### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 1632

F ERNANDO D ELATORRE

,

Petitioner

‐ Appellant

,

v.

U NITED S TATES OF A MERICA

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 C 1355

— Ruben Castillo

, Chief Judge

.

____________________

A RGUED S EPTEMBER 28, 2016

— D ECIDED F EBRUARY 3, 2017

____________________

Before K ANNE

, S YKES

, and H AMILTON

, Circuit Judges

.

K ANNE

, Circuit Judge

. A jury convicted Fernando Delator

‐

re of several felonies. He was sentenced to life in prison, and

his conviction and sentence were affirmed on appeal. He

then filed a motion to vacate, set aside, or correct his sen

‐

tence, arguing that (1) the prosecutor committed misconduct

by reneging on a promise to provide him with a plea agree

‐

ment and (2) his pretrial counsel’s performance was constitu

‐2 No. 15

‐ 1632

tionally ineffective. The district court rejected these claims

and denied his collateral motion.

Because Delatorre failed to raise the prosecutorial

‐

misconduct claim in the district court or on direct appeal, we

hold that this claim has been procedurally defaulted. We fur

‐

ther hold that Delatorre has failed to meet the cause

‐ and

‐ prejudice standard necessary to overcome procedural de

‐

fault. We therefore do not address the merits of that claim.

Finally, because Delatorre’s pretrial counsel was not deficient

and because Delatorre suffered no prejudice as a result of his

counsel’s performance, we reject his claim of ineffective as

‐

sistance of counsel.

I. B ACKGROUND

Delatorre was a member of the Insane Deuces street gang

in Aurora, Illinois. In 2002, state and federal authorities—

assisted by Delatorre’s fellow gang member Orlando Rivera,

who had agreed to serve as a confidential informant—began

investigating the gang. Rivera worked with the authorities

and recorded several meetings and conversations between

active members of the gang, including Delatorre. Through

these recordings, Rivera produced evidence of the gang

members’ many crimes, including at least four murders,

eleven attempted murders, two solicitations to commit mur

‐

der, several shootings, and numerous drug offenses.

On January 31, 2003, Delatorre was arrested for his con

‐

nections to these crimes. Shortly after his arrest, he confessed

to his involvement in at least three of the murders. In 2006,

Delatorre and fifteen other gang members were indicted on

racketeering and other related charges. The district court

then divided the sixteen defendants into two groups for trial.No. 15

‐ 1632 3

Delatorre was tried with other gang leaders. A jury convict

‐

ed him of (1) engaging in racketeering conspiracy; (2) mur

‐

der in aid of racketeering activity; (3) conspiracy to 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 a firearm with an oblite

‐

rated serial number. He was sentenced to life in prison.

Delatorre and his codefendants raised several arguments

on appeal. We rejected each of those arguments in two sepa

‐

rate opinions. See United States v. Benabe

, 654 F.3d 753 (7th

Cir. 2011); United States v. Benabe

, 436 Fed. App’x 639 (7th Cir.

2011). Delatorre then filed a petition for a writ of certiorari in

the Supreme Court. On February 21, 2012, the Supreme

Court denied that petition.

On February 6, 2013, Delatorre moved to vacate, set

aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in

the Northern District of Illinois. In that motion, he argued

that (1) the prosecutor committed misconduct by reneging

on a promise to provide a plea agreement and (2) his pretrial

counsel was constitutionally ineffective. 1

Delatorre based his prosecutorial

‐ misconduct and inef

‐

fective

‐ assistance

‐ of

‐ counsel claims on events associated

with his cooperation with the government beginning in Feb

‐

ruary of 2003, shortly after his arrest. At that time, he partic

‐ ipated in eight to ten proffer sessions with the United States

1 In his § 2255 motion, Delatorre also argued that his Sixth and Eighth

Amendment rights had been violated. Because we issued a certificate of

appealability only as to the prosecutorial

‐ misconduct and ineffective

‐

assistance

‐ of

‐ counsel claims, we do not address these additional claims.4 No. 15

‐ 1632

Attorney’s Office. A proffer letter, which Delatorre and the

prosecutor both signed, outlined the cooperation arrange

‐

ment. In exchange for his cooperation and truthful testimony

both during the proffer sessions and at subsequent court ap

‐

pearances, the government agreed not to use “anything re

‐

lated to the government by [Delatorre or his attorney] dur

‐ ing the proffer” in any subsequent criminal proceedings

filed against Delatorre. (R. 1 at 34.) The letter further ex

‐ plained that it “embodie[d] the entirety of the agreement to

make a proffer

... . No other promise or agreement exist[ed]

between [Delatorre] and [the government] regarding the

proffer.” (R. 1 at 35.)

