In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3025

ANDREW C. KOONS,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Evansville Division.

No. 3:08-CV-00191—Richard L. Young, Chief Judge.

ARGUED JANUARY 21, 2011—DECIDED APRIL 28, 2011

Before FLAUM, MANION, and EVANS, Circuit Judges.

FLAUM, Circuit Judge. Andrew Koons pled guilty to

being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) and 924(e)(1). He petitions pursuant

to 28 U.S.C. § 2255 to vacate his plea based on ineffective assistance of counsel, arguing that his trial counsel

failed to pursue a potential Fourth Amendment claim

that may have warranted suppressing significant evidence against him. In the alternative, Koons requests
2 No. 09-3025

The record does not conclusively indicate how many officers 1

went to Koons’s workplace. This opinion refers to a single

officer, although more than one may have been present

during the events discussed.

an evidentiary hearing to evaluate his ineffective

assistance claim. The district court denied Koons’s motion. We affirm.

I. Background

The Warrick County Sheriff’s Office received a tip

that Koons possessed a stolen vehicle. On April 19, 2007,

law enforcement officers went to his home and found

the stolen vehicle parked in front. No one answered

when the officers knocked on Koons’s front door. But

a neighbor approached and informed the officers that

Koons was at work and, among other things, that he

had recently participated in a firearms transaction with

Koons. At least one officer then went to Koons’s place

of employment.1

The parties dispute what happened next. The government claims that Koons voluntarily spoke to the officer

and stated, “[i]t’s about the guns,” referring to the guns

he had at his house, and then offered to turn the guns

over to the officer if he would drive Koons home immediately. The government’s version of the events

was supported by uncontradicted record evidence

before Koons filed his § 2255 petition. The petition

alleges that the officer who came to his place of employ-
No. 09-3025 3

ment claimed to have a warrant to search Koons’s home,

told Koons that he was required to accompany the

officer back to his home and let him in, and brandished

a weapon when Koons expressed unwillingness.

The officer drove Koons back to his residence and

Koons invited the officer inside so he could turn over

four firearms. Koons went through the house, located

the four firearms, and handed them to the officer. The

government does not claim to have had or pursued

a search warrant. Instead, it argues that Koons

voluntarily consented to the search. Koons disputes

this in his petition, stating that he was following

the officer’s orders, not consenting. Again, all record

evidence preceding Koons’s petition supports the government’s account. After receiving his Miranda warnings

and providing a waiver, Koons told the officers that he

was storing the firearms for an acquaintance, Matt

Rice, that he purchased the vehicle in question, and that

he was unaware it was stolen.

On July 25, 2007, Koons was charged with being a

felon in possession and an armed career criminal, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Shortly

thereafter, the magistrate judge appointed attorney

Toby Shaw II (“trial counsel”) to represent Koons. Koons

submitted a petition to enter a guilty plea on December 5,

2007. The district court held a change-of-plea hearing

on March 27, 2008, at which Koons testified that he

was entering his guilty plea knowingly and voluntarily

and acknowledged that he had “very thoroughly” discussed doing so with trial counsel. The government
4 No. 09-3025

also presented a witness, Special Agent Chad Foreman

(“Agent Foreman”), of the Federal Bureau of Alcohol,

Tobacco, Firearms & Explosives, who testified that,

among other things, Koons voluntarily consented to the

search of his home. Koons acknowledged that Agent

Foreman’s testimony about the home search was true.

The court accepted Koons’s guilty plea after finding it

knowing and voluntary. Trial counsel did not file

a motion to suppress or otherwise object to evidence

uncovered during the search of Koons’s home.

Trial counsel met with Koons on May 7, 2008, and

June 24, 2008, to discuss the presentence investigation

report (“PSR”) and Koons’s objections to it. Among other

things, the PSR echoed Agent Foreman’s testimony that

Koons consented to the search of his home. Trial counsel

filed several objections to the PSR regarding sentencing

issues, but none addressing the officer’s visit to Koons’s

employment or the search of his home.

During Koons’s sentencing hearing on July 7, 2008, the

district court summarized from the PSR that Koons

consented to the search of his home. No one at the sentencing hearing mentioned that Koons proposed a conflicting version of the events on April 19 or that there

was any allegation that he was forced to accompany

officers to his home and let them in. The district court

sentenced Koons to 180 months of imprisonment and

five years of supervised release.

Koons moved to vacate his conviction and sentence

on collateral appeal pursuant to 28 U.S.C. § 2255. His

petition alleges that trial counsel was constitutionally
No. 09-3025 5

deficient during the plea process for, among other things,

failing to investigate the potential Fourth Amendment

claim Koons discussed in his petition and for not

moving to suppress or object to the inclusion of evidence

discovered as a result of the alleged Fourth Amendment

violation. Koons also sought an evidentiary hearing.

