Case Information
*1 Before W OOD Chief Judge , H AMILTON S CUDDER , Circuit Judges .
H AMILTON Circuit Judge
. Marvin pleaded possessing rearm person prior felony convic tion violation 922(g)(1). After ac cepted sought it. dis trict judge denied sen tenced Cates.
Cates has appealed, claiming ine ff ective assistance of counsel. He says he made a timely request to his and his was de cient in fail ing to move to it. questioned Cates truly wishes us to decide his ine ff ective assistance claim this record, including a directive his appellate to review question with after oral argument. He has in sisted he wants have his claim decided existing record. Because record contains insu ffi cient evidence support Cates’s ff claim, a ffi rm. I. Factual Background Procedural History
Marvin Cates was transporting drugs Chicago South Bend he was pulled over by a sheri ’s deputy for driving without rear license plate lights. When deputy ap proached vehicle, saw a revolver passenger seat. admi ed license re arm placed arrest. Retail quantities of cocaine heroin were later found in possession. charged in federal one count of being felon in possession of rearm violation of 922(g)(1). moved suppress items seized during search car, denied.
On September government submit ted agreement court. agreed plead sole count indictment. government agreed exchange bring additional charges against him. As part agreement, waived right oth erwise contest conviction “on ground other than counsel.”
The plea agreement was referred to a magistrate judge, who held a Rule hearing on September 17. The magistrate judge found that was competent enter a plea, did so knowingly voluntarily, and understood the rights he was waiving, including the right appeal. The magistrate judge recommended that the district judge accept the guilty plea. On October 3, the district judge the guilty plea, fi nd ing guilty the sole count the indictment. The case was on track sentencing.
On October however, Cates’s fi rst tt orney moved withdraw, reporting complete breakdown the tt orney client relationship. A new lawyer was appointed then led motion withdraw the guilty plea. The motion said that had entered the guilty plea under duress he threatened new charges given only one hour accept the deal or face the risk additional prison time.
On December district held hearing motion withdraw plea. Cates’s testimony hearing focused his that he entered un der duress. also testi ed, however, that he received le tt er judge accepting plea, he had told that he “changed [his] mind” not want waive rights, lawyer told that it too late plea. estimated judge’s le tt er arrived October or Though could pinpoint exact date, he insisted he told wanted judge’s le er ar rived. denied concluding been duress un duly pressured given ve days between submission *4 4 19 1042 the guilty plea the Rule hearing. Cates sentenced months in prison. He quali ed for the enhanced sen tence the Armed Career Criminal Act, 924(e), based ve prior convictions for serious drug fenses violent felonies.
II. Analysis
The sole issue appeal received the ef fective assistance counsel guaranteed by the Sixth Amend ment the Constitution. argues his trial constitutionally ine ff ective in failing move his guilty plea could still withdraw his plea as right. This issue falls within the ine ff ective assis tance exception the waiver the agreement.
We review for plain error never adequately raised ine ff ective assistance the court. See Fed. R. Crim. P. 52(b). gave duress as reason for withdrawing plea. It did not mention timely empt guilty it, though mention this during testimony hearing. acknowledges correctly brief assistance argument raised as ground for withdrawing claiming “second defense counsel failed [at hearing] raise proper grounds for withdrawing plea.”
Strickland Washington (1984), provides framework for evaluating counsel 19 1042 5 claims. Cates “must show both orney’s perfor mance outside range of professionally competent sistance de fi cient performance denied him fair trial.” United States v. Stark , 507 F.3d 512, 521 (7th Cir. 2007), quoting United States v. Banks , F.3d 569 (7th Cir. 2005). In addition, “counsel is strongly presumed to have rendered adequate made all signi fi cant decisions exercise of reasonable professional judgment.” Strickland , 690; see also Banks , F.3d (“There is strong presumption for fi nding counsel e ective, [defendant] bears burden proving otherwise.”). argues rst lawyer’s representation un
constitutionally de cient move to with draw guilty plea when asked to do so. Under Federal Rule Criminal Procedure 11(d)(1), “A defendant may withdraw plea guilty or nolo contendere before court accepts reason or no reason … .” See also United States v. Shaker F.3d 497–98 (7th Cir. 2002) (reversing denial motion withdraw guilty plea court had accepted plea). Because decision plead lies entirely defendant, argues, must move asked, failure do so constitutes de cient representation. says prejudiced because, if had moved promptly, would had opportunity go trial. See Arami (5th Cir. 2008) (applying plain error review reverse denial it).
