In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-1126

GREGORY J. MOORE,

Petitioner-Appellee,

v.

STEVEN C. BRYANT,

Respondent-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 00 C 2119—Michael P. McCuskey, Judge.

____________

ARGUED SEPTEMBER 5, 2003—DECIDED OCTOBER 23, 2003

____________

Before BAUER, POSNER, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. This petition for habeas corpus

brought by Gregory Moore under 28 U.S.C. § 2254 is before this court for the second time. In our prior opinion,

we held that Moore did not procedurally default his claim

of ineffective assistance of counsel in state court, and

we remanded the case for consideration of the merits of

his claim. Moore v. Bryant, 295 F.3d 771 (7th Cir. 2002). On

remand, the district court granted habeas relief, holding

that the state court decision rejecting his ineffectiveness

claim was an unreasonable application of established Supreme Court law, and that Moore’s counsel’s inaccurate

advice regarding Moore’s potential sentence was a material factor that in all probability impacted his decision
2 No. 03-1126

to plead guilty. The state has appealed that determination by the district court, and we affirm.

The facts underlying Moore’s claim are set forth in our

prior opinion, and will be repeated here only to the extent

necessary for this appeal. At the age of 15, Moore was

charged as an adult with first degree murder. Although

the evidence demonstrated that Moore was not present

at the shooting and was not a shooter, the state’s theory

of criminal liability was based upon Moore’s involvement

as one of a group of individuals who chased the victim.

Moore maintained his innocence during the pre-trial

process. In May 1995, just before the case was scheduled

for trial, Moore pled guilty in exchange for the state’s recommendation that he receive the minimum 20-year prison

sentence. Shortly thereafter, however, Moore sought to

withdraw the plea. In his amended motion to withdraw

the guilty plea, Moore alleged that the plea was not knowing and voluntary for a number of reasons, including the

erroneous advice given to him by his attorney. He alleged

that his attorney had informed him that the law in Illinois was changing and that good-time credits to which

he currently would be entitled were being limited. As a

result of that change in Illinois law, his attorney told him

that, if convicted, he would serve 85% of the sentence

imposed, whereas if he pled guilty immediately, he would

serve, under current Illinois law, only 50% of a 20-year

sentence. The attorney informed him that his sentence

if convicted would be between 25 and 30 years. Therefore,

based on the advice regarding the impending revision to

the good-time credit statute, Moore was faced with the

prospect of a 10-year sentence if he pled guilty, or a 22-27

year sentence if he proceeded to trial and was convicted.

That advice was erroneous. The revision to the good-time

credit statute was not retroactive, and the state does

not present any argument that the advice was a correct

interpretation of the law. Instead of facing the choice be-
No. 03-1126 3

tween a 10-year sentence and a 22-27 year sentence, Moore

in actuality was facing the choice between a 10-year

sentence and a 121⁄2-15 year sentence. The difference is

substantial by any measure. Nevertheless, the state court

rejected Moore’s argument and the issue in this case is

whether the district court properly held that the state

court decision was an unreasonable interpretation of Supreme Court law.

We review this petition for habeas corpus under the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). According to the AEDPA, Moore cannot succeed on his petition unless he can demonstrate that the

state court decision was contrary to or an unreasonable

application of clearly established Supreme Court law or

was based on an unreasonable determination of the facts

in light of the evidence presented in the state court proceeding. 28 U.S.C. 2254(d). A “ ‘state court decision that

correctly identifies the governing legal rule but applies it

unreasonably to the facts of a particular prisoner’s case’

qualifies as a decision involving an unreasonable application of clearly established federal law.” Boss v. Pierce, 263

F.3d 734, 739 (7th Cir. 2001), quoting Williams v. Taylor,

529 U.S. 362, 407-08 (2000).

The state first asserts that Moore’s counsel did not advise Moore that he would serve 85% of his sentence if he

lost after a trial. That argument is belied by the record.

Moore submitted an affidavit stating that he was so

informed, and that was corroborated by his attorney.

Specifically, Moore’s trial attorney stated that in his

conversation with Moore prior to Moore’s decision changing his plea.

[O]ne concern I had and one concern Greg had was if

he accepted the plea, how long would he be in prison. At

that time, in [1995], the law regarding good time

was changing . . . . At the time I was discussing the of-
4 No. 03-1126

fer with Greg, it wasn’t clear whether that law was

going to be retroactive, whether legally it could be

retroactive. I had some concerns about it.

So, in discussing the plea with Greg, that issue came

up. I didn’t have the statute in front of me. It hadn’t

become law yet.

