In the

United States Court of Appeals
              For the Seventh Circuit

No. 06-2972

C HRISTOPHER M. T ORZALA,
                                            Petitioner-Appellant,
                               v.

U NITED S TATES OF A MERICA,
                                           Respondent-Appellee.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
           No. 04 C 813—Rudolph T. Randa, Chief Judge.



   A RGUED F EBRUARY 8, 2007—D ECIDED S EPTEMBER 19, 2008




  Before R IPPLE, M ANION, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Christopher Torzala pled
guilty to one count of obstruction of justice in violation of
18 U.S.C. § 1503. He then filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255,
arguing that his conduct did not constitute a crime.
Because we find that Torzala knowingly and voluntarily
entered into his guilty plea and that he received effective
assistance of counsel, we affirm the district court’s denial
of Torzala’s motion.
2                                               No. 06-2972

                   I. BACKGROUND
  Christopher Torzala was a licensed real estate broker
operating Torzala Realty in Milwaukee, Wisconsin.
Through a mutual acquaintance, he met Kirk Polinske, a
loan originator at Bayshore Mortgage. Bayshore Mortgage
arranged financing through out-of-state lenders.
  Torzala had a portfolio of around thirty investment
properties that he sought to sell. Polinske told Torzala he
could help him sell the properties but that Torzala would
need to pay him $5,000 for every property that closed.
Polinske also told Torzala that the deals would have to be
“structured,” meaning that Torzala had to bring his own
funds to the closing to cover the costs traditionally paid
by the buyer, including closing costs, down payments, and
second mortgages. These contributions would not be
reflected on the closing documents.
  On June 14, 2002, an FBI agent interviewed Torzala.
Torzala later admitted making several false statements
during that interview, including that he had never pro-
vided funds to a buyer at closing in order to falsify equity
in a deal. And although Torzala stated during the inter-
view that he did not know any of the participants in
ongoing mortgage fraud at Bayshore, he later acknowl-
edged that he knew that Polinske and others at Bayshore
had engaged in fraud during a number of real estate
transactions, including those involving Torzala. Torzala
also later admitted that he knew at the time he spoke
with the FBI agent that the FBI was investigating Polinske
and Torzala’s own transactions.
No. 06-2972                                              3

  Three months after Torzala spoke with the FBI agent,
a grand jury indicted Daniel Wichman, the head of
Bayshore Mortgage, on counts of fraud and money laun-
dering. Bayshore employees John McGowan and Todd
McGowan had been indicted in 2000 and pled guilty the
following year. Polinske received immunity from the
government for his cooperation.
   In Torzala’s case, the government filed a one-count
information in federal court alleging that he obstructed
justice in connection with an investigation of “property
flipping and other fraudulent real estate practices,” in
violation of 18 U.S.C. § 1503. The charge further alleged
that the investigation was part of ongoing judicial pro-
ceedings, “including grand jury and other criminal pro-
ceedings,” and that Torzala endeavored to obstruct
justice by lying to the FBI about his knowledge of property
flipping activity. That same day, the parties filed a plea
agreement in which Torzala agreed to plead guilty to the
single charge. He later formally entered his guilty plea
and eventually received a sentence of eighteen months’
imprisonment and two years’ supervised release. The
government had initially suggested a lower sentence, but
after Torzala showed up at the Milwaukee airport two
days before his sentencing ready to board a flight to
New Zealand with over $13,000 in cash, a cashier’s
check for $10,000, more than twenty credit cards, and
thirty-eight blank checks in hand—all while under order
not to leave the state—the government changed its sen-
tencing recommendation.
  Torzala did not take a direct appeal. Instead, he filed
a motion to vacate, set aside, or correct his sentence
4                                                No. 06-2972

pursuant to 28 U.S.C. § 2255. Torzala did not submit any
affidavits in support of his motion, and the district court
denied the motion without holding a hearing. Torzala
appeals.