The government’s response included an affidavit from

trial counsel that we discuss in more depth below. The

district court denied Koons’s habeas petition and

request for an evidentiary hearing. Koons appeals.

II. Analysis

A. Ineffective Assistance of Counsel

Koons argues that trial counsel was constitutionally

inadequate for failing to investigate the circumstances

surrounding the search of his home on April 19 and

for neglecting to move to suppress the evidence collected as a result of the search. Although “an unconditional guilty plea waives all non-jurisdictional defects

occurring prior to the plea,” United States v. Villegas, 388

F.3d 317, 322 (7th Cir. 2004) (quoting United States v.

Elizalde-Adame, 262 F.3d 637, 639 (7th Cir. 2001)), Koons

can challenge the validity of his guilty plea by demonstrating that he received ineffective assistance from

counsel during the plea process, Hill v. Lockhart, 474

U.S. 52, 56 (1984); Villegas, 388 F.3d at 322-23. As the

following discussion demonstrates, however, Koons’s

challenge does not succeed.

The Sixth Amendment provides criminal defendants

the right to counsel. U.S. CONST. amend. VI. “[I]nherent
6 No. 09-3025

in this right is that the defendant is entitled to the

effective assistance of counsel. . . . The important inquiry

is ‘whether counsel’s conduct so undermined the

proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.’ ” United States v. Recendiz, 557 F.3d 511, 531 (7th Cir.

2009) (quoting Strickland v. Washington, 466 U.S. 668,

686 (1984)). To prevail on an ineffective assistance claim,

a petitioner must establish that his “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at

687. Whether trial counsel provided constitutionally

inadequate assistance is a mixed question of law and

fact that we review de novo. Recendiz, 557 F.3d at 531;

see also Strickland, 466 U.S. at 698.

To demonstrate deficient performance, the petitioner

must show “that counsel’s representation fell below an

objective standard of reasonableness.” Strickland, 446

U.S. at 688. “This means identifying acts or omissions

of counsel that could not be the result of professional

judgment. The question is whether an attorney’s representation amounted to incompetence under prevailing

professional norms, not whether it deviated from best

practices or most common custom.” Sussman v. Jenkins,

No. 09-3940, slip op. at 47 (7th Cir. Apr. 1, 2011) (internal

quotation marks and citations omitted). “Our review of

the attorney’s performance is ‘highly deferential’ and

reflects ‘a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the chal-
No. 09-3025 7

lenged action might be considered sound trial strategy.’ ” Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004)

(quoting Strickland, 446 U.S. at 689); see also Harrington

v. Richter, 131 S.Ct. 770, 787 (2011) (“A court considering

a claim of ineffective assistance must apply a strong

presumption that counsel’s representation was within

the wide range of reasonable professional assistance.

The challenger’s burden is to show that counsel made

errors so serious that counsel was not functioning as the

counsel guaranteed the defendant by the Sixth Amendment.” (internal quotation marks and citation omitted)).

To establish prejudice in the plea context, the

defendant must demonstrate through objective evidence

that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Lockhart, 474 U.S. at 59; see

also Premo v. Moore, 131 S.Ct. 733, 743 (2011); Berkey v.

United States, 318 F.3d 768, 773 (7th Cir. 2003); Hutchings

v. United States, 618 F.3d 693, 697 (7th Cir. 2010).

Merely alleging “that he would have insisted on going

to trial” is inadequate. Hutchings, 618 F.3d at 697.

We need not reach the “prejudice” inquiry, however,

because Koons fails to establish that trial counsel’s performance was constitutionally deficient. See Strickland,

466 U.S. at 687, 697; Milone v. Camp, 22 F.3d 693, 703-04

(7th Cir. 1994); see also Chang v. United States, 250 F.3d

79, 84 (2d Cir. 2001).

Aside from Koons’s § 2255 petition, the record evidence

unequivocally supports the government’s version of

the events—that Koons voluntarily consented to the

search and, thus, that he had no viable Fourth Amend-
8 No. 09-3025

ment claim. See United States v. Johnson, 495 F.3d 536, 541-

42 (7th Cir. 2007). For example, at Koons’s change-ofplea hearing, Agent Foreman testified that the search

was consensual. He explained that when one of the

officers went to Koons’s place of employment and asked

to speak with him, “Koons agreed to talk to the officer

and . . . offered to turn over the guns to the officer if

the officer would drive him home immediately. The

officer drove Koons home, and Koons invited officers

inside his house so that he could turn over the firearms

that he had to them.” Koons acknowledged in open

court that he was able to hear Agent Foreman’s testimony

and that it was all true, except for a portion unrelated

to the alleged Fourth Amendment violation. In addition, Koons’s PSR included the same version of Koons’s

home search that Agent Foreman testified to at Koons’s

change-of-plea hearing. At his sentencing hearing,

Koons acknowledged that he had an opportunity to

review the PSR and that, other than the objections he

filed that were unrelated to the search of his home, the

PSR was “true and accurate.” He also stated in open

court, “I know what I did is wrong. I know that. I admitted

that from the jump about the guns. . . . I tried—I knew

I’d done wrong. I tried my best to clear it up by turning

them over to the officers when they come, and they

didn’t have to get a warrant or any of that. I told them

right away.”

