CA7: Waiver of collateral review plea agreement doesn’t bar Fourth Amendment IAC

2255 petitioner’s IAC claim of ineffectiveness in a plea agreement with a collateral review provision premised on a failure to recognize a Fourth Amendment claim was sufficient. Hurlow v. United States, 726 F.3d 958 (7th Cir. 2013):

The same is true for a petitioner such as Hurlow who seeks to overcome the waiver provision in his plea agreement based on ineffective assistance of counsel: he cannot just assert that a constitutional violation preceded his decision to plead guilty or that his trial counsel was ineffective for failing to raise the constitutional claim. Rather, he must allege that he entered the plea agreement based on advice of counsel that fell below constitutional standards. In other words, he must allege that the plea agreement was “the product of ineffective assistance of counsel,” Jemison, 237 F.3d at 916 n.8, or “tainted by ineffective assistance of counsel,” United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995). See also United States v. Teeter, 257 F.3d 14, 25 n.9 (1st Cir. 2001) (“This category [of situations in which denying a right of appeal would work a miscarriage of justice] is infinitely variable, but, by way of illustration, we would include within it situations in which appellants claim … that the plea proceedings were tainted by ineffective assistance of counsel.” (citations omitted)); DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000) (“[W]aiver of the right to seek section 2255 post-conviction relief does not waive defendant’s right to argue, pursuant to that section, that the decision to enter into the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel”). For example, in United States v. Cieslowski, the defendant’s plea agreement contained a waiver of direct and collateral review, but the defendant claimed that his decision to enter into that plea agreement was the product of his attorney’s ineffectiveness in “fail[ing] to file two suppression motions[.]” 410 F.3d at 358, 360. Because this claim was the sort that, “if successful, would result in setting aside the plea agreement as a whole,” we considered (and ultimately rejected) the defendant’s ineffective assistance of counsel argument on the merits. Id. at 361.

Turning to Hurlow’s allegations in his § 2255 petition, we similarly conclude that they are sufficient to overcome the waiver in his plea agreement. First, he alleged that his trial counsel was ineffective by failing to recognize that the detectives who obtained the critical evidence against him did so in violation of the Fourth Amendment: even though Hurlow apprised him of facts that indicated that the search violated Georgia v. Randolph, counsel refused to listen or investigate further. See Tollet, 411 U.S. at 266-67 (“Counsel’s failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof.”). Second, Hurlow alleged that his decision to plead guilty resulted from counsel’s ineffectiveness. According to Hurlow, counsel failed to inform him that a challenge to the search was possible, and instead “persuaded” and “cajoled” him into pleading guilty by telling him “that if [he] did not plead guilty, that [he] would [receive] 30 years to life imprisonment.” Hurlow alleged that had he known he could “contest the unconstitutional and unreasonable search[,]” he “would not have entered into the one-sided government authorized plea agreement” or “pled guilt[.]” Thus, Hurlow is saying that he would not have agreed to the terms of the plea agreement had his counsel informed him of his potentially meritorious Fourth Amendment claim. Cf. Cieslowski, 410 F.3d at 360 (“He does not say, however, that he would have not pleaded guilty but for the erroneous advice.”). This is sufficient to overcome the collateral review waiver in his plea agreement.