1 Pursuant to Fed. R. App. P. 43(C), we have substituted the new

warden of the Pinckneyville Correctional Center where Julian is

currently confined, for the former warden, Kenneth G. Bartley.

In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 05-3835 & 05-3836

DAVID JULIAN,

Petitioner-Appellant,

v.

KENNETH G. BARTLEY, Warden1

Respondent-Appellee.

____________

Appeals from the United States District Court

for the Central District of Illinois.

Nos. 05-CV-1076 & 05-CV-1077—Michael M. Mihm, Judge.

____________

ARGUED OCTOBER 19, 2006—DECIDED JULY 25, 2007

____________

Before RIPPLE, MANION, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. In this appeal of the denial of a

habeas corpus petition, David Julian asks this court to

consider whether the state court properly determined that

his counsel did not provide ineffective assistance of counsel during plea negotiations when that counsel misinterpreted the Supreme Court decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000) and informed Julian that the

maximum sentence he could receive would be thirty,

rather than sixty years in prison.
2 Nos. 05-3835 & 05-3836

I.

On August 15, 2000, Julian and his state court trial

counsel, Dennis Sheehan, met with Illinois State’s Attorneys and the court to discuss a negotiated plea agreement.

He was looking down both barrels of a double-barreled

gun, having been indicted on May 3, 2000 for a robbery

committed that same day, and indicted on May 18, 2000

for a robbery committed on April 30, 2000. At the hearing,

the State summarized the plea disposition under which

Julian would be sentenced to twenty-three year concurrent terms for the two armed robberies. Just before Julian

started to enter his plea, the State mentioned that Julian

was on supervised release for a previous armed robbery

conviction. In response, the trial judge informed Julian

that state law required that he serve his sentence for the

armed robbery consecutively with any separate sentence

imposed for a parole violation. At that point, Julian

conferred with his attorney and then rejected the plea.

According to Julian, his lawyer informed him that the

Supreme Court had just recently issued a new opinion in

Apprendi v. New Jersey, 530 U.S. 466 (2000), which required any fact that increases the penalty for a crime

beyond the statutory maximum to be submitted to a jury

and proved beyond a reasonable doubt. Julian testified

that Sheehan informed him that because the indictments

on the two charges of armed robbery did not mention the

prior conviction, the longest sentence he could receive

would be thirty years. According to Julian’s testimony,

Sheehan presented the information to him as a guarantee.

According to Sheehan’s testimony, Sheehan never guaranteed Julian a maximum sentence of thirty years. Sheehan

did testify, however, that he recalled telling Julian that

“since there wasn’t an additional clause in the Bill of

Indictment that made comment about his first conviction

for armed robbery, that under those circumstances, it

would seem to me that based upon a reading of Apprendi,
Nos. 05-3835 & 05-3836 3

2 Because Julian’s two habeas cases were not consolidated in the

district court, the record on appeal consists of two identical

volumes of pleadings and two identical supplemental volumes

of state evidentiary hearing transcripts, one for each case. For

some reason, although the records containing the pleadings are

identical, they are not numbered identically. Consequently, for

ease of reading, and to reduce confusion, this opinion will refer

only to the pleadings of the record on appeal of district court

case number 05-1077. The transcripts of the evidentiary hearing are identical in all respects and, therefore, transcript

references can be found in either supplemental volume of the

transcript.

he couldn’t get anything more than 30.” (Tr. 3/17/03 at

25).2

 In any event, Julian rejected the plea and proceeded

to trial on each of the two indictments—first a jury trial

followed later by a stipulated bench trial. Unfortunately

for Julian, Sheehan was only half right about the holding

of Apprendi. It did indeed hold that any fact that increases

the penalty for a crime beyond the statutory maximum

must be submitted to a jury and proved beyond a reasonable doubt, but it specifically exempted from this holding

the fact of a prior conviction. Apprendi v. New Jersey, 530

U.S. 466, 490 (2000). Julian proceeded to trial and was

sentenced to forty-year concurrent terms.

After Julian was sentenced in the first trial, Sheehan

filed an unsuccessful motion to reconsider the sentence,

arguing that based on Apprendi, Julian should have

received thirty years, at most. Several days later, at a

sentencing hearing for the second conviction, Julian

submitted a letter to the court that stated, in part:

I want you to now bring up the Apprendi vs. N. [sic]

Jersey as a factor in my sentencing as well as the fact

that you stated to me that due to the states [sic]

mishandling of the indictment in these cases that I’ve

guaranteed myself a maximum of 30 years, per charge.
4 Nos. 05-3835 & 05-3836

3 At the sentencing hearing, defense counsel informed the

court that the defendant had prepared a written statement for

the court, which included arguments that defense counsel did

not believe were appropriate for him to argue to the court. The

letter appears to be a letter of direction from Julian to defense

counsel. (R. at 10, Ex. A., p.39-40). The trial judge allowed the

letter to be made a part of the record, although he did not look

at it.