So, for a while, that was an issue, would he have to

spend 85 percent of 20 years, 100 percent of 20 years,

50 percent of 20 years. And that we spent a long time

discussing that aspect of it.

Hearing on Amended Motion to Withdraw Guilty Plea at

28. Moore’s attorney, then, acknowledged discussing at

length the impact of the impending change in good-time

credits, and even listed the options considered. Although

Moore’s attorney does not identify the conclusion he

reached on the issue or the advice ultimately given, Moore’s

affidavit that he was informed he would likely face 85%

of a 25-30 year sentence is consistent with his attorney’s

testimony. Although the testimony quoted above recites

percentages of a 20-year sentence, Moore’s attorney further testified that he told Moore that if Moore lost at

trial, the sentence “would of necessity be higher than 20

years.” Hearing at 29-30. Therefore, Moore’s details of

the conversation are indeed consistent with the testimony

of his attorney. There is thus no record support for the

state’s contention that Moore’s attorney never so advised Moore.

We turn, then, to the question of whether that advice

constituted ineffective assistance of counsel, and whether

the state court was unreasonable in determining that it

did not. In order to demonstrate ineffective assistance in

the context of a guilty plea, Moore must demonstrate that

his counsel’s advice regarding the plea was objectively

unreasonable and that there is a reasonable probability

that, but for counsel’s error, Moore would not have pled
No. 03-1126 5

guilty, but would have insisted upon a trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466

U.S. 668 (1984). We have identified the criteria that

apply regarding an attorney’s advice concerning an offer

of a plea agreement. A reasonably competent counsel will

attempt to learn all of the facts of the case, make an

estimate of a likely sentence, and communicate the results of that analysis before allowing his client to plead

guilty. United States v. Barnes, 83 F.3d 934, 939 (7th Cir.

1996). “Although the attorney’s analysis need not provide

a precisely accurate prediction of the respective consequences of pleading guilty or going to trial, the scrutiny

must be undertaken in good faith.” Id. at 939-40. When the

attorney fails to do so and that failure is the decisive factor in the decision to plead guilty, the Sixth Amendment

is violated and the defendant may withdraw his plea. Id.

at 940. The district court properly held that this standard was met here.

The state does not contend that Moore’s counsel was

legally correct when he advised Moore that the goodtime credits could severely lengthen his sentence if he

proceeded to trial and lost. The statute ultimately passed

was not retroactive, and Illinois Supreme Court caselaw

in existence at the time the advice was given held that

such changes in good-time credits could not be retroactively applied. Barger v. Peters, 645 N.E.2d 175, 177

(Ill. 1994). Nor does the state demonstrate that Moore’s

counsel made a reasoned legal decision based on the

relevant factors. We have noted that the deficient performance prong is met where the inaccurate advice “resulted

from the attorney’s failure to undertake a good-faith

analysis of all of the relevant facts and applicable legal

principles.” Bridgeman v. United States, 229 F.3d 589, 592

(7th Cir. 2000). The record in this case illustrates such

deficient performance. Moore’s counsel acknowledged that

he did not have the statute with him when providing the
6 No. 03-1126

advice, and he acknowledged that he was uncertain as to

its effect. There is no evidence that he subsequently examined the statute, nor is there evidence that he analyzed

the caselaw regarding the retroactivity issue, which would

have resolved his concerns as there was a very recent

Illinois Supreme Court decision on point. Where erroneous advice is provided regarding the sentence likely to be

served if the defendant chooses to proceed to trial, and

that erroneous advice stems from the failure to review

the statute or caselaw that the attorney knew to be relevant, the attorney has failed to engage in the type of goodfaith analysis of the relevant facts and applicable legal

principles, and therefore the deficient performance prong

is met.

The state argues that an attorney is not required to

inform himself of pending legislative changes in order to

meet the standard of competence, but we need not even

consider that issue. Here, we are not presented with an

attorney’s failure to inform a client of an impending

legislative change, but rather with misinformation provided by an attorney on an issue that is certainly critical

to the plea decision—the length of the sentence that the

defendant faces—and that misinformation is the result

of the attorney’s failure to examine the statute and the

law that the attorney himself identified as relevant.

Regardless of whether an attorney must anticipate legislative changes, if an attorney chooses to provide such

information, his/her conduct may be considered objectively unreasonable if the attorney fails to conduct a goodfaith inquiry and that information is materially false.