Raising almost always imprudent. Proceedings aim determine guilt innocence. They are unlikely *6 6 19 1042 show conclusively whether a lawyer’s representation in adequate and an e ff ect on outcome litigation. Mas saro v. United States , 538 U.S. 500, 504–05 (2003). Unless sue raised a full record developed in court, an appellate court cannot determine on direct counsel’s assistance ine ff ective. Essential evidence counsel’s actions reasoning will simply be lacking. Id. By raising an ine ff ective assistance claim prematurely, on direct appeal, a defendant can easily throw away chance has at success may be presented a second time collateral tt ack under 28 U.S.C. § 2255. Peoples v. United States , 403 F.3d 844, 846 (7th Cir. 2005), citing United States v. Taglia , 922 F.2d 413, 418 (7th Cir. 1991). For these rea sons, repeatedly warned defendants against bringing claims appeal. E.g., Ramirez v. United States , 799 F.3d 845, 853 (7th Cir. 2015); United States v. Stuart , 773 F.3d 849, 850 (7th Cir. 2014); United States v. Moody , 770 F.3d 577, 582 (7th Cir. 2014); United States v. Bryant , 754 F.3d 443, 444 (7th Cir. 2014); United States v. Flores , 739 F.3d 342 (7th Cir. 2014); United States v. Isom , 635 F.3d 909 (7th Cir. 2011); Peoples , 403 F.3d at 846; Harris , F.3d (7th Cir. 2005).
Instead, defendants can should raise these claims collateral acks 2255. E.g., Massaro , U.S. at 504–05; Flores at (collecting cases). This way, defendant can compile full record proceedings speci cally aimed developing facts relevant claim. Massaro can then weigh evidence come decision merits. ‐
Here, we cannot determine whether Cates’s representa ‐ tion was de fi cient he was prejudiced by it. record simply does not contain the necessary information. See Flores 341. If indeed requested that trial the the district judge accepted it, then he might be able prevail under Strickland . But the only evidence we have are Cates’s own statements describing out discussion. We do not know if Cates’s lawyer would con rm or deny that the discussion question took place. has not yet been asked. do not even know when the key discussion took place. estimated that he re ceived le tt er con rming acceptance the on October does not necessarily indicate he spoke October For all we know, they could have had conversation October when it already too late plea. can not rebut presumption regularity when essential pieces evidence are missing relevant record contains only own self serving statements, which required credit.
If saved col lateral ack judge would have been able hear lawyer’s side story consider other relevant evidence. Perhaps might have con ceded erroneously informed he could plea. On other hand, might instead contested story, requiring fact nder de cide whom believe. On direct appeal, lack infor mation necessary make such determinations. See Massaro (“Even meritorious claims would fail brought if record were inadequate support them.”).
Since Massaro we encouraged counsel make their clients aware signi cant risks raising as ‐ sistance claims direct appeal, sometimes even going so far as give appellate one last opportunity after oral ar gument dissuade defendants pursuing strategy al most always doomed fail. See, e.g., Flores asked oral argument aware risks inherent direct appeal. She said was. Af ter oral argument, gave one last opportunity with draw claim, instructing appellate confer with once more advise decision. Counsel reported she explained stra tegic reasons resolve issue rather than appeal, chose go forward ap peal, right. judgment is
AFFIRMED.
[1] also argues second trial provided ineffective as sistance by failing raise ineffective first ground withdrawing plea. need analyze it separately.