Bryant v. United States of America
Filing
12
OPINION (See Written Opinion): Petitioner Freddell Bryant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1 ) is DENIED for the reasons above. Entered by Judge Sue E. Myerscough on 5/19/2016. (VM, ilcd)
E-FILED
Thursday, 19 May, 2016 12:42:05 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
FREDDELL BRYANT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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3:15-cv-2158
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Petitioner Freddell Bryant has filed a Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (d/e 1). Bryant is serving three consecutive
sentences of life imprisonment, having been convicted by a jury of
using a firearm to murder three people during a drug-trafficking
crime. He asks the Court to vacate his sentences.
I.
Background
On April 4, 2007, Bryant was indicted for conspiring to
distribute cocaine and crack cocaine; possessing 500 or more
grams of cocaine with intent to distribute; possessing a firearm in
furtherance of a drug trafficking crime; possessing a firearm in
Page 1 of 40
furtherance of a drug conspiracy; and possessing a firearm as a
felon. See United States v. Bryant, Case No. 2:07-cr-20043, C.D.
Ill. Apr. 4, 2007.
On March 24, 2009, Bryant signed a “cooperation and
testimony” agreement with the Government and pleaded guilty to
three of the offenses charged in the 2007 indictment. Pursuant to
the agreement, Bryant promised to “provide complete and truthful
testimony to any grand jury, trial jury, or judge in any proceeding in
which [Bryant] may be called to testify.” Cooperation Agreement,
United States v. Bryant, 2:07-cr-20043, C.D. Ill. Mar. 24, 2009
(Doc. 62 at 20-21) (emphasis removed). The agreement warned that
Bryant’s immunity from prosecution depended on his “complete
compliance” with the cooperation agreement. Id. at 21.
Pursuant to the cooperation agreement, Bryant met with the
Government in January and February 2010 and admitted that he
had been involved in a triple homicide on March 25, 2007. At the
January meeting, Bryant confessed to shooting and killing all three
of the victims, but in February he changed his story and said that
he himself had killed only one of the three victims.
On March 24, 2011, Bryant was called before a grand jury in
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state court in Vermilion County, Illinois, to testify about the triple
homicide. Bryant refused to testify, invoking his Fifth Amendment
right against self-incrimination.
The following month, in April 2011, Bryant was again called to
testify, this time in front of a federal grand jury. But Bryant
informed the Government that he did not intend to testify before the
federal grand jury, either. On April 6, 2011, the district judge
appointed an attorney, Jon Noll, to represent Bryant regarding his
grand jury testimony.
After meeting with his attorney, Bryant reiterated his intention
not to testify in front of the grand jury. The Government gave
Bryant until May 3, 2011, to change his mind.
On May 3, 2011, Bryant appeared before the grand jury and,
as promised, refused to testify. The Government then wrote
Bryant’s attorney a letter informing Bryant that, because he had
willfully violated the 2009 cooperation agreement, the cooperation
agreement was voided. May 4, 2011 letter, United States v. Bryant,
2:11-cr-20034, C.D. Ill. Sept. 14, 2012 (Doc. 16-2). The
Government told Bryant that it was now entitled to use Bryant’s
confession in support of a criminal prosecution against Bryant.
Page 3 of 40
In July 2011 the Government charged Bryant with three
counts of using a firearm to commit murder during a drugtrafficking crime. A jury convicted Bryant on all three counts, and
the district judge sentenced Bryant to three consecutive life
sentences.
Bryant appealed, arguing that the district judge erred in
allowing the Government to use Bryant’s 2010 confession against
him. But the Seventh Circuit rejected Bryant’s argument and
affirmed the judgment and sentences.
II.
Discussion
18 U.S.C. § 2255 allows a person convicted of a federal crime
to vacate, set aside, or correct his sentence. It is an extraordinary
remedy, because a Section 2255 petitioner has already had “an
opportunity for full process.” Almonacid v. United States, 476 F.3d
518, 521 (7th Cir. 2007). Post-conviction relief under Section 2255
is therefore “appropriate only for an error of law that is
jurisdictional, constitutional, or constitutes a fundamental defect
which inherently results in a complete miscarriage of justice.”
Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (internal
quotation omitted).
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A.
Timeliness
Absent circumstances not present here, a Section 2255 motion
must be filed within one year of the date on which the judgment of
conviction became final. 28 U.S.C. § 2255(f)(1). A judgment of
conviction becomes final when the time expires for filing a petition
for certiorari with the Supreme Court. Clay v. United States, 537
U.S. 522, 525 (2003). The deadline for filing a petition for certiorari
is 90 days after the Court of Appeals enters its judgment. S. Ct. R.
13(1). Here, the Seventh Circuit entered its judgment on April 17,
2014, and so Bryant’s judgment became final on July 16, 2014—
giving Bryant until July 16, 2015 to file his Section 2255 motion.
Bryant’s motion did not reach this Court until July 28, 2015.
But a prisoner’s Section 2255 motion is considered “filed” for
statute of limitations purposes when it is submitted to the proper
prison authorities for filing. Jones v. Bertrand, 171 F.3d 499, 502
(7th Cir. 1999). Here, Bryant has declared under penalty of perjury
that he gave his motion to the prison authorities on July 13, 2015.