                      II. ANALYSIS
   Torzala seeks relief under 28 U.S.C. § 2255, which allows
“[a] prisoner in custody” to seek relief. That Torzala is no
longer in custody or on supervised release, and had
neither status at the time the district court denied his
motion, does not preclude our review. Torzala was in
custody when he filed the motion, and that is all that is
required to be “in custody” under the statute. See Spencer
v. Kemna, 

, 7 (1998); Virsnieks v. Smith, 

, 717-18 (7th Cir. 2008) (discussing “in custody” require-
ment). Moreover, we presume collateral consequences
from his criminal conviction. See 

;
A.M. v. Butler, 

, 790 n.4 (7th Cir. 2006). Torzala
asserts, and the government does not dispute, that he
continues to suffer adverse consequences from his con-
viction in, for example, the inability to possess firearms
lawfully. See 18 U.S.C. § 922(g)(1) (prohibiting felons from
possessing firearms); Gentry v. Deuth, 

, 695
(6th Cir. 2006). As a result, the matter is not moot, and
we proceed to review Torzala’s claim. In doing so, we
review the district court’s findings of law de novo and
its findings of fact for clear error. Bethel v. United States,

, 716 (7th Cir. 2006).
  Torzala argues that he “was induced to plead guilty by
his defense attorney, the prosecutor and the presiding
No. 06-2972                                                 5

judge” because they “convinced him that he was guilty”
of committing obstruction of justice in violation of
18 U.S.C. § 1503. Although Torzala contends that the
record contains insufficient proof that he was guilty of
the crime to which he pled, he does not maintain that he
is actually innocent of obstructing justice. Cf. Davis v.
United States, 

, 346-47 (U.S. 1974) (actual
innocence supports collateral relief under § 2255).
  It is not easy to vacate a guilty plea in a collateral pro-
ceeding like this one. First, relief under § 2255 is available
only when the “sentence was imposed in violation of
the Constitution or laws of the United States,” the court
lacked jurisdiction, the sentence was greater than the
maximum authorized by law, or it is otherwise subject
to collateral attack. Moreover, a defendant who know-
ingly and voluntarily enters a guilty plea admits not
simply that he committed the acts charged in the indict-
ment; it is an “admission that he committed the crime
charged against him.” Young v. United States, 

,
797 (7th Cir. 1997) (citing North Carolina v. Alford, 

, 32 (1970)); see United States v. Broce, 

,
570-71 (U.S. 1989). Because “[a] guilty plea operates as a
waiver of important rights,” it is constitutionally valid
“only if done voluntarily, knowingly, and intelligently,
‘with sufficient awareness of the relevant circumstances
and likely consequences.’ ” Bradshaw v. Stumpf, 

, 183 (2005) (citing Brady v. United States, 

,
748 (1970)).
  Nonetheless, “even the voluntariness and intelligence
of a guilty plea can be attacked on collateral review only
if first challenged on direct review.” Bousley v. United
6                                               No. 06-2972

States, 

, 621 (1998). By failing to take a direct
appeal, Torzala procedurally defaulted the argument
that he appears to raise here—that he did not knowingly
and voluntarily enter his plea of guilty. A claim that
has been procedurally defaulted ordinarily may only be
raised in a § 2255 proceeding if the defendant demon-
strates that he is “actually innocent,” or that there is
“cause” and actual prejudice. 

Because the
government did not assert procedural default as a
defense in this action but instead chose to respond on
the merits, however, the government has waived the
procedural default. Buggs v. United States, 

, 444
(7th Cir. 1998). And because Torzala’s arguments ulti-
mately have no merit, as in Buggs, we “believe that consid-
erations of judicial efficiency counsel that we address
the merits.” See 

agreement is constitutionally valid if it ‘repre-
sents a voluntary and intelligent choice among the alterna-
tive courses of action open to the defendant,’ ” Hays v.
United States, 

, 570 (7th Cir. 2005) (citations
omitted), and we look to all of the relevant circumstances
surrounding the plea when determining whether this
standard has been met, 

. A defen-
dant does not enter a plea voluntarily, knowingly, and
intelligently if he pleads guilty to a crime without knowl-
edge of the crime’s essential elements. 

(citing Henderson v. Morgan, 

(1976)). And
if “neither [the defendant], nor his counsel, nor the court
correctly understood the essential elements of the crime
with which he was charged,” a plea is constitutionally
invalid as well. 