That does not end the inquiry, however, because Moore

must also establish that there was a reasonable probability that, but for the erroneous advice, he would not have

pled guilty. Hill, 474 U.S. at 59. Moore submitted an

affidavit in which he contended that he pled guilty because of his attorney’s advice regarding the impact of the
No. 03-1126 7

good-time credits and the resulting disparity in sentence

between the guilty plea and a conviction. That is consistent with his testimony at the hearing on his motion to

withdraw the plea. Furthermore, that contention is supported by the history of the pre-trial process in this case.

Throughout the process prior to that discussion, Moore

maintained his innocence and refused a guilty plea. As the

case was about to proceed to trial, his attorney again

discussed the possibility of a plea with him. Moore’s trial

counsel testified that at that time, he and Moore discussed at length the potential sentencing impact of the

legislative revisions to the good-time credits. His attorney’s

advice dramatically altered the choice faced by Moore.

Instead of serving 10 years if he pled guilty, or 121⁄2-15

if he lost at trial, Moore was presented with the prospect

of serving 10 years if he pled guilty or 22-27 years if he

was convicted at trial. That difference nearly doubled the

amount of time he would face if he proceeded to trial, and

that is precisely the type of information that is likely to

impact a plea decision. After that discussion, Moore

changed his plea, although he did so reluctantly. In fact,

at the first change of plea hearing, he said he did not

wish to proceed, and shortly after entering the guilty

plea he moved to withdraw it. Therefore, the record evidence, the history of the plea discussions, and the nature

of the misinformation establish that there was a reasonable probability that but for the erroneous advice, Moore

would not have pled guilty.

The final question is whether the state court acted

unreasonably in determining otherwise. The state court

rejected the ineffective assistance claim on two grounds.

First, the court held that the trial court “thoroughly and

completely admonished defendant as to the consequences

of his guilty plea.” and the “defendant’s responses to the

court’s questions do not reveal any misunderstanding

or hesitancy in his decision to plead guilty.” That observa-
8 No. 03-1126

tion by the court, however, is irrelevant to the issue presented here, which is whether the erroneous advice provided by counsel caused Moore to enter a plea he otherwise would not have entered, because it assumes that

Moore was aware of the error in that advice at the time

he entered the plea of guilty. If, as the record establishes,

Moore was not aware that the sentence advice was erroneous, then his responses concerning the voluntariness

of his plea and his acknowledgment of his rights do nothing to address the underlying problem. Nothing in that

colloquy addressed whether his plea was based upon

any predictions as to his sentence, nor did it otherwise

alert Moore to the possibility that he was misinformed as

to the choice he faced. Because nothing in the plea colloquy addressed the length of sentence or the impact of

good-time credits that he was likely to face if he went

to trial and lost, that sequence of questions did nothing

to ameliorate the adverse impact of his counsel’s misinformation. The state court’s reliance on the plea colloquy

as a panacea for Moore’s attorney’s deficient performance

is without legal precedent where the colloquy did not

even address the basis for that deficient performance,

and thus is an unreasonable application of the Strickland

test.

The alternative basis provided by the court fares no

better. The court held that the prejudice prong was not

met because the record did not show that the alleged

misunderstanding regarding good-time credit “in any way”

affected the voluntariness of Moore’s guilty plea. The

court did not base that opinion upon any credibility determination, but rather appeared to believe that the record

contained no support for his claim that his plea decision

was based on the misinformation. At the hearing for the

change of plea, however, the first issue raised by Moore

in discussing his decision to plead guilty was the advice

his attorney gave him regarding the impact of the upcom-
No. 03-1126 9

ing change in good-time credits on the sentence he was

likely to serve. Moore further noted that this conversation

occurred approximately a week before trial, and prior to

that conversation he had refused to plead guilty, and

that he always has maintained his innocence of the charges.

The testimony by Moore’s attorney confirms that the effect of the good-time credit statute on his potential sentence was a key issue in their discussions prior to

Moore’s decision to plead guilty, and that they discussed

the issue at length. The state court made no attempt to

reconcile its holding with those statements by Moore or

the corroboration by Moore’s attorney. Absent some credibility determination, the state court’s statement that

the record does not show that the misunderstanding in

any way affected the voluntariness of his plea is an unreasonable application of the facts to the law. Therefore,

we agree with the district court that the state court’s

rejection of his ineffective assistance claim was contrary

to, or an unreasonable application of, clearly established

Supreme Court law. The decision of the district court

granting the writ of habeas corpus under 28 U.S.C. § 2254

is AFFIRMED. The State shall have 120 days from the

date of the issuance of this opinion to release or retry

Moore.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-23-03