                             In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 16-3715
CORY L. WILLIAMS,
                                             Petitioner-Appellant,
                                v.

UNITED STATES OF AMERICA,
                                             Respondent-Appellee.
                    ____________________

           Appeal from the United States District Court
                 for the Central District of Illinois.
           No. 2:14-cv-02208-SLD — Sara Darrow, Judge.
                    ____________________

   ARGUED FEBRUARY 24, 2017 — DECIDED JANUARY 3, 2018
                ____________________

   Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Cory Williams was charged with two
counts of Hobbs Act robbery, 18 U.S.C. § 1952(a); one count
of bank robbery, id. § 2113(a), (d); and three counts of bran-
dishing a firearm in furtherance of those crimes, id. § 924(c).
On the § 924(c) counts alone, he faced a statutory minimum
of 57 years in prison, the equivalent of a mandatory life
sentence. The government offered a favorable plea deal that
promised to reduce his sentencing exposure by more than
39 years. After sending the terms to Williams’s attorney, the
2                                                  No. 16-3715

prosecutor emailed the proposal to Judge McCuskey pursu-
ant to the judge’s standard practice. The judge replied by
email, telling the parties that the deal was “exceedingly fair”
and “[o]nly a fool would refuse [it].” Williams took the deal
and pleaded guilty. The judge sentenced him to 18 years in
prison in accordance with the agreement.
   A year later Williams moved to set aside his sentence
under 28 U.S.C. § 2255. As relevant here, he claimed that the
judge impermissibly participated in plea negotiations in
violation of Rule 11(c)(1) of the Federal Rules of Criminal
Procedure and the Due Process Clause. He also alleged a
deprivation of his Sixth Amendment right to effective repre-
sentation based on his lawyer’s failure to raise the
Rule 11(c)(1) violation and request the judge’s recusal. A
newly assigned judge denied the motion without a hearing.
    We affirm. Rule 11(c)(1) flatly forbids any judicial partic-
ipation in plea negotiations, but the violation in this case was
harmless. Williams insists that he would not have taken the
plea deal but for the judge’s email, but that claim is not
remotely plausible. The government’s case was rock solid,
and the plea deal removed the risk of a mandatory life
sentence and otherwise substantially reduced Williams’s
prison exposure. His attorney’s failure to raise the
Rule 11(c)(1) violation and request the judge’s recusal was
likewise harmless.
                        I. Background
     On June 20 and 29, 2011, two motels in Champaign,
Illinois, were robbed at gunpoint. Each crime followed the
same modus operandi: the robber entered the motel lobby,
lifted his sweatshirt to flash a handgun tucked in his waist-
band, and demanded that the clerk hand over the contents of
No. 16-3715                                                   3

the cash register. A month later a gunman wearing black
clothing and a white mask robbed a bank in nearby Savoy,
Illinois, taking more than $20,000 in cash.
    Cory Williams was eventually identified as the robber.
He was assisted in the offenses by two women, one of whom
cooperated with law enforcement and confirmed Williams’s
role. In addition to the cooperator’s statement, law enforce-
ment had significant additional evidence identifying
Williams as the robber. The police found the black clothing,
white mask, and revolver used in the Savoy robbery in some
bushes near the bank. This physical evidence was covered in
Williams’s fingerprints and DNA. Finally, the victims of the
two motel robberies identified Williams from a photo array.
    A grand jury returned an indictment charging Williams
with two counts of Hobbs Act robbery in violation of
18 U.S.C. § 1952(a), one count of bank robbery in violation of
18 U.S.C. § 2113(a) and (d), and three counts of brandishing
a firearm during a robbery in violation of 18 U.S.C. § 924(c).
The § 924(c) charges alone carried a statutory minimum
penalty of 57 years in prison. See 18 U.S.C. § 924(c)(1)(A)(ii),
(C)(i), and (D)(ii) (requiring 7 years in prison on the first
count and a consecutive 25-year term for each subsequent
count). The upshot was that Williams, then 24 years old,
faced what was essentially a mandatory life sentence on the
§ 924(c) counts plus whatever additional prison time the
judge might impose for the three robberies.
   The case was assigned to Judge McCuskey, and the gov-
ernment eventually offered Williams a highly favorable plea
deal. The prosecutor agreed to drop two of the § 924(c)
charges and recommend a total sentence of 18 years—
11 years for the three robberies plus the mandatory 7-year
term on the single § 924(c) count. Williams’s attorney ad-
4                                                         No. 16-3715