Because no evidence refutes this claim, the Court finds that Bryant
timely filed his motion.
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B.
Bryant’s motion on the merits
Bryant argues that the Court should vacate his sentences
because his attorneys before and during his trial provided such
ineffective assistance that Bryant was deprived of his Sixth
Amendment right to counsel. Strickland v. Washington, 466 U.S.
668, 684-86 (1984) (Sixth Amendment guarantees criminal
defendants effective assistance of counsel). Under Strickland’s
familiar two-part test, Bryant must show both that his attorney’s
performance was deficient and that he was prejudiced as a result.
Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015).
To satisfy the deficiency prong, Bryant must show that his
attorney’s representation “fell below an objective standard of
reasonableness.” Id. Scrutiny of an attorney’s performance in the
context of a Section 2255 motion is highly deferential, so as to
“eliminate as much as possible the distorting effects of hindsight.”
Id. The Court “indulge[s] a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Id. (internal quotation omitted).
To satisfy the prejudice prong, Bryant must “establish a
reasonable probability that, but for counsel’s unprofessional errors,
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the result of the proceeding would have been different.” Id. at 1227
(internal quotation omitted).
Here, Bryant argues that his attorneys provided ineffective
assistance in three ways. For the reasons below, the Court rejects
Bryant’s arguments.
1.
Bryant did not receive ineffective assistance of
counsel relating to his grand jury testimony.
Bryant first argues that his attorney Jon Noll provided
ineffective assistance in connection with Bryant’s grand jury
testimony in 2011. The district court had appointed Noll to
represent Bryant after the Government sought to have Bryant
testify in front of a federal grand jury in 2011. Bryant says that
after consulting with Noll he followed Noll’s advice and refused to
testify. Bryant says that the Government informed him that
refusing to testify was a breach of his cooperation agreement, but
that neither the Government nor Noll told Bryant that refusing to
testify would result in Bryant’s being charged with the three
murders in federal court. Bryant says that he was told only that
his refusal to testify “void[ed] the cooperation agreement in its
entirety and release[d] the United States from any obligation under
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the agreement,” and that only upon being charged with the murders
did “the reality of the breach of the agreement bec[o]me evident to
Bryant” (d/e 1-1 at 15) (internal quotation omitted).
Bryant says that based on Noll’s advice he believed that “all
statements made by him [in 2010] were protected … and could not
be used against him nor could new charges be filed based on those
statements” (d/e 1-1 at 15), and that he had no obligation to
continue cooperating with the Government pursuant to the
cooperation agreement after he was sentenced in his 2007 federal
case on April 29, 2010. Had the “exact repercussions” been
explained, Bryant says, he “would have never refused to testify”
before the grand jury (d/e 1-1 at 15-16). Bryant says that Noll
should have told him that not testifying could result in federal
murder charges, but instead Noll told him only that “his testimony
was protected by the terms of the plea agreements” (d/e 1-1 at 16).
Bryant argues that Noll’s performance constituted ineffective
assistance of counsel in violation of the Sixth Amendment. See
Strickland v. Washington, 466 U.S. 668, 687 (1984) (ineffective
assistance claim requires showing that “counsel made errors so
serious that counsel was not functioning as the ‘counsel’
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guaranteed … by the Sixth Amendment … [and] counsel’s errors
were so serious as to deprive the defendant of a fair trial”);
Kimmelman v. Morrison, 477 U.S. 365, 383 (1986) (“a single,
serious error may support a claim of ineffective assistance of
counsel”).
But numerous documents contradict Bryant’s account of what
Noll told Bryant. On April 22, 2011, Noll wrote to Bryant and
advised Bryant that refusing to testify could result in additional
criminal charges relating to the 2007 triple murder:
It was a pleasure meeting with you on Thursday, April
21, 2011.
… [I]t is our understanding that you do not wish to testify
further on any matter presently pending before the grand
jury. We believe that the testimony that would be elicited
would deal with the triple murder in Danville, which we
discussed yesterday.
The government has the capability to require your
testimony under the cooperation agreement
previously executed by you. The question remains as
to how long that cooperation agreement was intended to
remain in full force and effect. Undoubtedly, the
government will state that the agreement is open-ended.
Our position is that it terminated once you were
sentenced by the court and the time for appeal elapsed.
As your attorney, we must recommend that you testify
before the grand jury. The downside to refusing to
testify by exercising your rights under the Fifth
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Amendment may mean that the government seeks to
entangle you, in some way, into the triple murder
case. Possibly that could be by way of a gun charge
under Section 924(c) or under some type of drug
conspiracy charge. We see very little ‘downside’ to your
testimony. However, there could be problems that
arise if you refuse to testify. Those we discussed
with you yesterday and you seemed to understand
that very well.
(April 22, 2011 letter from Noll, d/e 5 at 9-10 (emphasis added).)
Bryant subsequently appeared before the grand jury, on May
3, 2011. During Bryant’s (brief) testimony, the Government’s
attorney confirmed Bryant’s understanding that, in the
Government’s view, Bryant’s refusal to testify constituted a breach
of the cooperation agreement and would allow the Government to
use Bryant’s previous statements against him:
Q: Okay. I’m just going to show you what’s been marked
as Grand Jury Exhibit FB Number 3 …. I’m going to refer
your attention to paragraph 3 which states “He agrees to
provide complete and truthful testimony to any grand
jury, trial jury, or judge in any proceeding in which he
may be called to testify by the United States.” Do you see
that paragraph?
