In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-4325

THEODORE W. BERKEY,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 99 C 4282—J. Phil Gilbert, Judge.

____________

ARGUED DECEMBER 2, 2002—DECIDED FEBRUARY 10, 2003

____________

Before BAUER, POSNER, and ROVNER, Circuit Judges.

BAUER, Circuit Judge. Petitioner-Appellant Theodore W.

Berkey pled guilty to drug conspiracy charges and was

sentenced to 360 months’ imprisonment. After an unsuccessful direct appeal, Berkey filed a motion under 28 U.S.C.

§ 2255 claiming ineffective assistance of counsel. The

district court denied the motion and Berkey appeals this

ruling. For the reasons set forth below, we affirm.

BACKGROUND

In March 1996, police officers executed a warrant to

search Theodore Berkey’s home near Tucson, Arizona. The
2 No. 01-4325

following month, a grand jury in Illinois indicted Berkey

on one count of conspiracy to distribute marijuana and

crystal methamphetamine. The indictment charged that

Berkey supplied drugs to a narcotics ring operating in

southern Illinois. Berkey retained Tucson attorney George

Roylston. When Berkey explained that he had insufficient

funds to meet the $25,000 attorney’s fee, Roylston visited

Berkey’s home and accepted several items of personal

property.

After officials detained Berkey in Tucson, they transferred him to Illinois in May 1996. In September 1996,

Roylston went to Illinois and met with Berkey before

and after a pretrial discovery hearing. These two meetings represented the bulk of the contact between counsel

and his client.

Berkey’s trial was to begin on December 2, 1996. That

morning, Roylston advised Berkey to enter an open-ended

guilty plea. Roylston told Berkey that the plea would

eliminate the risk of being held responsible for mass

quantities of drugs. Roylston told Berkey that he would

face a four to five year prison term with an open-ended

plea instead of a thirty year sentence he could face by going to trial. Berkey also claims his attorney promised to

arrange an evidentiary hearing at which the government

would have to prove the actual transactions and drug

amounts attributable to Berkey. In light of all this, Berkey

decided to plead guilty.

The district court held a change of plea hearing at which

Berkey told the court that his attorney had discussed

the charges with him and that he was fully satisfied with

his counsel’s representation and advice. The district court

made a thorough explication of the charges Berkey faced

and informed him that there was a possibility that he

could serve between 235 and 293 months in prison. The

court then gave a brief summary of how Berkey’s sentence
No. 01-4325 3

could be increased or decreased based on various factors.

Finally, the court informed Berkey, “if my sentence of you

is more severe than what you expect, you will still be

bound by your plea of guilty. You have no right to withdraw it.”

Once the guilty plea was formally entered, the government began preparing the Presentence Investigation Report (“PSR”). The PSR indicated that Berkey supplied

3,157 kilograms of marijuana and 91 kilograms of crystal

methamphetamine to a major drug distribution network

operating in the southern Illinois and northwestern Kentucky areas. Based on these quantities, Berkey’s base

offense level was calculated to be 38.

After Roylston neglected to give a copy of the PSR to his

client, Berkey contacted a friend in Tucson to retrieve

a copy for him. When Berkey finally obtained a copy of

the PSR he told Roylston that he “objected to everything

but my name.”

Berkey’s sentencing hearing was July 10, 1997. The

district court adopted all of the quantity-based findings

in the PSR and fixed Berkey’s base offense level at 38.

Roylston did not object to those factual findings or to the

base offense level of 38. The court, over Roylston’s objection, enhanced Berkey’s offense level by two points for his

possession of a firearm during the commission of the

offense. The district court also enhanced the offense level

by three more levels because it found Berkey was a vital

participant in a criminal organization with more than

five people. Roylston did not object to this finding. After

other adjustments, including a three level reduction for

acceptance of responsibility, the court arrived at a total
4 No. 01-4325

1 If Berkey had not received the three point reduction for acceptance of responsibility, his offense level would have been 43

and his sentence would have been mandatory life imprisonment without parole.

2 An Arizona State Bar officer determined that Roylston’s conduct during his representation of Berkey violated Rule 42, Ariz.

R. S. Ct., ER 1.2 (competence), ER 1.3 (diligence), ER 1.4 (communication), ER 1.5 (fees), ER 1.15 (safekeeping of property), ER

1.16(d) (protecting clients’ interests), and ER 8.4 (misconduct).

offense level of 40 with a criminal history category of II.1

The sentencing guidelines provide that the sentence range

for such an offender is 324 to 405 months. The court

sentenced Berkey to 360 months’ imprisonment, a $10,000

fine, and five years of supervised release.

Following the sentencing, Berkey asked his attorney to

file a notice of appeal but Roylston failed to file such a

notice. When Berkey learned of the failure to seek appellate review, he moved for, and the district court granted,

the entry of an order extending the time to file a notice

of appeal and for the appointment of counsel for that

purpose. Berkey raised three claims on direct appeal, all

involving the district court’s sentencing determination. On

December 1, 1998, we rejected his arguments and affirmed

the sentence. United States v. Berkey, 161 F.3d 1099

(7th Cir. 1998).