vised him of the proposed deal on July 3, 2013. On that same
day, 1 in accordance with Judge McCuskey’s standing proce-
dure, the prosecutor emailed the proposed plea agreement
to the judge for his review, copying the assigned magistrate
judge and defense counsel on the email. Judge McCuskey
responded by email the next day, writing:
        I concur with the disposition, which is exceed-
        ingly fair to the defendant. Obviously, if he is
        convicted at trial the defendant will be sen-
        tenced to the equivalent of a life sentence. Only
        a fool would refuse this plea agreement. … I
        have placed the plea agreement with my ini-
        tials on [the magistrate judge’s] desk. While I
        will be flying to Washington DC on Monday,
        please E-Mail me a report of what happens be-
        fore [the magistrate judge]. I am fully ready to
        try the case to a jury if the defendant wishes to
        proceed with a jury trial.
   Williams agreed to the deal, and a change-of-plea hear-
ing was scheduled for July 8 before the magistrate judge.
When Williams arrived at the courthouse to plead guilty, his
lawyer showed him the judge’s email for the first time. Once
the hearing was underway, Williams testified under oath
that he understood the plea agreement, was voluntarily
pleading guilty and was in fact guilty of the crimes, and that
he was satisfied with his attorney’s representation. The
magistrate judge accepted the change of plea, and Judge



1Williams asserted in his § 2255 motion that his counsel told him of the
government’s offer on August 3, 2013. Everyone agrees that this was a
mistake; the correct date is July 3.
No. 16-3715                                                   5

McCuskey imposed a sentence of 18 years in accordance
with the agreement.
    Though the written plea agreement contained a waiver of
the right to appeal or pursue collateral relief, a year later
Williams filed a § 2255 motion seeking to vacate his sentence
on several grounds. Only two are relevant here; both attack
the validity of his guilty plea. First, Williams asserted that
Judge McCuskey’s email amounted to impermissible judicial
participation in plea negotiations, violating both
Rule 11(c)(1) and his right to due process. The judge’s email,
he alleged, led him to believe that he would not get a fair
shake if he opted for a trial; that in turn made his guilty plea
involuntary. Second, Williams alleged that his attorney’s
failure to raise the Rule 11(c)(1) violation and seek the
judge’s recusal amounted to constitutionally ineffective
representation in violation of Strickland v. Washington,
466 U.S. 668 (1984).
    Because Judge McCuskey had retired in the interim,
Williams’s case was reassigned to Judge Darrow. She denied
the § 2255 motion without a hearing but issued a certificate
of appealability on the two claims we’ve just described. As
the sole remedy on appeal, Williams asks us to remand with
instructions to hold an evidentiary hearing on these two
claims.
                        II. Discussion
    As we’ve noted, Williams waived his right to collaterally
attack his sentence, but the waiver does not block a chal-
lenge to the validity of his guilty plea. Hurlow v. United
States, 726 F.3d 958, 966 (7th Cir. 2013). Still, claims of this
type are ordinarily procedurally defaulted if not first raised
on direct appeal. Bousley v. United States, 523 U.S. 614, 621
6                                                     No. 16-3715

