United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 27, 2015

Decided November 30, 2016

Before

WILLIAM J. BAUER, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 15-1201

WILLIAM L. AVILA,

Petitioner-Appellant,

v.

REED A. RICHARDSON,

Respondent-Appellee.

Appeal from the United States District

Court for the Eastern District of 

Wisconsin.

No. 2:12-cv-00228-WEC

William E. Callahan, Jr., 

Magistrate Judge.

O R D E R

Petitioner William L. Avila seeks federal habeas corpus relief from his state court 

convictions for sexually assaulting a child, sexually exploiting a child, and possessing 

child pornography. Avila pled guilty under a plea agreement that left each side free to 

make its own sentencing recommendation. The state court sentenced Avila to 35 years in 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1
No. 15-1201 Page 2

prison.

Avila seeks habeas relief on the ground that he received ineffective assistance of 

counsel. His primary theory has been that his lawyer was ineffective in telling him he 

faced only a five-year sentence, and that if he had known he faced a much heavier 

sentence, he would not have pled guilty. In an earlier appeal, we reversed a denial of 

relief and ordered an evidentiary hearing in the district court. Avila v. Richardson, 751 F.3d 

534 (7th Cir. 2014). The district court held the hearing and again denied relief. Avila’s 

new appeal from that decision has been referred to the earlier panel as a successive 

appeal. After reviewing the briefs, we concluded that oral argument was not necessary. 

Based on the district court’s findings of fact, which were not clearly erroneous, we affirm 

the denial of relief.

The first issue is whether Avila showed as a matter of fact that his trial lawyer told 

him he faced only five years in prison. If the lawyer had in fact given such wildly 

mistaken advice, and if Avila had relied on it in deciding to plead guilty, those facts could 

support a claim for ineffective assistance of counsel. See Avila, 751 F.3d at 537; see also 

Pidgeon v. Smith, 785 F.3d 1165, 1173 (7th Cir. 2015) (affirming grant of federal habeas 

relief where guilty plea was based on erroneous advice about possible sentence); Moore 

v. Bryant, 348 F.3d 238, 242 (7th Cir. 2003) (same).

The district court heard conflicting evidence from Avila and his lawyer. The judge 

believed the lawyer’s testimony that he did not give and would never have given such 

mistaken advice. That factual finding requires denial of relief unless it was clearly 

erroneous. See, e.g., Williams v. Bartow, 481 F.3d 492, 497 (7th Cir. 2007); Whitehead v. 

Cowan, 263 F.3d 708, 717 (7th Cir. 2001). A trier of fact’s decision to credit one witness 

over another is virtually never clear error, e.g., United States v. Mays, 819 F.3d 951, 956–57 

(7th Cir. 2016); United States v. Biggs, 491 F.3d 616, 621 (7th Cir. 2007), and there was no 

clear error here.

On appeal, Avila argues that the judge should have believed him because his 

memory of the case was more specific than the lawyer’s. That could be a plausible 

argument to a trier of fact, though a witness’s specificity is not a consistently reliable 

gauge of his reliability. In this case there were also ample reasons to discount Avila’s 

improbable account. Avila candidly recognized that the lawyer might have told him only 

that he would ask the judge for a five-year sentence, not that such a light sentence was 

likely in such a serious case of repeated sexual abuse and exploitation of a child, which 

also included the use of drugs to make the victim drowsy and cooperative. Avila’s 

incentive to lie or to allow his memory to distort actual events in a way that favors his 

case also weighed against his credibility. The district court’s factual finding undermined 

this theory of ineffectiveness.
No. 15-1201 Page 3

On remand, the parties also presented extensive evidence on a second theory of 

ineffective assistance of counsel. Avila claimed that his lawyer should have filed a motion 

to suppress evidence based on an arguable Miranda violation in the form of continued 

police questioning after Avila said he wanted to talk to a lawyer. The district court 

wondered whether that topic was even within the scope of our earlier remand. We 

confess to some surprise as well, since that issue did not come up in the briefing in the 

earlier appeal. The earlier appeal, however, addressed a waiver issue that applied to any 

particular theory of ineffectiveness. In that appeal, the parties simply did not have 

occasion to explore the details of the specific theories of ineffectiveness.

In any event, the State did not raise any of the numerous potential procedural 

issues that might have been raised. It defended the claim on the merits, and the district 

court also decided it on the merits. So do we. The parties also agree that the state courts 

never adjudicated Avila’s claim of ineffective assistance on the merits. The deferential 

review under 28 U.S.C. § 2254(d), which dominates most modern federal habeas 

litigation, therefore does not apply here. See Appellee’s Br. at 4.

To prove that a lawyer provided ineffective assistance by failing or choosing not 

to file a motion to suppress evidence, the petitioner must show at a minimum that such 

a motion would have been successful. Shell v. United States, 448 F.3d 951, 955 (7th Cir. 

2006); United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). According to the district 

court’s findings of fact, which were not clearly erroneous, when police first interviewed 

Avila at the police station, they gave him Miranda warnings and said they wanted to talk 

with him about a sexual assault. Avila said he wanted to consult a lawyer. When a suspect 

invokes his right to have counsel present during custodial interrogation, the interrogation 

must stop until the suspect has met with counsel. Edwards v. Arizona, 451 U.S. 477, 484 

(1981). In such cases, however, a suspect may change his mind and initiate further 

conversation with the police without counsel. See Oregon v. Bradshaw, 462 U.S. 1039 

(1983); Edwards, 451 U.S. at 486 n.9. The devilish details, however, lie in determining when 

a suspect has made a truly voluntary decision to initiate the further conversation, as 

shown by the multiple opinions in Bradshaw.

In this case, the interrogation stopped, but the officer continued to put information 

in front of Avila in an apparent effort to encourage him to continue talking without a 

lawyer present. In response to this encouragement, Avila made several incriminating 

comments. He also volunteered to the officer: “I was an idiot for what I did.” Avila later 

consented in writing to further interrogation and to a search of his computer.

Avila now argues that his trial lawyer was ineffective in not moving to suppress 

all of the incriminating evidence generated by arguably improper continued 
No. 15-1201 Page 4

interrogation and prompting by the police. The biggest problem with this theory is that 

the case against Avila did not depend on evidence derived from any arguable violation 

of his Miranda rights. There was plenty of other evidence, including the testimony of the 

victim and messages Avila himself had sent to the victim’s mother, as well as the contents 

of Avila’s computer, for which police had ample grounds to obtain a search warrant if 

Avila had not saved them the trouble by consenting to the search.

As the district court noted, even if a motion to suppress had been successful, “the 

case was not going away.” The court therefore found that Avila’s lawyer pursued a 

reasonable strategy by having him accept responsibility for his actions and seeking a 

more lenient sentence. The district court found that the lawyer’s performance was not 

deficient and that Avila’s theory for how a motion to suppress might have helped him 

was speculative.

We find no error in the district court’s analysis. The judge carefully avoided the 

distorting effects of hindsight by looking at the situation Avila’s lawyer faced at the time. 

Like the district court, we assume there were arguable grounds for suppressing a few 

incriminating admissions Avila had made, though success was by no means assured. 

Even a successful motion would have left the State with plenty of powerful evidence 

against Avila. In those circumstances, it was not unreasonable for a lawyer to negotiate a 

plea agreement without filing an arguably meritorious motion to suppress evidence that 

was not critical to the prosecution.

The district court’s denial of petition for a writ of habeas corpus is

AFFIRMED.