Criminal Procedure – Due process

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Criminal Procedure – Due process

It did not violate due process for a sentencing court to take into account that the defendant sought to withdraw his no contest plea.

“The court’s comment that Warren was trying to ‘weasel out of’ his no contest plea came during the court’s appraisal of Warren’s acceptance of responsibility. Read in that context, we think the court was attempting to explain, if perhaps inartfully, why it did not credit the reliability of Warren’s expressions of remorse. Warren’s statements of acceptance flatly contradicted the arguments he made to the court in attempting to withdraw his plea. This, understandably, caused the court to be skeptical of both Warren’s purported acceptance of responsibility as well as his motives for attempting to withdraw the plea.”

“When we are called upon to review a federal district court’s appraisal of a defendant’s acceptance of responsibility, we give great deference to the trial court. See United States v. Gilbertson, 435 F.3d 790, 798-99 (7th Cir. 2006). We do so because the trial judge is uniquely positioned to assess the credibility of the defendant before her. See United States v. Cunningham, 103 F.3d 596, 598 (7th Cir. 1996). Such deference is also appropriate here.

The state trial judge was in a much better position to gauge whether Warren was ‘motivated by genuine acceptance of responsibility or by a self-serving desire to minimize his own punishment,’ a task that appellate judges are ‘ill-equipped’ to carry out. Id. The inconsistency between Warren’s argument to withdraw his plea and his ostensible acceptance of responsibility is a sufficient indicium of reliability to satisfy due process. Because this claim lacks merit, Bowe could not have been ineffective for failing to raise it, and Warren’s procedural default in the state court is not excused.”

Affirmed.

12-1148 Warren v. Baenen

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Kanne, J.

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