Koons v. U.S.

• Decision Date: 28 April 2011
• Docket Number: No. 09–3025.,09–3025.
• Parties: Andrew C. KOONS, Petitioner–Appellant,v.UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

639 F.3d 348

Andrew C. KOONS, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 09–3025.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 21, 2011.Decided April 28, 2011.

Jennifer Michelle Lee (argued), Attorney, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL, for Petitioner–Appellant.Gerald A. Coraz (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Respondent–Appellee.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 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 employment 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 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 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, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); 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 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052.

To demonstrate deficient performance, the petitioner must show “that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. “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, 636 F.3d 329, 349 (7th Cir.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 challenged action might be considered sound trial strategy.’ ” Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir.2004) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052); see also Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (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, 106 S.Ct. 366; see also Premo v. Moore, ––– U.S. ––––, 131 S.Ct. 733, 743, 178 L.Ed.2d 649 (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, 104 S.Ct. 2052; Milone v. Camp, 22 F.3d 693, 703–04 (7th Cir.1994); see also ...