At one of the later proffer sessions, Delatorre asked the

prosecutor how much time he was “eventually going to have

to serve[.]” (R. 1 at 12.) The prosecutor responded “A long

time.” (R. 1 at 12.) Unsatisfied with this answer, Delatorre

repeated his request. The prosecutor responded “A long

time, you were involved in too much.” (R. 1 at 13.) Delatorre

then asked the prosecutor “exactly how long” he would

have to serve, and the prosecutor responded “You will serve

25–30 years.” (R. 1 at 13.) The prosecutor further explained

that he intended to provide Delatorre with a plea agreement

if he continued to cooperate, but that he would have to serve

at least twenty

‐ five to thirty years because the government

“h[eld] all the cards.” (R. 1 at 13.)

After completing these proffer sessions, Delatorre re

‐ quested a formal plea agreement that included the twenty

‐

five to thirty year term. The prosecutor “made it very clear

that at that point he could not provide [Delatorre] with a

plea or anything in writing and would not with respect to

the 25–30 year offer.” (R. 1 at 13.) Instead, the prosecutor in

‐No. 15

‐ 1632 5

structed Delatorre to “continue cooperating, take a leap of

faith, and play ball.” (R. 1 at 13.) Delatorre then testified

twice before a grand jury without a plea agreement.

Because the government continued to refuse to give Dela

‐

torre a plea deal, he stopped “playing ball” shortly thereaf

‐

ter. Despite repeated efforts by his attorney—Fred Morelli—

to encourage him “in the strongest possible terms” to con

‐

tinue cooperating, Delatorre refused to appear before the

grand jury a third time to complete his testimony. (R. 1 at 36,

38.) Morelli then explained that Delatorre’s continued refusal

to cooperate would likely “result in [his] indictment on, at

the least, the federal case for which [he was] arrested and for

either two or three murders.” (R. 1 at 36.) Morelli further ex

‐ plained to Delatorre that a jury would likely convict him of

at least one of those murders, and that if convicted, he would

almost certainly be sentenced to life in prison, or worse, be

eligible for the death penalty. Nonetheless, Delatorre refused

to cooperate with the government and had no further con

‐

tact with Morelli, who soon withdrew his representation.

Because he ceased his cooperation, Delatorre never received

a plea agreement.

In his § 2255 motion filed with the district court, Delator

‐

re alleged that the prosecutor promised to provide him with

a plea agreement that included a recommended sentence of

twenty

‐ five to thirty years. He thus argued that the prosecu

‐

tor committed misconduct by reneging on that promise and

failing to provide him with a plea deal. In the same vein, De

‐

latorre also argued that Morelli’s failure to secure the alleg

‐ edly agreed

‐ upon plea agreement amounted to constitution

‐ ally ineffective assistance of counsel. The district court re

‐ jected those arguments and denied his motion. Delatorre6 No. 15

‐ 1632

then filed a motion for reconsideration, which the district

court also denied. This appeal followed.

II. A NALYSIS

On appeal, Delatorre reasserts his two arguments related

to the prosecutor’s alleged breach of a promise to provide

him with a plea agreement. We review a district court’s de

‐

nial of a § 2255 motion de novo as to issues of law. Blake v.

United States

, 723 F.3d 870, 879 (7th Cir. 2013). We review the

district court’s factual findings for clear error. Id. We begin

with the prosecutorial

‐ misconduct claim and then turn to the

ineffective

‐ assistance

‐ of

‐ counsel claim.

A. Prosecutorial

‐ Misconduct Claim

Delatorre first argues that the prosecutor committed mis

‐

conduct when he reneged on his promise to provide a plea

agreement. But Delatorre did not raise this claim in the dis

‐

trict court at trial or on his direct appeal. Instead, he raised

this claim for the first time on collateral review in his § 2255

motion. Any claim that could have been raised originally in

the trial court and then on direct appeal that is raised for the

first time on collateral review is procedurally defaulted. Hale

v. United States

, 710 F.3d 711, 713–14 (7th Cir. 2013) (holding

that a claim that was not raised in the trial court or on direct

appeal was “doubly defaulted” on collateral review). Thus,

Delatorre’s prosecutorial

‐ misconduct claim is procedurally

defaulted. 2

2 The district court did not consider procedural default, and it is unclear

from the record whether the government ever made this argument be

‐

fore this appeal. As we noted in Doe v. United States

, the government’s

failure to raise a procedural

‐ default argument in the district court might

(continued...)No. 15

‐ 1632 7

Procedurally defaulted constitutional claims are not con

‐

sidered on collateral review unless the petitioner shows ei

‐

ther (1) actual innocence or (2) cause and prejudice. Bousley

v. United States

, 523 U.S. 614, 622 (1998). Delatorre makes no

argument for actual innocence. We therefore restrict our

analysis to the cause

‐ and

‐ prejudice standard. See McCoy v.

