Fernando Delatorre v. United States
2017 U.S. App. LEXIS 2031
| 7th Cir. | 2017Background
- Fernando Delatorre, an Aurora gang member, participated in proffer sessions with the U.S. Attorney after arrest; a signed proffer letter promised the government would not use proffered information in subsequent prosecutions and stated no other promises existed.
- During proffers the prosecutor indicated that continued cooperation could lead to a plea offer and stated Delatorre would likely serve "25–30 years," but refused to put any written plea offer in place absent continued cooperation.
- Delatorre stopped cooperating after two grand-jury appearances; defense counsel Fred Morelli repeatedly urged continued cooperation but Delatorre refused and Morelli later withdrew; no written plea was ever offered.
- Delatorre was tried, convicted on multiple racketeering- and murder-related counts, and sentenced to life; direct appeals and certiorari were unsuccessful.
- On collateral review under 28 U.S.C. § 2255 Delatorre raised (1) prosecutorial misconduct for reneging on a promised plea agreement and (2) ineffective assistance of pretrial counsel for failing to secure that plea; the district court denied relief and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutorial promise to deliver a plea was breached and amounts to misconduct | Prosecutor promised a plea recommending 25–30 years and reneged, constituting misconduct | Claim is procedurally defaulted (not raised at trial or on direct appeal) and, if considered, government conditioned any offer on continued cooperation which Delatorre did not provide | Procedural default affirmed; no excuse for default (no cause and prejudice shown); merits not reached |
| Whether Delatorre can show "cause" to excuse procedural default | Unaware the government’s failure to offer the plea rose to constitutional violation; prosecutorial promise required extrinsic evidence | Delatorre knew facts before trial; subjective ignorance of legal basis is insufficient; claim did not require extrinsic evidence and could have been raised earlier | No cause shown; default not excused |
| Whether pretrial counsel rendered constitutionally ineffective assistance by failing to obtain the alleged plea | Morelli failed to secure the 25–30 year plea, so representation was deficient and caused prejudice | Morelli reasonably encouraged cooperation; government conditioned any deal on continued cooperation; counsel’s actions were within professional norms; Delatorre’s refusal to cooperate caused the lack of offer | Representation not deficient; alternatively, no prejudice because no reasonable probability a plea would have been offered to an uncooperative defendant |
| Whether Delatorre was prejudiced by counsel’s alleged deficiency re: plea bargaining | If counsel had been effective, a plea offering 25–30 years would likely have been obtained and accepted, altering outcome | No record evidence prosecutor would have offered a plea absent cooperation; outcome would not likely differ | No prejudice shown; ineffective-assistance claim fails |
Key Cases Cited
- Bousley v. United States, 523 U.S. 614 (U.S. 1998) (procedural default on collateral review requires actual innocence or cause and prejudice to excuse)
- Massaro v. United States, 538 U.S. 500 (U.S. 2003) (ineffective-assistance claims may be raised for the first time in collateral proceedings)
- Lafler v. Cooper, 566 U.S. 156 (U.S. 2012) (Sixth Amendment ineffective-assistance standard applies to plea bargaining)
- Missouri v. Frye, 566 U.S. 133 (U.S. 2012) (failure to communicate or secure plea offers can constitute ineffective assistance)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance: deficiency and prejudice)
- Harrington v. Richter, 562 U.S. 86 (U.S. 2011) (strong presumption counsel’s performance falls within wide range of reasonable professional assistance)
- Massaro-related authority cited: McCoy v. United States, 815 F.3d 292 (7th Cir. 2016) (discussing cause-and-prejudice in collateral review)
- United States v. Hall, 212 F.3d 1016 (7th Cir. 2000) (prosecutor has no obligation to offer plea; counsel not at fault for lack of plea when client refuses to cooperate)