Despite numerous opportunities, Koons not once informed the court that the officer who approached Koons

at work on April 19 falsely claimed to have a warrant, brandished a weapon, and required Koons to accompany him to Koons’s home and let him in. Rather, Koons
No. 09-3025 9

repeatedly acknowledged that he voluntarily consented.

We treat sworn statements made in open court most

seriously and demand that parties tell the truth. See, e.g.,

Hutchings, 618 F.3d at 699 (“When a district court

conducts a Rule 11 colloquy, it is not putting on a show

for the defendant, the public, or anybody else. The

purpose of a Rule 11 colloquy is to expose coercion or

mistake, and the district judge must be able to rely on

the defendant’s sworn testimony at that hearing.

Because the court takes a criminal defendant’s rights at

a change-of-plea hearing very seriously, it is reasonable

to expect, and demand, that the criminal defendant do

so as well. For that reason, a defendant is normally

bound by the representations he makes to a court during

the colloquy.” (internal quotation marks and citations

omitted)).

Nonetheless, Koons’s § 2255 petition claims for the first

time in the record that police forced him to consent to

the search of his home. If true, the evidence found during

and as a result of the officer’s search of Koons’s home—

which includes the firearms Koons was charged with

illegally possessing—may have been inadmissible and,

thus, vulnerable to a motion to suppress. See generally

United States v. Ienco, 182 F.3d 517, 526 (7th Cir. 1999)

(discussing the exclusionary rule and the fruit of the

poisonous tree doctrine).

But even if Koons’s allegations about the search are

true, his appeal is foreclosed by the fact that he

never informed trial counsel of the facts giving rise to

the alleged Fourth Amendment violation. See Strickland,

466 U.S. at 689 (“A fair assessment of attorney per-
10 No. 09-3025

We construe Koons’s pro se pleadings liberally and find 2

that his sworn affidavit incorporates by reference the memorandum he submitted supporting his § 2255 petition. See

Hutchings, 618 F.3d at 696 (writing that the defendant “properly

incorporated by reference his Memorandum into his sworn

petition, especially considering his pro se status at the time

of his original filing,” even though his Memorandum was not

signed under penalty of perjury). See generally Anderson

v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001) (discussing our

willingness to liberally construe pro se pleadings).

formance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s

perspective at the time.” (emphasis added)). Koons fails

to allege in his petition, accompanying affidavit, or anywhere else in the record that he even once told trial

counsel the version of events on April 19 that he posits

on appeal. To the contrary, the two most relevant

2

portions of his petition demonstrate that he never told

trial counsel. First, he states in his petition that “Counsel

was ineffective for advising Movant to enter a plea of

guilty, without challenging the evidence, when he either

knew, or reasonably should have known, that the arrest

and subsequent search were warrantless, and for

failing to appeal this meritorious issue.” (emphasis

added). He later writes: 

If counsel did not know the facts surrounding Movant’s

warrantless arrest and subsequent warrantless search
No. 09-3025 11

of his home, then counsel was ineffective for failing

to investigate those facts prior to advising Movant to

plead guilty. If counsel did know about the facts surrounding the warrantless arrest and subsequent

warrantless search of Movant’s home, then counsel

was ineffective for failing to challenge the legality

of the arrest and search, prior to advising Movant

to plead guilty.

(emphasis added).

Other record evidence also indicates that Koons

never told trial counsel that the search was not consensual. First, Koons does not dispute the claims in

trial counsel’s affidavit that he met with Koons

seventeen times between July 30, 2007, and July 7, 2008,

and that he interviewed each witness the government

intended to call. Nonetheless, at Koons’s sentencing

hearing, trial counsel told the court that when the

officer arrived at Koons’s workplace, Koons said

“[y]ou’re here about the guns; let’s go get them,” and then

“[h]anded them over immediately.” We find no reason

in the record to believe that trial counsel knowingly

mislead the district court, and Koons makes no attempt

to provide one. Second, in response to Koons’s claim

that trial counsel should have objected to the legality of

the search, trial counsel’s affidavit explains that “it is

clear from the case that Mr. Koons talked to police

and took them to his house and gave them the guns.”

