### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 2668

W ILLIE L ONG

,

Petitioner

‐ Appellant

,

v.

U NITED S TATES OF A MERICA

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:15

‐ CV

‐ 198

— Robert L. Miller, Jr.

, Judge

.

____________________

A RGUED N OVEMBER 9, 2016

— D ECIDED F EBRUARY 13, 2017

____________________

Before B AUER and K ANNE

, Circuit Judges

, and F EINERMAN

,

District Judge

. 

K ANNE

, Circuit Judge

. Willie Long pled guilty to being a

felon in possession of a firearm. Thereafter, Long sought col

‐

lateral relief, arguing that his trial attorney provided ineffec

‐

tive assistance of counsel. Unfortunately for Long, his plea

 The Honorable Gary Feinerman, United States District Court for the

Northern District of Illinois, sitting by designation.2 No. 15

‐ 2668

agreement contained a provision waiving his right to collat

‐ erally attack his conviction and sentence. For that reason, the

district court summarily denied his claim.

On appeal, Long argues that the district court erred in

denying his claim without an evidentiary hearing. Long cor

‐ rectly notes that we will allow a petitioner to circumvent a

collateral

‐ attack waiver if he can prove that his counsel was

ineffective in negotiating the plea agreement containing that

waiver. Nevertheless, because Long has failed to allege any

facts that, if proven true, would entitle him to relief, he is not

entitled to an evidentiary hearing. We affirm.

I. B ACKGROUND

According to Long’s arrest report, on November 18, 2013,

at about 4:20 a.m., a Mishawaka police officer on routine pa

‐

trol saw several cars maneuvering around a car parked in a

McDonald’s drive

‐ through lane. The officer notified dispatch

of his location and gave a description of the parked car. He

then got out of his squad car and approached the car on foot.

When he reached the car, he saw Long asleep in the driver’s

seat. The officer noticed that the car was actually in drive,

but Long’s foot was on the brake.

The officer knocked on the car’s window. When Long re

‐ sponded, the officer told him to park the car and open the

door so they could talk. Long opened the door, and the of

‐

ficer immediately smelled marijuana. As they were discuss

‐ ing the marijuana odor, the officer saw a gun on the floor

‐

board near Long’s feet. He then secured Long’s hands and

told him not to move.

At that point, another officer arrived at the scene. The of

‐

ficers discovered that Long had a prior felony convictionNo. 15

‐ 2668 3

and thus could not lawfully possess the gun. They arrested

Long and impounded his car. An inventory search of the car

revealed five gallon

‐ sized bags of marijuana, three bags of

ecstasy pills, three cell phones, two digital scales, and nine

‐

ty

‐ eight small plastic baggies.

The government charged Long under 18 U.S.C.

§ 922(g)(1) for being a felon in possession of a firearm. Assis

‐

tant federal public defender H. Jay Stevens was appointed to

represent Long. Long and Stevens allegedly discussed the

possibility of filing a motion to suppress the gun evidence.

But Stevens never filed that motion because he apparently

“didn’t see any realistic hope in [Long] winning [it].” (R. 35

at 2.) 1 Two weeks after the filing deadline passed, Long pled

guilty to the possession charge.

In his plea agreement, Long expressly waived his right to

appeal or collaterally attack his conviction and sentence. He

also affirmed that he had told Stevens the facts and circum

‐

stances of his case and that he believed Stevens was fully in

‐

formed of the relevant matters. During the change

‐ of

‐ plea

hearing, Long agreed that, if the case were to proceed to tri

‐

al, the government would be able to prove that a police of

‐

ficer found Long asleep at the wheel in a McDonald’s drive

‐ through lane, and after waking Long, the officer saw a gun

on the floorboard, which Long admitted he knew was there.

The court accepted Long’s plea and set a date for sentencing.