A: Yes.
Q: And on page 4 of that agreement doesn’t that contain
the signature of both your attorney at the time, Robert
Rascia, and your signature?
A: Yes.
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Q: And that was signed back on March 24th of 2009?
You have to answer out loud.
A: Yes. Yeah.
…
Q: And my understanding is from talking with your
attorney [Noll] is that it’s your intention not to testify here
today and to invoke your Fifth Amendment right against
self-incrimination?
A: Yes.
Q: And you understand that pursuant to the
agreement that that’s a violation of the agreement?
A: I guess.
Q: Okay. And you understand the United States’s
position is that by violating the agreement, then any
previous statements you made could be used against
you?
A: I don’t know.
Q: I mean did you talk to your attorney about that?
A: Sort of.
Q: The fact that your prior statements could be used
against you?
A: Sort of, yes.
Q: Okay. I just want to make clear you understood our
position was that by refusing to testify that your prior
statements could be used against you. Do you
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understand that?
A: I guess, yeah.
(May 3, 2011 Grand Jury Tr., d/e 5 at 16-18 (emphasis added).)
After Bryant refused to testify before the grand jury, Noll wrote
to Bryant:
[W]e met with the Assistant United States Attorney and
are uncertain as to what, if any, further action they will
take on your case. We must assume that they will
proceed forward to file charges under 18 U.S.C. § 942(g),
a copy of which we previously provided to you.
If you change your mind and desire to testify in order
to avoid additional charges, please contact our office
immediately. Although we may disagree with your
action, we will stand by your refusal to testify and
represent you accordingly.
(May 5, 2011 letter from Noll, d/e 5 at 11 (emphasis added).)
Noll wrote to Bryant again the following day:
We received the enclosed letter [from the Government]. …
Obviously, [the Government] intends to proceed
forward in prosecuting you for some type of offense.
… Should you wish to change your mind and testify
before the grand jury, we may be able to reverse this
prosecutorial momentum. Although, we are not 100%
sure that that could be done.
(May 6, 2011 letter from Noll, d/e 5 at 12 (emphasis added).)
On May 23, 2011, Noll again wrote to Bryant:
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It was a pleasure meeting with you on Thursday, May 19
…. As we stated to you then, and reiterate now, we are
extremely concerned that your refusal to testify
before the grand jury possibly could result in
additional charges being brought against you.
Although we recommended that you testify fully and
completely before the grand jury, we understand your
decision and will stand by you in that regard. However,
should you change your mind anytime in the meantime,
please immediately advise our office.
(May 19, 2016 letter from Noll, d/e 5 at 13 (emphasis added).)
The letters from Noll to Bryant demonstrate that Noll
advised—indeed, exhorted—Bryant to testify before the grand jury
and warned that failing to do so raised the prospect of additional
criminal charges relating to the 2007 triple murder. And the
transcript from Bryant’s testimony before the grand jury confirms
that Bryant understood that his refusal to testify constituted a
breach of the cooperation agreement and that Noll specifically
warned Bryant that failing to testify could result in Bryant’s
previous statements being used against him. In short, the record
undercuts the very premise of Bryant’s ineffective assistance claim
and reveals that Bryant refused to testify despite his attorney’s
advice, not because of it.
Bryant replies by arguing that Noll’s April 22, 2011 letter
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actually supports Bryant’s position. Bryant argues that one
sentence in Noll’s letter—“Our position is that [the cooperation
agreement] terminated once you were sentenced by the court and
the time for appeal elapsed” (d/e 5 at 9)—shows that Noll misled
Bryant. But Bryant ignores the rest of the letter, which in fact
described an ongoing dispute about whether the cooperation
agreement remained in effect and advised Bryant to testify in light
of that uncertainty:
The government has the capability to require your
testimony under the cooperation agreement previously
executed by you. The question remains as to how long
that cooperation agreement was intended to remain
in full force and effect. Undoubtedly, the government
will state that the agreement is open-ended. Our
position is that it terminated once you were sentenced by
the court and the time for appeal elapsed.
As your attorney, we must recommend that you
testify before the grand jury. The downside to refusing
to testify … may mean that the government seeks to
entangle you, in some way, into the triple murder case.
… We see very little “downside” to your testimony.
However, there could be problems that arise if you
refuse to testify. …
(April 22, 2011 letter from Noll, d/e 5 at 9-10 (emphasis added);
contrast Sworn Affidavit of Freddell Bryant, d/e 1-1 at 38 (“I was
continually advised … that [the] cooperation agreements were
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terminated upon my sentencing on April 29, 2010 in the first
Federal case.”).)
Bryant argues that it is “contradictory in nature” for Noll’s
April 22 letter to simultaneously advise him: (a) that the
cooperation agreement terminated upon sentencing; and (b) that he
should testify because the agreement is no longer in effect (d/e 11
at 2). But that is not what the April 22 letter says. Far from
advising Bryant that the cooperation agreement had terminated, the
letter instead: (a) warns Bryant that despite Noll’s view on the
cooperation agreement the Government will “[u]ndoubtedly” argue
that the agreement remains in effect; and (b) advises Bryant to
testify in light of that uncertainty (d/e 5 at 9).