(R. at10, Ex. D, p.3 & Ex. A, p.32-33, 39-40)3. The court did

not review the letter, but it was entered into the record

under seal, over the State’s objection.

Julian filed timely direct appeals and motions for postconviction relief that raised the issue of ineffective assistance of counsel. In those appeals, Julian argued that his

attorney was ineffective when he advised Julian that he

could not receive more than a thirty-year sentence because of limitations set forth in Apprendi. He also contended that he would have accepted the plea offer of

twenty-three years had he known that his potential

sentence could have exceeded thirty years.

During the evidentiary hearing held during the postconviction proceedings, both Julian and Sheehan testified

about the Apprendi issue. Sheehan’s version of the facts

differs from Julian’s only in the level of certainty Sheehan

provided regarding the thirty-year sentence. Julian

described Sheehan’s advice as a guarantee as shown in

the following exchange:

Q: And did Mr. Sheehan advise you what the absolute

maximum sentence would be that you could receive?

A: Yes, sir.

Q: And what did he tell you the absolute maximum

sentence you could receive would be on these

cases?
Nos. 05-3835 & 05-3836 5

A: 30 years.

Q: Did he cite any particular case that you remember

in support of his statements to you?

A: Yes, sir.

Q: What was that?

A: The Apprendi vs. New Jersey.

Q: And what was your—from what he told you during

these meetings on this issue, what was your

understanding of that?

A: My understanding was that due to the way I was

improperly—

Q: I’m sorry, let me cut you off. What did Mr.

Sheehan tell you regarding that, to the best of your

recollection, Apprendi?

A. He told me, due to the Apprendi, that I have

guaranteed myself no more than 30 years.

(Tr. 3/13/03 at 6-7). Sheehan testified about the Apprendi

advice as follows:

First, on direct examination the following exchange

occurred:

Q: And did you ever advise or make a statement to

Mr. Julian to the effect that because of this

Apprendi Case, that he was guaranteed or that

the most he could get was 30 years in the Department of Corrections?

A. No.

(Tr. 3/17/03 at 12). On cross-examination, he elaborated

further:

Here is what I remember telling him about it. I remember saying to him that my reading of the Apprendi
6 Nos. 05-3835 & 05-3836

Case indicated to me that since there wasn’t an

additional clause in the Bill of Indictment that made

comment about his first conviction for armed robbery,

that under those circumstances it would seem to me

that based upon a reading of Apprendi, he couldn’t get

anything more than 30. That’s basically what I told

him.

(Tr. 3/17/03 at 25). On re-direct examination, Sheehan

testified as follows:

Q: . . . [D]id you ever tell Mr. Julian then that based

on that case and based on your interpretation of

that case [Apprendi], would be held here in the

State of Illinois, that he was guaranteed to only

get 40 [sic] years?

A: . . . [T]he answer to that question is no. I indicated

to him that it was for the Court to make a determination as to his penalty and certainly not myself.

(Tr. 3/17/03 at 31-32).

Julian’s friend, Richye Herlihy, testified that Sheehan

told her that Julian could get up to thirty years in prison,

but no more. (Tr. 3/13/03 at 50).

Julian and Sheehan agree that, prior to the decision in

Apprendi, at his first court appearance on May 3, 2000,

both Sheehan and the trial Judge informed Julian that

he was eligible for a term of up to sixty years. Julian

testified, however, that Sheehan later informed him that

Apprendi had altered the landscape and changed the

maximum he could receive. (Tr. 3/13/03 at 45-46, 55).

The state post-conviction court denied Julian’s request

for post-conviction relief, finding clear evidence that both

the court and Julian’s counsel advised Julian that he was

eligible for an extended term of up to sixty years. (R. at 10,

Ex. H, p.1). Julian’s appeal to the state appellate court
Nos. 05-3835 & 05-3836 7

resulted in a similar conclusion (R. at 10, Ex. L), and the

Illinois Supreme Court denied his petition to appeal (R.

at 10, Ex. N).