Nevertheless, Long changed his mind once he discovered

that his presentence report (“PSR”) recommended a 4

‐ level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing

1 All record citations refer to Long’s criminal case in the Northern Dis

‐

trict of Indiana, Case No. 3:14

‐ cr

‐ 16.4 No. 15

‐ 2668

a firearm in connection with another felony offense—that is,

Long’s possession of marijuana. This enhancement increased

Long’s guidelines range from 37–46 months to 57–71

months. At the sentencing hearing, Long claimed that Ste

‐

vens told him that no such enhancement would factor into

his sentence. Thus, Long wished to withdraw his plea. Ste

‐

vens acknowledged that the two disagreed about how to

handle the case. Accordingly, the court rescheduled the sen

‐ tencing hearing, allowed Stevens to withdraw as counsel,

and appointed Michael Rehak as new counsel.

Soon after, in accordance with Long’s wishes, Rehak

moved to withdraw Long’s plea. Rehak argued that, had

Long known of the enhancement, Long would have moved

to suppress the gun evidence on the ground that the officers

had no probable cause to stop him. The government conced

‐

ed that there was no probable cause, but argued that there

was no Fourth Amendment violation because the officers

were performing a caretaking function by checking on Long,

whom they had found asleep at the wheel. At a hearing on

the motion, Rehak said that he viewed the case the same way

that Stevens did and that Rehak had explained to Long that

withdrawing the guilty plea and proceeding with a motion

to suppress was a bad idea. The court gave Long and Rehak

time to discuss. After a recess, Long agreed to stick with his

guilty plea and proceed to sentencing.

At sentencing, the court confirmed that Long had read

and understood the PSR and that Long was satisfied with

Rehak’s work. The court then overruled Long’s objection to

the sentencing enhancement and imposed a below

‐ guidelines sentence of 51 months’ imprisonment.No. 15

‐ 2668 5

On May 8, 2015, Long filed a timely pro se motion seeking

relief under 28 U.S.C. § 2255. Long alleged that he had told

Stevens that the officers obtained the gun evidence in a way

that violated his Fourth Amendment rights and that Stevens

provided ineffective assistance of counsel by failing to move

to suppress that evidence. Long further argued that he

would have gone to trial had Stevens so moved. Finally,

Long claimed that Stevens failed to adequately investigate

the case and “never fully explained to Long what the waiver

in his plea bargain restricted him from doing.” (R. 49 at 2.)

The district court summarily denied Long’s motion with

‐

out an evidentiary hearing on the ground that Long’s plea

agreement contained a collateral

‐ attack waiver. The court

rejected Long’s argument that Stevens did not fully explain

the waiver to him, finding that argument inconsistent with

Long’s statements at his change

‐ of

‐ plea hearing.

Long then sought a certificate of appealability, in which

he claimed that he was denied effective assistance of counsel.

The district court declined to issue a certificate, but we

granted one. This appeal followed.

II. A NALYSIS

Long’s § 2255 motion asserts that Stevens provided inef

‐

fective assistance of counsel. The district court held that the

waiver in Long’s plea agreement precluded this claim. In so

holding, the court rejected Long’s argument that Stevens was

ineffective for failing to explain the waiver, determining that

Long fully understood the consequences of the waiver.

But the fact that Long understood the waiver does not

necessarily foreclose his ineffective

‐ assistance

‐ of

‐ counsel

claim. As Long argues, we have “repeatedly recognized that6 No. 15

‐ 2668

appellate and collateral review waivers cannot be invoked

against claims that counsel was ineffective in the negotiation

of the plea agreement.” Hurlow v. United States

, 726 F.3d 958,

964 (7th Cir. 2013). Although Long’s § 2255 motion does not

specifically allege Stevens’s ineffectiveness in negotiating the

plea agreement, we construe his motion liberally. Wyatt v.

United States

, 574 F.3d 455, 459 (7th Cir. 2009) (“Pro se collat

‐

eral review filings are construed liberally.”). And liberally

construed, it appears that Long is making this argument. For

instance, Long alleges that he told Stevens that he wanted to

move to suppress the gun evidence—which he claims was

obtained in violation of his Fourth Amendment rights—but

Stevens never filed that motion. Long further claims that

“Stevens never looked fully into Long’s case, just obtained a

plea agreement without fully investigating.” (R. 49 at 2.)