Perhaps recognizing that the April 22 letter does not support
his position, Bryant also “adamantly denies” that the four letters
from Noll were ever sent to him (d/e 11 at 1). Bryant suspects that
the letters have actually been written “in hindsight” in an effort to
discredit the allegations in Bryant’s Section 2255 motion (d/e 11 at
2). In support of this speculation, Bryant points to the fact that the
letters were not sent by certified mail and have not been
“authenticated” (d/e 11 at 3). But, in fact, the letters have been
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authenticated by Noll, who has signed an affidavit averring that he
wrote the letters to Bryant on the dates at issue (d/e 5 at 2-3).
Contrast Barrientes v. Johnson, 221 F.3d 741, 748 n.2 (5th Cir.
2000) (criticizing failure to provide affidavit authenticating certain
documents); Weatherspoon v. Bouchard, No. 04-170, 2006 U.S.
Dist. LEXIS 62833, *2 (W.D. Mich. Sept. 5, 2006) (criticizing failure
to submit affidavit authenticating letter).
Bryant also argues that evidence of the letters’ inauthenticity
is the fact that, “interestingly enough,” the letters “directly
contradict[] … each and every point raised by Bryant,” thereby
providing evidence that they were written only recently in an effort
to discredit Bryant’s claims (d/e 11 at 5). But Bryant argues
elsewhere in his reply brief that the April 22 letter supports
Bryant’s position that Noll advised that Bryant’s responsibilities
under the cooperation agreement terminated upon sentencing (d/e
11 at 3). Bryant cannot have it both ways: the letters cannot
support Bryant’s allegations partially while at the same time
contradicting Bryant’s allegations entirely.
Bryant also challenges Noll’s affidavit, in which Noll avers that
Bryant’s memory is “mistaken,” that Noll was “very concerned” at
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the time that Bryant’s refusal to testify would result in Bryant’s
facing additional charges, and that Noll does not believe Bryant was
surprised by the additional charges because Bryant had been
“alerted … on numerous occasions as to that very real possibility”
(d/e 5 at 2-3). Bryant argues that, in light of the inconsistency
between his own affidavit and Noll’s affidavit, the Court “must agree
that there is an issue of material fact as to which party is telling the
truth” (d/e 11 at 3). The Court cannot, Bryant says, believe Noll’s
word over Bryant’s simply because Bryant is a convicted felon.
Taylor v. United States, 287 F.3d 658, 660 (7th Cir. 2002) (“It is not
sound to say that in every conflict between a prisoner and a lawyer,
the lawyer must be believed.”).
But to describe the Court’s inquiry here as weighing two
competing affidavits—Noll’s and Bryant’s—is to inaccurately
describe the record currently before the Court. On the one hand,
Bryant avers that Noll failed to advise him about the risks of
refusing to testify before the grand jury. On the other hand,
Bryant’s account is contradicted by: (1) Noll’s affidavit; (2) the
letters Noll wrote to Bryant; and (3) the transcript of Bryant’s grand
jury testimony. Bryant has not challenged the veracity of the grand
Page 17 of 40
jury transcript—indeed, he could not credibly do so—and that
transcript shows that Bryant was aware, when he refused to testify,
that the Government would respond by attempting to use his prior
statements against him. (See May 3, 2011 Grand Jury Tr., d/e 5
at 18 (“Q: Okay. I just want to make clear you understood our
position was that by refusing to testify that your prior statements
could be used against you. Do you understand that? A: I guess,
yeah.”).) Noll’s affidavit, Noll’s letters to Bryant, and the transcript
conclusively demonstrate that Bryant’s version of events is
inaccurate.
Indeed, the sole aspect of Bryant’s ineffective assistance claim
that the record does not refute is Bryant’s argument that Noll did
not specifically advise him about the risk of facing murder charges
in particular. (Sworn Affidavit of Freddell Bryant, d/e 1-1 at 40
(“had Mr. Noll advised me [of] the mere possibility that I could be
charged with the triple homicides … I would have never refused to
testify”) (emphasis in original).) But as Noll avers, the precise
nature of the potential charges Bryant could face after refusing to
testify was “by necessity” speculative (d/e 5 at 3). And the record
shows that Noll warned Bryant that refusing to testify could result
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in Bryant’s “entangle[ment]” in the triple murder case (d/e 5 at 10),
that Noll implored Byrant to testify, and that Bryant knew that the
Government would seek to use his prior statements against him if
he refused to testify. The record, in other words, conclusively
shows that Bryant understood the risk he faced by not testifying.
Bryant also argues that Noll’s release of the letters written to
Bryant violates the American Bar Association’s Model Rules of
Professional Conduct. See M.R.P.C. 1.6(a) (“A lawyer shall not
reveal information relating to the representation of a client unless
the client gives informed consent…”); M.R.P.C. 1.9(c) (“A lawyer who
has formerly represented a client … shall not thereafter … use
information relating to the representation to the disadvantage of the
former client … or … reveal information relating to the
representation …”). But the Rules specifically provide an exception
allowing a lawyer to “respond to allegations in any proceeding
concerning the lawyer’s representation of the client.” M.R.P.C.
