Jackson v. United States of America

Filing 6

OPINION entered by Judge Michael P McCuskey on 4/16/14. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 USC Sec 2255 1 and 2 are DENIED. A certificate of appealability is DENIED. This case is terminated. Copy mailed to Victor D Jackson, 15032-026, Marion USP, PO Box 1000, Marion, IL 62959. (TC, ilcd)

E-FILED

Wednesday, 16 April, 2014 10:05:53 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
_____________________________________________________________________________
VICTOR D. JACKSON,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

Case No. 14-CV-2012

OPINION
On January 31, 2014, Petitioner Victor D. Jackson filed this Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1, 2). The government filed its Response (#4)
on March 3, 2014. Petitioner filed his Reply on April 14, 2014. For the following reasons,
Petitioner’s Motion (#1, 2) is DENIED.
BACKGROUND
Petitioner was indicted on June 10, 2010, on three counts of distributing 5 grams or more of
crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The first count was alleged
to have occurred on April 23, 2010 (Petitioner was joined in this count by co-defendant Daniel J.
Kelly). The second and third counts occurred on April 26 and April 28, 2010, respectively. Panel
attorney Bruce G. Ratcliffe was appointed to represent Petitioner. On March 31, 2011, Kelly plead
guilty to count one of the Indictment. On April 14, 2011, Petitioner was found guilty by a jury of
counts one and two of the Indictment. A mistrial was declared on count three. On July 8, 2011,
Petitioner was sentenced to 360 months in the Federal Bureau of Prisons (BOP) and Kelly was
sentenced to 188 months in the BOP. The U.S. Seventh Circuit Court of Appeals affirmed
Petitioner’s conviction but vacated his sentence and remanded the case to this court for resentencing

in light of the U.S. Supreme Court’s decision in Dorsey v. United States, 132 S.Ct. 2321 (2012).
United States v. Jackson, 491 Fed.Appx. 738 (7th Cir. July 5, 2012). On January 29, 2013, Petitioner
was resentenced to 200 months in the BOP.
Petitioner’s Motion under 28 U.S.C. § 2255
Petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. § 2255 (#1, 2) on January 31, 2014. Petitioner alleges, in general, that his trial counsel was
ineffective. Petitioner makes three specific arguments regarding his counsel’s ineffectiveness: (1)
counsel was ineffective for failure to “negotiate or present a reasonable plea for consideration” and
instead “moved the defendant toward trial and an unrealistic expectation of outcome”; (2) counsel
was ineffective for failing to challenge his sentence, in that the sentence was based on the
“elements” of the crime charged instead of being based solely on the “evidence” of the crime; and
(3) counsel was ineffective for failing to cross examine and impeach key government witnesses and
for failure to investigate and find witnesses who would support Petitioner’s defense.

The

government filed its Response (#4) on March 3, 2014. The government argued that (1) Petitioner
was well aware of the plea offer in this case and he rejected the offer; (2) it would have been
unreasonable for counsel to object to the court’s consideration of the factors set out in 18 U.S.C. §
3553(a) when sentencing Petitioner; and (3) Petitioner did not provide any proof of what witnesses
counsel should have called and counsel engaged in a lengthy cross-examination and attempted to
impeach Shannon Kizer, the government’s main witness. Petitioner filed a Reply on April 14, 2014.
ANALYSIS
Legal Standards Governing Ineffective Assistance of Counsel Claims Generally
Petitioner’s § 2255 claims are based on the Sixth Amendment to the United States

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Constitution. The Seventh Circuit recently addressed the general legal standards governing habeas
claims under the Sixth Amendment for ineffective assistance:
“Relief under this statute is available only in extraordinary situations, such
as an error of constitutional or jurisdictional magnitude or where a fundamental
defect has occurred which results in a complete miscarriage of justice. Prewitt v.
United States, 83 F.3d 812, 816 (7th Cir. 1996); Barnickel v. United States, 113 F.3d
704, 705 (7th Cir. 1997). The Sixth Amendment to the Constitution provides that
‘[i]n all criminal prosecutions, the accused shall enjoy the right... to have the
Assistance of Counsel for his defence.’ U.S. CONST. amend. VI. This right to
assistance of counsel encompasses the right to effective assistance of counsel.
Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009) (citations omitted).
A party asserting ineffective assistance of counsel bears the burden of
establishing two elements: (1) that his trial counsel’s performance fell below
objective standards for reasonably effective representation, and (2) that counsel’s
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88,
104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); United States v. Jones, 635 F.3d 909, 915
(7th Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009).
To satisfy the first element of the Strickland test, [the petitioner] must direct
the court to specific acts or omissions by his counsel. Wyatt, 574 F.3d at 458
(citation omitted). In that context, the court considers whether in light of all the
circumstances counsel’s performance was outside the wide range of professionally
competent assistance. Id. The court’s assessment of counsel’s performance is

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‘highly deferential [,]... indulg[ing] a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance...’ See Strickland, 466
U.S. at 689-90, 104 S.Ct. 2052; accord Wyatt, 574 F.3d at 458. Further, counsel’s
performance is to be evaluated in light of the discretion properly accorded an
attorney to develop appropriate trial strategies according to the attorney’s
independent judgment, given the facts of the case, at least some of which may not be
reflected in the trial record. See Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052.
Courts are admonished not to become ‘Monday morning quarterback[s]’ in
evaluating counsel’s performance. Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second Strickland element, [the petitioner] must show that
there is a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different, such that the proceedings were fundamentally
unfair or unreliable. Jones, 635 F.3d at 915 (citations omitted); Adams v. Bertrand,
453 F.3d 428, 435 (7th Cir. 2006). ‘A reasonable probability is defined as one that is
sufficient to undermine confidence in an outcome.’ Adams, 453 F.3d at 435 (citing
Strickland, 466 U.S. at 694, 104 S.Ct. 2052).” Blake v. United States, 723 F.3d 87879 (7th Cir. 2013).
Petitioner’s First Ground: Ineffective Assistance for Failing to Present Petitioner with a
Reasonable Plea Deal and Forcing Petitioner to Trial
Petitioner argues that counsel failed to negotiate or introduce a plea option to him. Further,
Petitioner accuses counsel of doing everything he could to discourage Petitioner from accepting a
plea and instead forced Petitioner into proceeding to jury trial. Petitioner alleges that counsel never

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advised a plea option as being more advantageous and that counsel never advised on the clear
outcomes of a plea versus a jury trial. Counsel informed Petitioner that a plea would immediately
disqualify him from any future remedies possibly available through Dorsey and that, either way,
there would be no forthcoming relief for Petitioner from Dorsey. Petitioner claims he moved to jury
trial on counsel’s advice that: (1) Petitioner would not be eligible for any Dorsey reduction; and (2)
Petitioner would only face a maximum sentence of 262 months. The government responds that
Petitioner was well aware of the plea offer and, as shown in a letter to his counsel of June 17, 2013,
rejected the plea offer in order to preserve certain appeal rights.
The United States Supreme Court has recognized that “the negotiation of a plea bargain is
a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of
counsel.” Missouri v. Frye, 132 S. Ct. 1399, 1406 (2012), quoting Padilla v. Kentucky, 130 S. Ct.
1473, 1486 (2010). In Frye, the Supreme Court held that defense counsel therefore have a duty “to
communicate formal offers from the prosecution to accept a plea on terms and conditions that may
be favorable to the accused.” Frye, 132 S. Ct. at 1408; see also Lafler v. Cooper, 132 S. Ct. 1376,
1387 (2012) (noting that “[i]f a plea bargain has been offered, a defendant has the right to effective
assistance of counsel in considering whether to accept it”); United States v. Taylor, 2013 WL
2470259, at *6 (N.D. Ind. 2013). However, a defendant does not have a right to be offered a plea,
or to have a judge accept it. Frye, 132 S. Ct. at 1410; Lafler, 132 S. Ct. at 1387; Taylor, 2013 WL
2470259, at *6.
In this case, Petitioner claims that he received ineffective assistance of counsel because
counsel did not communicate the government’s plea offer to him. He also claims that, if his counsel
had properly informed him of his sentencing range if he went to trial versus pleading guilty, he

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would have plead guilty. In a situation where a defendant argues that his counsel gave him
ineffective advice which led him to go to trial rather than plead guilty, the Supreme Court has stated
that:
“a defendant must show that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been presented to the court (i.e.,
that the defendant would have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or both, under the offer’s
terms would have been less severe than under the judgment and sentence that in fact
were imposed.” Lafler, 132 S. Ct. at 1385.
In the instant case, however, Petitioner is alleging counsel was ineffective for not informing
him that he would eligible for relief under Dorsey even if he plead guilty. Petitioner alleges that,
had counsel properly informed him that he would still be eligible for relief under Dorsey even if he
had forgone trial and accepted the government’s offer, he would have taken the plea.
First, it should be noted that the Dorsey opinion had not yet been issued by the time of the
plea discussions between Petitioner and counsel. Taking as true all the facts argued by Petitioner
in his motion, the discussions of whether or not Petitioner should accept the government’s plea offer
or proceed to trial would have occurred before March 25, 2011, which was Petitioner’s acceptance
of responsibility deadline. Dorsey was not decided by the U.S. Supreme Court until June 21, 2012.
In fact, the Supreme Court did not even grant certiorari in United States v. Fisher, 635 F.3d 636 (7th

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Cir. 2011)1 until November 28, 2011. At the time of Petitioner and counsel’s discussions on the
plea, Fisher would have been the controlling law in the Seventh Circuit. Petitioner was charged
with a drug offense before the November 3, 2010 effective date of the Fair Sentencing Act, but
would be convicted and sentenced after the Act’s effective date. Fisher held that a defendant in
Petitioner’s situation was not entitled to a sentence reduction under the Act. Fisher, 635 F.3d at 340.
Strickland requires that scrutiny of counsel’s performance be highly deferential and that “[a] fair
assessment of attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689 (emphasis
added). At the time, the controlling law of the Seventh Circuit held that the Fair Sentencing Act
would not apply to a defendant in Petitioner’s circumstances and, despite Petitioner’s argument,
there was no guarantee that the Supreme Court would accept the case and overturn the Seventh
Circuit’s ruling.2

The court will not find counsel’s performance deficient for failure to

anticipate a future legal development. See Dell v. United States, 710 F.3d 1267, 1281 (11th Cir.
2013); Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005) (finding that counsel’s failure
to raise an argument based on Apprendi v. New Jersey, 530 U.S. 466 (2000), which was considered
“novel” at the time and was issued after the filing of counsel’s appellate brief but before the filing

1

Fisher is the Seventh Circuit opinion that was reversed by the Supreme Court in Dorsey.
Anthony Fisher was the defendant-appellant whose case was joined with Edward Dorsey, Sr., in
the Seventh Circuit Court of Appeals for purpose of their appeal. In the Supreme Court,
however, Edward Dorsey was the lead petitioner, so the Supreme Court case is known as
Dorsey.
2

Indeed, a grant of certiorari was months away and when the Court did issue its opinion
overruling Fisher the decision, at 5-4, was close.
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of his reply brief, “did not render his performance constitutionally ineffective.”). The court finds
instructive a decision from the Eastern District of Missouri. The petitioner in a § 2255 motion
claimed that his trial counsel was ineffective for failing to object to the sentencing court’s treatment
of the Sentencing Guidelines calculations as “presumptively reasonable.” The sentencing occurred
in 2006. The petitioner claimed his counsel should have objected under a U.S. Supreme Court case,
Rita v. United States, 551 U.S. 338 (2007), that was issued a year later. The district court held that
the petitioner’s claim was without merit “because it is premised on the notion that his attorney
should have raised an objection at the sentencing hearing based on a Supreme Court case that had
not yet been decided” and that “it was not ineffective assistance for movant’s counsel not to object
when the Court would have been following binding Eighth Circuit precedent.” Hayes v. United
States, 2012 WL 718636, *11, 12 (E.D. Mo. March 6, 2012).
Similarly, in the instant case, it was not ineffective assistance of counsel for counsel to advise
Petitioner that he may not be entitled to a reduction under the Fair Sentencing Act if he accepted the
government’s plea offer. Based on Petitioner’s letter to counsel of June 17, 2013, attached as an
exhibit to the Motion (#1, 2), counsel did communicate the government’s plea offer to Petitioner.
Petitioner claims that, if counsel had been able to advise him that he would be eligible for a sentence
reduction under Dorsey (in which certiorari had not yet even been granted), even if he plead guilty,
he would have accepted the government’s offer. The court cannot find that counsel was ineffective
for failure to base advice to Petitioner on a Supreme Court case that had not yet been decided.
Further, even if counsel had been aware that the Supreme Court would decide Dorsey in the
manner the Court did, it was not unreasonable for counsel to be concerned that Petitioner would be
in danger of waiving his right to a Dorsey reduction if he accepted the government’s plea offer. The

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plea agreements prepared and submitted to the court by the government almost always contain
provisions in which defendants waive their rights to appeal and/or collaterally attack their convictions
and sentence. The Seventh Circuit has routinely upheld such waivers and barred defendants from
challenging their convictions or sentences due to the waivers contained in their plea agreements.
Nunez v. United States, 546 F.3d 450 (7th Cir. 2008); United States v. Cieslowski, 410 F.3d 353, 364
(7th Cir. 2005); United States v. Hare, 269 F.3d 859, 861-62 (7th Cir. 2001). By advising Petitioner
to proceed to trial if Petitioner hoped to one day receive the benefit of a reduction under the Fair
Sentencing Act, counsel was making a strategic decision he felt was in the best interests of his client
based on counsel’s knowledge of the facts and existing circuit law at the time. It would have been
reasonable for counsel to believe that, under existing Seventh Circuit case law at the time of plea
negotiations, if Petitioner plead guilty and waived his right to appeal or collaterally attack his sentence
and did not include an “escape hatch”3 based on future Supreme Court legal developments, Petitioner
would waive any right to a future sentence reduction under Dorsey. See United States v. McGraw,
571 F.3d 624, 631 (7th Cir. 2009) (in rejecting a defendant’s argument that his waiver of appeal was
invalid because he did not anticipate subsequent legal developments, the court held “[b]y binding
oneself one assumes the risk of future changes in circumstances in light of which one’s bargain may
prove to have been a bad one[]” and that “[b]y entering into an appeal waiver that did not include an
escape hatch*** [the defendant] relinquished his right to challenge his sentence based on intervening
Supreme Court decisions.”). Thus, under Seventh Circuit law as it existed at the time, it was not
unreasonable for counsel to advise Petitioner that, if Dorsey was eventually decided in his favor, he

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There is no guarantee the government would offer such an “escape hatch.” Indeed, it is
this court’s long experience in this district that the U.S. Attorney’s Office for the Central District
of Illinois does not offer such “escape hatches” in their plea agreements.
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stood a greater chance of having it apply if he was convicted at trial as opposed to accepting a
government plea agreement.
Counsel provided this advice more than a year before Dorsey was decided and counsel had
no knowledge of what the Court’s decision would be and whether it would be applicable to someone
in Petitioner’s situation who plead guilty and waived his right to attack his sentence. Therefore, the
court cannot say that counsel’s concern and advice to Petitioner rose to the level of objectively
unreasonable representation contemplated by the Supreme Court in Strickland. Petitioner’s motion
must be DENIED on this ground.
Petitioner’s Second Ground: Counsel was Ineffective for Not Challenging the Court’s
Determination of His Sentence When the Court Based the Sentence on the Crime’s Elements, and Not
the Actual Evidence
Petitioner next argues that his counsel was ineffective for failing to challenge the court’s
factoring in the elements of the crime, as opposed to the evidence behind the crime, in imposing
sentence on remand. Specifically, Petitioner cites: “an enhanced drug quantity that remains
inconsistent with the evidence introduced, a perception of a conspiracy without the components of
conspiratory activity in existence” and enhancements for “various infractions” that were later
dismissed or reduced to probation and occurred during Petitioner’s youth. Petitioner argues that the
two predicate offenses used to qualify him as a career offender “would not qualify a foundation to
meet the 4B1.1 definition of a predicate offense.” The government responds that the court is required
to consider the factors set out in 18 U.S.C. § 3553(a) when imposing sentence, so it would have been
unreasonable for defense counsel to object to the court’s consideration of the § 3553(a) factors.
Petitioner’s arguments are not exactly clear. However, from what the court can construe,
Petitioner appears to be arguing that the court improperly enhanced his sentence by terming him a

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career offender based on two of his prior convictions without actually examining the specific conduct
behind those offenses. Instead, he argues, the court merely looked at the statutory nature of the
offenses themselves, or their “elements.” Petitioner argues his counsel was ineffective for failing to
challenge the court on this ground. In support, Petitioner cites to the U.S. Supreme Court cases
Alleyne v. United States, 133 S.Ct. 2151 (2013) and Descamps v. United States, 133 S.Ct. 2276
(2013). These cases were decided on June 17, 2013 and June 20, 2013, respectively. Petitioner’s two
sentencings occurred July 8, 2011 and January 29, 2013. Counsel cannot be held to be ineffective for
failing to challenge the court at sentencing based on U.S. Supreme Court decisions that had not yet
been issued. See Dell, 710 F.3d at 1281 (court declined to find counsel ineffective for not making an
argument based on Kimbrough v. United States, 552 U.S. 85 (2007) when Kimbrough had not yet
been decided, even though a Kimbrough-type argument was available, holding “[w]e have never
required counsel to anticipate future legal developments– such as the outcome of a pending Supreme
Court case– in order to meet the constitutional minimum for effective advocacy, and we decline to
do so here.”). Therefore, Petitioner’s motion is denied on this ground.
Further, even if those cases had come out by the time of Petitioner’s sentencing, neither case
would apply to provide Petitioner relief. In Alleyne, the Court held that any fact that increases the
mandatory minimum sentence for a crime is an “element” of the crime, not a “sentencing factor,” and
it must be submitted to the jury. Alleyne, 1333 S.Ct. at 2155. However, Petitioner’s arguments relate
to his status as an armed career criminal based on prior convictions, and the Seventh Circuit has noted
that:
“Alleyne, however, did not change the rule announced in Almendarez-Torres
v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), that the fact
of a prior conviction need not be alleged in the indictment or proven to a jury beyond

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a reasonable doubt. The Court explicitly stated in Alleyne that it was not revisiting its
Almendarez-Torres decision because the parties had not raised it. 133 S.Ct. at 2160
n.1.

Until the Supreme Court tells us otherwise, we will continue to apply

Almandarez-Torres, and so we decline to set aside Boyce’s sentence on this ground.”
United States v. Boyce, 742 F.3d 792, 799 (7th Cir. 2014).
Thus, Alleyne would provide no relief from Petitioner’s qualification as a career offender and
counsel was not objectively unreasonable for failing to make such an argument. Nor would Descamps
provide relief. In Descamps, the Court held that, in determining whether a defendant was an armed
career criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, courts may not apply the modified
categorical approach to sentencing to determine whether a prior conviction is a crime of violence
when the prior conviction has a single, indivisible set of elements. Descamps, 133 S.Ct. at 2281-82.
Petitioner, however, was not convicted as an armed career criminal under § 924(e) or § 4B1.4, but
rather was merely termed a career offender under § 4B1.1. Further, Petitioner’s prior convictions
were drug offenses, and thus no analysis under a categorical or modified categorical approach was
required to determine whether the prior convictions were “crimes of violence.” Thus, Descamps
would not have applied. Counsel was not ineffective at sentencing and thus Petitioner’s motion on
this ground must be DENIED.
Petitioner’s Third Ground: Counsel was Ineffective for Foregoing Cross Examination
Opportunities, Neglecting Witness Opportunities, and Allowing Key Testimony to Remain
Unimpeached
Petitioner argues that counsel was ineffective for failing to cross examine and impeach
government witnesses and for failing to procure favorable testimony from defense witnesses.
Specifically, Petitioner faults counsel for failing to “appropriately and effectively cross examine and

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impeach the ‘expert testimony’ aspect of Witness Shannon Kizer [the government informant], and
subsequently, permitted this witness to testify under the dual role of both ‘expert’ and ‘lay’ witness.”
Because the Champaign police were unsuccessful in producing actual drug, weapon, or currency
evidence, Petitioner agues “there existed a reliance upon the ‘lay’ aspect of the testimony in
determining transactionary confirmation” and that counsel should have challenged the informant’s
status as an “expert.” Petitioner also argues that counsel should have called as a witness Candis
Williams, who he believed could have impeached the government’s informant and provided proof
that, at the time of the informant’s supposed transactions with Petitioner the informant was deterred
to a vehicle owned by Williams “where an opportunity for a myriad of alternate circumstances may
have been introduced by counsel to show that this informant may have redefined the conditionals
associated with a transaction” which would have given the jury reasonable doubt. The government
responds that Petitioner has not provided specifics on his witnesses or whether counsel was aware of
his witnesses. The government also argues that trial counsel engaged in a lengthy cross examination
of Kizer and attempted to impeach Kizer and call his credibility into question.
As noted above, to prove ineffective assistance of counsel Petitioner must show that his
counsel’s performance was both deficient and that the deficiency resulted in prejudice. See
Strickland, 466 U.S. at 687. Petitioner must show that his counsel’s performance fell below an
objective standard of reasonableness and thus, review of counsel’s actions is highly deferential and
the court indulges a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. See Strickland, 466 U.S. at 688-89.
First, with regard to his counsel’s failure to put Candis Williams on the stand, it should be
noted that the Constitution does not oblige defense counsel to present each and every witness that is
suggested to him. United States v. Berg, 714 F.3d 490, 499 (7th Cir. 2013). Rather, the Constitution