Long contends that, had Stevens done these things, Long

never would have entered into the plea agreement. These

allegations suggest that the plea agreement was either “the

product of ineffective assistance of counsel or tainted by in

‐

effective assistance of counsel,” which, if proven true, would

mean that Stevens was ineffective in negotiating the plea

agreement. See Hurlow

, 726 F.3d at 967 (internal citations and

quotation marks omitted).

Nevertheless, although these allegations allow Long to

open the door to collateral relief, they do not necessarily

permit him to walk through it. Indeed, “[n]ot every claim of

ineffective assistance of counsel can overcome a waiver in a

plea agreement.” Id

. at 966. For instance, we have disallowed

“broad, unsupported assertions of ineffective assistance” to

circumvent a waiver. Id

.No. 15

‐ 2668 7

Long contends that, at this stage, he is not trying to suc

‐

ceed on the merits of his claim; instead, he seeks nothing

more than an evidentiary hearing to develop his argument.

Even so, a district court need not grant an evidentiary hear

‐ ing if “the motion and the files and records of the case con

‐ clusively show that the prisoner is entitled to no relief,” or

“if the petitioner makes allegations that are vague, concluso

‐

ry, or palpably incredible, rather than detailed and specific.”

Martin v. United States

, 789 F.3d 703, 706 (7th Cir. 2015) (in

‐

ternal quotation marks omitted). Only when a petitioner “al

‐ leges facts that, if proven, would entitle him to relief” must a

district court grant a hearing. Id

. (quoting Kafo v. United

States

, 467 F.3d 1063, 1067 (7th Cir. 2006)). Thus, we must de

‐

cide whether Long’s allegations sufficiently state a claim for

ineffective assistance of counsel, thereby allowing him to cir

‐

cumvent his waiver and obtain an evidentiary hearing.

To prevail on this claim, Long must be able to show that

(1) Stevens performed deficiently and (2) Long was preju

‐

diced as a result. Strickland v. Washington

, 466 U.S. 668, 687

(1984). We begin our analysis by addressing Stevens’s al

‐ leged deficient performance; we then move to prejudice.

A. Deficient Performance

Long asserts that Stevens provided deficient performance

in two ways: (1) by declining to file a motion to suppress,

and (2) by failing to adequately investigate Long’s case.

When a petitioner alleges that counsel was ineffective for

failing to move to suppress evidence, we require him to

“prove the motion was meritorious.” United States v.

Cieslowski

, 410 F.3d 353, 360 (7th Cir. 2005). And when the

purported deficiency is based on a failure to investigate, we

require the petitioner to allege “what the investigation8 No. 15

‐ 2668

would have produced.” Richardson v. United States

, 379 F.3d

485, 488 (7th Cir. 2004) (per curiam) (quoting Hardamon v.

United States

, 319 F.3d 943, 951 (7th Cir. 2003)).

Insofar as Long’s claim is based on Stevens’s decision not

to file a motion to suppress, that claim fails because Long

has alleged no facts suggesting that the motion would have

succeeded. The only facts that we have—which are the only

facts that were available to Stevens when he was deciding

whether to file the motion—are those that are contained in

Long’s arrest report. According to that report, the incident

began when a police officer approached Long’s car, which

was impeding the traffic of a McDonald’s drive

‐ through

lane. Because a “seizure does not occur simply because a po

‐

lice officer approaches an individual and asks a few ques

‐

tions,” this encounter did not implicate the Fourth Amend

‐

ment. United States v. Broomfield

, 417 F.3d 654, 655 (7th Cir.

2005) (quoting Florida v. Bostick

, 501 U.S. 429, 434 (1991)).

Nor did the officer’s instruction that Long open the car

door. When the officer arrived at the car, he saw Long asleep

at the wheel. The officer asked Long to open his door “for a

purpose ‘totally divorced from the detection, investigation,

or acquisition of evidence relating to the violation of a crimi

‐

nal statute.’” Sutterfield v. City of Milwaukee

, 751 F.3d 542, 554

(7th Cir. 2014) (quoting Cady v. Dombrowski

, 413 U.S. 433, 441

(1973)). That purpose was to ensure that Long was alright.

The Constitution allows officers to perform these kinds of

caretaking functions because, in doing so, they are “tak[ing]

actions not for any criminal law enforcement purpose but

rather to protect members of the public.” Id

. at 553.

