                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 02-4377
BRIAN W. COOPER,
                                           Petitioner-Appellant,
                                v.


UNITED STATES OF AMERICA,
                                           Respondent-Appellee.

                         ____________
           Appeal from the United States District Court
          for the Western District District of Wisconsin.
             No. 02 C 546—John C. Shabaz, Judge.
                         ____________
   ARGUED JANUARY 13, 2004—DECIDED AUGUST 5, 2004
                   ____________



 Before BAUER, MANION, and ROVNER, Circuit Judges.
  BAUER, Circuit Judge. On April 16, 1999, Police Officer
Mark Jaeger of the Wausau, Wisconsin Police Department
received a phone call from Detective Beecher of the Milwau-
kee Police Department, Vice Unit. Beecher told Jaeger he
had just received an anonymous tip that a black male by
the name of Brian Cooper was scheduled to arrive in
Wausau at 7:15 p.m. by Greyhound bus wearing a gray or
black leather jacket with lettering on the back, carrying a
black duffel bag and several ounces of cocaine.
  Officer Jaeger and another officer went to the Greyhound
station where, at approximately 7:15 p.m., a black male
2                                                  No. 02-4377

meeting the tipster’s description got off the bus and entered
the passenger side of a waiting Chevy Impala after placing
his duffel bag in the back seat of the car. The officers
followed the car before stopping it for a traffic violation. As
one of the officers wrote the citation, he noticed the driver
and Cooper moving around inside the car and saw Cooper
bend over towards the floor of the car. The officers then
removed both men from the car and commanded a canine
sniff, which alerted Officer Jaeger to the presence of drugs
in the area beneath the front passenger seat and to Cooper’s
duffel bag in the back seat. Officer Jaeger found a pack of
cigarettes containing cocaine base and Cooper was placed
under arrest and charged with possession of cocaine base
and intent to distribute.
  Before trial, Cooper’s counsel filed a motion in limine to
exclude the evidence of the anonymous tip Officer Jaeger
received from Detective Beecher. When the Magistrate
Judge addressed the motion, defense counsel told the judge
he had discovered new evidence and had no objection to the
admission of the tip. When the judge asked if defense
counsel would like the government to brief it, defense counsel
replied, “No. Not at this particular point, first of all I truth-
fully believe that probably it would come in to explain the
officer’s actions as far as the tip. Given, as I said, the newly
discovered evidence, I think I will withdraw the entire motion.
How’s that sound?” The Magistrate Judge again offered, “You
are certainly entitled to be heard on it” and the defense
counsel reiterated, “No. I just as soon withdraw it.”
  On the first day of trial, the government confirmed with
the district court and Cooper’s counsel that Officer Jaeger
would testify to the tip information he received from
Detective Beecher, and that the information might be
perceived as hearsay. When the court asked Cooper to
respond, he replied, “Nothing in that regard, Your Honor.”
Finally, during trial both the prosecutor and defense counsel
referred to the tip.
No. 02-4377                                                     3

  On January 20, 2000, Cooper appealed his conviction for
knowing and intentional possession of, with intent to dis-
tribute, cocaine base, in violation of 21 U.S.C. § 841(a)(1),
arguing that the district court committed plain error by
allowing the government to introduce testimony about the
existence and substance of the anonymous tip. On March
21, 2001, we affirmed Cooper’s conviction, concluding that
defense counsel had waived any objection to the admission
or reference of the tip at trial. The Supreme Court denied
Cooper’s petition for certiorari.
  On October 1, 2002, Cooper filed a motion to vacate his
sentence under 28 U.S.C. § 2255, contending that his trial
counsel’s failure to object to the admissibility of the tip de-
nied him his Sixth Amendment right to effective assistance
of counsel; he requests an evidentiary hearing. He was
denied a hearing on that issue and, on April 14, 2003, we
granted a certificate of appealability.


                          Discussion
  Cooper challenges the district court’s denial of an evi-
dentiary hearing to explore trial counsel’s motivations in
support of his ineffective assistance of counsel claim. He
argues that procedural default is not a barrier to his inef-
fective assistance of counsel claim and that trial counsel
was ineffective because of his mistaken belief in the admis-
sibility of an anonymous tip.1


1
  As the government concedes, the issue of procedural default is
moot in light of the Supreme Court’s decision in Massaro v. United
States, 538 U.S. 500 (2003) (recognizing that an ineffective
assistance of counsel claim can be raised in a § 2255 proceeding,
“whether or not the claim could have been raised on direct
appeal.”). Moreover, the district court rejected the procedural
default argument, choosing instead to address the merits of
                                                    (continued...)
4                                                     No. 02-4377

Standard of Review
  The district court’s denial of a § 2255 motion for ineffec-
tive assistance of counsel is reviewed de novo, the factual
findings are reviewed for clear error, and the denial of an
evidentiary hearing for abuse of discretion. United States v.
Traeger, 289 F.3d 461, 470 (7th Cir. 2002).