United States

, 815 F.3d 292, 295 (7th Cir. 2016). To excuse a

procedural default for cause and prejudice, a petitioner must

demonstrate both (1) good cause for his failure to raise the

defaulted claim before collateral review and (2) actual preju

‐

dice stemming from the violations alleged in the defaulted

claim. Theodorou v. United States

, 887 F.2d 1336, 1340 (7th Cir.

1989).

To establish “cause,” Delatorre argues that he was una

‐

ware during his trial and on direct appeal that the govern

‐

ment’s failure to offer a plea agreement, as allegedly prom

‐

ised, amounted to a constitutional violation. He does not ar

‐

gue, however, that he was unaware of any of the facts giving

rise to that potential claim. In fact, he knew before his trial

(...continued)

result in a waiver of that argument. 51 F.3d 693, 698–99 (7th Cir. 1995).

We need not consider that issue here, however, because Delatorre never

argued that the government waived its procedural

‐ default argument. Id.

at 699. In fact, like the defendant in Doe

, Delatorre “devote[d] a signifi

‐

cant portion of the reply brief establishing ‘cause’ for the default.” Id. We

think that “[i]t is apparent, then, that [Delatorre] has conceded the gov

‐

ernment’s assertion of procedural default (or, at the risk of being tedious,

waived any argument that the government waived its defense of waiv

‐

er).” Id. It also doesn’t matter that the district court did not consider pro

‐

cedural default: “We may affirm on any basis fairly presented in the rec

‐

ord.” Figgs v. Dawson

, 829 F.3d 895, 902 (7th Cir. 2016).8 No. 15

‐ 1632

even began that the government allegedly promised him a

plea agreement and that he was never presented with that

plea agreement: he was thus aware of all of the facts giving

rise to the alleged violation. Nothing occurred after his trial

or direct appeal that altered his potential claim. Thus, the

proper time to raise that argument was at the district court

before he was convicted and then again on direct appeal, not

for the first time on collateral review. The fact that Delatorre

may have been subjectively unaware of the constitutional

ramifications of the government’s inaction is not sufficient

“cause” justifying a procedural default. See id. at 1340–41

(holding that a defendant who was aware of all of the facts

giving rise to the claimed constitutional violation before sen

‐ tencing could not establish “cause” for his procedural de

‐ fault).

Delatorre also argues that his prosecutorial

‐ misconduct

claim—like most claims of ineffective assistance of counsel—

is so inextricably linked to extrinsic evidence that it could

not have been properly considered on direct appeal. He ar

‐

gues that this also provides “cause” for his procedural de

‐

fault. We disagree.

Delatorre is correct that “[a] reviewing court on direct

appeal is limited to the record of trial and cannot consider

any extrinsic evidence.” Galbraith v. United States

, 313 F.3d

1001, 1007 (7th Cir. 2002). A claim of ineffective assistance of

counsel requires a defendant to prove that his counsel per

‐

formed deficiently and that this deficiency caused him prej

‐

udice. See Strickland v. Washington

, 466 U.S. 668, 687 (1984).

“The evidence introduced at trial [in the case giving rise to

the claim of ineffective assistance], however, will be devoted

to issues of guilt or innocence, and the resulting record inNo. 15

‐ 1632 9

many cases will not disclose the facts necessary to decide ei

‐

ther prong of the Strickland analysis.” Massaro v. United

States

, 538 U.S. 500, 505 (2003). Thus, claims of ineffective as

‐

sistance, by their very nature, are almost “invariably

doom[ed]” on direct review because they often require aug

‐

mentation of the record with extrinsic evidence, which can

‐

not be considered. United States v. Gilliam

, 255 F.3d 428, 437

(7th Cir. 2001) (quoting United States v. Godwin

, 202 F.3d 969,

973 (7th Cir. 2000)). We thus permit these claims, in most in

‐

stances, to be raised for the first time on collateral review.

United States v. Flores

, 739 F.3d 337, 341 (7th Cir. 2014) (citing

Massaro

, 538 U.S. 500).

