Case Information

*1 Before K ANNE S YKES H AMILTON , Circuit Judges . K ANNE Circuit Judge

. A jury convicted Fernando Delator re several felonies. He sentenced life prison, conviction sentence were affirmed appeal. filed motion vacate, set aside, correct sen tence, arguing (1) committed reneging agree ment (2) pretrial counsel’s performance constitu tionally ineffective. The district court rejected these and denied his motion. Delatorre failed claim district court appeal, we

hold claim has procedurally defaulted. We fur ther hold Delatorre failed meet cause and prejudice standard necessary overcome de fault. therefore do address merits of Finally, because Delatorre’s pretrial deficient and suffered no prejudice as result counsel’s performance, reject as sistance counsel.

I. B ACKGROUND member Insane Deuces street gang Aurora, Illinois. state and federal authorities—

assisted fellow gang member Orlando Rivera, who agreed serve confidential informant—began investigating gang. Rivera worked authorities recorded several meetings conversations between active members gang, including Delatorre. Through these recordings, Rivera produced evidence gang members’ many crimes, including least four murders, eleven attempted murders, two solicitations commit mur der, several shootings, numerous drug offenses.

On January arrested con nections crimes. Shortly after arrest, confessed involvement least three murders. fifteen other gang members were indicted racketeering other related charges. divided sixteen defendants into two groups trial. *3 3 ‐ Delatorre tried with other gang leaders. A jury convict ed of (1) engaging in racketeering conspiracy; (2) mur der in aid of racketeering activity; (3) conspiracy distrib ute a controlled substance; (4) assault with a dangerous weapon in aid of racketeering activity; (5) distribution of crack cocaine; and (6) possession of firearm with oblite rated serial number. sentenced life in prison.

Delatorre his codefendants raised several arguments appeal. rejected each those arguments in two sepa rate opinions. See United States Benabe (7th 2011); United States Benabe Fed. App’x Cir. filed petition writ certiorari in Supreme Court. On February 2012, Supreme Court denied petition.

On February moved vacate, set aside, correct his sentence pursuant U.S.C. § Northern District Illinois. motion, argued (1) committed misconduct reneging (2) his pretrial counsel constitutionally ineffective. based prosecutorial ‐ misconduct inef

fective assistance ‐ ‐ counsel events associated cooperation with beginning Feb ruary shortly after arrest. At time, partic ipated eight ten proffer sessions Attorney’s Office. A proffer letter, which Delatorre and the prosecutor both signed, outlined the cooperation arrange ment. exchange cooperation truthful testimony both during the proffer sessions at subsequent ap pearances, the government agreed to use “anything re lated to the government [Delatorre or attorney] dur ing proffer” in subsequent criminal proceedings filed against Delatorre. (R. at 34.) The letter further ex plained it “embodie[d] entirety agreement to make proffer … . No other or agreement exist[ed] between [Delatorre] [the government] regarding proffer.” (R. at 35.)

At one later proffer sessions, Delatorre asked prosecutor how much he “eventually going to have serve[.]” (R. at 12.) The prosecutor responded “A long time.” (R. at 12.) Unsatisfied with answer, repeated request. The prosecutor responded “A long time, you were involved too much.” (R. at 13.) asked prosecutor “exactly how long” he would have serve, prosecutor responded “You will serve 25–30 years.” (R. at 13.) The prosecutor further explained he intended provide with plea agreement if continued cooperate, but would serve at least twenty five thirty years “h[eld] all cards.” (R. 13.)

After completing proffer sessions, re quested formal included twenty five thirty year term. prosecutor “made very clear point [Delatorre] anything writing respect year offer.” (R. 13.) Instead, structed Delatorre to “continue cooperating, take a leap faith, and play ball.” (R. at 13.) Delatorre then testified twice before a grand jury without a plea agreement.

Because government continued to refuse to give Dela ‐ torre a plea deal, stopped “playing ball” shortly thereaf ‐ ter. Despite repeated efforts by his attorney—Fred Morelli— to encourage him “in strongest possible terms” to con tinue cooperating, Delatorre refused to appear before grand jury third to complete testimony. (R. at 38.) Morelli explained that continued refusal to cooperate would likely “result [his] indictment on, least, federal case which [he was] arrested either two or three murders.” (R. 36.) Morelli further ex plained that jury would likely convict him least one those murders, if convicted, almost certainly sentenced life prison, worse, be eligible death penalty. Nonetheless, refused cooperate with no further con tact with Morelli, who soon withdrew representation. ceased cooperation, never received plea agreement. § motion filed with district court, Delator re promised provide him plea agreement included recommended sentence twenty five thirty years. thus argued prosecu tor committed reneging failing deal. same vein, De latorre argued Morelli’s failure secure alleg edly agreed upon amounted constitution ally counsel. re jected those arguments denied motion. ‐ then filed a motion for reconsideration, which the district court denied. This appeal followed.