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simply obliges counsel to investigate the various lines of defense in a given case and, if counsel has
investigated witnesses and consciously decided not to call them, the decision is probably strategic.
Berg, 714 F.3d at 499. As a result, counsel’s decision to call or not call a witness is generally not
subject to review. Berg, 714 F.3d at 499.
In the instant case, Petitioner has not provided any specific information as to how Candis
Williams would have helped his case. He has not stated definitively that Candis Williams was in the
car to which Kizer was supposedly diverted during one of the controlled buys. He also provides
nothing but speculation as to what happened at the car to which the informant was allegedly diverted.
Further, there were three separate days of controlled buys charged in three separate counts of the
indictment. Petitioner has not said which day included the alleged diversion. Petitioner has not
pointed to a specific moment in the record of the case where this supposed diversion occurred where
“any myriad of alternate circumstances” may have been introduced by counsel to impeach the
informant. “‘Judges are not like pigs, hunting for truffles buried in [the record]’”. Gross v. Town of
Cicero, Ill., 619 F.3d 697, 702 (7th Cir. 2010), quoting United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991). Petitioner has not met his burden to overcome the court’s highly deferential review of
counsel’s actions and the strong presumption of this court that counsel’s conduct fell within the wide
range of reasonable professional assistance. See Strickland, 466 U.S. at 688-89.
Even if Petitioner were able to show counsel’s performance was deficient, he has not
demonstrated prejudice. As noted above, Petitioner was charged with three separate drug transactions
on three separate days. He has not identified on which day the supposed diversion to Williams’s
vehicle occurred. Even if Petitioner could specifically identify the day on which the diversion
occurred, it would likely not have undermined confidence the outcome of the trial and thus, the result
of the proceeding would not have been different. The Seventh Circuit, on direct review, found that

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the evidence against Petitioner was strong. Jackson, 491 Fed.Appx. at 740 (noting that any error on
the court’s part to permit Kizer to testify on certain subjects “was harmless given the strength of the
evidence in the case” against Petitioner). Petitioner cannot demonstrate any prejudice sufficient to
satisfy the Strickland standard due to counsel’s failure to present Candis Williams as a witness.
Nor was counsel ineffective in his treatment of informant witness Kizer. The court agrees
with the government’s assertion that defense counsel engaged in a lengthy cross examination of Kizer
and attempted to impeach Kizer’s testimony. Defense counsel cross examined Kizer about his lengthy
criminal history and charges that he had pending at the time of his actions as an informant against
Petitioner. Kizer was also cross examined about his actions during the controlled buys. To the extent
Petitioner argues counsel was ineffective for not challenging Kizer’s “expert” status, the Seventh
Circuit has already determined that Kizer need not be “qualified as an expert to explain his own
understanding of his own words” and noted that Kizer’s testimony on such subjects was not extensive.
Jackson, 491 Fed.Appx. at 740. Kizer had certainly been involved in drug transactions in the past and
could testify as to his experiences and observations and the meaning of certain words and phrases.
Any failure of defense counsel to cross examine Kizer on those issues does not rise to the level of
ineffectiveness contemplated by Strickland, as defense counsel thoroughly cross examined Kizer on
other relevant matters and the evidence against Petitioner, as noted by the Seventh Circuit, was very
strong. Therefore, as counsel was not ineffective in his presentation of witnesses or cross examination
of Kizer, Petitioner’s motion must be DENIED on this ground.
CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, this court denies a
certificate of appealability in this case (COA). A district court may issue a COA “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). In Barefoot v. Estelle, 463 U.S. 880 (1983), superseded on other grounds by 28 U.S.C.
§ 2253(c)(2), the Supreme Court set forth the methodology to be used in evaluating a request for a
COA. A petitioner need not demonstrate that he should prevail on the merits, but rather must
demonstrate that the issues are debatable among jurists of reason, that the court could resolve the
issues in a different manner, or that the questions are adequate to deserve encouragement to proceed
further. Barefoot, 463 U.S. at 893, n. 4. The court believes that Petitioner has not demonstrated that

the issues raised are debatable among jurists of reason. The court would not resolve the issues in
a different manner nor does it believe the questions are adequate to deserve encouragement to
proceed further. Petitioner has not made a substantial showing of the denial of a constitutional right.
A COA is DENIED in this case. IT IS THEREFORE ORDERED:
(1) Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §
2255 (#1, 2) is DENIED. A certificate of appealability is DENIED.
(3) This case is terminated.
ENTERED this 16th day of April, 2014.

s/ MICHAEL P. McCUSKEY
U.S. DISTRICT JUDGE

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