Finally, when Long opened the door, the officer immedi

‐ ately smelled marijuana. That gave the officer probableNo. 15

‐ 2668 9

cause to search the entire vehicle. United States v. Mosby

, 541

F.3d 764, 768 (7th Cir. 2008). Because there was probable

cause, any challenge to the officer’s subsequent discovery of

the gun would fail. Cf. Tapley v. Chambers

, 840 F.3d 370, 377–

78 (7th Cir. 2016) (“If there is probable cause to believe that a

person has committed a crime, it is constitutionally irrele

‐

vant whether the officer arrested the person on charges for

which there was no probable cause.”). Thus, under these

facts, there is no cognizable Fourth Amendment claim.

Long argues that the caretaking doctrine doesn’t apply

here because he never admitted to sleeping at the wheel. But

the evidence suggests otherwise. At the change

‐ of

‐ plea hear

‐ ing, Long admitted that, if the case were to proceed to trial,

the government would be able to prove that the police found

Long asleep at the wheel. Long now retreats from this ad

‐

mission, arguing that just because the government could

prove (that is, convince a jury) that he was asleep does not

necessarily mean he was asleep. Although Long tries to run

from his prior admission, he cannot hide. Indeed, Long’s

sentencing memorandum explicitly admitted that officers

found him asleep at the wheel and had to wake him. Moreo

‐

ver, at sentencing, Long testified that he and Rehak read the

PSR together, yet neither objected to the PSR’s statement of

facts, which unambiguously state that Long was asleep at

the wheel. In fact, there is no evidence that Long ever told

his attorneys that he was awake. Even now, Long makes no

allegation that he was awake. Nor does he allege any other

facts that would support a motion to suppress.

That brings us to Long’s second contention: if Stevens

had conducted a more thorough investigation of Long’s case,

he would have discovered facts that would have supported a10 No. 15

‐ 2668

suppression motion. Specifically, Long claims that Stevens

should have examined security

‐ camera footage of the

McDonald’s parking lot and interviewed witnesses or res

‐

taurant employees.

Nevertheless, an attorney need not investigate every pos

‐

sible factual scenario. Instead, the Constitution requires an

attorney to make a “reasonable” investigation. Strickland

, 466

U.S. at 691. “[W]hen determining the reasonableness of trial

counsel’s investigation,” we “consider what [the defendant]

told trial counsel.” Koons v. United States

, 639 F.3d 348, 354

(7th Cir. 2011). Here, the only thing that Long alleges he told

Stevens is that the police violated his Fourth Amendment

rights. But that’s not a fact; it’s a legal conclusion. True

enough, Long suggests that he told Stevens the facts under

‐ lying that purported Fourth Amendment violation. But he

doesn’t say what those facts are. And although he faults Ste

‐

vens for failing to investigate, he never alleges “what the in

‐ vestigation would have produced.” Richardson

, 379 F.3d at

488. Long has thus failed to “allege[] facts that, if proven,

would entitle him to relief,” and instead makes allegations

that are “vague” and “conclusory.” Martin

, 789 F.3d at 706

(internal quotation marks omitted). For that reason, he is not

entitled to an evidentiary hearing.

Long tries to liken his case to Hurlow —a case in which we

reversed a district court for holding that a waiver in the de

‐

fendant’s plea agreement precluded an evidentiary hearing

on his § 2255 motion; but that case is distinguishable. In Hur

‐

low

, the defendant and his fiancée shared a home. 726 F.3d at

960. Police officers searched the home over the defendant’s

objection after obtaining the fiancée’s written consent. Id

. They discovered contraband and arrested the defendant. Id

.No. 15

‐ 2668 11

at 961. The defendant claimed that he told his attorney these

facts and that he wanted his attorney to move to suppress

the incriminating evidence, but his attorney never filed a

motion or investigated the claim. Id

.

We noted that the defendant’s alleged facts, if true, would

have supported a suppression motion under Georgia v. Ran

‐ dolph

, 547 U.S. 103 (2006). Hurlow

, 726 F.3d at 967. In light of

these alleged facts, we allowed the defendant to circumvent

his waiver, instructing the district court to hold an eviden

‐ tiary hearing on the defendant’s claim that his attorney was

ineffective in negotiating the plea agreement. Id

. at 968.

