David C. Perez v. United States of America

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 11, 2007
Decided July 3, 2008
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 06‐4312
DAVID C. PEREZ,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division
No. 04 C 3236
Elaine E. Bucklo,
Judge.
O R D E R
David Perez pleaded guilty to possessing cocaine in violation of 21 U.S.C.
§ 841(a)(1) and was sentenced to 235 months’ imprisonment. His conviction and
sentence were affirmed on appeal. United States v. Gonzalez, 319 F.3d 291, 299‐300 (7th
Cir. 2003). Perez then filed a motion pursuant to 28 U.S.C. § 2255, arguing, among other
things not at issue on appeal, that his attorneys were ineffective. The district court
denied the motion but granted a certificate of appealability, and we now affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-4312 Page 2
I
In March 2000 Perez was pulled over by a state trooper for driving 59 miles per
hour in a 55‐mile‐per‐hour zone. Perez consented to a search of his truck; the search
revealed 130 kilograms of cocaine. Although Perez claimed that he thought the
truckload contained marijuana rather than cocaine, he agreed to cooperate with the
police by making controlled deliveries to the intended recipients. Following the
deliveries, three individuals were arrested for their role in a conspiracy to possess the
cocaine Perez had been trafficking.
Perez agreed to plead guilty and cooperate against his three co‐conspirators.
Consistently with that agreement, Perez testified before the grand jury, yet a few weeks
before the trial of his co‐defendants he stopped cooperating, filed a motion to dismiss
his appointed counsel, and moved to withdraw his guilty plea. After the district court
granted the motion and appointed new counsel, Perez entered into a blind plea
agreement and testified at the trial of his co‐conspirators. On the stand, Perez detailed
his role in the conspiracy, but claimed that he could not identify his co‐defendants or
recall any of his statements to the grand jury.
Following the trial of Perez’s co‐defendants, the district court sentenced Perez to
235 months’ imprisonment (the low end of the then‐mandatory guidelines range) and
we affirmed his conviction and sentence. Gonzalez, 319 F.3d at 299‐300. Perez then
timely filed a § 2255 motion, arguing that his trial attorneys were ineffective because
they failed to move to suppress evidence and failed to inform him of his Fifth
Amendment privilege against self‐incrimination.
Over the course of several months the district court held three evidentiary
hearings on Perez’s claim of ineffective assistance of counsel. At the first hearing, Perez
testified regarding his claim that trial counsel—Micky Forbes and Nathan Diamond‐
Falk—should have moved to suppress evidence resulting from the traffic stop. When
asked if he had been speeding, Perez replied that he did not know. On cross‐
examination, he stated that “I don’t think I was speeding” and “I’m pretty sure I was
going at my speed limit.” Perez also admitted that he had freely and voluntarily
consented to the search of his truck. At later hearings on the matter, Perez’s second
attorney, Diamond‐Falk, testified that he had chosen not to bring a motion to suppress
because the state trooper had a legitimate basis for the stop and, in any event, Perez had
consented to the search of his truck.

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No. 06-4312 Page 3
Perez also testified that Diamond‐Falk failed to advise him that, even after
pleading guilty, he still had a Fifth Amendment privilege against self‐incrimination that
he could invoke during his co‐defendants’ trial. Perez stated that, had he known of his
Fifth Amendment privilege, he would have chosen to remain silent and would not have
received an increased sentence for obstructing justice. On cross‐examination, though,
Perez acknowledged that he had been told that he would lose the benefits of his plea
agreement if he chose not to testify, that the government had been prepared to grant
him immunity and force him to testify, and that if he refused to testify after having been
granted immunity his sentence would likely have been increased just as much.
Attorney Diamond‐Falk testified that he believed that Perez had waived his Fifth
Amendment privilege against self‐incrimination when he pleaded guilty. On cross‐
examination it became clear that Diamond‐Falk had been mistaken in this belief and
that the blind plea did not affect Perez’s privilege until Perez had been sentenced. But
Diamond‐Falk emphasized that, regardless of his own mistaken belief, the government
already had obtained authorization to immunize Perez and force him to testify, and that
he had explained this to Perez. Diamond‐Falk also stated that he had counseled Perez
that he was required to testify truthfully.
The district court denied Perez’s § 2255 motion. It found that Perez’s first
attorney, Micky Forbes, had not provided ineffective assistance because she had
negotiated a very favorable plea agreement from which Perez withdrew and, in any
event, any motion to suppress “was not likely to be successful.” The court then
concluded that although Perez’s second counsel, Diamond‐Falk, misunderstood the
Fifth Amendment privilege, the error did not amount to ineffective assistance because
the government was prepared to compel Perez’s testimony. Because Perez would have
been forced to testify in either situation and because Diamond‐Falk had advised him to
do so truthfully, the court found “no reason to believe that . . . the outcome would have
been any different.”
II
On appeal Perez first argues for a remand for resentencing in light of United
States v. Booker, 543 U.S. 220 (2005). Perez forfeited this argument by not raising it before
the district court, and so we review it for plain error only. See United States v. Johnson,
415 F.3d 728, 730 (7th Cir. 2005). We have held that Booker does not apply retroactively
to criminal cases that became final before its release in January 2005. McReynolds v.

