Fernando Delatorre v. United States
2017 U.S. App. LEXIS 2031, 2017 WL 461090, 847 F.3d 837 (2017)
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Rule of Law:
A claim is procedurally defaulted if it could have been raised at trial or on direct appeal but is raised for the first time on collateral review, unless the petitioner demonstrates actual innocence or cause and prejudice. Ineffective assistance of counsel claims require a showing that counsel's performance was deficient and that this deficiency prejudiced the defendant, a standard not met when a plea agreement was conditioned on cooperation that the defendant refused.
Facts:
- Fernando Delatorre was a member of the Insane Deuces street gang in Aurora, Illinois.
- In 2002, state and federal authorities, with the assistance of confidential informant Orlando Rivera, began investigating the gang, and Rivera recorded meetings and conversations, producing evidence of various crimes by gang members, including Delatorre.
- On January 31, 2003, Delatorre was arrested for his connections to these crimes and shortly thereafter confessed to his involvement in at least three murders.
- Delatorre participated in eight to ten proffer sessions with the United States Attorney’s Office under a proffer letter specifying that it embodied the entire agreement and no other promise existed.
- During a later proffer session, a prosecutor told Delatorre he would serve "25–30 years" and intended to provide a plea agreement if Delatorre continued to cooperate.
- Delatorre requested a formal plea agreement for the 25-30 year term, but the prosecutor refused to provide anything in writing at that point, instructing him to "continue cooperating, take a leap of faith, and play ball."
- Delatorre testified twice before a grand jury without a formal plea agreement in place.
- Despite repeated efforts by his attorney, Fred Morelli, to encourage him to continue cooperating, Delatorre refused to appear for a third grand jury testimony and ceased cooperation, leading to him never receiving a plea agreement.
Procedural Posture:
- In 2006, Fernando Delatorre and fifteen other gang members were indicted on racketeering and other related charges in the United States District Court for the Northern District of Illinois.
- A jury in the district court convicted Delatorre of multiple felonies, including racketeering conspiracy and murder in aid of racketeering.
- Delatorre was sentenced to life in prison by the district court.
- Delatorre and his codefendants appealed their convictions and sentences to the United States Court of Appeals for the Seventh Circuit, which affirmed the judgments in two separate opinions (United States v. Benabe).
- Delatorre filed a petition for a writ of certiorari in the Supreme Court of the United States, which was denied on February 21, 2012.
- On February 6, 2013, Delatorre filed a motion under 28 U.S.C. § 2255 in the United States District Court for the Northern District of Illinois, arguing prosecutorial misconduct and ineffective assistance of counsel.
- The district court rejected Delatorre's claims and denied his § 2255 motion.
- Delatorre filed a motion for reconsideration, which the district court also denied, prompting this appeal to the Seventh Circuit.
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Issue:
1. Is a prosecutorial misconduct claim procedurally defaulted on collateral review when the petitioner was aware of the underlying facts before trial and direct appeal, but failed to raise the claim in those proceedings? 2. Does a pretrial counsel's failure to secure a conditional plea agreement constitute constitutionally ineffective assistance when the defendant himself refused to meet the conditions required for the agreement?
Opinions:
Majority - Kanne, Circuit Judge
No, the prosecutorial misconduct claim is procedurally defaulted, and no, counsel's failure to secure a conditional plea agreement does not constitute constitutionally ineffective assistance under these circumstances. The Seventh Circuit affirmed the district court's denial of Delatorre's § 2255 motion. Regarding the prosecutorial misconduct claim, the court held it was procedurally defaulted because Delatorre failed to raise it during his trial or on direct appeal. Citing Hale v. United States, the court stated that any claim that could have been raised at trial and on direct appeal but is raised for the first time on collateral review is procedurally defaulted. Delatorre failed to meet the "cause-and-prejudice" standard to overcome this default. The court rejected Delatorre's argument that he was unaware of the constitutional ramifications, holding that subjective unawareness of constitutional violations is not sufficient cause when all underlying facts were known (Theodorou v. United States). Furthermore, the court distinguished this claim from ineffective assistance claims, noting that the need for extrinsic evidence was self-created by Delatorre's failure to raise the claim earlier, not inherent to the claim itself. Regarding the ineffective assistance of counsel claim, the court excused the procedural default, recognizing that such claims often require augmentation of the record and are generally permitted to be raised for the first time on collateral review (Massaro v. United States). However, applying the Strickland v. Washington test, the court found no deficient performance or prejudice. Morelli's performance was not deficient because the prosecutor's "promise" of a plea agreement was explicitly conditioned on Delatorre's continued cooperation, which Delatorre ceased. Morelli repeatedly advised Delatorre to cooperate and cannot be faulted for Delatorre's refusal or the government's subsequent decision not to offer a plea to an uncooperative defendant, as prosecutors have no obligation to offer plea agreements (United States v. Hall). Delatorre also suffered no prejudice, as it was his own "stubborn refusal to continue cooperating" that prevented a plea deal, not his attorney's actions. No evidence suggested the prosecutor would have offered a deal to an uncooperative defendant even with different counsel.
Analysis:
This case reinforces the stringent requirements for overcoming procedural default, particularly for claims that could have been litigated at earlier stages, distinguishing them from claims like ineffective assistance of counsel which often require an expanded record. It clarifies that a defendant cannot establish "cause" for procedural default simply by claiming subjective unawareness of a claim's constitutional basis when the underlying facts were known. Furthermore, the decision provides a practical application of the Strickland test in the plea-bargaining context, emphasizing that a defendant's own non-cooperation, rather than counsel's performance, can preclude a finding of deficient performance or prejudice when a plea offer is contingent on such cooperation. This means attorneys are not expected to secure plea deals despite a client's non-compliance with explicit conditions.