On petition for a writ of habeas corpus, the district court

below concluded that there was no clear and convincing

evidence that the state court’s factual determination—that

Julian’s counsel did not erroneously inform him that he

could not receive a sentence greater than 30 years—was

unreasonable based on the record. Our review of the

district court’s decision to deny the petition for writ of

habeas corpus is de novo. Barrow v. Uchtman, 398 F.3d

597, 602 (7th Cir.), cert. denied, 126 S. Ct. 153 (2005).

II.

Our review of this habeas petition, like all habeas

petitions, is limited by the terms of the Antiterrorism

and Effective Death Penalty Act (AEDPA). Habeas relief

must not be granted unless the state court’s adjudication of the claim

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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). In assessing the reasonableness of the

state court’s decision, the federal court assumes that the

state courts’ factual determinations are correct unless the

defendant rebuts them with clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

Our review of this case utilizes both prongs of the

§ 2254(d). We begin with a discussion of the state court’s
8 Nos. 05-3835 & 05-3836

fact-finding. The state post-conviction court’s complete

discussion of the evidence on this matter consisted of the

following four sentences:

Evidence was clear that Mr. Julian was advised by his

attorney and by the court that he was eligible for an

extended term of up to 60 years in the Illinois Department of Corrections. Mr. Sheehan did state that when

discussing a plea negotiation offer by the state he

[Sheehan] opined that the sentence might be 30 years.

He never stated that that was the maximum sentence

or that a sentence could not be longer. Mr. Julian

knew, because both the court and his attorney told

him, that he was eligible for an extended term.

(R. at 10, Ex. H, at p.1). The appellate court came to two

conclusions based on the trial court’s scant discussion.

First, the appellate court concluded that “the postconviction court found that the defendant was advised both by

his attorney and the trial court that he faced a maximum

penalty of 60 years’ imprisonment.” Second, it concluded

that “[t]he postconviction court found that Sheehan merely

expressed his opinion concerning the effect of Apprendi,

and did not guarantee that the defendant’s sentence would

not exceed 30 years.” (R. at 10, Ex. L, p.7). In sum, the

post-conviction appellate court’s conclusion that Sheehan’s

counsel was not ineffective appears to be based on two

distinct theories. The first is that Sheehan did not err. He

correctly informed Julian that he could receive up to a

sixty year sentence. The second is that because Sheehan

merely expressed an opinion about the effect of Apprendi,

and did not guarantee Julian thirty years, his misinformation about Apprendi did not constitute ineffective assistance of counsel.

The conclusion that the defendant was advised effectively both by his attorney and the trial court that he

faced a maximum penalty of 60 years’ imprisonment

constitutes an unreasonable determination of the facts
Nos. 05-3835 & 05-3836 9

in light of the evidence presented in the state court

proceeding. See 28 U.S.C. § 2254(d)(1). It is true that, at

one time, both Sheehan and the court advised Julian that

the maximum sentence he could receive would be sixty

years. Both of these admonishments, however, came before

the Apprendi decision was released. There is no dispute

that after the Apprendi decision Sheehan discussed the

case with Julian and told him that the law had changed.

Julian and Sheehan’s testimony aligned on this point. See

(Tr. 3/13/03 at 45-46); (Tr. 3/17/03 at 24-25): Julian

testified that his lawyer’s information changed after the

Apprendi case was decided:

Q: . . . [B]efore you received the first 40-year sentence, at any point did he tell you you could get

over 30 years?

Q: A long time before that, before he ever told me

about the Apprendi.

Q: So sometime between your first appearance and

when he told you about Apprendi?

A: Yes. After that, it was never an issue. he told me

I couldn’t get more than thirty years.

(Tr. 3/13/003 at 45). On re-cross-examination, Julian

elaborated:

Q: I just want to make sure I heard this correctly. Did

I understand you to say, Mr. Julian, that at some

point Mr. Sheehan did tell you that you could get

60 years and then afterwards he said you could

only get 30 years based on Apprendi?

A: Yes.

Q: And that is—

A: After he told me about the Apprendi and that

I could get no more than 30 years, he never discussed an extended term again.
10 Nos. 05-3835 & 05-3836

Q: Okay, so it did come up? It did come up, then, prior

to your first trial with Mr. Sheehan that you could

get 60 years? You are just saying that he then

said something different after that, but again,

prior to the first trial?

A: He told me a long time before my first trial, yes,

that I could get an extended term. Then after he

learned of the Apprendi, he told me that due to

the Apprendi, a new Supreme Court ruling, I could

get no more than 30 years. I have guaranteed

myself no more than 30 years.

(Tr. 3/13/03 at 46).

