Mustread v. Gilmore

966 F.2d 1148, 1992 WL 155633
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 8, 1992
DocketNo. 91-2615
StatusPublished
Cited by4 cases

This text of 966 F.2d 1148 (Mustread v. Gilmore) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mustread v. Gilmore, 966 F.2d 1148, 1992 WL 155633 (7th Cir. 1992).

Opinion

KANNE, Circuit Judge.

In 1986, Floyd Mustread pleaded guilty in an Illinois state court to one count of aggravated battery and two counts of narcotics possession. After exhausting his state remedies, Mr. Mustread filed for a writ of habeas corpus in federal district court. He claimed that his plea to the aggravated battery count was involuntarily procured because the state deliberately withheld certain exculpatory information from him and his attorney. He alternatively alleged that his attorney may have been aware of this information but never told him about it — conduct which, in Mr. Must-read’s view, amounted to ineffective assistance of counsel. The district court rejected both contentions and denied Mr. Must-read’s petition. We affirm.

I.

For the sake of brevity, we will recount only those facts essential to the issues on appeal. Floyd Mustread shot and seriously wounded his wife Kathy (now ex-wife) during a marital dispute in their trailer-home on August 20, 1985. Kathy provided the police with two statements indicating that her husband had intentionally shot her twice with a bolt action rifle, and based on this information Mr. Mustread was charged with attempted murder. In the months leading up to his trial, however, Kathy began telling the state prosecutor, William Poncin, that she would testify to quite a different story if called to the stand — that the rifle was fired “accidentally” during a struggle with her husband. Realizing this might present a considerable snag to the state’s case, Poncin offered Mr. Mustread the opportunity to plead to aggravated battery, an offense which — unlike attempted [1150]*1150murder — included the possibility of probation. Mr. Mustread accepted the deal and entered a plea of guilty to the lesser charge.

Then Mr. Mustread did an about-face. After being sentenced to a four-year term of imprisonment, he filed a motion to withdraw all his guilty pleas on the grounds that the state coerced him to plead guilty. When that motion was denied, he challenged his pleas in other state courts, both on direct appeal and collateral attack. These efforts similarly met with no success, so he sought federal habeas corpus, basing his petition for relief on two grounds: first, he claimed that his plea to aggravated battery was involuntarily procured because Mr. Poncin never informed him or his trial counsel, Craig Pierce, that Kathy Mustread was thinking about testifying to the “accidental” version of the shooting; second, he alternatively asserted that Mr. Pierce may have been told about Kathy’s everchanging story, but that Mr. Pierce never relayed that information to him — the failure of which constituted ineffective assistance of counsel in violation of the sixth and fourteenth amendments.

On May 2, 1991, the district court conducted a separate evidentiary hearing on Mr. Mustread’s contentions, and after weighing the testimony of Mr. Mustread, defense counsel Mr. Pierce and state’s attorney Mr. Poncin, it concluded as follows:

How do I characterize all of this or what interpretation do I place on all these things? As I have said earlier, the prosecutor was wrong, acted wrongly. He violated the discovery rules. I believe that the prosecutor did tell Mr. Pierce of the accidental version, that he was on full notice of it. Even though he had not been given a police report or a summary by the prosecutor, he was in full possession of the fact that she intended to testify to an accidental version.
There is also a dispute between Mr. Pierce and his client as to whether or not that information was conveyed by Mr. Pierce to Mr. Mustread. I believe that it was. As I said, I realize there is a dispute of fact about that. I resolve that dispute of fact by finding that information was conveyed.

With the finding that the exculpatory information had been conveyed to his attorney and to him, Mr. Mustread’s petition for a writ of habeas corpus was dismissed.

II.

Mr. Mustread advances three arguments on appeal. He first contends that the district court erroneously found that both he and his attorney Mr. Pierce knew about the exculpatory nature of Kathy Mustread’s testimony. Next he maintains that Mr. Pierce’s representation amounted to ineffective assistance of counsel, since no attorney in Mr. Pierce’s shoes would have let Mr. Mustread plead guilty if they knew his wife would testify to an accidental version at trial. Finally, he argues that he is entitled to collateral relief simply on the grounds that the state violated his due process rights by defaulting on its obligation to reveal all exculpatory information relevant to his case. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We address each point in turn.

Since MJ". Mustread’s initial contention focuses on the district court’s fact findings, we begin by clarifying the appropriate standard of review over those findings. This is not a paper case where the district judge based his determination of “voluntariness” — a mixed question of law and fact — solely on a state court record which is equally available to us. If that were so, it is not altogether clear whether we should apply a deferential or plenary standard of review. Compare Stewart v. Peters, 958 F.2d 1379, 1381-82 (7th Cir. 1991) (mixed questions of law and fact in habeas cases would be more appropriately reviewed under a deferential standard) and Hanrahan v. Greer, 896 F.2d 241, 244 (7th Cir.1990) (same), with Holland v. McGinnis, 963 F.2d 1044, 1050 (7th Cir.1992) (voluntariness is a legal question requiring de novo review in habeas cases) and Pharr v. Gudmanson, 951 F.2d 117, 120 (7th Cir. 1991) (same). That concern need not detain us here, however, for the district court below dismissed Mr. Mustread’s petition [1151]*1151only after conducting an evidentiary hearing in which it made its own independent credibility determinations. Hence our task is easier — we review the district court’s assessment of credibility simply for clear error. Anderson v. City of Bessemer, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); United States v. Brown, 900 F.2d 1098 (7th Cir.1990). We see no clear error here.

To begin with, a review of the record fully supports the district court’s finding that Mr. Pierce knew Kathy Must-read might testify to an accidental version of the shooting. Throughout the evidentiary hearing, Mr. Pierce repeatedly testified that while he was aware the state was having some “difficulty” with Kathy Must-read, he did not know precisely what the difficulty was. But the following exchange, which took place at a discussion of the proposed plea agreement, suggests that Mr. Pierce knew quite a bit more than his concessions explicitly acknowledge:

Mr.

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Mustread v. Gilmore
966 F.2d 1148 (Seventh Circuit, 1992)

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966 F.2d 1148, 1992 WL 155633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mustread-v-gilmore-ca7-1992.