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No. 06-4312 Page 4
United States, 397 F.3d 479, 481 (7th Cir. 2005). Here, Perez’s conviction became final in
2003, and so Perez is not entitled to a remand under any standard of review.
Perez next asserts that trial counsel violated his Sixth Amendment right to
effective assistance of counsel. Ineffective‐assistance claims are analyzed under the two‐
part test set out in Strickland v. Washington, 466 U.S. 668 (1984), which requires both that
the trial counsel’s performance fell below minimal professional standards and that
counsel’s deficient performance prejudiced the defendant. Id. at 687. This test is a
“mixed question of law and fact reviewed de novo, with a strong presumption that [the]
attorney performed effectively.” Bednarski v. United States, 481 F.3d 530, 534‐35 (7th Cir.
2007).
Perez first contends that both of his trial counsel were ineffective because of their
failure to move to suppress evidence resulting from his traffic stop. Where a claim of
ineffective assistance of counsel is based on counsel’s failure to file a motion to
suppress, the prejudice prong of Strickland requires that the defendant prove that the
motion would have been granted. United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir.
2005). Failure to raise a losing argument or pursue a futile motion to suppress does not
constitute ineffective assistance. See Whitehead v. Cowan, 263 F.3d 708, 731 (7th Cir.
2001); United States v. Jackson, 103 F.3d 561, 575 (7th Cir. 1996).
Perez provides no evidence that the motion to suppress would have been
meritorious and, instead, lists a “wealth of case law” that have little to do with the facts
of this case. Regardless, such a motion would surely have failed. The trooper’s stop was
supported by probable cause because a traffic violation had occurred: Perez exceeded
the posted speed limit. See United States v. Wendt, 465 F.3d 814, 816 (7th Cir. 2006). The
affidavit attached to Perez’s § 2255 motion did not mention whether he actually had
been speeding, and the court deemed his contradictory testimony on the matter “not
credible – a finding that we treat with great deference. See id. at 816‐17. And although
an officer may not search a car where the only existing probable cause is that the
defendant has been caught speeding, Knowles v. Iowa, 525 U.S. 113, 117 (1998), in this
case Perez consented to the search and so the prohibition against warrantless searches
does not apply, see United States v. Johnson, 495 F.3d 536, 541 (7th Cir. 2007). Finally,
Perez’s first counsel, Forbes, made the reasonable strategic decision not to pursue a
motion to suppress—regardless of its underlying merit—because doing so would have
undermined the plea agreement being negotiated at that time with the government.
Thus, Perez cannot show that trial counsels’ failure to file a motion to suppress
prejudiced him or that their performance was in any way deficient.

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No. 06-4312 Page 5
Perez next argues that his second trial counsel, Diamond‐Falk, provided
ineffective assistance because he misapprehended Perez’s Fifth Amendment right not to
testify. See Mitchell v. United States, 526 U.S. 314, 325 (1999) (holding that Fifth
Amendment privilege against self‐incrimination is not waived by entry of guilty plea
but is relinquished after sentencing is complete). Because Diamond‐Falk conceded that
he mistakenly had believed that Perez’s blind plea waived his Fifth Amendment
privilege, his poor advice constituted deficient performance. See, e.g., Julian v. Bartley,
495 F.3d 487, 495‐97 (7th Cir. 2007) (finding deficient performance where attorney failed
to interpret a prior Supreme Court decision reasonably). Yet Perez must also satisfy the
second prong of Strickland by showing that, but for Diamond‐Falk’s deficient
performance, there is a reasonable probability that the outcome would have been
different. See id. at 497‐98.
Perez contends that, had Diamond‐Falk adequately explained to him his Fifth
Amendment right not to testify, he would have refused to do so and would not have
received an increased sentence for obstructing justice. The government, however, had
already prepared and tendered to Perez and Diamond‐Falk a grant of immunity
compelling Perez’s testimony. Had Perez refused to testify, he would have likely
received the very same increased sentence as the one he obtained for testifying falsely.
And if Perez had chosen to testify under the immunity, he would have been protected
only to the extent that he testified truthfully, which his counsel advised him to do. In
sum, Perez cannot show that, had Diamond‐Falk explained to him his Fifth
Amendment privilege against self‐incrimination, the outcome would have been any
different. Thus, under the second prong of the Strickland test, Perez has not shown that
he was prejudiced by Diamond‐Falk’s deficient performance.
Accordingly, we A FFIRM the district court’s denial of Perez’s § 2255 motion.

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