Sheehan testified consistently with Julian as follows:

A: When we spoke about this case originally, and

when I found out what his prior criminal record

was, and that he was on parole for an armed

robbery, I was telling him that he was eligible for

the 60 year sentence.

Q: Okay. But you had also just answered me, that you

couldn’t specifically remember saying those words,

in the context of that discussion, but you could get

60, correct?

A: That’s right.

Q: So at some point it came up, but maybe not every

time you discussed the possible sentence.

A: That’s also correct.

* * *

Q: Did you ever mention the Apprendi case to Mr.

Julian and what you believed it represented?

A: I remember having a brief discussion with him

about it.
Nos. 05-3835 & 05-3836 11

Q: Okay. And in that discussion, if you recall, do you

recall telling him that it would preclude an extended term sentence in this case?

A: Here is what I remember telling him about it. I

remember saying to him that my reading of the

Apprendi Case indicated to me that since there

wasn’t an additional clause in the Bill of Indictment that made comment about his first conviction for armed robbery, that under those circumstances it would seem to me that based upon a

reading of Apprendi, he couldn’t get anything more

than 30. That’s basically what I told him.

(Tr. 3/17/03 at 23-25).

This is not, as the State asserts, a swearing match

between Julian and Sheehan. And we need not redetermine credibility. See Marshall v. Lonberger, 459 U.S. 422,

434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas

courts no license to redetermine credibility of witnesses

whose demeanor has been observed by the state trial court,

but not by them.”). The state court simply ignored a key

piece of evidence that reconciled both Julian and Sheehan’s

testimony. The government cites several pages from the

transcript which indicate that Sheehan informed Julian

that he was eligible for a sixty year sentence. (Brief of the

Appellee at 19-20, 21, 24), but each of these statements

refers to information Sheehan gave to Julian before the

Apprendi decision was released. Consequently, any

admonishments that Julian received prior to Apprendi

became moot in Julian’s eyes after Sheehan informed

Julian that Apprendi changed the playing field. The postconviction court’s determination that “Mr. Julian knew . . .

that he was eligible for an extended term” was against the

clear weight of the evidence and, therefore, an objectively unreasonable determination of undisputed facts.

See Ben-Yisrayl v. Davis, 431 F.3d 1043, 1048 (7th Cir.

2005).
12 Nos. 05-3835 & 05-3836

4 The appellate court’s factual findings differ slightly from the

brief factual findings of the post-conviction court. Nevertheless,

the state appellate court can make its own factual determinations which are owed the same deference as a trial court’s finding of fact. Miranda v. Leibach, 394 F.3d 984, 999 (7th Cir. 2005).

See also Sumner v. Mata, 449 U.S. 539, 547 (1981) (“Section

2254(d) by its terms thus applies to factual determinations

made by state courts, whether the court be a trial court or an

appellate court.”)

Even if it were not, in formulating its alternate theory,

the post-conviction appellate court unreasonably applied

the United States Supreme Court’s clearly established

law on ineffective assistance of counsel claims. Recall

that the post-conviction appellate court’s other (and

perhaps primary) conclusion was that “Sheehan merely

expressed his opinion concerning the effect of Apprendi,

and did not guarantee that the defendant’s sentence would

not exceed 30 years.” (R. at 10, Ex. L, p.7).4

 From this, the

court could conclude that “Sheehan did not provide the

defendant with ineffective assistance at trial.” Id.

A state court must analyze a claim of ineffective assistance of counsel pursuant to the guidelines set forth in

Strickland v. Washington, 466 U.S. 668 (1984). Strickland

requires that a petitioner demonstrate first that counsel’s

performance was deficient in an objectively unreasonable

manner, and, second, that the deficient performance

resulted in prejudice. Id. at 687-88, 693. A habeas petitioner who brings an ineffective assistance of counsel claim

under the AEDPA must demonstrate that the state court

unreasonably applied Strickland in evaluating his claim of

ineffective assistance of counsel. The state court’s application of Strickland must be objectively unreasonable and

not merely erroneous. Yarborough v. Gentry, 540 U.S. 1, 5

(2003).
Nos. 05-3835 & 05-3836 13

The Strickland test applies where a defendant challenges the legal assistance received during plea negotiations. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Indeed the

first prong of the Strickland test emanates from an earlier

Supreme Court case in which the Court held that a

defendant challenging a guilty plea based on ineffective

advice from his lawyer must demonstrate that the advice

was not within the range of competence demanded of

attorneys in criminal cases. McMann v. Richardson, 397

U.S. 759, 770-71 (1970).

This court previously has identified some of the specific

criteria that constitute objectively reasonable representation in the context of advice concerning a plea agreement.