On December 3, 1999, Berkey filed a § 2255 motion to

vacate, set aside, or correct his sentence. He argued that

Roylston rendered ineffective assistance of counsel and

that the indictment failed to conform with Apprendi

v. New Jersey, 530 U.S. 466 (2000). In part because of

Roylston’s conduct in his defense of Berkey, Roylston was

disbarred by the Arizona Supreme Court in May of 2000.2

However, the district court rejected Berkey’s § 2255 motion, from which he now appeals.
No. 01-4325 5

ANALYSIS

When we review a district court’s denial of a § 2255

motion, we consider questions of law de novo and review

any factual determinations for clear error. Menzer v. United

States, 200 F.3d 1000, 1003 (7th Cir. 2000).

A. Ineffective Assistance of Counsel Claim

We review an ineffective assistance of counsel claim

under the principles set forth in Strickland v. Washington,

466 U.S. 668 (1984). The Supreme Court held in Hill

v. Lockhart, 474 U.S. 52, 57-58 (1985), that the Strickland analysis applies to counsel’s conduct during the

pleading phase. To mount a successful claim that counsel

was ineffective at the pleading stage, Berkey must first

show his attorney performed in a deficient manner, Strickland, 466 U.S. 668, 687, and then prove that “but for

counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill, 474 U.S. at 58-

59. Our scrutiny of counsel’s performance is highly deferential. United States ex rel. Simmons v. Gramley, 915 F.2d

1128, 1133 (7th Cir. 1990), and there is a strong presumption that his attorney performed effectively. United States

v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). To meet his

burden, Berkey must establish specific acts or omissions

of his counsel that constitute ineffective assistance. We

then determine whether these acts or omissions were

made outside the wide range of professionally competent

assistance. Menzer, 200 F.3d at 1003.

We need not consider the first prong of the Strickland

test if we find that counsel’s alleged deficiency did not

prejudice the defendant. Matheney v. Anderson, 253 F.3d

1025, 1042 (7th Cir. 2001). As the Court noted in Strickland, “[i]f it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, which

we expect will often be so, that course should be followed.”
6 No. 01-4325

466 U.S. at 697. We heed this advice and now explain why

Berkey’s claim fails because he suffered no prejudice per

Strickland.

Berkey places significant emphasis on Roylston’s scant

contact with his client, his failure to file a notice of appeal, and his subsequent disbarment from the practice of

law. Even the government, during oral argument, admitted

the factual background was “pretty scary.” But even a

frightening storyline is subject to the principles set forth

in Strickland and its progeny.

Berkey contends that his attorney at the change of plea

hearing and sentencing phase committed two errors

which constitute ineffective assistance. First, counsel erroneously advised him that there would be an evidentiary

hearing regarding the drug quantities. Second, counsel

failed to contest the drug amounts attributed to Berkey.

The main contention underlying these two claims is that

even if Berkey had proceeded to trial, the greatest sentence he could have received was no more than thirty

years, which was exactly what he got by pleading guilty.

Berkey expresses frustration with what he perceives

as the government’s inability to fully grasp his argument.

He claims that the government has failed to address the

issue of whether Roylston was ineffective for failing to fulfill his promise to Berkey of presenting mitigating evidence at sentencing. Framing the issue in this fashion

reveals the flaw in Berkey’s argument; a lack of evidence

supporting his claim. As we have previously noted, “[a]

mere allegation by the defendant that he would have

insisted on going to trial is insufficient to establish prejudice.” Barker v. United States, 7 F.3d 629, 633 (7th Cir.

1993) (quoting United States v. Arvanitis, 902 F.2d 489, 494

(7th Cir. 1990)). Berkey must establish through objective

evidence that a reasonable probability exists that he

would have gone to trial. McCleese v. United States, 75

F.3d 1174, 1179 (7th Cir. 1996). Berkey has offered no
No. 01-4325 7

evidence that he would have presented had an evidentiary

hearing taken place. After the government raised this

issue in its brief, Berkey, in his reply brief, simply ignores

it, pointing to no evidence he would have produced if the

court had held an evidentiary hearing.

In lieu of offering an explication of evidence he had to

offer, Berkey asserts that had he received an evidentiary

hearing, he could have contested the testimony of the

government’s witnesses. Berkey insinuates that the government’s witnesses’ testimony was accepted uncritically.

Nothing could be further from the truth. Five of Berkey’s coconspirators put the government to its burden of proof

during a month and a half long trial before the same judge

who sentenced Berkey. Berkey’s co-conspirators strenuously sought to discredit those witnesses Berkey now

seeks to challenge. We believe the district court was correct in its determination that even with an evidentiary

hearing, Berkey would not have been able to convince the

court that his testimony was more plausible than the

evidence adduced at trial.