Although less descriptive than we might hope, the affidavit undoubtedly indicates that Koons never told trial

counsel of the alleged Fourth Amendment violation.
12 No. 09-3025

Notably, Koons’s briefs on appeal claim that he told

trial counsel his version of the events on April 19 and

that trial counsel dismissed Koons out of hand as a liar.

But, as the foregoing discussion indicates, we find no

support in the record for this claim.

Accordingly, Koons’s two arguments that he received

ineffective assistance of counsel are vacuous. He first

claims that trial counsel was ineffective for failing to

investigate his alleged Fourth Amendment claim. “It

is well recognized that counsel must engage in a reasonable investigation or come to a defensible decision

that a particular investigation is unnecessary. When

counsel determines that investigation is unnecessary,

his decision ‘must be directly assessed for reasonableness in all the circumstances, applying a heavy measure

of deference to counsel’s judgments.” United States v.

Lathrop, No. 10-1099, slip op. at 12 (7th Cir. Mar. 2, 2011)

(quoting Strickland, 466 U.S. at 691). It is appropriate

to consider what Koons told trial counsel when determining the reasonableness of trial counsel’s investigation. See Strickland, 466 U.S. at 691 (“The reasonableness

of counsel’s actions may be determined or substantially

influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly,

on informed strategic choices made by the defendant

and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.”).

Trial counsel’s investigation, which included meeting

with Koons seventeen times and interviewing each witness
No. 09-3025 13

the government intended to call, was undoubtedly adequate. See id. at 688-91; Lathrop, No. 10-1099, slip op. at 12.

The most obvious source of information regarding

the alleged Fourth Amendment violation was Koons

himself. But Koons never informed trial counsel of the

alleged Fourth Amendment violation, and the record

provides no indication that trial counsel should or could

have learned the version of events Koons posits on

appeal by doing anything more than he did to investigate the case. See Strickland, 466 U.S. at 691 (“[W]hen a

defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even

harmful, counsel’s failure to pursue those investigations

may not later be challenged as unreasonable.”); United

States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (“An ineffective assistance of counsel claim cannot rest upon counsel’s alleged failure to engage in a scavenger hunt

for potentially exculpatory information with no detailed

instruction on what this information may be or where

it might be found.”). Further, Koons fails to suggest

particular ways in which trial counsel should have

more completely investigated the events of April 19.

Evaluating trial counsel’s “conduct from [his] perspective at the time” of the investigation, we simply have

no basis to conclude that his investigation was constitutionally deficient. Strickland, 466 U.S. at 689; see also

Smith v. Gaetz, 565 F.3d 346, 352-53 (7th Cir. 2009).

Koons next argues that trial counsel should have filed

a motion to suppress the evidence that resulted

from the allegedly improper search of Koons’s home.

See Gentry v. Sevier, 597 F.3d 838, 851-52 (7th Cir. 2010)
14 No. 09-3025

(holding that counsel’s failure to file a motion to suppress constituted deficient assistance). Again, however,

since Koons never told trial counsel that police forced

him to consent to the home search, and, thus, never

gave trial counsel any reason to believe that a motion

to suppress would have any chance of success, trial counsel’s failure to seek suppression was objectively reasonable and does not constitute ineffective assistance. See

Strickland, 466 U.S. at 689.

We conclude that the record forecloses any claim that

Koons received constitutionally ineffective assistance

during the plea process, or that Koons did not otherwise knowingly and voluntarily plead guilty. We

thus affirm the district court’s denial of Koons’s habeas

petition.

B. Evidentiary Hearing

Koons also argues that the district court erroneously

refused to conduct an evidentiary hearing to evaluate

his ineffective assistance claim. “The court should grant

an evidentiary hearing on a § 2255 motion when the

petitioner alleges facts that, if proven, would entitle him

to relief.” Hutchings, 618 F.3d at 699 (internal quotation

marks and citation omitted). But courts may “deny an

evidentiary hearing where the motion, files, and records

of the case conclusively show that the prisoner is

entitled to no relief.” Torzala v. United States, 545 F.3d 517,

525 (7th Cir. 2008); 28 U.S.C. § 2255(b); see also Hutchings,

618 F.3d at 699-700. Reviewing for abuse of discretion,

Hutchings, 618 F.3d 700; Almonacid v. United States, 476
No. 09-3025 15

F.3d 518, 521 (7th Cir. 2007), we affirm the district court’s

denial of Koons’s motion for an evidentiary hearing.

As our discussion above demonstrates, the record conclusively shows that Koons is not entitled to relief.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of

the district court.

4-28-11