A reasonably competent attorney will attempt to learn all

of the facts of the case, make an estimate of the likely

sentence, and communicate the result of that analysis

before allowing the client to plead guilty. Bethel v. United

States, 458 F.3d 711, 717 (2006), cert. denied, 127 S. Ct.

1027 (2007); Moore, 348 F.3d at 241; Barnes, 83 F.3d at

939. The attorney need not be 100% correct in her prediction of the consequences of pleading guilty and of going to

trial, as a mistake, in and of itself is not proof of deficient

performance. Moore, 238 F.3d at 241; Barnes, 83 F.3d at

939-40. The leeway given counsel stems from the general

concept that a court must start with the “presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Davis v. Lambert, 388 F.3d 1052,

1059 (7th Cir. 2004). Because reasonable attorneys may

have a great deal of disagreement about appropriate

strategy or tactics, a defendant challenging the effectiveness of counsel must show more than that counsel made

poor choices. Woods v. McBride, 430 F.3d 813, 821 (7th Cir.

2005), cert. denied, 127 S. Ct. 391 (2006). Consequently,

although a mistaken prediction is not sufficient to show

deficient performance, (Barnes, 83 F.3d at 940), in some

cases it may be such a gross mischaracterization that it
14 Nos. 05-3835 & 05-3836

provides a “strong indication of constitutionally deficient

performance.” United States v. Martinez, 169 F.3d 1049,

1053 (7th Cir. 1999). A court may factor the magnitude of

the error into its assessment of whether the legal advice

was that of a reasonably competent attorney. See McMann,

397 U.S. at 769-71.

The state appellate court, therefore, was headed in the

wrong direction when it determined that Sheehan did

not provide ineffective assistance of counsel because he

“merely expressed his opinion . . . and did not guarantee

that the defendant’s sentence would not exceed 30 years.”

(R. at 10, Ex. L, p.7). The only query we make is whether

the attorney’s actions in learning the facts, analyzing the

law, and communicating the results of that analysis to

the client, were objectively reasonable. Moore, 229 F.3d at

241. And so in Moore, where the attorney discussed the

possible ramifications of the sentence with a client but

did not have the relevant statute with him and was

uncertain as to its effect, this court concluded that his

conduct was objectively unreasonable, notwithstanding the

fact that the attorney never identified the conclusion he

reached or the advice ultimately given to the client. Moore,

348 F.3d at 241-42. Consequently, the appellate court’s

conclusion that because Sheehan provided an opinion

rather than a guarantee, he could not have provided

ineffective assistance of counsel is a non-sequitur. (R. at

10, Ex. L, p.7). What Sheehan told Julian about a thirtyyear maximum for his sentence was clearly wrong and

therefore objectively unreasonable. In fact one would be

hard pressed to find a lawyer who guaranteed a client

anything. Guarantees in the law are hard to come by,

particularly in the topsy-turvy world of sentencing. Were

we to constrain claims for ineffective assistance of counsel

only to those who received guarantees from their lawyers,

we surely would eviscerate the law regarding the right

to effective counsel.
Nos. 05-3835 & 05-3836 15

5 The State contends that prior to the briefing in the appellate

court Julian consistently alleged ineffective assistance of counsel

based on counsel’s advice, rather than a guarantee. Consequently, the State argues that Julian cannot now claim that

counsel was ineffective for making an erroneous prediction. Our

task, on review of this habeas petition, is to determine whether

the state court properly applied Strickland. In the case of an

ineffective assistance claim, the first prong of Strickland requires

a court to analyze whether the attorney gave objectively reasonable advice, not whether he guaranteed an outcome or merely

opined about a possible outcome. Julian thus correctly notes

that the distinction is irrelevant under his theory of the case.

The first prong of the state court’s Strickland analysis,

therefore, should have focused not on whether Sheehan

offered advice or a guarantee, but rather on whether

Sheehan’s advice was that of a reasonably competent

defense lawyer.5

 In this case, it will be helpful to our

assessment of Sheehan’s analysis of the facts and law, and

his efforts to communicate the results of his analysis to

revisit the key facts leading up to the rejection of the plea.

They are as follows:

On May 3, 2000 Julian was brought before a judge on

charges that he had committed a robbery that same day.

The judge advised Julian that the usual sentencing range

for the offense was six to thirty years imprisonment, but

that if Julian had “been convicted of the same or greater

class offense within the past 10 years excluding any time

spent in custody, that could be extended as high as 60

years.” (R. at 10, Ex. L, p.1-2). Sheehan similarly advised

Julian that his maximum sentence could be sixty years.