Delatorre’s prosecutorial

‐ misconduct claim, on the other

hand, does not, by its very nature, require augmentation of

the record. The only reason extrinsic evidence is required to

prove his claim is because he failed to raise this claim in the

district court in the first place. Had he raised this claim at the

proper time—in the district court before he was convicted—

his evidence supporting that claim would have been in the

trial record and could have been considered on direct ap

‐ peal. His prosecutorial

‐ misconduct claim is not akin to an

ineffective

‐ assistance

‐ of

‐ counsel claim in this regard, and we

refuse to reward Delatorre for his creation of an evidentiary

issue.

Because Delatorre has provided no plausible “cause” for

his failure to raise his prosecutorial

‐ misconduct claim before

collateral review, we decline to excuse the procedural default

and do not address the merits of that claim.10 No. 15

‐ 1632

B. Ineffective

‐ Assistance

‐ of

‐ Pretrial

‐ Counsel Claim

Delatorre’s ineffective

‐ assistance

‐ of

‐ counsel claim is re

‐

lated to his prosecutorial

‐ misconduct claim. Like with his

first claim, he again relies on an alleged promise made by

the prosecutor to provide him with a plea agreement that

included a maximum recommended sentence of twenty

‐ five

to thirty years. According to Delatorre, his pretrial counsel—

Morelli—rendered constitutionally ineffective assistance

when he failed to secure that allegedly promised plea

agreement.

We first briefly note that this claim does not suffer from

the same procedural default as the prosecutorial

‐ misconduct

claim even though it, too, was raised for the first time in De

‐

latorre’s § 2255 motion. As discussed above, ineffective

‐

assistance

‐ of

‐ counsel claims, by their very nature, are almost

“invariably doom[ed]” on direct review. Gilliam

, 255 F.3d at

437 (quoting Godwin

, 202 F.3d at 973). Thus, we generally

permit a petitioner to raise these claims for the first time on

collateral review, “regardless of whether the petitioner could

have raised the claim on direct appeal.” Gaylord v. United

States

, 829 F.3d 500, 506 (7th Cir. 2016) (citing Massaro

, 538

U.S. at 504). We follow that general rule here and excuse De

‐

latorre’s failure to raise this argument on direct appeal. We

now turn to the merits of this claim.

To succeed on his Sixth Amendment claim of ineffective

assistance of counsel, Delatorre had to demonstrate both el

‐

ements of the test announced in Strickland

, 466 U.S. 668.

First, he had to show that his counsel’s performance was

constitutionally deficient, meaning that it “fell below an ob

‐ jective standard of reasonableness” measured “under pre

‐ vailing professional norms.” Id. at 688. Second, he had toNo. 15

‐ 1632 11

show that he suffered prejudice because of this deficiency,

meaning that there was “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceed

‐ ing would have been different.” Id. at 694. The district court

concluded that Delatorre had failed to establish either ele

‐

ment. We agree. We begin our discussion with deficient per

‐

formance and then move to prejudice.

1. Deficient Performance

Delatorre has failed to establish that Morelli’s representa

‐

tion was constitutionally deficient. When analyzing deficient

performance, we apply a “‘strong presumption’ that coun

‐

sel’s representation was within the ‘wide range’ of reasona

‐

ble professional assistance.” Harrington v. Richter

, 562 U.S.

86, 104 (2011) (quoting Strickland

, 466 U.S. at 689). The cen

‐

tral question in this analysis is not whether counsel’s con

‐

duct “deviated from best practices or most common cus

‐

tom,” but instead, “whether an attorney’s representation

amounted to incompetence under ‘prevailing professional

norms.’” Sussman v. Jenkins

, 636 F.3d 329, 349–50 (7th Cir.

2011) (quoting Harrington

, 562 U.S. at 105). In other words, a

counsel’s representation “need not be perfect, indeed not

even very good, to be constitutionally adequate.” McAfee v.

Thurmer

, 589 F.3d 353, 355–56 (7th Cir. 2009) (quoting Dean v.

Young

, 777 F.2d 1239, 1245 (7th Cir. 1985)). It must merely be

reasonably competent. Strickland

, 466 U.S. at 687.

Delatorre is correct that his Sixth Amendment right to ef

‐

fective counsel “extends to the plea

‐ bargaining process.”

Lafler v. Cooper

, 566 U.S. 156, 162 (2012); see also Missouri v.