; see also United
No. 06-2972                                                 7

States v. Davis, 

, 267 (7th Cir. 1954). In United
States v. Bradley, 

(7th Cir. 2004), for example,
we granted a defendant’s motion to withdraw his
guilty plea when he admitted only to possessing mari-
juana. The indictment, however, charged the defendant
with trafficking in cocaine base, and the prosecutor incor-
rectly suggested at the plea hearing that to sustain the
conviction, the government needed only to prove that
the defendant had possessed illegal drugs. 

Although Bradley did not come to us in a collateral pro-
ceeding, we reasoned that it presented not only a viola-
tion of the requirement in Federal Rule of Criminal Proce-
dure 11 that a guilty plea have a factual basis, but a
constitutional violation as well. 

n.4.
  The record in this case, in contrast, belies Torzala’s
suggestion that his plea was not knowing and voluntary.
Torzala pled guilty to obstruction of justice in violation of
the “catchall” clause in 18 U.S.C. § 1503, which provides
that a crime occurs when a person “corruptly . . . influ-
ences, obstructs, or impedes, or endeavors to influence,
obstruct, or impede, the due administration of justice.” The
broadly-worded catchall is not without limits. To sustain
a conviction under this provision, the government must
prove: (1) a judicial proceeding was pending; (2) the
defendant knew of the proceeding; and (3) the defendant
corruptly intended to impede the administration of that
proceeding. United States v. Macari, 

, 936
(7th Cir. 2006); United States v. Fassnacht, 

, 447
(7th Cir. 2003).
  In this case, the charging information accurately set
forth each of these elements, as did the plea agree-
8                                              No. 06-2972

ment Torzala signed. In addition, at the change of plea
hearing, the district court read Torzala each of the
crime’s elements, and Torzala affirmed that he understood
that they constituted the elements of the offense. Cf.

(affirming grant of habeas
relief on basis that guilty plea was not voluntary where
neither counsel nor court informed defendant that intent
to cause victim’s death was essential element of second-
degree murder).
  In particular, Torzala admitted there was a “pending
judicial proceeding” within the scope of § 1503 at the
time he gave his false statements to the FBI. A grand jury
investigation constitutes a “pending judicial proceeding”
for purposes of 18 U.S.C. § 1503. United States v. Aguilar,

, 600-01 (1995); 

. Al-
though an investigation by the FBI, in contrast, does not
always suffice, 

; 

, such an investigation falls within section 1503’s
purview when the FBI undertakes an investigation with
the intention of presenting evidence before the grand jury.
See 

-01; United States v. Maloney,

, 657 (7th Cir. 1995).
  At Torzala’s plea hearing, the prosecutor stated that
the government had an ongoing investigation into individ-
uals associated with Bayshore Mortgage and that Torzala
knew Polinske was under investigation when Torzala
spoke with the FBI. Seizing on these statements, Torzala
points out that an investigation alone is insufficient to
establish that a judicial proceeding was pending at the
time. Torzala’s argument, however, ignores the other
No. 06-2972                                                9

evidence in the record. The plea agreement he signed states
that the investigation “was part of ongoing official pro-
ceedings in the Eastern District of Wisconsin, including
grand jury and other criminal proceedings” (emphasis
added). The district court then stated at the change of plea
hearing that an element of the offense was “that there were
judicial proceedings pending; criminal cases and Grand
Jury investigation into real estate fraud,” and Torzala
acknowledged that he understood the elements of the
offense. All of this was consistent with the information’s
charge that the investigation was part of “ongoing official
proceedings, including grand jury and other criminal
proceedings.” Although Torzala is correct that a “mere”
government investigation does not necessarily equate to
a judicial proceeding punishable under § 1503, Torzala
acknowledged multiple times that he was pleading
guilty to making false statements while an investigation
related to grand jury proceedings was pending.1
  Next, it is true that demonstrating a defendant’s aware-
ness of an FBI investigation is not sufficient to establish
a § 1503 violation; rather, the defendant must be aware
of an investigation related to judicial proceedings. 