(1998). Williams failed to preserve his claim, but procedural
default is an affirmative defense and can itself be waived. See
Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008). The
government expressly waived the defense here, so we
proceed to the merits. See Wood v. Milyard, 566 U.S. 463, 473–
74 (2012) (holding that courts must respect the government’s
formal waivers of procedural defects in collateral cases).
    Appeals from the denial of § 2255 relief are governed by
a dual standard of review. Factual findings are reviewed for
clear error; issues of law get de novo review. Webster v.
United States, 667 F.3d 826, 830 (7th Cir. 2011). A district
judge has the discretion to proceed to decision on a § 2255
motion without holding an evidentiary hearing; we review
the judge’s decision to forgo a hearing for abuse of discre-
tion. Boulb v. United States, 818 F.3d 334, 339 (7th Cir. 2016). If
the petitioner’s allegations are “vague, conclusory, or palpa-
bly incredible,” he is not entitled to an evidentiary hearing.
Id. (quotation marks omitted). On the other hand, if “the
petitioner alleges facts that, if proven, would entitle him to
relief,” the judge must conduct a fact-finding hearing. Id.
(quotation marks omitted).
    Rule 11(c)(1) unambiguously prohibits judicial participa-
tion in plea negotiations: “An attorney for the government
and the defendant’s attorney, or the defendant when pro-
ceeding pro se, may discuss and reach a plea agreement. The
court must not participate in these discussions.” FED. R. CRIM.
P. 11(c)(1) (emphasis added). The government concedes that
the judge’s email crossed the line, violating Rule 11(c)(1). Cf.
United States v. Davila, 569 U.S. 597, 608 (2013); United States
v. Kraus, 137 F.3d 447, 456 (7th Cir. 1998). But a violation of
the rule does not, without more, warrant relief under § 2255.
See United States v. Timmreck, 441 U.S. 780, 784–85 (1979). The
No. 16-3715                                                   7

pertinent question is whether the violation deprived
Williams of his right to due process.
    Though forbidden by the rule, a judge’s involvement in
plea negotiations is not necessarily a due-process violation.
See Davila, 569 U.S. at 610 (“Rule 11(c)(1) was adopted as a
prophylactic measure, … not one impelled by the Due
Process Clause or any other constitutional requirement.”).
The defendant’s due-process rights are implicated only
when the coercive pressure implied by the judge’s involve-
ment is so great that it renders the defendant’s acceptance of
the plea agreement involuntary. See Warren v. Baenen,
712 F.3d 1090, 1102 (7th Cir. 2013) (“To survive a due process
challenge, a plea must be knowing, voluntary, and intelli-
gently entered.”). To prevail on this claim, Williams must
show a reasonable probability that but for the judge’s email,
he would have declined the plea agreement and proceeded
to trial. Davila, 569 U.S. at 612.
    Williams insists that but for the judge’s Rule 11(c)(1) vio-
lation, he would not have accepted the government’s plea
offer. That claim is palpably incredible. See Boulb, 818 F.3d at
339. The government’s case was exceedingly strong, and the
plea deal was extraordinarily favorable to Williams. He
faced a statutory minimum sentence of 57 years in prison on
the § 924(c) charges alone plus whatever time the judge
might impose for the three robberies. The government’s
offer substantially minimized his exposure, shaving off more
than 39 years and radically reducing the statutory minimum.
Confronted with overwhelming evidence against him and
the prospect of a mandatory life term, Williams’s hindsight
claim that he would have rejected such exceptionally favor-
able terms strains credulity. With no plausible allegations to
8                                                 No. 16-3715

support an entitlement to relief, Judge Darrow was right to
reject Williams’s due-process claim without a hearing.
    For the same reasons, the judge properly rejected the
Strickland claim. Williams had the burden to demonstrate
that his counsel’s representation was deficient and that he
was prejudiced by the deficient performance. Martin v.
United States, 789 F.3d 703, 706 (7th Cir. 2015) (citing
Strickland, 466 U.S. 668). Judicial review of counsel’s perfor-
mance is highly deferential; a defense attorney’s representa-
tion is not deemed constitutionally deficient unless it falls
below an objective standard of reasonableness. Id. To
demonstrate prejudice, Williams had the burden to show a
reasonable probability that but for the failure by his counsel
to raise the Rule 11(c)(1) violation, he “would not have
pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
    We don’t need to decide whether counsel’s performance
fell below the objective-reasonableness standard (though we
doubt it). Williams’s claim cannot possibly succeed because
he has not credibly alleged prejudice. As we’ve explained, it
is inconceivable that he would have declined the govern-
ment’s highly favorable plea offer and instead rolled the dice
at trial in the face of overwhelming evidence against him
and the prospect of a mandatory life sentence. No hearing
was needed on the Strickland claim. Judge Darrow correctly
denied § 2255 relief across the board.
                                                    AFFIRMED.
