Andrew C. Koons v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3025
ANDREW C. KOONS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 3:08-CV-00191—Richard L. Young, Chief Judge.
ARGUED JANUARY 21, 2011—DECIDED APRIL 28, 2011
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 ineffec-
tive assistance of counsel, arguing that his trial counsel
failed to pursue a potential Fourth Amendment claim
that may have warranted suppressing significant evi-
dence against him. In the alternative, Koons requests

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2 No. 09-3025
The record does not conclusively indicate how many officers 1
went to Koons’s workplace. This opinion refers to a single
officer, although more than one may have been present
during the events discussed.
an evidentiary hearing to evaluate his ineffective
assistance claim. The district court denied Koons’s mo-
tion. 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 govern-
ment 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 im-
mediately. 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 employ-

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No. 09-3025 3
ment 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 gov-
ernment’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” dis-
cussed doing so with trial counsel. The government

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4 No. 09-3025
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 sen-
tencing hearing mentioned that Koons proposed a con-
flicting 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

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No. 09-3025 5
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 col-
lected as a result of the search. Although “an uncondi-
tional 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 demon-
strating that he received ineffective assistance from
counsel during the plea process, Hill v. Lockhart, 474
U.S. 52, 56 (1984); 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

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6 No. 09-3025
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 re-
sult.’ ” United States v. Recendiz, 557 F.3d 511, 531 (7th Cir.
2009) (quoting Strickland v. Washington, 466 U.S. 668,
686 (1984)). To prevail on an ineffective assistance claim,
a petitioner must establish that his “counsel’s per-
formance was deficient” and that “the deficient perfor-
mance prejudiced the defense.” Strickland, 466 U.S. at
687. 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.
To demonstrate deficient performance, the petitioner
must show “that counsel’s representation fell below an
objective standard of reasonableness.” Strickland, 446
U.S. at 688. “This means identifying acts or omissions
of counsel that could not be the result of professional
judgment. The question is whether an attorney’s repre-
sentation amounted to incompetence under prevailing
professional norms, not whether it deviated from best
practices or most common custom.” Sussman v. Jenkins,
No. 09-3940, slip op. at 47 (7th Cir. Apr. 1, 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 chal-

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No. 09-3025 7
lenged action might be considered sound trial strat-
egy.’ ” Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004)
(quoting Strickland, 446 U.S. at 689); see also Harrington
v. Richter, 131 S.Ct. 770, 787 (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 Amend-
ment.” (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 coun-
sel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Lockhart, 474 U.S. at 59; see
also Premo v. Moore, 131 S.Ct. 733, 743 (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 per-
formance was constitutionally deficient. See Strickland,
466 U.S. at 687, 697; Milone v. Camp, 22 F.3d 693, 703-04
(7th Cir. 1994); see also Chang v. United States, 250 F.3d
79, 84 (2d Cir. 2001).
Aside from Koons’s § 2255 petition, the record evidence
unequivocally supports the government’s version of
the events—that Koons voluntarily consented to the
search and, thus, that he had no viable Fourth Amend-

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8 No. 09-3025
ment claim. See United States v. Johnson, 495 F.3d 536, 541-
42 (7th Cir. 2007). For example, at Koons’s change-of-
plea hearing, Agent Foreman testified that the search
was consensual. He explained that when one of the
officers went to Koons’s place of employment and asked
to speak with him, “Koons agreed to talk to the officer
and . . . offered to turn over the guns to the officer if
the officer would drive him home immediately. The
officer drove Koons home, and Koons invited officers
inside his house so that he could turn over the firearms
that he had to them.” Koons acknowledged in open
court that he was able to hear Agent Foreman’s testimony
and that it was all true, except for a portion unrelated
to the alleged Fourth Amendment violation. In addi-
tion, Koons’s PSR included the same version of Koons’s
home search that Agent Foreman testified to at Koons’s
change-of-plea hearing. At his sentencing hearing,
Koons acknowledged that he had an opportunity to
review the PSR and that, other than the objections he
filed that were unrelated to the search of his home, the
PSR was “true and accurate.” He also stated in open
court, “I know what I did is wrong. I know that. I admitted
that from the jump about the guns. . . . I tried—I knew
I’d done wrong. I tried my best to clear it up by turning
them over to the officers when they come, and they
didn’t have to get a warrant or any of that. I told them
right away.”
Despite numerous opportunities, Koons not once in-
formed the court that the officer who approached Koons
at work on April 19 falsely claimed to have a war-
rant, brandished a weapon, and required Koons to accom-
pany him to Koons’s home and let him in. Rather, Koons