Frye

, 566 U.S. 133, 144 (2012) (“In today’s criminal justice sys

‐

tem

... the negotiation of a plea bargain, rather than the un

‐ folding of a trial, is almost always the critical point for a de

‐12 No. 15

‐ 1632

fendant.”). The Supreme Court has held that an attorney

who fails to make a meaningful attempt to inform his client

of an existing written plea offer, Frye

, 566 U.S. at 149, or ad

‐

vises his client to reject a highly favorable plea offer “on the

grounds [the client] could not be convicted at trial,” Lafler

,

566 U.S. at 163, has performed deficiently under the Sixth

Amendment. Delatorre cannot rely on these cases, however,

because he was never formally offered a plea agreement.

Instead, Delatorre’s claim of deficient performance cen

‐

ters on his attorney’s inability to secure a plea deal that in

‐

cluded a maximum recommended sentence of twenty

‐ five to

thirty years. In making this argument, Delatorre again focus

‐

es on the prosecutor’s alleged promise to provide him with a

plea agreement. True enough, the prosecutor did suggest

that, if Delatorre continued to cooperate, the government

would then offer him a plea agreement. But even if we as

‐

sume that this suggestion was a “promise” of a plea deal, it

was explicitly conditioned on Delatorre’s continued coopera

‐

tion. Because Delatorre ceased cooperating, the government

did not offer him a plea agreement. So the government did

not breach any promise.

Morelli’s representation was entirely reasonable under

the circumstances. Before he began representing Delatorre,

Delatorre had already made incriminating statements to Ri

‐

vera—who again, was acting as a government informant.

Moreover, Delatorre had already confessed to the authorities

his involvement in at least three of the murders. Delatorre’s

options were thus already “rather limited” by the time Mo

‐

relli began representing him. Delatorre v. United States

, No. 13

C 1355, 2015 WL 1176820, at *7 (March 11, 2015). In fact, Mo

‐

relli believed that the government had more than enoughNo. 15

‐ 1632 13

evidence to convince a jury to convict Delatorre of at least

some of the crimes for which he was charged. In Morelli’s

opinion, the prosecutor was willing to negotiate with Dela

‐

torre only because he was one of the first gang members to

come forward and speak with the government. In an effort

to secure the most favorable plea agreement possible, Morel

‐

li therefore instructed his client—on numerous occasions—

to cooperate fully with the government.

“[T]he successful negotiation of a plea agreement in

‐

volves factors beyond the control of counsel, including the

cooperation of his client, clearly absent here, as well as the

cooperation of the prosecutor, who has no obligation to offer

such an agreement.” United States v. Hall

, 212 F.3d 1016, 1022

(7th Cir. 2000). Morelli cannot be faulted for Delatorre’s re

‐

fusal to cooperate, especially in light of his repeated efforts

to encourage his client to do so. Moreover, he cannot be

faulted for the government’s decision not to reward an un

‐ cooperative defendant with a plea agreement. The govern

‐

ment is not required to offer any defendant such an agree

‐

ment. Id

. Delatorre’s arguments that Morelli’s representation

was anything but competent are unavailing. Under the cir

‐

cumstances, Morelli’s representation was not constitutionally

deficient. In fact, it was quite reasonable.

2. Prejudice

Even if we believed that Morelli’s representation was

constitutionally deficient, we would still reject Delatorre’s

ineffective

‐ assistance

‐ of

‐ counsel claim because he also can

‐

not establish that he suffered prejudice as a result of Morel

‐

li’s representation. To demonstrate prejudice, Delatorre had

to show a reasonable probability that “the outcome of the

plea process would have been different with competent ad

‐14 No. 15

‐ 1632

vice.” Lafler

, 566 U.S. at 163. “A reasonable probability is a

probability sufficient to undermine confidence in the out

‐

come.” Strickland

, 466 U.S. at 694. Because Delatorre’s preju

‐

dice argument centers on his attorney’s inability to secure a

plea agreement for him, Delatorre had to show—at a mini

‐

mum—that the prosecutor would have actually offered him

a deal had his attorney been competent. See Frye

, 566 U.S. at

147–49 (discussing the prejudice standard in cases where the

defendant alleges that he did not receive the benefit of a plea

agreement because of his attorney’s deficient performance).

He has failed to meet this burden. As discussed above, it

was Delatorre’s stubborn refusal to continue cooperating that

prevented him from securing a plea deal, not his attorney’s

performance. Nothing in the record indicates that the prose

‐

cutor would have provided Delatorre, an uncooperative de

‐

fendant, with a plea deal had Morelli performed any differ

‐ ently. In short, Delatorre did not suffer prejudice from his

attorney’s performance.

III. C ONCLUSION

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

denial of Delatorre’s motion.