As we plainly noted in McCleese v. United States, 75 F.3d

1174, 1179 (7th Cir. 1996), a self-serving statement is

not enough to satisfy the second Strickland prong. Precedent on this question is manifold and clear: the defendant’s

sole assertion that he would have proceeded to trial cannot

carry the burden to show prejudice under Strickland. See,

e.g., Arango-Alvarez v. United States, 134 F.3d 888, 893

(7th Cir. 1998); United States v. Arvanitis, 902 F.2d 489,

495 (7th Cir. 1990); Gargano v. United States, 852 F.2d 886,

891 (7th Cir. 1988).

Berkey additionally contends his 360 month sentence

obtained through the plea bargain was the effective equivalent of a life sentence, which represented the worst case

scenario had he gone to trial. But the court specifically

warned Berkey that he faced, at minimum, a range of 235
8 No. 01-4325

to 290 months if found to have a Category I criminal

history. The court then explained how his sentence could

increase as the criminal history went up. The appellant

acknowledged that he understood this process and understood the potential sentence. To now object to the 360

months’ as unfair fails to consider the unambiguous

explanation given to Berkey in open court. Berkey clearly

manifested his consent to the terms.

As the Supreme Court noted in North Carolina v. Alford,

400 U.S. 25, 31 (1970), we consider the validity of a guilty

plea based upon “whether the plea represents a voluntary

and intelligent choice among the alternative courses of

action open to the defendant.” Berkey admitted that no one

had made any promises to him to induce a plea of guilty.

In addition, the court asked Berkey if it was his intent

to plead guilty as his own free and voluntary act. Berkey

responded in the affirmative. This colloquy, in addition

to other excerpts from the record, demonstrates that

Berkey entered his plea knowing the likely consequences

and understanding the implacable nature of the sentence.

To now claim that he was pushed by his attorney through

an abyssal process contradicts the record.

Berkey’s claim of ineffective assistance of counsel is

not confined to the plea phase of the proceedings. He

also claims that his counsel’s conduct during the sentencing hearing constituted ineffective assistance because of

the failure to contest the drug quantities attributed to

Berkey. To meet the prejudice prong of Strickland in an

ineffective assistance at sentencing claim, Berkey must

show that but for counsel’s unprofessional error, there is

a reasonable probability that the results would have

been different. Fountain v. United States, 211 F.3d 429, 434

(7th Cir. 2000).

Berkey’s ineffective assistance at sentencing claim has

the same fault as his claim at the pleading phase: lack
No. 01-4325 9

of any evidentiary support. Berkey again fails to point to

any evidence he would have presented that would create

a reasonable probability that the result of the proceedings would have been different. The government had

significant evidence concerning drug quantities attributable to Berkey that placed him in a damaging light.

Thus, Berkey fails to meet the prejudice prong of Strickland.

Whatever shortcomings Berkey’s lawyer might have in his

general practice of law, we are still bound to review the

matter under the principles set forth in Strickland.

The district court did not err in its determination that

Berkey failed to make a valid ineffective assistance of

counsel claim.

Berkey also contends that his counsel’s representation

was ineffective due to a conflict of interest. The government

points out that Berkey never raised this claim before the

district court in his § 2255 motion. We agree that a conflict of interest can be grounds to find counsel’s assistance

ineffective. Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980).

However, before we undertake this question, we must

determine whether the issue is properly before us. We

have concluded that it is not.

Berkey contends that his conflict claim is merely a legal extension of his ineffective assistance argument. In

Pierce v. United States, 976 F.2d 369 (7th Cir. 1992), we

faced a similar claim. The petitioner appealed after the

district court denied his § 2255 motion. Included in his

appeal was a claim of ineffective assistance of counsel,

based on a conflict of interest on the part of his trial

attorney. Id. at 370. Pierce also attempted to argue on

appeal that his trial attorney rendered ineffective assistance of counsel because he did not adequately explain the

consequences of pleading guilty. Id. While we entertained

Pierce’s conflict of interest claim, we determined his ar-
10 No. 01-4325

gument regarding the inadequate explanation of his plea

was waived because it was not raised in the § 2255 motion

before the district court. Id. at 370 n. 2.

Berkey’s conflict of interest argument is procedurally

barred because he failed to raise it in his § 2255 motion

before the district court.

B. Apprendi Claim

In a supplement to his § 2255 motion, Berkey argued

that Apprendi v. New Jersey, 530 U.S. 466 (2000), entitled

him to relief from his sentence. For Apprendi to be applicable, we would have to apply it retroactively. We have

already determined, however, that Apprendi is not retroactive on collateral review. Curtis v. United States, 294 F.3d

841, 842 (2002), cert denied ___ U.S. ___, 123 S.Ct. 451

(2002). We also noted in Curtis that Apprendi “does not

disturb sentences that became final before June 26, 2000,

the date of its release.” Id. at 844. Berkey’s sentence

was finally adjudicated in December 1998. Thus, we reject

Berkey’s request to expand the certificate of appealability to include his Apprendi claim.

CONCLUSION

The petitioner has not established that counsel’s conduct

constituted ineffective assistance. In addition, Berkey’s

conflict of interest and Apprendi claims are procedurally

barred and therefore waived. For these reasons, we AFFIRM

the district court’s denial of Berkey’s § 2255 motion.
No. 01-4325 11

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-10-03