of this dearth of authority and the express, clear waiver, Petitioner's
attorney reasonably could have believed that the waiver precluded him
from raising Rule 11 arguments. Hence, counsel did not act unreasonably
by not raising Petitioner's Rule 11 claims on appeal.
Because Petitioner has failed to establish that his attorney acted
unreasonably, he has failed to establish his ineffective-assistance
claim. He therefore has failed to establish the requisite "cause" and
"prejudice" that would excuse his procedural default. Accordingly, the
Court finds that Petitioner has procedurally defaulted on his Rule 11
arguments. The Court denies them on this basis.
3. Whether Petitioner's Rule 11 Claims Succeed On the Merits
Even if Petitioner had not procedurally defaulted, his arguments would
fail on the merits. Petitioner raises two Rule 11 claims. He argues that
the Court (1) impermissibly participated in plea negotiations; and (2)
failed to state the maximum penalties Petitioner faced. The Court will
address each argument in turn.
a. Judicial Participation In Plea Negotiations
Federal Rule of Criminal Procedure 11(e)(1) governs plea negotiations
and provides that "[t]he court shall not participate in any such
discussions." Rule 11(e)(1) creates a "bright-line rule" forbidding "all
forms of judicial participation" before parties have reached a final
agreement. Bruce, 976 F.2d at 556 (quoting United States v. Adams,
634 F.2d 830, 835 (5th Cir. 1981)). Rule 11(e)(1) "applies to . . .
judicial participation in plea negotiations between counsel, as well as
to discussions held in the defendant's presence." United States v.
Washington, 109 F.3d 459, 463 (8th Cir. 1997).
Petitioner argues that the Court should vacate his guilty plea because
the Court crossed Rule ll(e)(1)'s "bright line" during the chambers
conference. To address Petitioner's argument, the Court must determine
(1) whether it violated Rule 11(e)(1); and (2) whether any violation
that may have occurred was harmless.
i. Whether The Court Violated Rule 11(e)(1)
During the chambers conference, the Court and the parties discussed when
to hold a plea hearing, and when to start trial if plea negotiations
failed. The Court had difficulty scheduling the trial because of other
matters. The following dialogue took place:
THE COURT: . . . I can do the plea at any
time. . . . I am not going to
force him to do anything. . . .
He should make up his own
mind [about] what he wants to
do . . . .
MR. EDWARDS: . . . Are you going to revoke
MS. BIRKMEYER*fn5: We will give him a week or
two . . . .
THE COURT: At some point in time . . . he
is going to have to decide, yes
or no. And if it is yes, he
wants to plead, then we will
take the plea; no, we will —
and I think the government,
they can't wait forever. They
also have this extradition possibility.
I think it is part of
MR. EDWARDS: Oh, definitely.
THE COURT: He has to think about that.
MR. EDWARDS: He is thinking about that all
the time. He is terrified, absolutoly
terrified of that.
THE COURT: Because whatever happens
here will be possibly light
weight as to what could happen
(Chambers Conference Tr. at 8-9.) Shortly after this dialogue, the
following exchange took place: