Vargas v. USA
Filing
9
OPINION entered by Chief Judge Michael P. McCuskey on 11/4/2011. Petitioner's Motion for Reconsideration 8 is GRANTED. This court therefore vacates its Opinion 6 , which dismissed Petitioner's Motion to Vacate, Set Aside, or Correct Sen tence By a Person in Federal Custody pursuant to 28 U.S.C. Section 2255 1 as untimely. Following careful consideration of the merits of Petitioner's Motion to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody pursuant to 28 U.S.C. Section 2255 1 , Petitioner's Motion is DENIED. A certificate of appealability is DENIED. This case is terminated. See written opinion. (SP, ilcd)
E-FILED
Friday, 04 November, 2011 04:30:28 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
JASPER VARGAS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent,
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)
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)
Case No. 10-CV-02231
OPINION
This case is before the court for ruling on the Motion for Reconsideration (#8) filed
by Petitioner, Jasper Vargas. This court concludes that Petitioner has shown that his Motion
to Vacate, Set Aside, or Correct Sentence (#1) was timely filed. Therefore, Petitioner’s
Motion for Reconsideration (#8) is GRANTED. This court therefore vacates its Opinion
(#6), which dismissed the Motion (#1) as untimely.
Following this court’s careful
consideration of the merits of Petitioner’s Motion (#1), this court concludes that Petitioner
is not entitled to relief under 28 U. S. C. § 2255. Accordingly, Petitioner’s Motion (#1) is
DENIED on the merits.
BACKGROUND
On October 8, 2010, Petitioner, Jasper Vargas, filed a pro se Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (#1) and
a Memorandum in Support (#2). Petitioner argued that: (1) his constitutional right to
effective counsel was violated because his trial counsel failed to challenge expert testimony
provided by the case agent, Douglas Goodmanson, and his appellate counsel failed to raise
the issue on appeal; (2) he was denied the effective assistance of counsel because his trial
counsel did not object to evidence which bolstered the credibility of two key prosecution
witnesses and his appellate counsel did not raise the issue on appeal; and (3) because of the
cumulative effect of these failures he was denied a fair trial. On November 5, 2010, the
Government filed its Response to the Petitioner’s Motion Pursuant to 28 U.S.C. § 2255 (#4).
The Government argued that the Motion was untimely and also provided a detailed response
to Petitioner’s claims. On November 22, 2010, Petitioner filed a Reply (#5).
On July 26, 2011, this court entered an Opinion (#6). After careful and thorough
review, this court concluded that Petitioner’s Motion under § 2255 was time-barred. This
court concluded that Petitioner’s judgment became final on March 31, 2009, 90 days after
his conviction was affirmed by the Seventh Circuit and his time to file for a petition for a writ
of certiorari expired. Therefore, to be timely, Petitioner’s Motion under § 2255 had to be
filed by March 31, 2010. This court noted that, on July 30, 2009, Petitioner filed an untimely
petition for a writ of certiorari with the Supreme Court. (Docket No. 09-5730). The Supreme
Court denied Petitioner’s petition for a writ of certiorari on October 5, 2009. This court
concluded that an untimely petition for a writ of certiorari does not toll the statute of
limitations under § 2255. Therefore, this court concluded that Petitioner’s Motion under §
2255, filed on October 8, 2010, was time-barred because it was filed 191 days late.
This court recognized that Petitioner argued in his Reply (#5) that the substantive part
of his petition for a writ of certiorari was timely filed on March 20, 2009. Petitioner stated
that the Supreme Court noted “technical deficiencies” in his petition and requested that he
submit a “declaration of indigence.” Petitioner claimed that the Supreme Court made it clear
to him that the “substance of the petition was accepted and was not subject to further
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revision.” He went on to state that in June 2009 the Supreme Court “had trouble finding an
active case for petitioner in its database and requested further details.” He referred to a letter
he attached from the Clerk of the Supreme Court. However, this letter was not attached by
the Petitioner and the Supreme Court’s website indicated that Petitioner’s petition for a writ
of certiorari was not filed until July 30, 2009.