1.6(b)(5); see also M.R.P.C. 1.9(c) (allowing lawyer to use and reveal
information when the Rules permit as much); accord Formal
Opinion 10-456, ABA Committee on Ethics and Professional
Responsibility, July 14, 2010 (under Rule 1.6(b)(5), lawyer may
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disclose protected information if lawyer reasonably believes it
necessary to respond to ineffective assistance claim). And the
federal courts have consistently held that “where a habeas
petitioner raises a claim of ineffective assistance of counsel, he
waives the attorney-client privilege as to all communications with
his allegedly ineffective lawyer.” Bittaker v. Woodford, 331 F.3d
715, 716 (9th Cir. 2003); see also United States v. Pinson, 584 F.3d
972, 978 (10th Cir. 2009) (“Given the ample, unanimous federal
authority on point, we hold that when a habeas petitioner claims
ineffective assistance of counsel, he impliedly waives attorney-client
privilege with respect to communications with his attorney
necessary to prove or disprove his claim.”); accord Garcia v. Zenith
Elecs. Corp., 58 F.3d 1171, 1175 n.1 (7th Cir. 1995) (“the attorneyclient privilege is generally waived when the client asserts claims or
defenses that put his attorney’s advice at issue”); Cary v. United
States, No. 13-1529, 2013 U.S. Dist. LEXIS 179831, *2 (C.D. Ill.
Dec. 23, 2013) (“other circuits have agreed that an ineffective
assistance of counsel claim waives privilege regarding the
communications put in issue”); Simmons v. United States, No. 10C-1137, 2011 U.S. Dist. LEXIS 120118, *14-15 (E.D. Wis. Oct. 17,
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2011) (“[I]t is well settled that a defendant claiming ineffective
assistance of counsel puts communications between himself and
his attorney directly in issue, and thus by implication waives the
attorney-client privilege with respect to those communications.”)
(internal quotation omitted).
Bryant nevertheless argues that allowing Noll to assist the
Government by providing protected client information “might
potentially chill future defendants from fully confiding in their
lawyers” (d/e 11 at 5). The American Bar Association sees merit in
this point. See Formal Opinion 10-456, ABA Committee on Ethics
and Professional Responsibility, July 14, 2010 (“allowing criminal
defense lawyers voluntarily to assist law enforcement authorities by
providing them with protected client information might potentially
chill some future defendants from fully confiding in their lawyers”).
With those concerns in mind, the ABA has advised defense lawyers
not simply to provide client information directly to the Government
when the defendant raises an ineffective assistance claim. Id.
Rather, the more prudent course is to secure a judicial
determination that such disclosure will not violate the attorneyclient privilege. Id.
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Here, by all appearances, Noll sent client information directly
to the Government without any judicial supervision. In the future,
the Court encourages the Government to file a motion for an order
authorizing such disclosure. See, e.g., Staszak v. United States, No.
15-20, 2015 U.S. Dist. LEXIS 94815 (S.D. Ill. July 21, 2015)
(granting motion for order authorizing defense attorney to provide
written response to Section 2255 motion) (“the ‘most prudent
course’ for a defense attorney to take before disclosing confidential
communications and other information—even if the attorney
believed that a waiver of the privilege had clearly occurred—is to
secure an administrative or judicial determination that the
disclosure would not violate the attorney-client privilege”) (quoting
United States v. Evans, 113 F.3d 1457, 1468 (7th Cir. 1997)).
Nevertheless, the Court concludes without hesitation that the
information disclosed here was reasonably necessary to respond to
Bryant’s ineffective assistance claim.
2.
Bryant did not receive ineffective assistance of
counsel relating to the alleged closing of the
courtroom at the beginning of jury selection.
Second, Bryant argues that his trial attorneys rendered
ineffective assistance in failing to object when the judge closed the
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courtroom during a portion of jury selection.
During jury selection at Bryant’s trial, the judge faced a
problem: the courtroom was not big enough to accommodate the 52
prospective jurors in addition to the members of the public who had
gathered to watch the trial. To solve the problem, the judge
instructed the audience members to wait outside of the courtroom
while the prospective jurors sat in the courtroom seats to be sworn
in. Byrant says that, to his memory, the courtroom did not reopen
“until after the petit jury was selected and the jury discharged for
the day” (d/e 1-1 at 20). This, Bryant says, “doomed [the trial]
before it even began” (d/e 1-1 at 24). See Presley v. Georgia, 558
U.S. 209, 213 (2010) (“the Sixth Amendment right to a public trial
extends to the voir dire of prospective jurors”); United States v.
Negrón-Sostre, 790 F.3d 295, 299 (1st Cir. 2015) (complete
exclusion of public during jury selection violated defendants’ Sixth
Amendment rights).
The trial transcript, however, reveals that Bryant’s memory is
incorrect. The trial transcript shows that the public was excluded
only while the 52 prospective jurors were sworn in—not during the
process of jury selection itself. After the prospective jurors were
Page 23 of 40
sworn in, 32 of them moved into the jury seating area, freeing up
space for the members of the public to return. See Dec. 3, 2012
Trial Tr., United States v. Bryant, 2:11-cr-20034, July 25, 2013
(Doc. 93 at 39-40).
