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Delatorre v. United States

United States Court of Appeals, Seventh Circuit

February 3, 2017

Fernando Delatorre, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued September 28, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 1355 - Ruben Castillo, Chief Judge

          Before Kanne, Sykes, and Hamilton, Circuit Judges.

          Kanne, Circuit Judge.

         A jury convicted Fernando Delatorre of several felonies. He was sentenced to life in prison, and his conviction and sentence were affirmed on appeal. He then filed a motion to vacate, set aside, or correct his sentence, arguing that (1) the prosecutor committed misconduct by reneging on a promise to provide him with a plea agreement and (2) his pretrial counsel's performance was constitutionally ineffective. The district court rejected these claims and denied his collateral motion.

         Because Delatorre failed to raise the prosecutorial- misconduct claim in the district court or on direct appeal, we hold that this claim has been procedurally defaulted. We further hold that Delatorre has failed to meet the cause-and-prejudice standard necessary to overcome procedural default. We therefore do not address the merits of that claim. Finally because Delatorre's pretrial counsel was not deficient and because Delatorre suffered no prejudice as a result of his counsel's performance, we reject his claim of ineffective assistance of counsel.

         I. Background

         Delatorre was a member of the Insane Deuces street gang in Aurora, Illinois. In 2002, state and federal authorities- assisted by Delatorre's fellow gang member Orlando Rivera, who had agreed to serve as a confidential informant-began investigating the gang. Rivera worked with the authorities and recorded several meetings and conversations between active members of the gang, including Delatorre. Through these recordings, Rivera produced evidence of the gang members' many crimes, including at least four murders, eleven attempted murders, two solicitations to commit murder, several shootings, and numerous drug offenses.

         On January 31, 2003, Delatorre was arrested for his connections to these crimes. Shortly after his arrest, he confessed to his involvement in at least three of the murders. In 2006, Delatorre and fifteen other gang members were indicted on racketeering and other related charges. The district court then divided the sixteen defendants into two groups for trial. Delatorre was tried with other gang leaders. A jury convicted him of (1) engaging in racketeering conspiracy; (2) murder in aid of racketeering activity; (3) conspiracy to distribute a controlled substance; (4) assault with a dangerous weapon in aid of racketeering activity; (5) distribution of crack cocaine; and (6) possession of a firearm with an obliterated serial number. He was sentenced to life in prison.

         Delatorre and his codefendants raised several arguments on appeal. We rejected each of those arguments in two separate opinions. See United States v. Benabe, 654 F.3d 753 (7th Cir. 2011); United States v. Benabe, 436 Fed.App'x 639 (7th Cir. 2011). Delatorre then filed a petition for a writ of certiorari in the Supreme Court. On February 21, 2012, the Supreme Court denied that petition.

         On February 6, 2013, Delatorre moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the Northern District of Illinois. In that motion, he argued that (1) the prosecutor committed misconduct by reneging on a promise to provide a plea agreement and (2) his pretrial counsel was constitutionally ineffective.[1]

         Delatorre based his prosecutorial-misconduct and inef-fective-assistance-of-counsel claims on events associated with his cooperation with the government beginning in February of 2003, shortly after his arrest. At that time, he participated in eight to ten proffer sessions with the United States Attorney's Office. A proffer letter, which Delatorre and the prosecutor both signed, outlined the cooperation arrangement. In exchange for his cooperation and truthful testimony both during the proffer sessions and at subsequent court appearances, the government agreed not to use "anything related to the government by [Delatorre or his attorney] during the proffer" in any subsequent criminal proceedings filed against Delatorre. (R. 1 at 34.) The letter further explained that it "embodie[d] the entirety of the agreement to make a proffer .... No other promise or agreement exist[ed] between [Delatorre] and [the government] regarding the proffer." (R. 1 at 35.)

         At one of the later proffer sessions, Delatorre asked the prosecutor how much time he was "eventually going to have to serve[.]" (R. 1 at 12.) The prosecutor responded "A long time." (R. 1 at 12.) Unsatisfied with this answer, Delatorre repeated his request. The prosecutor responded "A long time, you were involved in too much." (R. 1 at 13.) Delatorre then asked the prosecutor "exactly how long" he would have to serve, and the prosecutor responded "You will serve 25-30 years." (R. 1 at 13.) The prosecutor further explained that he intended to provide Delatorre with a plea agreement if he continued to cooperate, but that he would have to serve at least twenty-five to thirty years because the government "h[eld] all the cards." (R. 1 at 13.)

         After completing these proffer sessions, Delatorre requested a formal plea agreement that included the twenty-five to thirty year term. The prosecutor "made it very clear that at that point he could not provide [Delatorre] with a plea or anything in writing and would not with respect to the 25-30 year offer." (R. 1 at 13.) Instead, the prosecutor in- structed Delatorre to "continue cooperating, take a leap of faith, and ...


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