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No. 09-3025 9
repeatedly acknowledged that he voluntarily consented.
We treat sworn statements made in open court most
seriously and demand that parties tell the truth. See, e.g.,
Hutchings, 618 F.3d at 699 (“When a district court
conducts a Rule 11 colloquy, it is not putting on a show
for the defendant, the public, or anybody else. The
purpose of a Rule 11 colloquy is to expose coercion or
mistake, and the district judge must be able to rely on
the defendant’s sworn testimony at that hearing.
Because the court takes a criminal defendant’s rights at
a change-of-plea hearing very seriously, it is reasonable
to expect, and demand, that the criminal defendant do
so as well. For that reason, a defendant is normally
bound by the representations he makes to a court during
the colloquy.” (internal quotation marks and citations
omitted)).
Nonetheless, Koons’s § 2255 petition claims for the first
time in the record that police forced him to consent to
the search of his home. If true, the evidence found during
and as a result of the officer’s search of Koons’s home—
which includes the firearms Koons was charged with
illegally possessing—may have been inadmissible and,
thus, vulnerable to a motion to suppress. See generally
United States v. Ienco, 182 F.3d 517, 526 (7th Cir. 1999)
(discussing the exclusionary rule and the fruit of the
poisonous tree doctrine).
But even if Koons’s allegations about the search are
true, his appeal is foreclosed by the fact that he
never informed trial counsel of the facts giving rise to
the alleged Fourth Amendment violation. See Strickland,
466 U.S. at 689 (“A fair assessment of attorney per-

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10 No. 09-3025
We construe Koons’s pro se pleadings liberally and find 2
that his sworn affidavit incorporates by reference the memo-
randum he submitted supporting his § 2255 petition. See
Hutchings, 618 F.3d at 696 (writing that the defendant “properly
incorporated by reference his Memorandum into his sworn
petition, especially considering his pro se status at the time
of his original filing,” even though his Memorandum was not
signed under penalty of perjury). See generally Anderson
v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001) (discussing our
willingness to liberally construe pro se pleadings).
formance requires that every effort be made to
eliminate the distorting effects of hindsight, to recon-
struct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time.” (emphasis added)). Koons fails
to allege in his petition, accompanying affidavit, or any-
where else in the record that he even once told trial
counsel the version of events on April 19 that he posits
on appeal. To the contrary, the two most relevant2
portions of his petition demonstrate that he never told
trial counsel. First, he states in his petition that “Counsel
was ineffective for advising Movant to enter a plea of
guilty, without challenging the evidence, when he either
knew, or reasonably should have known, that the arrest
and subsequent search were warrantless, and for
failing to appeal this meritorious issue.” (emphasis
added). He later writes:
If counsel did not know the facts surrounding Movant’s
warrantless arrest and subsequent warrantless search

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No. 09-3025 11
of his home, then counsel was ineffective for failing
to investigate those facts prior to advising Movant to
plead guilty. If counsel did know about the facts sur-
rounding the warrantless arrest and subsequent
warrantless search of Movant’s home, then counsel
was ineffective for failing to challenge the legality
of the arrest and search, prior to advising Movant
to plead guilty.
(emphasis added).
Other record evidence also indicates that Koons
never told trial counsel that the search was not consen-
sual. First, Koons does not dispute the claims in
trial counsel’s affidavit that he met with Koons
seventeen times between July 30, 2007, and July 7, 2008,
and that he interviewed each witness the government
intended to call. Nonetheless, at Koons’s sentencing
hearing, trial counsel told the court that when the
officer arrived at Koons’s workplace, Koons said
“[y]ou’re here about the guns; let’s go get them,” and then
“[h]anded them over immediately.” We find no reason
in the record to believe that trial counsel knowingly
mislead the district court, and Koons makes no attempt
to provide one. Second, in response to Koons’s claim
that trial counsel should have objected to the legality of
the search, trial counsel’s affidavit explains that “it is
clear from the case that Mr. Koons talked to police
and took them to his house and gave them the guns.”
Although less descriptive than we might hope, the af-
fidavit undoubtedly indicates that Koons never told trial
counsel of the alleged Fourth Amendment violation.

