Scott v. United States

Seventh Circuit

Scott v. United States

274 F. App'x 491

CourtCourt of Appeals for the Seventh Circuit

DecidedApril 18, 2008

DocketNo. 07-2130

StatusPublished

This text of 274 F. App'x 491 (Scott v. United States) 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

Scott v. United States, 274 F. App'x 491 (7th Cir. 2008).

Pincite

Opinion

ORDER

Robert Scott was convicted by a jury of conspiracy to possess with intent to distribute marijuana and cocaine; he was sentenced to 326 months imprisonment. On direct appeal, Scott — through new counsel — raised, among other things, an ineffective assistance of counsel claim. At [492]*492oral argument, we cautioned Scott’s attorney that an ineffective assistance claim was almost impossible to sustain on a direct appeal and that, if it failed, Scott could not again raise the claim in a later collateral attack. Scott’s counsel responded that his client was aware of the risks but wanted to proceed with the claim. We subsequently rejected Scott’s appeal, finding nothing in the record to rebut the presumption that his trial counsel’s performance was reasonable. United States v. Scott, 284 F.3d 758, 761 (7th Cir.2002).

Scott now brings a collateral attack under 28 U.S.C. § 2255, arguing that his appellate counsel was ineffective for raising on direct appeal Scott’s claim that his former counsel was ineffective at trial. After conducting an evidentiary hearing, the district court found that Scott’s appellate counsel properly informed Scott of the risks of raising an ineffective assistance claim on direct appeal, but Scott nevertheless instructed his counsel to proceed. The court accordingly dismissed Scott’s petition, finding no case law to support the proposition that an appellate counsel must refuse to follow his client’s informed instructions. Scott v. United States, No. 03-CV-3265, 2007 WL 853967, at *4 (C.D. Ill. Mar. 16, 2007).

We agree that Scott’s ineffective assistance of counsel claim cannot succeed. As the district court correctly noted, a lawyer may be entitled to disregard a client’s direction to present an issue on appeal but is not constitutionally required to do so. See Wallace v. Davis, 362 F.3d 914, 920 (7th Cir.2004). Scott’s argument here— that his appellate counsel did not fully inform him of the consequences of his decision — simply restates his testimony at the evidentiary hearing, which the district court found not credible. This factual determination was not clearly erroneous. See Menzer v. United States, 200 F.3d 1000, 1003 (7th Cir.2000).

Finally, Scott’s appellate counsel was not ineffective in failing to raise a Confrontation Clause violation argument, where we affirmed, on direct appeal, the district court’s finding that Scott wrongfully caused the unavailability of a government witness.

Accordingly, the judgment of the district court is AFFIRMED.

Free access — add to your briefcase to read the full text and ask questions with AI

ORDER

Robert Scott was convicted by a jury of conspiracy to possess with intent to distribute marijuana and cocaine; he was sentenced to 326 months imprisonment. On direct appeal, Scott — through new counsel — raised, among other things, an ineffective assistance of counsel claim. At [492]*492oral argument, we cautioned Scott’s attorney that an ineffective assistance claim was almost impossible to sustain on a direct appeal and that, if it failed, Scott could not again raise the claim in a later collateral attack. Scott’s counsel responded that his client was aware of the risks but wanted to proceed with the claim. We subsequently rejected Scott’s appeal, finding nothing in the record to rebut the presumption that his trial counsel’s performance was reasonable. United States v. Scott, 284 F.3d 758, 761 (7th Cir.2002).

Scott now brings a collateral attack under 28 U.S.C. § 2255, arguing that his appellate counsel was ineffective for raising on direct appeal Scott’s claim that his former counsel was ineffective at trial. After conducting an evidentiary hearing, the district court found that Scott’s appellate counsel properly informed Scott of the risks of raising an ineffective assistance claim on direct appeal, but Scott nevertheless instructed his counsel to proceed. The court accordingly dismissed Scott’s petition, finding no case law to support the proposition that an appellate counsel must refuse to follow his client’s informed instructions. Scott v. United States, No. 03-CV-3265, 2007 WL 853967, at *4 (C.D. Ill. Mar. 16, 2007).

We agree that Scott’s ineffective assistance of counsel claim cannot succeed. As the district court correctly noted, a lawyer may be entitled to disregard a client’s direction to present an issue on appeal but is not constitutionally required to do so. See Wallace v. Davis, 362 F.3d 914, 920 (7th Cir.2004). Scott’s argument here— that his appellate counsel did not fully inform him of the consequences of his decision — simply restates his testimony at the evidentiary hearing, which the district court found not credible. This factual determination was not clearly erroneous. See Menzer v. United States, 200 F.3d 1000, 1003 (7th Cir.2000).

Finally, Scott’s appellate counsel was not ineffective in failing to raise a Confrontation Clause violation argument, where we affirmed, on direct appeal, the district court’s finding that Scott wrongfully caused the unavailability of a government witness.

Accordingly, the judgment of the district court is AFFIRMED.

Cite This Page — Counsel Stack

Bluebook (online)

274 F. App'x 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-united-states-ca7-2008.

Opinion

Related

Cite This Page — Counsel Stack