This court stated that it appeared that Petitioner was making an argument for equitable
tolling. This court stated that, if Petitioner wanted to make a legal argument for equitable
tolling he should have provided sufficient evidence for this court to make such a ruling. This
court further stated that it was not this court’s responsibility to ferret out evidence and nonpublic documents that are beneficial to Petitioner. This court therefore concluded that
Petitioner’s Motion under § 2255 (#1) was untimely. Petitioner’s Motion (#1) was dismissed
as time-barred.
MOTION FOR RECONSIDERATION
On August 11, 2011, Petitioner filed a Motion for Reconsideration (#8). Petitioner
attached his own affidavit and also attached copies of correspondence from the United States
Supreme Court. The affidavit and correspondence show that Petitioner filed a petition for
a writ of certiorari with the Supreme Court which was postmarked March 20, 2009, and was
received by the Supreme Court on March 25, 2009. The office of the clerk of the Supreme
Court, William K. Suter, returned the petition to Petitioner with a letter which explained the
corrections which needed to be made to the petition. The letter stated that Petitioner had 60
days to return the petition with the required corrections. On May 22, 2009, Suter’s office
sent a letter to Petitioner which stated that the “above-entitled petition for writ of certiorari
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was originally postmarked March 20, 2009 and received again on May 22, 2009.” The letter
stated that the papers were being returned to Petitioner again because he failed to append the
lower court opinion. On June 9, 2009, Petitioner sent a letter to Suter’s office and stated that
he was enclosing the lower court opinion to satisfy the requirements of the May 22, 2009
letter. On June 19, 2009, Suter’s office sent a letter to Petitioner stating that his petition for
writ of certiorari was being returned to him because he had not attached a notarized affidavit
or declaration of indigency. On July 21, 2009, Suter’s office sent a letter to Petitioner stating
that his petition for writ of certiorari was received on July 21, 2009, and was being returned
because it was not submitted within 60 days of the March 25, 2009 letter. The letter stated
that “[i]f the lower court opinions, which were again not included in the petition, are criminal
in nature, the petition can be resubmitted and docketed with a notation as to its timeliness.”
Petitioner also attached copies of records from the Supreme Court which show that
his petition for writ of certiorari was filed on July 30, 2009, with a response due on
September 4, 2009. On August 11, 2009, the Government filed a waiver of right to respond.
On August 13, 2009, the petition was distributed for “Conference of September 29, 2009,”
and was denied on October 5, 2009. Petitioner stated in his affidavit that the petition was not
returned as untimely but was denied on the merits. Petitioner stated that he, therefore, relied
on the date of the denial of October 5, 2009, as the date the limitations period for his Motion
under § 2255 commenced. Petitioner stated that he delivered his Motion to the institutional
mail room on October 4, 2010. This court notes that Petitioner’s Motion, which was filed
in this court on October 8, 2010, was signed by Petitioner on October 4, 2010.
The Government has not filed any opposition to the Motion for Reconsideration (#8).
4
After consideration of the documentation now provided by Petitioner, this court concludes
that Petitioner originally filed his petition for writ of certiorari on March 20, 2009, and the
Supreme Court ultimately accepted the petition and denied it on the merits on October 5,
2009. Therefore, Petitioner’s Motion under § 2255 (#1), which was mailed on October 4,
2010, was timely.
Petitioner’s Motion for Reconsideration (#8) is GRANTED. This court vacates its
Opinion (#6), which dismissed the Motion (#1) as untimely, and will consider the merits of
the Motion (#1).
MOTION UNDER § 2255
FACTS
On November 20, 2004, an Illinois state trooper determined that Petitioner’s tractortrailer was exceeding the speed limit as it traveled northbound on Interstate 57 in Iroquois
County in the Central District of Illinois. The trooper conducted a traffic stop and noticed
that Petitioner appeared nervous and his hands were shaking. During a search of the tractortrailer, agents found a compartment hidden behind a load of produce in the refrigeration unit
of the trailer and discovered 157 bundles containing 282 kilograms of cocaine with a
wholesale value of approximately 5.6 million dollars.
On February 3, 2005, in Case No. 05-CR-20007, a grand jury in the Central District
of Illinois charged Petitioner with one count of possession of more than five kilograms of
cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii). A
jury trial commenced on January 16, 2007. Petitioner was represented at trial by appointed
counsel, John C. Taylor and Mark C. Palmer. On January 18, 2007, this court declared a
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mistrial after the jury was unable to reach a verdict. The jury disclosed (on its own, with no
inquiry from this court) that it was deadlocked 11 to 1 in favor of convicting Petitioner. On
January 31, 2007, following a retrial, a jury found Petitioner guilty. On May 2, 2007, this
court sentenced Petitioner to a mandatory term of life imprisonment and imposed a $100
special assessment. On May 3, 2007, Petitioner filed a timely notice of appeal.
On appeal, Petitioner was represented by Barry Levenstam of Jenner & Block in
Chicago. Petitioner argued that the trial court erred in permitting the Government to prove
Petitioner’s knowledge of the cocaine by introducing evidence that Petitioner had, on prior
occasions, transported drugs hidden under loads of produce in refrigerated semi-trailers. On
December 31, 2008, the Seventh Circuit held that the court properly admitted this evidence
under Rule 404(b) of the Federal Rules of Evidence and affirmed Petitioner’s conviction.
United States v. Vargas, 552 F.3d 550 (7th Cir. 2008). The Seventh Circuit thoroughly
considered the relevant factors in concluding that the evidence was properly admitted.
Vargas, 552 F.3d at 555-58. The court specifically concluded that “any unfair prejudicial
value of the evidence was mitigated by the fact that it was ‘a drop in the fairly large bucket
of evidence’ of [Petitioner’s] involvement in drug trafficking.” Vargas, 552 F.3d at 557,
quoting United States v. Coleman, 179 F.3d 1056, 1062 (7th Cir. 1999).
ANALYSIS
As noted, Petitioner filed his Motion under § 2255 (#1) in October 2010. Petitioner
alleged that his Sixth Amendment right to effective assistance of counsel was violated. The
Sixth Amendment provides criminal defendants the right to counsel. Koons v. United States,
639 F.3d 348, 351 (7th Cir. 2011), cert. denied, ___ S. Ct. ___, 2011 WL 4536500 (Oct. 3,
6
2011); citing U.S. Const. amend. VI. “[I]nherent in this right is that the defendant is entitled
to the effective assistance of counsel . . . . The important inquiry is ‘whether counsel’s
conduct so undermined that proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.’” United States v. Recendiz, 557 F.3d 511, 531
(7th Cir. 2009), quoting Strickland v. Washington, 466 U.S. 668, 686 (1984). “To prevail on
an ineffective assistance claim, a petitioner must establish that his ‘counsel’s performance
was deficient’ and the ‘the deficient performance prejudiced the defense.’” Koons, 639 F.3d
at 351, quoting Strickland, 466 U.S. at 687.
To demonstrate deficient performance, a petitioner must show “that counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at
688; Koons, 639 F.3d at 351. “This means identifying acts or omissions of counsel that
could not be the result of professional judgment. The question is whether an attorney’s
representation amounted to incompetence under prevailing professional norms, not whether
it deviated from best practices or most common custom.” Koons, 639 F.3d at 351, quoting
Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir. 2011). This court’s review of Petitioner’s
attorneys’ performance is “highly deferential” and reflects “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that is,
the [petitioner] must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” See Davis v. Lambert, 388 F.3d 1052, 1059
(7th Cir. 2004), quoting Strickland, 466 U.S. at 689; see also Koons, 639 F.3d at 351.
To establish the prejudice prong of the Strickland standard, Petitioner must show “that
there is a reasonable probability that but for his counsel’s mistakes, the result of the
7
proceeding below would have been different, such that the proceedings were fundamentally
unfair or unreliable.” Yu Tian Li v. United States, 648 F.3d 524, 527 (7th Cir. 2011), citing
Strickland, 466 U.S. at 694.
Petitioner first argues that his trial attorneys were ineffective because they failed to
object to the trial testimony of Immigration and Customs Enforcement Agent Douglas
Goodmanson that, based upon his training and experience, drug traffickers do not typically
use unwitting individuals to transport over $5 million worth of cocaine. Petitioner argues
that this expert testimony unfairly invaded the province of the jury to determine whether
Petitioner “knowingly” transported the cocaine. Petitioner contends that Goodmanson
testified as a mixed fact and expert witness and the “weight of his opinion was enhanced by
his status as case agent and by the failure to caution the jury as to his dual witness roles.”
Goodmanson, the case agent in Petitioner’s case, was the last witness to testify at trial.
He testified regarding his training and experience and provided expert testimony about the
drug trade and the price of cocaine. Goodmanson then provided the following testimony:
Q
And based on your training and experience, do you
have training and experience in those that transport large
amounts of cocaine?
A Yes, I do.
Q And based on your training and experience with drug
organizations, do they use people referred to as “unwitting,” or
people who don’t know, to transport large amounts of cocaine?
A No. Typically, unwittings are - - they might at the
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most would transport one kilogram of cocaine. The problem
with using unwittings by an organization is they’re not sure
exactly where that cocaine or any other narcotic is going to end
up because they don’t have control of that person.
Goodmanson then went on to testify as a fact witness about his involvement with the stop of
Petitioner’s tractor-trailer on November 20, 2004. Goodmanson testified that the cocaine
found in the trailer had a wholesale value of $5.6 million and a street value of about $28
million. Petitioner’s counsel did not ask Goodmanson any questions.
Petitioner argues that permitting the investigating case agent to express an expert
opinion on the ultimate issue in the case, whether Petitioner knowingly possessed the
cocaine, was blatantly unfair and the failure to challenge the admission of the testimony
constituted ineffective assistance of trial counsel. Petitioner has relied on the decision of the
Fifth Circuit Court of Appeals in United States v. Ibarra, 493 F.3d 526 (5th Cir. 2007). In
Ibarra, the district court allowed a DEA agent to testify that in his experience he had never
seen a courier entrusted with an amount of cocaine that size (worth approximately $4
million) without the courier knowing that he was carrying something illegal. Ibarra, 493 F.3d
at 532. The Government conceded that the admission of this testimony was an abuse of the
district court’s discretion. Ibarra, 493 F.3d at 532. The Fifth Circuit concluded that it was
not harmless error because the testimony was improper as it “went directly to the ultimate
issue to be determined by the jury” and there was a “reasonable possibility” that the
testimony “contributed to the conviction.” Ibarra, 493 F.3d at 532, quoting United States v.
Williams, 957 F.2d 1238 1242 (5th Cir. 1992).
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That is not the law in the Seventh Circuit, however. In United States v. Willis, the
defendant was driving a six-wheel pickup truck that was pulling a goose-neck trailer. Willis,
61 F.3d 526, 527-28 (7th Cir. 1995). The defendant was stopped for speeding and, when the
trailer was searched, 146 kilograms of marijuana were found. Willis, 61 F.3d at 527-28. At
trial, a DEA agent gave the following testimony:
Q. Based upon your experience in investigating these type of
cases, does the person who is transporting the narcotics, the
marijuana, know what’s in the vehicles or in the trailers?
A.
I have not had a case yet where I have arrested or
participated in a transportation case where the courier didn’t
know what he was carrying.
Willis, 61 F.3d at 532. The defendant argued on appeal that this testimony was an improper
comment concerning his mental state, one that went to the ultimate issue of whether he knew
there was marijuana in the trailer, and should have been excluded under Rule 704(b) of the
Federal Rules of Evidence. Willis, 61 F.3d at 532. The Seventh Circuit noted that it had
recently held that “when a law enforcement official states an opinion about the criminal
nature of the defendant’s activities, such testimony should not be excluded under Rule 704(b)
as long as it is made clear, either by the court expressly or in the nature of the examination,
that the opinion is based on the expert’s knowledge of common criminal practices, and not
on some special knowledge of the defendant’s mental processes.” Willis, 61 F.3d at 533,
quoting United States v. Lipscomb, 14 F.3d 1236, 1242 (7th Cir. 1994). The Seventh Circuit
held that the district court did not abuse its discretion in admitting the DEA agent’s
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testimony. Willis, 61 F.3d at 533. The court stated that the DEA agent offered no opinion
concerning the defendant’s knowledge or intentions and “did not even suggest that his
opinion was based on some special knowledge of [the defendant’s] mental processes.”
Willis, 61 F.3d at 533. The court noted that the DEA agent was called solely as an expert
witness, knowledgeable in drug trade practices, and his testimony did not include any special
knowledge of the defendant or of the investigation. Willis, 61 F.3d at 533.
Goodmanson’s testimony in this case is that “unwittings” are not used to transport
large amounts of cocaine by drug organizations because “they’re not sure exactly where that
cocaine or any other narcotic is going to end up because they don’t have control of that
person.” This testimony, similar to the testimony in Willis, was based upon Goodmanson’s
expert knowledge in drug trade practices and did not include an opinion concerning
Petitioner’s knowledge or intentions. This court concludes that Goodmanson’s testimony
was proper expert testimony based upon the applicable Seventh Circuit law. See Willis, 61
F.3d at 533; see also United States v. Winbush, 580 F.3d 503, 511-12 (7th Cir. 2009)
(“Although an expert may not testify or opine that the defendant actually possessed the
requisite mental state, he may testify in general terms about facts or circumstances from
which a jury might infer that the defendant intended to distribute drugs”); United States v.
Mancillas, 183 F.3d 682, 705-06 (7th Cir. 1999) (finding that a drug agent properly gave
opinion based on knowledge of the drug trade and not on any alleged familiarity with the
defendant’s mind); United States v. Brown, 7 F.3d 648, 653 (7th Cir. 1993) (it was clear that
the expert was not expressing an opinion as to the defendant’s actual mental state, “but was
merely aiding the jury to draw an inference from the evidence”). Because Goodmanson’s
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expert testimony was proper based upon the clear precedent from the Seventh Circuit, this
court does not need to consider the decision of the Fifth Circuit in Ibarra or the other cases
from other jurisdictions cited by Petitioner.
Petitioner has argued that Goodmanson’s testimony was improper because he testified
as an expert witness and a fact witness. In the Seventh Circuit, however, “[t]estifying as both
eyewitness and expert is permissible.” United States v. de Soto, 885 F.2d 354, 360 (7th Cir.
1989). The Seventh Circuit has noted that “[p]olice officers frequently testify as expert
witnesses on drug trafficking . . . and . . . expert testimony is helpful in explaining to jurors
why otherwise innocent behavior may be evidence of drug dealing.” United States v. Upton,
512 F.3d 394, 401 (7th Cir. 2008). Therefore, a police officer may permissibly testify in both
capacities. United States v. Mansoori, 304 F.3d 635, 654 (7th Cir. 2002). The Seventh
Circuit has recognized that there is a greater danger of unfair prejudice when the expert
witness was also an eyewitness because this “dual role may confuse the jury, which may not
understand its own function in evaluating the evidence.” United States v. Doe, 149 F.3d 634,
637 (7th Cir. 1998). “The central danger seems to be that the jury may attach ‘undue weight’
to the officer’s testimony, either by mistaking an expert opinion for what is really only an
eyewitness observation, or by inferring that the officer’s ‘opinion about the criminal nature
of the defendant’s activity is based on knowledge of the defendant beyond the evidence at
trial.’” United States v. Lipscomb, 14 F.3d 1236, 1242 (7th Cir. 1994). Therefore, this
situation places a heavy burden on the district court to ensure that the jury understands its
function in evaluating the evidence. See de Soto, 885 F.2d at 360; see also United States v.
Foster, 939 F.2d 445, 452 (7th Cir. 1991). “[C]ourts must be mindful when the same witness
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provides both lay and expert testimony.” Upton, 512 F.3d at 401. “Generally, the danger
of unfair prejudice that results from an officer performing the dual role of eyewitness and
expert can be minimized by cautionary instructions and by carefully constructed
examination.” Lipscomb, 14 F.3d at 1242.
This court concludes that the requisite degree of caution was exercised in this case.
Goodmanson testified as an expert witness first and testified later as a fact witness. This
court concludes that the Government structured the testimony “in such a way as to make
clear when the witness [was] testifying to facts and when he [was] offering his opinion as an
expert.” See Mansoori, 304 F.3d at 654; see also United States v. Morris, 576 F.3d 661, 676
(7th Cir. 2009). In addition, the jury was instructed:
You have heard witnesses give opinions about matters
requiring special knowledge or skill. You should judge this
testimony in the same way that you judge the testimony of any
other witness. The fact that such a person has given an opinion
does not mean that you are required to accept it. Give the
testimony whatever weight you think it deserves, considering
the reasons given for the opinion, the witness’s qualifications,
and all of the other evidence in the case.
See Foster, 939 F.2d at 453 (jurors instructed that they were free to credit as much or an little
of the witness’s testimony as they saw fit). This court concludes that the separation of
Goodmanson’s expert testimony and fact testimony and this court’s instruction to the jury
eliminated any risk of prejudice to Petitioner in this case. See Upton, 512 F.3d at 401-02;
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Lipscomb, 14 F.3d at 1243. The jury was properly instructed and there is no reason to
believe that the jury had any doubt about its function in evaluating the evidence. Therefore,
Goodmanson’s expert testimony was properly admitted at trial.
Based upon the applicable case law, this court certainly cannot say that it was outside
the realm of reasonable professional assistance for Petitioner’s counsel to decide not to
challenge Goodmanson’s expert testimony. In addition, Petitioner cannot show prejudice
because this court would have overruled any objection made to the expert testimony provided
by Goodmanson based upon precedent from the Seventh Circuit.
Petitioner next argues that his trial attorneys were ineffective for failing to prevent or
challenge testimony that two key prosecution witnesses received reductions in their sentences
based upon previous truthful testimony.
Petitioner argues that this amounted to
impermissible vouching for the credibility of the witnesses. He argues that “the tautological
conclusion left to the jury was that the credibility of these two witnesses had already been
verified by the government and by the judicial system.”
At trial, Natris Morris testified that he was housed at the Dewitt County jail with
Petitioner. Morris testified that he had many opportunities to talk to Petitioner. Morris
testified that they discussed Petitioner’s pending case. Morris testified that, at first, Petitioner
said that he was innocent. Morris testified that Petitioner became more comfortable the more
they talked and eventually “said that he was trafficking some drugs for a cartel out of Mexico
and Texas, and he had got pulled over and got caught.” Morris stated that Petitioner told him
he was driving a semi truck and was transporting cocaine. Morris said that Petitioner told
him the cocaine was located in a hidden compartment of the trailer of the semi. Morris
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testified that he was currently in the custody of the Federal Bureau of Prisons based on a
conviction for conspiracy to distribute five kilograms of more of cocaine, possession of
cocaine with the intent to distribute it and carrying a firearm during a drug trafficking crime.
Morris testified that he also had a prior conviction in Vermilion County in 1999 for delivery
of a controlled substance. Morris testified that he pled guilty to the federal offenses and, as
part of the plea, entered into a cooperation agreement with the Government. Morris said that
he was hoping to gain a reduction in his sentence by cooperating with the Government. He
testified that he was currently serving a sentence of 181 months. He agreed that he had been
facing a sentence of 300 months and had already had his sentence reduced based on
cooperation that was unrelated to Petitioner’s case. He testified that he was hoping to receive
an additional reduction from the judge.
During cross-examination, Morris testified that he was hoping to get a substantial
reduction in his sentence based upon his testimony. He agreed with Petitioner’s counsel that
the only way the judge would consider him for a reduction in his sentence would be if the
Government told the judge that he cooperated and made a motion to reduce the sentence.
Morris agreed that “the person who has to be convinced that [his] testimony is helpful is the
person who sits right here today (referring to the prosecutor, Eugene Miller).” Morris agreed
that he was “in Mr. Miller’s hands as to whether it gets that far.” Morris also agreed that
“[j]ail’s not fun.” On redirect examination, the Government discussed with Morris the terms
of the cooperation agreement and his agreement “to provide complete and truthful
testimony.” Morris testified that his understanding was that he had to testify if needed and
had to “be truthful, completely truthful at all times.” Morris also testified that whether he got
15
a reduction of his time depended on how truthful his statements were.
Mario Martinez also testified for the Government at trial. He testified that he knew
Petitioner because they grew up in the same town in Texas. Martinez testified that he and
Petitioner were involved in a delivery of 55 pounds of marijuana in 2002. Martinez testified
that the marijuana was transported in a semi truck with a refrigerated trailer and Petitioner
was driving the tractor-trailer. Martinez testified that he was currently in the custody of the
Federal Bureau of Prisons based upon a conviction in the Southern District of Indiana for
conspiracy to distribute more than 1,000 kilograms of marijuana. Martinez testified that he
also had two prior Texas convictions, a 1993 conviction for felony possession of marijuana
and a 2001 conviction for felony theft. Martinez testified that he pled guilty to the federal
offense and entered into a cooperation agreement. He testified that he was facing a sentence
of 10 years and received a sentence of 70 months because of cooperation unrelated to
Petitioner’s case. Martinez testified that he had 18 months left to serve on his sentence.
During cross-examination, Martinez agreed with Petitioner’s counsel that jail is not
a fun place and he would rather be anywhere else than prison. Martinez testified that it was
up to the judge whether he would get a greater reduction in his sentence but agreed that the
Government would have to recommend a reduction and then it would be up to the judge.
During redirect examination, Martinez stated that his understanding of what was required for
him to have an opportunity to have his sentence reduced was “saying the truth and nothing
else.” The plea agreements and cooperation agreements entered by Morris and Martinez
were admitted into evidence but did not go to the jury room during the jury’s deliberations.
Petitioner argues that the testimony that Morris and Martinez had received reductions
16
in their sentences for prior cooperation constituted impermissible vouching because the
evidence implied to the jury that the witnesses’ veracity had been verified by the Government
and the court.
The Government argues that Petitioner’s trial counsel’s strategy was to use the
evidence of the witnesses’ respective sentence reductions to impeach their credibility.
Following this strategy, Petitioner’s trial counsel vigorously cross-examined Morris and
Martinez and argued that the sentencing reductions received by the cooperating witnesses
established their lack of credibility and their motive to testify falsely to please the
Government. In addition, this court gave a jury instruction which pointed out that Morris and
Martinez had received benefits from the Government in connection with this case and
instructed the jury to “give their testimony such weight as you feel it deserves, keeping in
mind that it must be considered with caution and great care.”