II. A NALYSIS

On appeal, reasserts two arguments related the prosecutor’s breach a promise provide agreement. We review district court’s de nial § motion de novo issues law. Blake v. United States F.3d (7th Cir. We review district court’s factual findings clear error. Id. begin prosecutorial ‐ misconduct claim then turn ‐ ‐

A. Prosecutorial Misconduct Claim first argues committed mis conduct when reneged on agreement. But did raise this claim in dis trict court trial or on direct appeal. Instead, raised this claim first time on collateral review in § motion. Any claim raised originally in trial court on direct appeal is raised first collateral review is procedurally defaulted. Hale United States 2013) (holding claim raised trial court appeal “doubly defaulted” review). Thus, is procedurally defaulted.

*7 7 Procedurally defaulted constitutional are not con ‐ sidered collateral review unless the petitioner shows ei ‐ ther (1) actual innocence (2) cause prejudice. Bousley v. United States , 614, (1998). makes no argument for actual innocence. We therefore restrict our analysis the cause prejudice standard. See McCoy v. United States , F.3d (7th Cir. 2016). To excuse procedural default cause prejudice, petitioner must demonstrate both (1) good cause failure the defaulted before review (2) actual preju ‐ dice stemming violations in defaulted claim. Theodorou F.2d (7th Cir. 1989).

To establish “cause,” argues that una ware during trial appeal that govern ment’s failure offer agreement, allegedly prom ised, amounted constitutional violation. does ar gue, however, that unaware any facts giving rise that potential fact, knew before trial (…continued)

result waiver that argument. F.3d (7th Cir. 1995). We need consider issue here, however, never argued government waived its procedural default argument. Id. 699. fact, like defendant Doe “devote[d] signifi cant portion reply brief establishing ‘cause’ default.” Id. think “[i]t apparent, then, [Delatorre] conceded gov ernment’s assertion default (or, risk being tedious, waived any argument waived its defense waiv er).” Id. It doesn’t matter did consider pro cedural default: “We may affirm basis fairly presented rec ord.” Figgs Dawson even began that the allegedly promised him that was never presented that agreement: was thus aware of all of facts giving rise violation. Nothing occurred after his trial or direct appeal that altered potential Thus, proper time that argument court before convicted again on direct appeal, not first review. fact that may have been subjectively unaware of constitutional ramifications of government’s inaction is sufficient “cause” justifying procedural default. See id. (holding that defendant who aware of all of facts giving rise claimed constitutional violation before sen tencing could establish “cause” procedural de fault). also argues

claim—like most ineffective assistance counsel— is so inextricably linked extrinsic evidence properly considered direct appeal. ar gues provides “cause” de fault. disagree. is correct “[a] reviewing

appeal limited record trial cannot consider extrinsic evidence.” Galbraith A claim ineffective requires defendant prove counsel per formed deficiently deficiency caused prej udice. See Strickland Washington (1984). “The evidence introduced trial [in case giving rise assistance], however, will devoted issues guilt innocence, resulting record *9 9 ‐ many cases will not disclose facts necessary decide ei ther prong Strickland analysis.” Massaro v. United States , U.S. (2003). Thus, ineffective sistance, by their very nature, are almost “invariably doom[ed]” on direct review because they often require aug mentation record extrinsic evidence, which can be considered. United States v. Gilliam , F.3d (7th Cir. 2001) (quoting United States Godwin F.3d (7th Cir. 2000)). thus permit claims, in most in stances, raised first collateral review. Flores 2014) (citing Massaro prosecutorial ‐ misconduct claim, other

hand, does not, its very nature, require augmentation record. only reason extrinsic evidence is required prove claim is failed raise this claim in district court first place. Had raised claim proper time—in before convicted— evidence supporting claim have been trial record considered ap peal. His prosecutorial ‐ misconduct claim akin an claim regard, we refuse reward creation evidentiary issue. provided no plausible “cause” failure before review, decline excuse default do address merits ‐

B. Ineffective ‐ Assistance ‐ of ‐ Pretrial ‐ Counsel Claim ineffective ‐ assistance ‐ of ‐ counsel claim re lated to prosecutorial ‐ misconduct claim. Like first claim, he again relies on an made by to included maximum recommended sentence of twenty five thirty years. According to Delatorre, pretrial counsel— Morelli—rendered constitutionally ineffective assistance when failed secure allegedly promised agreement.