Indeed, the judge specifically told the members of the public
that they could “come back in after we get all the [prospective]
jurors … sworn and into the 32 [jury] seats,” and that the members
of the public would then “sit in that portion of the [public area of
the] courtroom while the remaining [prospective] jurors sit in this
portion [of the public area of the courtroom].” Id. at 39. The judge
specifically remarked, “[I]t’s a public trial, but you [audience
members] will be excluded from the trial for a short period of time
before jury selection begins because we won’t have enough room for
everybody.” Id. at 39-40 (emphasis added).
The jury selection transcript itself further refutes any
suggestion that the public was excluded from the jury selection
portion of the trial. At the very beginning of jury selection, at 10:27
a.m., the judge said, “Fifty-two jurors have crowded into this small
courtroom, displacing, as you came in, lots of students from the
Illinois College of Law. … So as soon as you take the chairs in the
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courtroom, they’ll start coming in and taking the[ir] seats ...” Dec.
3, 2012 Jury Selection Tr., United States v. Bryant, 2:11-cr-20034,
July 25, 2013 (Doc. 92 at 2). At 10:30 a.m., the prospective jurors
were sworn in. The deputy clerk then began calling out names of
the prospective jurors, and as the names were called the judge
directed the prospective jurors into the seats in the jury well of the
courtroom: 14 prospective jurors in “business class” leather seats,
and 18 prospective jurors in two rows of less comfortable seats that
the judge described as “sort of like an airplane.” Id. at 2-9. When
the final four prospective jurors were called, the judge noted, “[D]o
we have enough seats … or not? I don’t know which way to move
them. … I don’t want to cram them in too much, but we do have to
leave some room for the law students.” Id. at 8. The judge then
devised a solution whereby the final prospective jurors would “fill in
over there and leave a section so I can stick the law students in
someplace; maybe in the back. … And then you [prospective jurors]
can fill up the front row. Okay. I’m positive that will work. Yep.
You can tell the law students to come in. … [G]o ahead; bring them
in.” Id. at 8-9. The court then began jury selection. Id. at 9.
Moments later, after asking the prospective jurors a few preliminary
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questions, the judge commented, “I’ve got to tell this story since
we’ve got so many students from the University of Illinois College of
Law. … I know we’ve got a lot of students here …” Id. at 14.
In sum, the trial transcripts show that the courtroom was not
closed to the public during jury selection, and aside from his own
allegations Bryant has not presented evidence to the contrary.
Because the courtroom was not closed to the public during jury
selection, no violation of Bryant’s Sixth Amendment right to a
public trial occurred. See United States v. Shryock, 342 F.3d 948,
974-75 (9th Cir. 2003) (in trial with limited seating due to number
of defendants, lawyers, jurors, alternates, journalists, and
audiovisual equipment, courtroom was not “clos[ed]” when there
was insufficient seating for defendants’ family members while jurors
“received their questionnaires”); see also Riggins v. Rivard, No. 0913144, 2015 U.S. Dist. LEXIS 61110, *21-22 (E.D. Mich. May 11,
2015) (rejecting public closure argument where petitioner did not
“provide[] evidentiary support for his claim that he was denied a
public trial during voir dire”) (“the record at most indicates that the
trial court admonished members of the public from repeatedly
entering and exiting the courtroom”).
Page 26 of 40
And even if Bryant were correct that the temporary exclusion
of the public from the courtroom while the prospective jurors were
sworn in violated his Sixth Amendment right, the record would
preclude a conclusion that Bryant’s attorneys’ failure to object fell
below an objective standard of reasonableness. The exclusion was
extremely brief and was done for the logistical purpose of allowing
the 52 prospective jurors to file into the courtroom and be sworn in
before 32 of them moved to the jury well, making room for the
members of the public to return. Bryant’s lead trial attorney, Jon
Noll, avers that he viewed the judge’s decision to briefly exclude the
public as the prospective jurors entered the courtroom as “neither
prejudicial nor unusual.” (Affidavit of Jon Noll, d/e 5 at 4.) Noll
adds that he has worked on other federal criminal trials during
which “there have been instances in which courtrooms have been
insufficient in size to accommodate all jurors and the public during
jury selection,” and that the judges in those cases “made the same
decision” as the judge in this case. (Id.) Bryant’s other trial
attorney, Daniel Noll, concurs. (Affidavit of Daniel Noll, d/e 5 at 2122.)
Bryant’s attorneys’ views are reasonable, and likewise a
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reasonable attorney would have perceived that Bryant’s likelihood of
receiving a not-guilty verdict would not increase as the result of an
objection or a demand that the public be allowed to remain in the
courtroom while the prospective jurors were sworn in. This
perspective is reinforced by the First Circuit’s opinion in Bucci v.
United States:
[W]e think that competent defense counsel in this case
could have reasonably concluded that even a successful
Sixth Amendment challenge to the partial courtroom
closure would have done little to increase the
defense’s chances of securing a not-guilty verdict. As
such, an objectively reasonable defense counsel could
have made the strategic decision to forego the Sixth
Amendment objection in favor of conserving the defense’s
limited resources for other important issues. Rather
than raising a complicated constitutional issue that
might require briefing and a hearing while offering limited
upside to the defendant, the defense counsel could have
reasonably believed his client’s interests would be best
served by moving the trial along and focusing on the
immediate task of jury selection.