(Tr. 3/17/03 at 10). Fifty-four days later, on June 26, 2000,

the Supreme Court released its decision in Apprendi v.

New Jersey, 530 U.S. 466 (2000). Seven weeks after that,

on August 15, 2000, Julian and his counsel entered the

plea hearing. At or before this hearing, Sheehan discussed
16 Nos. 05-3835 & 05-3836

the effect of the Apprendi decision on Julian’s sentence,

and, Sheehan told Julian that under his “reading of the

Apprendi case . . . since there wasn’t an additional clause

in the Bill of Indictment that made comment about his

first conviction for armed robbery, that under those

circumstances it would seem to me that based upon a

reading of Apprendi, he couldn’t get anything more than

30.” (Tr. 3/17/03 at 25).

Of course, this reading of the Apprendi decision was

wrong. Apprendi clearly held that “Other than the fact

of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis supplied). Consequently, there was no need for the government to include an additional clause in the indictment

that referenced Julian’s prior conviction for armed robbery. Apprendi’s holding regarding prior convictions was

not new. In Jones v. United States, 526 U.S. 227, 243, n.6

(1999), decided the year before Apprendi, the court noted,

in a case construing a federal statute, that “under the

Due Process Clause of the Fifth Amendment and the

notice and jury trial guarantees of the Sixth Amendment,

any fact (other than prior conviction) that increases the

maximum penalty for a crime must be charged in an

indictment, submitted to a jury, and proven beyond a

reasonable doubt.” Id. And the year before that, in

Almendarez-Torres v. United States, 523 U.S. 224, 226-27

(1998) the Supreme Court held that Congress could treat

recidivism—that is, the fact of a prior conviction—as a

sentencing factor rather than an element of the crime, and

therefore it need not be set forth in the indictment. Id.

It is true, as the government notes, that the Apprendi

opinion was fifty-three pages in length and contained two

concurrences and two dissents. Nevertheless, had Sheehan
Nos. 05-3835 & 05-3836 17

6 Although the Supreme Court admonishes readers that the

syllabus “constitutes no part of the opinion of the court” it does

provide a convenient synopsis of the opinion and its holding, and

can quickly direct a reader to the relevant portion of the full

opinion.

read only the syllabus or even just the one-sentence

(thirty-nine word) holding of Apprendi, demarcated in the

syllabus of the opinion by an italicized “Held:” he would

have known, without any doubt, that the fact of a prior

conviction need not be submitted to a jury and proved

beyond a reasonable doubt.6

 The majority opinion contains a lengthy discussion regarding the exception for the

“fact of a prior conviction” which includes a discussion of

why this particular type of fact is particularly reliable

and relevant and a clear announcement that the holding

of Almendarez-Torres, 523 U.S. 224 (1998) would stand.

Apprendi, 530 U.S. at 487-90. Following this discussion,

the court summarizes its holding, stating, “[o]ther than the

fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond

a reasonable doubt.” Id. at 490. Despite the fact that there

were two concurrences and two dissents, the majority

opinion drafted by Justice Stevens was not a fractured

opinion in which only portions of the opinion held a

majority vote. Five members of the court agreed with the

whole of the majority opinion in Apprendi. In short, the

holding of Apprendi is clear on first, second, or third

glance, that the fact of a prior conviction need not be

submitted to a jury and proved beyond a reasonable doubt.

To his credit, Sheehan testified that he read Apprendi

before advising Julian, and in this respect his efforts

surpassed those of the attorney in Moore, who confessed

that he did not have the statute with him when providing

the advice and acknowledged that he was uncertain as to
18 Nos. 05-3835 & 05-3836

7 By coming to this conclusion we do not mean to disparage

generally Mr. Sheehan’s skills as lawyer. Defense lawyers often

work long hours, for little money, at times for more clients than

they can reasonably handle. These conditions can lead to error.

Mr. Sheehan, like all lawyers at some point in their career, erred.

In this case, the error deprived Julian of effective assistance of

counsel. Our review of the record indicates that but for this

error, Mr. Sheehan admirably represented his client below.

its effect. Nevertheless, given the clear exception for

prior convictions announced at several points in the

majority opinion of Apprendi (see Apprendi, 530 U.S. at

476, 488, 490), Sheehan’s reading of Apprendi in this

case simply cannot constitute an objectively reasonable

analysis of the law and his counsel therefore was

deficient.7

 In sum, by focusing on Sheehan’s guarantee

rather than the analysis required by Strickland, the state

post-conviction court’s application of governing federal

law was objectively unreasonable.