But here, Long has alleged no facts that would support

his Fourth Amendment claim, which in turn would support

his claim for ineffective assistance of counsel. Accordingly,

we hold that Long is bound by his waiver, which precludes

any relief under § 2255. See id. at 966 (noting that a petitioner

cannot circumvent an appeal and collateral

‐ attack waiver by

making “broad, unsupported assertions of ineffective assis

‐

tance”).

In so holding, we do not suggest that a petitioner’s ability

to circumvent a collateral

‐ attack waiver depends on the

strength of his argument. We instead require only that a peti

‐

tioner allege facts showing that an argument actually exists.

Because Long has not alleged that any such facts exist, we

will not waste judicial resources by requiring the district

court to hold an evidentiary hearing.

B. Prejudice

Even if Long adequately alleged that Stevens’s perfor

‐

mance was deficient, Long still would have to prove preju

‐

dice. To do so, Long would have to show “a reasonable12 No. 15

‐ 2668

probability that, but for counsel’s errors, he would not have

pleaded” guilty. Cieslowski

, 410 F.3d at 359 (quoting Hill v.

Lockhart

, 474 U.S. 52, 59 (1985)). A “mere allegation

... that he

would have insisted on going to trial is insufficient to estab

‐

lish prejudice.” Id

. (quoting Berkey v. United States

, 318 F.3d

768, 772 (7th Cir. 2003)). Instead, he “must go further and

present objective evidence that a reasonable probability ex

‐

ists that he would have taken that step.” Id

. ...

Long has not carried this burden. Indeed, he has alleged

nothing that indicates that he would have gone to trial had

Stevens moved to suppress the gun evidence. In fact, the ev

‐

idence suggests the opposite. After Stevens withdrew as

counsel, Long’s new attorney Rehak filed a motion to with

‐

draw Long’s guilty plea. That motion stated that Long “now

wishes to suppress certain evidence in relation to his case, in

particular, the initial probable cause for his stop by law en

‐

forcement.” (R. 38 at 2.) But at a hearing on the motion, Re

‐

hak informed the court that he did not think withdrawing

the guilty plea would benefit Long. After discussing the is

‐

sue with Rehak, Long decided to forego his motion to with

‐

draw his plea and proceed to sentencing. Long’s actions thus

rebut his claim that he would have gone to trial but for Ste

‐

vens’s alleged deficient performance.

During oral argument, Long conceded that Rehak gave

“very competent advice” on this issue. Nevertheless, Long

claims that, by the time Rehak got involved, the damage was

already done given that Long had already pled guilty. For

example, Long argues that there is no guarantee that the dis

‐

trict court would have allowed him to withdraw his guilty

plea. And even if Long was able to do so, he consequently

would have faced a higher sentence because he would haveNo. 15

‐ 2668 13

lost his 3

‐ level reduction for acceptance of responsibility.

Thus, the eggs were already broken.

But that is not so. Although the district court did not

have to grant Long’s motion to withdraw his plea, that does

not excuse Long from pursuing that motion. Of course, if

Long did proceed with that motion and won, he would have

faced a higher sentence. But that’s only because he would

have lost his credit for acceptance of responsibility—a credit

that he received only because he pled guilty in the first place.

Put differently, had Long succeeded on a motion to with

‐

draw his guilty plea, it would have been as if he had never

pled guilty at all.

For that reason, we do not accept Long’s argument that

his initial decision to plead guilty caused irreparable harm.

Long had an opportunity to try to undo whatever purported

damage was done, but he chose not to pursue that oppor

‐ tunity. His decision thus strongly suggests—if not con

‐

firms—that Stevens’s alleged deficient performance had no

effect on his decision to plead guilty. On these facts, Long

cannot prove prejudice. And because Long has failed to al

‐ lege the existence of any facts that, if proven true, would en

‐

title him to relief, he is not entitled to an evidentiary hearing.

III. C ONCLUSION

For the reasons above, we AFFIRM the district court’s

decision.