662 F.3d 18, 32 (1st Cir. 2011) (emphasis added). The public’s
minutes-long exclusion while the prospective jurors were sworn in
did not present such a risk of prejudice to Bryant that this Court
could find that Bryants’ attorneys’ failure to object fell below an
objective standard of reasonableness.
Moreover, even if Bryant’s attorneys’ failure to object did fall
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below an objective standard of reasonableness, Bryant has not even
alleged that the result of his trial would have been different if his
attorneys had objected. See Taylor v. Bradley, 448 F.3d 942, 948
(7th Cir. 2006) (habeas petitioner “must establish that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different”) (internal
quotation omitted). Instead, Bryant argues that he need not show
prejudice because a courtroom closure constitutes a “structural
error” that does not require any showing of prejudice to the
defendant (d/e 1-1 at 22). See Judd v. Haley, 250 F.3d 1308, 131415 (11th Cir. 2001) (“a violation of one’s right to a public trial is
structural error …. once a petitioner demonstrates a violation of his
Sixth Amendment right to a public trial, he need not show that the
violation prejudiced him in any way”); Owens v. United States, 483
F.3d 48, 66 (1st Cir. 2007) (referring to closure of jury selection to
public for entire day as “structural error”); United States v. Padilla,
415 F.3d 211, 219 (1st Cir. 2005) (structural error “transcends the
criminal process … by depriving a defendant of those basic
protections without which a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence, and no
Page 29 of 40
criminal punishment may be regarded as fundamentally fair”)
(internal quotation and alteration omitted); Sustache-Rivera v.
United States, 221 F.3d 8, 17 (1st Cir. 2000) (noting that if error
“did constitute structural error, there would be per [s]e prejudice,”
but finding error was not structural); Walton v. Briley, 361 F.3d
431, 432 (7th Cir. 2004) (petitioner not required to show prejudice
after showing he was denied public trial where government’s case
had been presented after court was closed and locked for evening).
But in the cases Bryant cites that address the right to a public
trial, the courtroom either was closed entirely or was closed during
some substantive phase of the trial, such as jury selection. Here,
by contrast, the public was excluded merely so that the 52
prospective jurors could file into the courtroom and be sworn in.
Once the first 32 prospective jurors made their way into the jury
well, the public was allowed back in, and jury selection began.
Contrast Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007)
(“this was not a mere fifteen or twenty-minute closure; rather [the]
trial was allegedly closed to the public for an entire day”). The
courtroom was not, as Bryant alleges, closed during jury selection
itself. Therefore, to succeed on his ineffective assistance claim
Page 30 of 40
Bryant must show a reasonable probability that but for his
attorney’s failure to object the result of his trial would have been
different. As noted above, Bryant has not so alleged.
To summarize: (1) the record conclusively shows that the
courtroom was not “closed” during jury selection as Bryant alleges,
and, therefore, Bryant’s Sixth Amendment right was not violated; (2)
even if Bryant’s Sixth Amendment right were violated by the
public’s temporary exclusion as the prospective jurors were sworn
in, Bryant’s attorneys’ decision not to object would not have been
unreasonable; and (3) even if the decision not to object were
unreasonable, Bryant has not alleged any prejudice that resulted
from the decision.
3.
Bryant did not receive ineffective assistance of
counsel in relation to the jury’s question to the
judge.
Finally, Bryant argues that his trial attorneys provided
ineffective assistance by failing to object when the judge addressed
a jury question outside of Bryant’s presence.
During the jury’s deliberations after closing arguments, the
jury sent a note to the judge with a question about the jury
instructions. The jury asked, “Please explain if – in [the criminal
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statutes at issue] – the defendant must personally use and
discharge the firearm to be determined guilty of murder?” Dec. 10,
2012 Trial Tr., United States v. Bryant, 2:11-cr-20034, July 25,
2013 (Doc. 98 at 98). The judge discussed with both sides’
attorneys how to respond and ultimately answered the question,
“Your question is answered: No. In continuing your deliberations
on the verdicts, please refer to all the Court’s instructions.” Id. at
103.
Bryant says that he was not present when the trial judge
addressed the jury’s question and that he had no opportunity to
“confer with his counsel prior to the judge sending the note back to
the jury” (d/e 1-1 at 29). Bryant argues that his trial attorneys’
failure to object to his absence constituted ineffective assistance.
See United States v. Degraffenried, 339 F.3d 576, 579 (7th Cir.
2003) (“A criminal defendant has the right to be present at every
stage of the trial. … A judge’s response to a note from the jury is
one of those stages.”) (finding harmless error where judge addressed
jury note without defendant present).
As evidence that Bryant was not present when the judge
addressed the jury’s question, Bryant points to the fact that the
Page 32 of 40
trial judge in general “was very thorough and methodic in clarifying
[on] the record that Bryant was present at all critical stages of the
proceedings and trial. After every recess, the [judge] made sure that
the record established that Bryant was present and ready to
proceed” (d/e 1-1 at 25). Before addressing the jury’s question,
however, the judge did not specifically note that Bryant was
present. Dec. 10, 2012 Trial Tr., United States v. Bryant, 2:11-cr20034, July 25, 2013 (Doc. 98 at 98). Bryant says that the proper
inference from the judge’s failure to recognize Bryant’s presence
before addressing the jury note is that Bryant was absent while the
jury note was addressed.
