April 27, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14 C 9405 - Amy
J. St. Eve, Judge.
Flaum, Manion, and Williams, Circuit Judges.
Torres-Chavez was sentenced to 14 years' imprisonment
after a jury found him guilty of conspiring to distribute
cocaine, 21 U.S.C. §§ 846, 841(a)(1), possessing
with intent to distribute cocaine, id. §
841(a)(1), and using a cellular phone to facilitate the
distribution conspiracy, id. § 843(b). After
his conviction was affirmed on appeal, Torres-Chavez sought
collateral relief under 28 U.S.C. § 2255. Torres-Chavez
claims that six months before trial, the government offered a
plea agreement that provided for 10 years'
imprisonment-the statutory minimum for conspiring to
distribute more than 5 kilograms of cocaine. 21 U.S.C. §
841(b)(1)(A)(ii)(II). He alleges that his counsel was
constitutionally ineffective for advising him that the
government lacked enough evidence to convict him at trial and
that he should therefore reject the plea agreement. The
district court denied Torres-Chavez's motion without
holding an evidentiary hearing, finding that this advice was
not objectively unreasonable. But that ruling was premature:
the record contains no evidence about what
Torres-Chavez's counsel knew about the government's
case against his client at the time of the offer, and the
government's case at trial was quite strong. So we vacate
the district court's dismissal of Torres-Chavez's
§ 2255 motion and remand for an evidentiary hearing.
was a member of the drug-trafficking cartel "La Familia,
" which is based in Michoacán, Mexico. The U.S.
Drug Enforcement Administration (DEA) recorded phone
conversations between José Gonzalez-Zavala (one of
Torres-Chavez's co-conspirators) and "Guero"
(later identified as Torres-Chavez) in which the two
discussed the cartel's cocaine transactions. In those
conversations, Gonzalez-Zavala instructed Torres-Chavez and
another co-conspirator, Bartolo Lucatero, to distribute
cocaine in Chicago.
was indicted first, in November 2009. Almost a year later,
Torres-Chavez was indicted after Lucatero agreed to cooperate
with the government and identified Torres-Chavez as Guero.
(Before Lucatero's cooperation, and despite a lengthy
investigation, Torres-Chavez had not been identified.)
Torres-Chavez says that approximately six months before
trial, the government approached him with a plea offer, which
he rejected upon the advice of his counsel.
weeks before trial, the defense strategy solidified and a
clearer picture of the government's evidence emerged. At
a pre-trial status hearing, Torres-Chavez's counsel said
"the defense is predicated on the fact that they have
the wrong party." The government proffered the testimony
of Jorge Ayala-German, a co-conspirator and the caretaker of
one of the cartel's stash houses; the testimony of
Lucatero, who would identify Torres-Chavez as Guero and
testify about a 2007 drug deal with Torres-Chavez; and a
summary of eight intercepted phone calls. A few days before
trial, the government informed defense counsel that
Ayala-German would also identify Torres-Chavez's voice.
trial, the government introduced substantial evidence
involving Torres-Chavez's participation in the
conspiracy: (1) the recorded phone calls, translated from
Spanish; (2) Lucatero's testimony that Torres-Chavez was
Guero, about Torres-Chavez's involvement in the charged
conspiracy and drug transactions, and about his previous drug
dealing with Torres-Chavez; (3) a contract linguist's
testimony that Torres-Chavez's voice matched Guero's
voice on the recordings; (4) Ayala-German's testimony
that he recognized Torres-Chavez's voice on the phone
recordings; and (5) airline records showing that a ticket was
issued to "Alfonso Chavez" for a flight departing
O'Hare International Airport a few hours after Guero was
recorded saying he needed to catch a flight.
counsel tried to discredit the identification of
Torres-Chavez as Guero. Counsel elicited testimony from a DEA
agent that the DEA was unaware of Guero's identity until
Lucatero identified Torres-Chavez. Counsel later argued that
Lucatero was a "self-admitted liar" who
conveniently inculpated Torres-Chavez whenever he got in
trouble with the police. Counsel also elicited testimony from
the linguist that her analysis was based solely on listening
to audio samples from the intercepted calls and the
recordings made of Torres-Chavez's voice in jail, and
that she did not use voice-recognition software or analyze
sound waves or biometric captures. In addition, counsel
attacked Ayala-German's credibility by pointing to his
plea agreement, his memory problems from drug use, and his
illegal entry into the United States. Counsel also emphasized
that AyalaGerman had lied when he first met with government
officials, and that his voice identification of Torres-Chavez
was based on only two conversations. The jury returned a
guilty verdict on all counts and the district court sentenced
Torres-Chavez to 168 months' imprisonment.
initial appeal, Torres-Chavez challenged the sufficiency of
the evidence identifying him as Guero. See generally
United States v. Torres-Chavez, 744 F.3d 988 (7th Cir.
2014). But we affirmed his conviction, concluding that the
testimonies of Lucatero, Ayala-German, and the linguist were
sufficiently persuasive. Id.
then moved for collateral relief under 28 U.S.C. § 2255,
claiming ineffective assistance of counsel. He argued that
his trial counsel advised him to reject the plea offer
because the "government lacked the evidence to convict,
" and because "there was no way that he could get
ten years." Torres-Chavez further complained that his
lawyer did not show him the plea agreement.
response, the government argued that Torres-Chavez merely
alleged that his attorney "wrongly predicted victory at
trial"-an insufficient ground for an
ineffective-assistance claim. The government also argued that
Torres-Chavez had not pointed to any facts demonstrating that
his counsel's forecast was unreasonable. Instead, the
record suggested that Torres-Chavez's conviction was not
a forgone conclusion before trial: the government's
evidence centered on Lucatero's identification of
Torres-Chavez, which Lucatero agreed to provide in exchange
for a favorable plea deal. The government argued in the
alternative that if counsel's performance unreasonable,
an evidentiary hearing should be held to explore whether
Torres-Chavez had suffered prejudice.
district court agreed with the government and, without
holding an evidentiary hearing, denied Torres-Chavez's
motion. Accepting his allegations as true, the court found
that Torres-Chavez had not overcome the presumption that his
counsel's advice to proceed to trial was a sound
strategic decision based on his assessment of the
government's evidence. The court also found that
conviction was not assured because of the importance of
Lucatero's credibility. In addition, the court found that
an evidentiary hearing was unnecessary, since ...