibility.
Jackson v. United States, 2015 U.S. Dist. LEXIS 177643 (C.D. Ill.
Dec. 30, 2015). The magistrate judge concluded that Jackson
established both deficient performance and prejudice, both of
which are necessary to demonstrate in order to prevail on an
ineffective assistance of counsel claim. See Strickland v. Wash-
ington, 466 U.S. 668, 687–88 (1984). In coming to that conclu-
4                                                    No. 16-2470

sion, the magistrate judge weighed the testimony of Jackson,
Kelly, and Ratcliffe. The credibility assessment came out in
Jackson’s favor. The magistrate judge found that Jackson was
credible. Specifically, the magistrate judge found credible
Jackson’s assertions that he rejected the plea deal because
Ratcliffe told him he could only preserve a FSA claim if he
went to trial. The magistrate judge also credited his claim that
he would have otherwise pleaded guilty. The magistrate judge
doubted the reliability of Ratcliffe’s testimony and noted
“troubling” aspects to it. The magistrate judge declined to
believe Ratcliffe’s statement that “Jackson never told [him] that
he wanted to explore plea agreements. It was trial the entire
time.”
   On April 20, 2016, the district court denied Jackson’s § 2255
petition, adopting and rejecting in part the magistrate judge’s
recommendations and findings. Jackson v. United States, 2016
U.S. Dist. LEXIS 52519 (C.D. Ill. Apr. 20, 2016). The district
court agreed with the magistrate judge’s conclusion that
Jackson’s counsel’s representation was deficient, but found that
Jackson was unable to establish prejudice under Strickland.
    The district court rejected the magistrate judge’s credibility
determinations of both Jackson and Ratcliffe, without ever
observing either testify in person. First, as to Jackson,
the district court determined that Jackson’s assertions were
“self-serving.” The district court dismissed Jackson as “a
‘hard-head’” who “would heed no advice.” The district court
believed that Jackson was “in control of the direction of his
case.” Second, the district court rejected the magistrate judge’s
credibility determination regarding Ratcliffe. The district court
determined that Ratcliffe “testified under oath that he and
No. 16-2470                                                      5

Jackson differed in their opinions” of the government’s case.
Additionally, it determined that Ratcliffe’s testimony was
“unclear or contrary” to someone who was well-versed in
criminal law. The district court credited Ratcliffe’s statement
that “Jackson never told [him] that he wanted to explore plea
agreements. It was trial the entire time.” The district court
issued Jackson a certificate of appealability since the magistrate
judge had reached a different conclusion.
    On appeal, Jackson contends that the district court erred in
rejecting the magistrate judge’s credibility findings without
conducting a de novo evidentiary hearing. We agree.
    The Federal Magistrate Act grants a district court judge the
authority to refer a magistrate judge to conduct hearings and
submit proposed findings of facts and recommendations. 28
U.S.C. § 636(b)(1)(B). After the magistrate judge submits the
proposed findings and recommendations report, the parties
may object to that report. The district court then must make a
“de novo determination” of the parts of the report to which
objection was made. Id. § 636(b)(1). The Act grants district
courts discretion to “accept, reject or modify, in whole or in
part,” the magistrate’s proposed findings or recommendations.
Id. The district court may then receive further evidence or send
the matter back to the magistrate judge with instructions. Id.
   In Raddatz, the Supreme Court held that the Act does not
require the district court to hold a de novo hearing when
accepting a magistrate judge’s credibility findings. United
States v. Raddatz, 447 U.S. 667, 675–76 (1980). The Court
concluded “that the statutory scheme includes sufficient
procedures to alert the district court [as to when] to exercise its
6                                                    No. 16-2470

discretion to conduct a hearing and view the witnesses itself.”
Id. at 680–81. The Court noted that:
        Neither the statute nor its legislative history
        reveals any specific consideration of the situa-
        tion where a district judge after reviewing the
        record in the process of making a de novo “de-
        termination” has doubts concerning the credibil-
        ity findings of the magistrate. The issue is not
        before us, but we assume it is unlikely that a
        district judge would reject a magistrate’s pro-
        posed findings on credibility when those find-
        ings are dispositive and substitute the judge’s
        own appraisal; to do so without seeing and
        hearing the witness or witnesses whose credibil-
        ity is in question could well give rise to serious
        questions which we do not reach.
Id. at 681 n.7.
    The Raddatz Court left open the question of whether a
district court may reject a magistrate judge’s credibility
findings without holding a de novo evidentiary hearing. We
have not previously answered this question, but in United
States v. Ornelas-Ledesma, we noted how other circuits picked
up the Court’s not-so-subtle hint that the answer is “no.” See 16
F.3d 714, 720 (7th Cir. 1994) (collecting cases), vacated on other
grounds, Ornelas v. United States, 517 U.S. 690 (1996). Since the
Court decided Raddatz, other circuits have taken heed of the
concerns expressed by the Court and have held that a district
court judge may not reject the credibility findings of a magis-
trate judge without holding a de novo evidentiary hearing.
No. 16-2470                                                       7

See United States v. Hernandez-Rodriguez, 443 F.3d 138, 148
(1st Cir. 2006); Cullen v. United States, 194 F.3d 401, 407 (2d Cir.
1999); Hill v. Beyer, 62 F.3d 474, 482 (3d Cir. 1995); Louis v.
Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980); United States v.
Ridgway, 300 F.3d 1153, 1157 (9th Cir. 2002); United States v.
Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001) (per curiam).
Similarly, we hold that a district court judge may not reject a
magistrate judge’s material credibility findings based on a
witness’s live testimony, without first holding a de novo
evidentiary hearing.
    We note that most of the other circuits’ decisions mainly
rely on the Raddatz footnote in coming to this conclusion, but
do not directly address the constitutional implications that
were alluded to by the Court. Compare Louis, 630 F.2d at 1109
with Hill, 62 F.3d at 481–82, and Cullen, 194 F.3d 401, 405–07.
We, like the Fifth Circuit in Louis, have “severe doubts about
the constitutionality of the district judge’s reassessment of
credibility without seeing and hearing the witnesses himself.”
630 F.2d at 1109. We find the analysis of Mathews v. Eldridge,
424 U.S. 319, 335 (1976), in Louis persuasive. See id. at 1109–10.
Thus, we also conclude that Due Process is not satisfied under
these circumstances. See id.; see also Holiday v. Johnston, 313 U.S.
342, 352 (1941) (“One of the essential elements of the determi-
nation of the crucial facts is the weighing and appraising of the
testimony.”); United States v. Raddatz, 592 F.2d 976, 982 (7th Cir.
1979), rev’d, 447 U.S. 667 (“Due Process guarantees a meaning-
ful hearing and procedures sufficient to ensure a reliable
determination of the facts … .” (citing Jackson v. Denno, 378 U.S.
368, 376–77 (1964)) (citation omitted)).
8                                                    No. 16-2470

    Here, the district court, to reach the conclusion that it did,
rejected the magistrate judge’s material credibility findings
that were based on having observed in-person testimony. The
district court erred in doing so. Moreover, by rejecting the
magistrate judge’s material credibility findings, the district
court effectively denied the evidentiary hearing that we
ordered and to which the parties agreed.
    For the foregoing reasons, we vacate the district court’s
judgment and remand for proceedings not inconsistent with
this opinion. Circuit Rule 36 shall apply on remand.