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12 No. 09-3025
Notably, Koons’s briefs on appeal claim that he told
trial counsel his version of the events on April 19 and
that trial counsel dismissed Koons out of hand as a liar.
But, as the foregoing discussion indicates, we find no
support in the record for this claim.
Accordingly, Koons’s two arguments that he received
ineffective assistance of counsel are vacuous. He first
claims that trial counsel was ineffective for failing to
investigate his alleged Fourth Amendment claim. “It
is well recognized that counsel must engage in a rea-
sonable investigation or come to a defensible decision
that a particular investigation is unnecessary. When
counsel determines that investigation is unnecessary,
his decision ‘must be directly assessed for reasonable-
ness in all the circumstances, applying a heavy measure
of deference to counsel’s judgments.” United States v.
Lathrop, No. 10-1099, slip op. at 12 (7th Cir. Mar. 2, 2011)
(quoting Strickland, 466 U.S. at 691). It is appropriate
to consider what Koons told trial counsel when deter-
mining the reasonableness of trial counsel’s investiga-
tion. See Strickland, 466 U.S. at 691 (“The reasonableness
of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or ac-
tions. Counsel’s actions are usually based, quite properly,
on informed strategic choices made by the defendant
and on information supplied by the defendant. In par-
ticular, what investigation decisions are reasonable de-
pends critically on such information.”).
Trial counsel’s investigation, which included meeting
with Koons seventeen times and interviewing each witness

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No. 09-3025 13
the government intended to call, was undoubtedly ade-
quate. See id. at 688-91; Lathrop, No. 10-1099, slip op. at 12.
The most obvious source of information regarding
the alleged Fourth Amendment violation was Koons
himself. But Koons never informed trial counsel of the
alleged Fourth Amendment violation, and the record
provides no indication that trial counsel should or could
have learned the version of events Koons posits on
appeal by doing anything more than he did to inves-
tigate the case. See Strickland, 466 U.S. at 691 (“[W]hen a
defendant has given counsel reason to believe that pur-
suing certain investigations would be fruitless or even
harmful, counsel’s failure to pursue those investigations
may not later be challenged as unreasonable.”); United
States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (“An inef-
fective assistance of counsel claim cannot rest upon coun-
sel’s alleged failure to engage in a scavenger hunt
for potentially exculpatory information with no detailed
instruction on what this information may be or where
it might be found.”). Further, Koons fails to suggest
particular ways in which trial counsel should have
more completely investigated the events of April 19.
Evaluating trial counsel’s “conduct from [his] perspec-
tive at the time” of the investigation, we simply have
no basis to conclude that his investigation was constitu-
tionally deficient. Strickland, 466 U.S. at 689; see also
Smith v. Gaetz, 565 F.3d 346, 352-53 (7th Cir. 2009).
Koons next argues that trial counsel should have filed
a motion to suppress the evidence that resulted
from the allegedly improper search of Koons’s home.
See Gentry v. Sevier, 597 F.3d 838, 851-52 (7th Cir. 2010)

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14 No. 09-3025
(holding that counsel’s failure to file a motion to sup-
press constituted deficient assistance). Again, however,
since Koons never told trial counsel that police forced
him to consent to the home search, and, thus, never
gave trial counsel any reason to believe that a motion
to suppress would have any chance of success, trial coun-
sel’s failure to seek suppression was objectively reason-
able and does not constitute ineffective assistance. See
Strickland, 466 U.S. at 689.
We conclude that the record forecloses any claim that
Koons received constitutionally ineffective assistance
during the plea process, or that Koons did not other-
wise knowingly and voluntarily plead guilty. We
thus affirm the district court’s denial of Koons’s habeas
petition.
B. Evidentiary Hearing
Koons also argues that the district court erroneously
refused to conduct an evidentiary hearing to evaluate
his ineffective assistance claim. “The court should grant
an evidentiary hearing on a § 2255 motion when the
petitioner alleges facts that, if proven, would entitle him
to relief.” Hutchings, 618 F.3d at 699 (internal quotation
marks and citation omitted). But courts may “deny an
evidentiary hearing where the motion, files, and records
of the case conclusively show that the prisoner is
entitled to no relief.” Torzala v. United States, 545 F.3d 517,
525 (7th Cir. 2008); 28 U.S.C. § 2255(b); see also Hutchings,
618 F.3d at 699-700. Reviewing for abuse of discretion,
Hutchings, 618 F.3d 700; Almonacid v. United States, 476

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No. 09-3025 15
F.3d 518, 521 (7th Cir. 2007), we affirm the district court’s
denial of Koons’s motion for an evidentiary hearing.
As our discussion above demonstrates, the record con-
clusively shows that Koons is not entitled to relief.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of
the district court.
4-28-11

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