We first briefly note this claim does suffer same default claim even though it, too, raised first time De latorre’s § motion. As discussed above, ineffective assistance claims, their very nature, are almost “invariably doom[ed]” on direct review. Gilliam , F.3d at (quoting Godwin , F.3d 973). Thus, generally permit petitioner raise first on review, “regardless whether petitioner raised claim direct appeal.” Gaylord 2016) (citing Massaro U.S. We follow general rule here excuse De latorre’s failure argument appeal. now turn merits

To succeed Sixth Amendment counsel, had demonstrate both el ements test announced Strickland 668. First, had show counsel’s performance constitutionally deficient, meaning “fell below ob jective standard reasonableness” measured “under pre vailing professional norms.” Id. 688. Second, *11 11 15 1632 show suffered prejudice deficiency, meaning there “a reasonable probability that, but counsel’s unprofessional errors, result proceed ‐ ing different.” Id. at 694. The concluded failed establish either ele ‐ ment. agree. We begin our discussion deficient per ‐ formance move prejudice.

1. Deficient Performance failed establish Morelli’s representa ‐ tion constitutionally deficient. When analyzing deficient performance, apply “‘strong presumption’ coun sel’s representation within ‘wide range’ reasona ble professional assistance.” Harrington v. Richter , 562 U.S. 86, (2011) (quoting Strickland , 466 U.S. 689). cen tral question analysis is whether counsel’s con duct “deviated best practices most common cus tom,” but instead, “whether attorney’s representation amounted incompetence under ‘prevailing professional norms.’” Sussman v. Jenkins , F.3d 329, 349–50 (7th Cir. 2011) (quoting Harrington , U.S. other words, counsel’s representation “need be perfect, indeed even very good, be constitutionally adequate.” McAfee v. Thurmer , F.3d (7th Cir. 2009) (quoting Dean v. Young , 1985)). It must merely reasonably competent. Strickland U.S. 687. is correct Sixth Amendment right ef

fective “extends bargaining process.” Lafler Cooper U.S. (2012); see Missouri Frye (2012) (“In today’s criminal justice sys tem … negotiation bargain, rather than un folding trial, almost always critical point de No. fendant.”). Supreme Court has held an attorney who fails make a meaningful attempt to inform client existing written plea offer, Frye U.S. at 149, ad vises client reject a highly favorable plea offer “on grounds [the client] convicted at trial,” Lafler performed deficiently under Sixth Amendment. Delatorre cannot rely on cases, however, was never formally offered a plea agreement.

Instead, Delatorre’s deficient performance cen ters attorney’s inability secure a plea deal cluded a maximum recommended sentence twenty five thirty years. making argument, Delatorre again focus es prosecutor’s him plea agreement. True enough, did suggest that, if Delatorre continued cooperate, government offer him plea agreement. But even if as sume suggestion was “promise” deal, explicitly conditioned Delatorre’s continued coopera tion. ceased cooperating, government did offer agreement. So government did breach promise.

Morelli’s representation entirely reasonable under circumstances. Before began representing Delatorre, had already made incriminating statements Ri vera—who again, acting government informant. Moreover, had already confessed authorities involvement least three murders. options were thus already “rather limited” Mo relli began representing him. C WL *7 (March fact, Mo relli believed more than enough evidence to convince jury to convict of least some of crimes which he was charged. In Morelli’s opinion, was willing to negotiate with Dela ‐ torre only because he was one of first gang members to come forward speak with government. an effort to secure most favorable plea agreement possible, Morel ‐ li therefore instructed client—on numerous occasions— cooperate fully with government.

“[T]he successful negotiation of plea volves factors beyond control counsel, including cooperation client, clearly absent here, as well as cooperation prosecutor, who no obligation offer such an agreement.” Hall Morelli cannot be faulted Delatorre’s re fusal cooperate, especially light repeated efforts encourage client do so. Moreover, cannot faulted government’s decision not reward an un cooperative defendant agreement. govern ment required offer defendant such agree ment. Id . Delatorre’s arguments Morelli’s representation was anything but competent are unavailing. Under cir cumstances, Morelli’s representation constitutionally deficient. fact, quite reasonable.

2. Prejudice

Even if we believed Morelli’s representation constitutionally deficient, would still reject can establish suffered prejudice result Morel li’s representation. To demonstrate prejudice, show reasonable probability “the outcome process different competent ad vice.” Lafler U.S. 163. “A reasonable probability a probability sufficient undermine confidence out come.” Strickland U.S. 694. Delatorre’s preju dice argument centers attorney’s inability secure plea agreement him, had show—at mini mum—that would have actually offered him deal had attorney competent. See Frye (discussing prejudice standard cases where defendant alleges did receive benefit plea attorney’s deficient performance). failed meet burden. As discussed above, Delatorre’s stubborn refusal continue cooperating prevented from securing deal, attorney’s performance. Nothing record indicates prose cutor provided Delatorre, uncooperative de fendant, deal Morelli performed differ ently. short, did suffer prejudice attorney’s performance.

III. C ONCLUSION

For foregoing reasons, AFFIRM court’s denial motion.

[1] § motion, argued Sixth Eighth Amendment rights violated. we issued certificate appealability only claims, do address additional claims.

[2] district court did consider procedural default, unclear record whether ever made argument fore appeal. As noted Doe government’s failure default argument might (continued…)