                        NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                 Fed. R. App. P. 32.1




                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604


                                Submitted July 27, 2015
                              Decided November 30, 2016

                                         Before

                           WILLIAM J. BAUER, Circuit Judge

                           FRANK H. EASTERBROOK, Circuit Judge

                           DAVID F. HAMILTON, Circuit Judge

No. 15-1201

WILLIAM L. AVILA,                                 Appeal from the United States District
                Petitioner-Appellant,             Court for the Eastern District of
                                                  Wisconsin.
      v.
                                                  No. 2:12-cv-00228-WEC
REED A. RICHARDSON,
               Respondent-Appellee.               William E. Callahan, Jr.,
                                                  Magistrate Judge.

                                       ORDER

       Petitioner William L. Avila seeks federal habeas corpus relief from his state court
convictions for sexually assaulting a child, sexually exploiting a child, and possessing
child pornography. Avila pled guilty under a plea agreement that left each side free to
make its own sentencing recommendation. The state court sentenced Avila to 35 years in
No. 15-1201                                                                            Page 2

prison.
        Avila seeks habeas relief on the ground that he received ineffective assistance of
counsel. His primary theory has been that his lawyer was ineffective in telling him he
faced only a five-year sentence, and that if he had known he faced a much heavier
sentence, he would not have pled guilty. In an earlier appeal, we reversed a denial of
relief and ordered an evidentiary hearing in the district court. Avila v. Richardson, 751 F.3d
534 (7th Cir. 2014). The district court held the hearing and again denied relief. Avila’s
new appeal from that decision has been referred to the earlier panel as a successive
appeal. After reviewing the briefs, we concluded that oral argument was not necessary.
Based on the district court’s findings of fact, which were not clearly erroneous, we affirm
the denial of relief.
        The first issue is whether Avila showed as a matter of fact that his trial lawyer told
him he faced only five years in prison. If the lawyer had in fact given such wildly
mistaken advice, and if Avila had relied on it in deciding to plead guilty, those facts could
support a claim for ineffective assistance of counsel. See Avila, 751 F.3d at 537; see also
Pidgeon v. Smith, 785 F.3d 1165, 1173 (7th Cir. 2015) (affirming grant of federal habeas
relief where guilty plea was based on erroneous advice about possible sentence); Moore
v. Bryant, 348 F.3d 238, 242 (7th Cir. 2003) (same).
       The district court heard conflicting evidence from Avila and his lawyer. The judge
believed the lawyer’s testimony that he did not give and would never have given such
mistaken advice. That factual finding requires denial of relief unless it was clearly
erroneous. See, e.g., Williams v. Bartow, 481 F.3d 492, 497 (7th Cir. 2007); Whitehead v.
Cowan, 263 F.3d 708, 717 (7th Cir. 2001). A trier of fact’s decision to credit one witness
over another is virtually never clear error, e.g., United States v. Mays, 819 F.3d 951, 956–57
(7th Cir. 2016); United States v. Biggs, 491 F.3d 616, 621 (7th Cir. 2007), and there was no
clear error here.
        On appeal, Avila argues that the judge should have believed him because his
memory of the case was more specific than the lawyer’s. That could be a plausible
argument to a trier of fact, though a witness’s specificity is not a consistently reliable
gauge of his reliability. In this case there were also ample reasons to discount Avila’s
improbable account. Avila candidly recognized that the lawyer might have told him only
that he would ask the judge for a five-year sentence, not that such a light sentence was
likely in such a serious case of repeated sexual abuse and exploitation of a child, which
also included the use of drugs to make the victim drowsy and cooperative. Avila’s
incentive to lie or to allow his memory to distort actual events in a way that favors his
case also weighed against his credibility. The district court’s factual finding undermined
this theory of ineffectiveness.
No. 15-1201                                                                             Page 3



        On remand, the parties also presented extensive evidence on a second theory of
ineffective assistance of counsel. Avila claimed that his lawyer should have filed a motion
to suppress evidence based on an arguable Miranda violation in the form of continued
police questioning after Avila said he wanted to talk to a lawyer. The district court
wondered whether that topic was even within the scope of our earlier remand. We
confess to some surprise as well, since that issue did not come up in the briefing in the
earlier appeal. The earlier appeal, however, addressed a waiver issue that applied to any
particular theory of ineffectiveness. In that appeal, the parties simply did not have
occasion to explore the details of the specific theories of ineffectiveness.
        In any event, the State did not raise any of the numerous potential procedural
issues that might have been raised. It defended the claim on the merits, and the district
court also decided it on the merits. So do we. The parties also agree that the state courts
never adjudicated Avila’s claim of ineffective assistance on the merits. The deferential
review under 28 U.S.C. § 2254(d), which dominates most modern federal habeas
litigation, therefore does not apply here. See Appellee’s Br. at 4.
        To prove that a lawyer provided ineffective assistance by failing or choosing not
to file a motion to suppress evidence, the petitioner must show at a minimum that such
a motion would have been successful. Shell v. United States, 448 F.3d 951, 955 (7th Cir.
2006); United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). According to the district
court’s findings of fact, which were not clearly erroneous, when police first interviewed
Avila at the police station, they gave him Miranda warnings and said they wanted to talk
with him about a sexual assault. Avila said he wanted to consult a lawyer. When a suspect
invokes his right to have counsel present during custodial interrogation, the interrogation
must stop until the suspect has met with counsel. Edwards v. Arizona, 451 U.S. 477, 484
(1981). In such cases, however, a suspect may change his mind and initiate further
conversation with the police without counsel. See Oregon v. Bradshaw, 462 U.S. 1039
(1983); Edwards, 451 U.S. at 486 n.9. The devilish details, however, lie in determining when
a suspect has made a truly voluntary decision to initiate the further conversation, as
shown by the multiple opinions in Bradshaw.
       In this case, the interrogation stopped, but the officer continued to put information
in front of Avila in an apparent effort to encourage him to continue talking without a
lawyer present. In response to this encouragement, Avila made several incriminating
comments. He also volunteered to the officer: “I was an idiot for what I did.” Avila later
consented in writing to further interrogation and to a search of his computer.
      Avila now argues that his trial lawyer was ineffective in not moving to suppress
all of the incriminating evidence generated by arguably improper continued
No. 15-1201                                                                           Page 4

interrogation and prompting by the police. The biggest problem with this theory is that
the case against Avila did not depend on evidence derived from any arguable violation
of his Miranda rights. There was plenty of other evidence, including the testimony of the
victim and messages Avila himself had sent to the victim’s mother, as well as the contents
of Avila’s computer, for which police had ample grounds to obtain a search warrant if
Avila had not saved them the trouble by consenting to the search.
       As the district court noted, even if a motion to suppress had been successful, “the
case was not going away.” The court therefore found that Avila’s lawyer pursued a
reasonable strategy by having him accept responsibility for his actions and seeking a
more lenient sentence. The district court found that the lawyer’s performance was not
deficient and that Avila’s theory for how a motion to suppress might have helped him
was speculative.
       We find no error in the district court’s analysis. The judge carefully avoided the
distorting effects of hindsight by looking at the situation Avila’s lawyer faced at the time.
Like the district court, we assume there were arguable grounds for suppressing a few
incriminating admissions Avila had made, though success was by no means assured.
Even a successful motion would have left the State with plenty of powerful evidence
against Avila. In those circumstances, it was not unreasonable for a lawyer to negotiate a
plea agreement without filing an arguably meritorious motion to suppress evidence that
was not critical to the prosecution.
       The district court’s denial of petition for a writ of habeas corpus is
                                                                                AFFIRMED.