Based upon the record in this case, this court cannot agree with Petitioner that his
counsel allowed impermissible vouching to occur. Petitioner has conceded that, “[o]f course,
the prosecution is entitled to offer on direct examination testimony about the plea agreement
and to introduce into evidence the fact that plea deals are conditioned upon truthful
testimony.” See United States v. Anderson, 303 F.3d 847, 856 (7th Cir. 2002); see also
United States v. Johnson, 437 F.3d 665, 672 (7th Cir. 2006). “Just as defense counsel have
every right to attack the credibility of witnesses who get deals, the prosecution is entitled to
get into evidence the fact that the deals are conditioned upon truthful testimony.” United
States v. Thornton, 197 F.3d 241, 252 (7th Cir. 1999). “[T]he admission of these agreements
does not constitute government vouching for the credibility of the witnesses.” Thornton, 197
17
F.3d at 252. In fact, the Seventh Circuit has held that evidence of prior successful
cooperation was not improper “bolstering” and was relevant evidence that may properly be
admitted at trial. See United States v. Scott, 267 F.3d 729, 734-37 (7th Cir. 2001), see also
United States v. White, 519 F.3d 342, 346 (7th Cir. 2008); United States v. Curry, 187 F.3d
762, 766-67 (7th Cir. 1999); United States v. Lindemann, 85 F.3d 1232, 1242-44 (7th Cir.
1996). Petitioner has relied on United States v. Cheska, 202 F.3d 947 (7th Cir. 1999) in
support of his argument that he was prejudiced by his counsel’s failure to object to evidence
of the reductions in the sentences imposed on Morris and Martinez. The Seventh Circuit has
recognized, however, that Cheska involves a completely different situation. “Cheska did not
involve the admission of evidence but instead involved prosecutorial misconduct that
stemmed from a comment that a witness ‘had convicted 23 other people’ when evidence of
the witness’ prior cooperation had not been admitted into evidence.” Scott, 267 F.3d at 737
n.4, quoting Cheska, 202 F.3d at 949.
In this case, this court concludes that Petitioner’s counsel employed a reasonable
strategy to attack the credibility of the witnesses to which this court must give deference. In
addition, based upon Seventh Circuit case law authority, this court concludes that the
evidence complained of was properly admitted. The record shows that each side argued
competing inferences from the cooperation agreements and plea agreements and the jury’s
role as independent fact finder was not undermined. See Thornton, 197 F.3d at 252.
Petitioner’s claim that he was denied the effective assistance of counsel is entirely without
merit.
Petitioner has also argued that his appellate counsel was ineffective for failing to raise
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these issues on appeal. This court concludes that it was not ineffective for Petitioner’s
appellate counsel to fail to raise the issue of Goodmanson’s expert testimony and the issue
of the evidence regarding Morris’ and Martinez’ sentence reductions on appeal. This court
has already concluded that these issues lack merit. “Failure to raise a losing argument, whether
at trial or on appeal, does not constitute ineffective assistance of counsel.” Stone v. Farley, 86
F.3d 712, 717 (7th Cir. 1996), citing Strickland, 466 U.S. at 687.
For his final argument, Petitioner contends that the cumulative effect of the admission
of Goodmanson’s expert testimony and the impermissible vouching denied him his right to a fair
trial. Because this court has concluded that the evidence complained of was properly admitted
and Petitioner’s counsel was not ineffective for failing to challenge the admission of the
evidence, this argument fails as well.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, this court denies
a certificate of appealability in this case. This court concludes that Petitioner has not made
the required “substantial showing of the denial of a constitutional right.” See 28 U.S.C. §
2253(c)(3).
IT IS THEREFORE ORDERED THAT:
(1) Petitioner’s Motion for Reconsideration (#8) is GRANTED. This court therefore
vacates its Opinion (#6), which dismissed Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence By a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (#1) as
untimely.
(2) Following careful consideration of the merits of Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence By a Person in Federal Custody pursuant to 28 U.S.C. § 2255
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(#1), Petitioner’s Motion (#1) is DENIED.
(3) A certificate of appealability is DENIED.
(4) This case is terminated.
ENTERED this 4th day of November, 2011
s/MICHAEL P. McCUSKEY
CHIEF U.S. DISTRICT JUDGE
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