None of that matters, however, if Julian cannot show

that but for his lawyer’s advice, he would have taken the

plea offer. Because the district court upheld the state

court conclusion that Sheehan did not provide erroneous

information, it did not have the opportunity to consider

whether the ill advice prejudiced Julian. Although we

could remand the issue to the district court so that it

might address this issue, the district court would merely

review the same post-conviction court record that we have

already scoured for evidence of prejudice. Because our

review is de novo and the issue has been fully briefed,

efficiency dictates that we resolve the question here. See

e.g., Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 749-

50 (7th Cir. 1993) (deciding an issue for the first time on

appeal where the matter has been fully briefed and the

appellate court’s review is plenary such that the district
Nos. 05-3835 & 05-3836 19

judge’s view could have no effect on review by the court of

appeals).

To meet the second of the Strickland prongs—prejudice—the defendant must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “[A] defendant

need not show that counsel’s deficient conduct more likely

than not altered the outcome in the case.” Id. at 693. The

chances of prejudice need be only better than negligible.

Canaan v. McBride, 395 F.3d 376, 386 (7th Cir. 2005). In

the context of plea agreements, the prejudice prong focuses

on whether the deficient information was the decisive

factor in a defendant’s decision to plead guilty or to

proceed to trial. Hill, 474 U.S. 58-59; Moore, 238 F.3d at

241; Barnes, 83 F.3d at 940. It is only in this prejudice

context that consideration of advice versus a guarantee

warrants discussion. The strength of an attorney’s

prediction—that is whether it was billed as a guarantee,

advice, belief, or guess goes toward determining whether

the attorney’s statements were the decisive factor in the

defendant’s decision to take a plea or opt for trial. Obviously a guarantee of a particular sentence might be

more likely to affect a decision to take a plea or go to trial

than an attorney’s mere advice couched in all of the

usual disclaimers that attorneys are trained to assert.

Julian testified that he based his decision to go to trial

on the information provided by Sheehan: “I understood

that Mr. Sheehan told me I couldn’t get more than 30

years, and with the time I was being offered, it wasn’t very

much of a difference, seeing as how there was little extra

added to it that put me in a position that I might as well

take my chances since I couldn’t have gotten more than

30 years anyway.” (Tr. 3/13/03 at 42). During direct examination, the following exchange occurred:
20 Nos. 05-3835 & 05-3836

Q: Was your decision [not to take the plea and to go

to trial] based at least in part on your belief that

you would get no more than 30 years?

A: Sure.

Q: Had you been aware that you could have gotten

more than 30 years, in fact anywhere up to 60

years, would that have affected your decision to go

to trial or not?

A: Most definitely. I would have taken the 23, or the

offer.

Q: And so your decision was based on information Mr.

Sheehan provided to you—

A: Yes.

Q: —regarding that 30-year sentence?

A: Yes.

(Tr. 3/1/3/03 at 7).

The information Sheehan conveyed was “precisely the

type of information that is likely to impact a plea decision.”

Moore, 348 F.3d at 242-43. In finding this, we need not

disrupt the district court’s finding that Sheehan advised,

but did not guarantee Julian a thirty-year sentence. Even

assuming that Sheehan merely advised Julian that he

believed that the maximum sentence Julian could receive

was thirty years of incarceration, that legally erroneous

advice seems likely to have altered the outcome. The

government offered to recommend a sentence of twentythree years. Under this scenario Julian was faced with the

following choice: take the prosecutor’s recommendation of

twenty-three years or take a gamble and go to trial where

he might be exonerated and go home a free man or he

might face up to thirty years in prison. Julian believed he

was only risking seven additional years for a chance at
Nos. 05-3835 & 05-3836 21

acquittal (the difference between the twenty-three the

prosecutor offered to recommend and the thirty to which

he could be sentenced after trial). In actuality, Julian was

risking thirty-seven years for the chance at acquittal (the

difference between the twenty-three the prosecutor offered

and the sixty years to which he could be sentenced after

trial). To gamble with seven years for the slim chance of

acquittal might be a reasonable calculus for some. It is

hard to imagine, however, that any reasonable defendant

would be willing to risk thirty-seven years for the remote

chance of acquittal. After all, sixty years is a life sentence

for any defendant, particularly one who, like Julian, was

thirty-eight at the time of sentencing.

