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Torres-Chavez v. United States

United States Court of Appeals, Seventh Circuit

July 7, 2016

Alfonso Torres-Chavez, Petitioner-Appellant,
United States of America, Respondent-Appellee.

          Argued April 27, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 9405 - Amy J. St. Eve, Judge.

          Before Flaum, Manion, and Williams, Circuit Judges.

          PER CURIAM.

         Alfonso 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.

         I. Background

         Torres-Chavez 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.

         Lucatero 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.

         A few 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.

         At 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.

         Torres-Chavez's 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.

         In his 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.

         Torres-Chavez 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.

         In 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.

         The 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 ...

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