. Again, however, the record is clear that
all involved proceeded with this understanding. Torzala



1
  We also note that the grand jury indicted Wichman on
September 10, 2002. That Wichman’s indictment came only a
few months after Torzala made his false statements to the FBI
is consistent with the existence of an ongoing grand jury
investigation at the time Torzala made his false statements.
10                                              No. 06-2972

said at the plea hearing that he knew there was an ongoing
investigation by the FBI when he made the false state-
ments. Alone, that statement might not be enough, but the
district court also told Torzala at the hearing that the
offense required proof that he knew of pending judicial
proceedings, namely grand jury investigations and crimi-
nal cases, when he made the false statements. In addition,
the plea agreement Torzala signed states he understood
that to sustain the crime charged, the government
needed to prove that “there were judicial proceedings (i.e.,
criminal cases and grand jury investigations into real
estate fraud)” and that he “was aware of the proceedings.”
In short, the indictment, plea agreement, and exchange
during the change of plea hearing all demonstrate that
Torzala “pleaded guilty after being correctly informed as
to the essential nature of the charge against him.” 

. Torzala’s plea was knowing and voluntary.
  The essence of Torzala’s arguments suggests that he
believes the government failed to prove he violated § 1503
or that Federal Rule of Criminal Procedure 11(b)(3)’s
requirement that the court establish a factual basis before
accepting a plea was not met. But Torzala gave up the
ability to hold the government to its proof when he
entered his plea of guilty. See 

. And a
violation of Rule 11, even of Rule 11(b)(3), does not alone
require relief from a conviction. See United States v.
Timmreck, 

, 783-84 (1979) (violation of Rule 11
does not mandate collateral relief); United States v.
Dominguez Benitez, 

, 83 (2004) (defendant who
raises Rule 11 violation for first time on direct appeal
after entering plea must show that but for the error, he
No. 06-2972                                                 11

would not have entered the plea); United States v. Arenal,

, 637 (7th Cir. 2007) (Dominquez Benitez applies
to challenges to Rule 11(b)(3) factual basis for plea). As
we have said before, “the Constitution ‘does not require
the establishment in all cases of a factual basis for a guilty
plea.’ ” Higgason v. Clark, 

, 208 (7th Cir. 1993)
(quoting United States v. Johnson, 

, 309 (7th
Cir. 1980)). Of course, “ ‘where it is impossible to find
guilt from the facts stated as the factual basis for the plea,’
the court is apt to find the plea involuntary,” 

this record, it is not impossible to find guilt.
   Torzala also contends that his counsel was ineffective.
Although he did not directly appeal his conviction, an
ineffective assistance of counsel claim may be raised for the
first time in a § 2255 proceeding as Torzala did here.
Massaro v. United States, 

, 509 (2003). To succeed
on a claim that an attorney rendered ineffective
assistance of counsel when a defendant entered a guilty
plea, the defendant must show: (1) counsel’s performance
fell below an objective standard of reasonableness; and
(2) there is a reasonable probability that but for counsel’s
errors, the defendant would not have pled guilty and
would have insisted on proceeding to trial. 

. Torzala alleges that his attorney failed to
advise him that his conduct did not amount to a violation
of § 1503 and failed to tell him that elements required to
prove such a violation were not present. But as we have
discussed, the indictment, plea agreement, and the district
court judge all correctly set forth the elements required
to prove a § 1503 violation and related those elements to
his case, and Torzala admitted in his plea agreement and
at the change of plea hearing that he was guilty of the
12                                                No. 06-2972

offense charged. Torzala’s additional claim that his attor-
ney promised he would only receive probation if he
pled guilty is, first of all, inconsistent with the plea agree-
ment he signed that lists an expected guideline sen-
tencing range of six to twelve months. Moreover,
Torzala’s arrest two days before his sentencing, on his
way to board a flight to New Zealand in violation of his
conditions of release, doomed any chance he had for a
lenient sentence. Torzala’s counsel’s performance did not
fall below an objective standard of reasonableness.
  We address Torzala’s remaining arguments briefly. First,
the district court did not abuse its discretion when it
decided Torzala’s § 2255 motion without holding a
hearing. Torzala did not submit any affidavits in sup-
port of his motion, and the district court “has discretion
to deny an evidentiary hearing where the motion, files,
and records of the case conclusively show that the
prisoner is entitled to no relief.” Cooper v. United States,

, 641-42 (7th Cir. 2004). That is the case here.
Finally, our decision in McReynolds v. United States,

(7th Cir. 2005), forecloses Torzala’s argu-
ment that he should receive the benefit of United States
v. Booker, 

(2005), in this collateral challenge.


                    III. CONCLUSION
  The judgment of the district court is AFFIRMED.




                            9-19-08