In Moore we found prejudice where the lawyer mistakenly doubled the sentence at risk when advising the

client to take a plea. Moore, 348 F.3d at 242-43. In that

case Moore’s counsel failed to inform himself, and hence

his client, about a change in the law critical to his client’s

plea decision. As a result, Moore’s counsel informed him

that he was facing a choice between ten years if he pled

guilty and between twenty-two and twenty-seven years if

he was convicted at trial. Id. at 242. In actuality, Moore

was facing a choice between ten years if he took the plea

and only twelve and a half to fifteen years if convicted at

trial. Id. The court concluded that “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.” Id. at 242-43. Noting

the record evidence, the fact that Moore altered his plea

after being given the incorrect information, and the

severity of the misinformation, the court concluded that

but for the erroneous advice, Moore would not have pled

guilty. Id. at 243.

Although this court has stated that a “mere allegation

by the defendant that he would have insisted on going to

trial is insufficient to establish prejudice,” (United States
22 Nos. 05-3835 & 05-3836

v. Fudge, 325 F.3d 910, 924 (7th Cir. 2003)), we are not

faced with a mere allegation without more. In this case, as

in Moore, we are faced with several pieces of evidence

indicating that, but for the ill-advice, Julian would have

taken the plea. First, as we just noted, Julian testified that

he would not have gone to trial but for the misinformation.

Second, Julian, like Moore, altered course at the last

minute just after receiving the erroneous information.

Third, the information provided by Julian’s attorney

grossly misstated the risk of going to trial. Thus just as in

Moore, we have testimonial evidence, a history of the plea

discussions, and the type of mis-information likely to

impact a plea. Id. at 243.

The State attempts to chip away at Julian’s prejudice

showing by citing several cases which rejected particular

pieces of evidence presented to prove prejudice. These

cases, however, merely comment on the insufficiency of

solitary pieces of evidence—a naked declaration that but

for the erroneous advice, the defendant would have

altered his choice to take a plea or go to trial; a third party

affidavit stating the same; or after-the-fact evidence. Toro

v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (self

serving statement that the defendant would have accepted the plea insufficient to demonstrate prejudice);

Paters v. United States, 159 F.3d 1043, 1047 (7th Cir.

1998) (noting that affidavit by defendant’s parents stating

that he would have rejected the plea was, by itself, insufficient evidence of prejudice, but remanding for further

evidentiary hearing); Johnson v. Duckworth, 793 F.2d 898,

902 n.3 (7th Cir. 1986) (court, in footnote dicta casting

doubt on after-the-fact testimony by defendant that he

would have taken a plea). In none of these cases did the

court consider a package consisting of testimonial evidence, a history of plea discussion, and the nature of the

misinformation as was presented both in this case and in

Moore, 348 F.3d at 242-43. Julian need not demonstrate
Nos. 05-3835 & 05-3836 23

that his counsel’s deficient conduct more likely than not

altered the outcome in the case. Strickland, at 693. He

need only demonstrate that the chances of prejudice

were better than negligible. Canaan, 395 F.3d at 386. This

he has done.

The decision of the district court denying the writ of

habeas corpus is reversed. Julian asks this court to order

the State to put forth the original plea offer of two, twentythree year concurrent terms of incarceration. The Supreme

Court has announced that where there has been a finding

of ineffective assistance of counsel in a § 2255 proceeding,

the remedy “should be tailored to the injury suffered from

the constitutional violation and should not unnecessarily

infringe on competing interest” including the competing

interest of preserving society’s interest in the administration of criminal justice. United States v. Morrison, 449 U.S.

361, 364 (1981). We do not think that requiring specific

performance of the plea agreement is the appropriate

remedy here. In this case, the State had no hand in

denying Julian his Sixth Amendment right to effective

assistance of counsel, and Julian never actually accepted

the terms of the original plea offer. But cf. Nunes v.

Mueller, 350 F.3d 1045, 1057 n.9 (9th Cir. 2003) (directing

state to offer the original plea despite the fact that defendant had not actually accepted the plea). We do not mean

to imply that a court must order a new trial rather than

impose the terms of the original plea offer any time these

particular set of facts arise. A federal court has broad

discretion in conditioning a judgment granting habeas

relief (Gilmore v. Bertrand, 301 F.3d 581, 582 (7th Cir.

2002) (citing Hilton v. Braunskill, 481 U.S. 770, 775

(1987))) and in doing so must consider the totality of the

facts presented. In this case we believe that those facts

warrant retrial. Of course the State is free to propose

a plea agreement in lieu of trial as it sees fit. Consequently, the State shall have 120 days from the date of the
24 Nos. 05-3835 & 05-3836

issuance of this opinion to release or retry the petitioner,

Julian.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-25-07