Ineffective Assistance of Counsel
  Cooper argues that his trial counsel was ineffective be-
cause he did not object to the use of the anonymous tip. He
contends that the record does not conclusively establish
that counsel’s motivations were strategic. Instead, he urges
that counsel was motivated by a mistaken belief that the tip
was admissible and that he is entitled to a new trial or in
the alternative, he requests an evidentiary hearing to
establish that his trial counsel’s motivation was a mistake
of law.2
  To prevail on an ineffective assistance of counsel claim,
Cooper must satisfy the two-prong test of Strickland v.
Washington, 466 U.S. 668, 688-94 (1984). He must show
that “counsel’s actions were not supported by a reasonable
strategy and that the error was prejudicial.” Massaro v.
United States, 538 U.S. 500 (2003); citing Strickland, 466
U.S. at 688-94. Defense counsel is “strongly presumed to


1
  (...continued)
Cooper’s claim, so we have no occasion to address it here.
2
  Cooper’s argument that his trial counsel was ineffective based
on his “mistake of law” regarding the admissibility of the tip is
dubious; the admission of Detective Beecher’s statement regarding
the anonymous tip may have come into evidence under one of the
many exceptions to the hearsay rule, such as to explain Officer
Jaeger’s course of conduct. See generally Illinois v. Gates, 462 U.S.
213 (1983).
No. 02-4377                                                   5

have rendered adequate assistance and to have made sig-
nificant decisions in the exercise of his or her reasonable
professional judgment.” Traeger, 289 F.3d at 470. Courts
“presume that counsel made reasonable strategic choices
unless the defendant presents evidence rebutting that pre-
sumption.” Id. at 472.
  As Massaro holds, ineffective assistance claims are gen-
erally best addressed through a motion in a collateral
proceeding pursuant to § 2255, because “the trial record is
not developed precisely for the object of litigating or pre-
serving the claim . . . [and] in many cases will not disclose
the facts necessary to decide either prong of the Strickland
analysis.” Massaro, 538 U.S. at 505. Neither Massaro nor
the rules governing § 2255 proceedings, however, prevent a
district court in an appropriate case from deciding a § 2255
motion on the existing record.
  This is such a case; Cooper failed to offer the district court
any objective facts outside the trial record that would
warrant an evidentiary hearing. He did not call into ques-
tion our conclusion on direct appeal that trial counsel made
a clear strategic decision to refrain from objecting to the
government’s use of the tip and that his counsel used the
details of the tip as part of his theory of defense that he had
been set up. See United States v. Cooper, 243 F.3d 411, 416
(7th Cir. 2001).
  At trial, both the prosecutor and Cooper’s counsel referred
to the tip. The record reflects that Cooper’s counsel referred
to the existence and the substance of the tip to show that
Jetaun Brown, the wife of the car’s driver, Jemeir Brown,
had made the anonymous tip to the police. In his opening
statement, counsel for Cooper stated,
    You’re going to hear that the reason why he [Cooper]
    was going to Wausau is because Jemeir Brown invited
    him. In fact, he was going to be there with Jemeir with
6                                                   No. 02-4377

    some ladies that Jemeir knew. But we have this anony-
    mous tip. This is the link, if you will, and it’s a call to the
    Milwaukee authorities advising, so I understand, that
    he [Cooper]’d be traveling by bus, arriving about 7:15,
    carrying several ounces of cocaine . . . [t]hat he was
    going to be wearing a gray FUBU jacket . . . [a]nd that
    he would be carrying a black duffel bag.
Br. of Respondent-Appellee at 10. Cooper’s counsel further
stated that Cooper believed he was set up by Jetaun Brown;
that Jetaun was the only person who knew where and when
Cooper was arriving by bus in Wausau; that four days after
Cooper’s arrest, Jetaun stated in a phone call that she had
put the empty cigarette package in the car and that it
would have her fingerprints on it. Id. at 10-11.
  Moreover, we specifically concluded that on direct appeal
Cooper did not argue that he dissented from his attorney’s
decision to use the tip evidence and refrain from objecting
to the government’s use of the tip. 243 F.3d at 418. Nor, as
we noted, did Cooper present any persuasive argument as
to why waiving any objection to the tip could not have been
a “legitimate trial tactic or part of a prudent trial strategy.”
Id.
  Even where factual improprieties are alleged, an eviden-
tiary hearing is not warranted for every § 2255 petition. Key
v. United States, 806 F.2d 133 (7th Cir. 1986). Pursuant to
§ 2255, the district court has discretion to deny an eviden-
tiary hearing where the motion, files, and records of the
case conclusively show that the prisoner is entitled to no
relief. United States v. Kovic, 830 F.2d 680 (7th Cir. 1987).
In this case, the district court, presented with no additional
facts or assertions, did not abuse it discretion in denying
Cooper an evidentiary hearing and properly decided that,
based on the existing record, the performance of Cooper’s
trial counsel was not deficient.
  Nor can Cooper meet the prejudice prong of his ineffective
assistance of counsel claim. To demonstrate prejudice,
No. 02-4377                                                 7

Cooper must show that “trial counsel’s conduct so under-
mined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just
result.” Stickland, 466 U.S. at 686. As the district court
noted, there was sufficient evidence apart from the tip to
support the reliability of the jury’s verdict. This evidence
included: (1) the drugs found under the passenger seat
where Cooper had been sitting prior to being removed from
the car; (2) the police officer’s observation of Cooper in the
passenger seat bending over at the waist towards the floor
of the car; and (3) the dog alerting to the passenger side of
the car where Cooper was sitting and to the area where he
had placed the duffel bag. Moreover, as Cooper’s counsel
may have reasoned, evidence of the tip from an angry
woman trying to set him up might have been the only
evidence that would put doubt in the jury’s mind as to
Cooper’s guilt. Cooper cannot demonstrate that his trial
was fundamentally unfair or that its result was unreliable.
  For the foregoing reasons, we AFFIRM the district court’s
judgment, denying Cooper’s § 2255 petition and his request
for an evidentiary hearing.
A true Copy:
       Teste:
                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—8-5-04