But a full reading of the trial transcript does not support that
inference. The judge did regularly recognize Bryant’s presence on
the record and took pains to secure Bryant’s presence in the
courtroom at all stages of the proceedings. See, e.g., id. at 3-4
(delaying start of proceedings to wait for Bryant’s arrival and
criticizing Sheriff of Macon County for not producing Bryant on
time). And the judge did not identify Bryant as being present when
the parties reconvened to address the jury’s question. But the
judge—in contravention of his usual practice—did not identify
Page 33 of 40
anyone’s presence before addressing the jury’s question. Yet the
transcript shows that others individuals were, of course, present in
the courtroom, including the Government’s attorney, Bryant’s
attorney, and a courtroom officer named Denny. Id. at 98-104. To
believe that the sole time the judge did not identify who was present
in the courtroom also happened to be the sole time that Bryant
himself was absent is to draw an unwarranted inference from the
record. Bryant was present at 11:46 a.m., when the court recessed.
And he was present at 2:33 p.m., when the jury returned its verdict.
That very morning, the judge had harangued the Macon County
Sherriff’s Department for failing to bring Bryant to court on time.
And when the jury began deliberations, the judge admonished the
parties to remain within 10 minutes of the courthouse so that they
could return easily should the need arise. There is no reason to
infer that Bryant was absent at 1:59 p.m. when the parties
reconvened to address the jury’s note, and the mere fact that the
judge failed to identify who was present in the courtroom before
addressing the jury’s note is not enough to warrant such an
inference.
Bryant stresses that the record does not prove that he was
Page 34 of 40
present when the judge addressed the jury note. This is true. But
even if Bryant had been absent when the judge addressed the jury’s
question, Bryant’s attorneys’ failure to object would not have been
objectively unreasonable. The jury’s question involved a legal issue,
and a defendant’s absence from a portion of the trial is harmless “if
the issue involved is not one on which counsel would be likely to
consult” the defendant or on which the defendant, if consulted,
“would [not] be likely to have an answer that would sway the judge.”
United States v. Degraffenried, 339 F.3d 576, 580 (7th Cir. 2003)
(internal quotation omitted). Here, nothing suggests that Bryant’s
attorneys would have been likely to consult Bryant on the jury’s
question of law or that any views from Bryant on the issue would
have changed the judge’s answer to the jury’s question. See
Degraffenried, 339 F.3d at 580 (court was not persuaded that
defense counsel would have consulted defendant about jury note on
a legal issue or that defendant’s response would have swayed
judge). Indeed, Bryant himself had asked to be excused from an
earlier conference on jury instructions so that he could have more
time to prepare for his testimony. Dec. 6, 2012 Trial Tr., United
States v. Bryant, 2:11-cr-20034, July 25, 2013 (Doc. 96 at 278-79).
Page 35 of 40
Therefore, even if Bryant had been absent when the judge
addressed the jury’s note, Bryant’s attorneys’ failure to object would
not have been objectively unreasonable.
Further, Bryant has not even claimed that if he had been
present his attorneys would have consulted with him or that he
would have had anything to say that would have affected the
judge’s answer to the jury. Therefore, even if the fact of Bryant’s
absence were conclusively proven, Bryant’s ineffective assistance
claim would still not succeed because Bryant has neither shown
nor alleged a reasonable probability that the result of his trial would
have been different but for his attorneys’ alleged error. Taylor v.
Bradley, 448 F.3d 942, 948 (7th Cir. 2006) (habeas petitioner must
establish reasonable probability that, but for counsel’s
unprofessional errors, result would have been different); see also
Bryan v. Bobby, 114 F.Supp.3d 467, 538-39 (N.D. Ohio 2015) (right
to be present not violated where trial court had answered nine jury
questions outside habeas petitioner’s presence, where questions
mostly concerned “straightforward legal issue[s]” and petitioner
“d[id] not explain … what he could have offered in responding to the
questions that his attorneys failed to offer”).
Page 36 of 40
4.
Because Bryant’s attorneys did not err, the
Court need not consider whether the cumulative
impact of the alleged errors justifies vacating
Bryant’s sentences.
Bryant argues that, even if his attorneys’ errors are not
individually sufficient to warrant vacating his sentences, the
“cumulative impact” of the errors is sufficient. See United States v.
Fernandez, 145 F.3d 59, 66 (1st Cir. 1998) (“Individual errors,
insufficient in themselves to necessitate a new trial, may in the
aggregate have a more debilitating effect … so as to deny due
process.”) (internal quotation omitted). But the Court has found
that Bryant’s attorneys did not err in the first place, so the Court
need not consider whether the cumulative impact of any errors is
enough to warrant granting Bryant relief.
5.
An evidentiary hearing is not warranted.
Bryant argues that, at a minimum, the Court should hold an
evidentiary hearing on Bryant’s claims. He focuses on Section
2255’s direction that the Court should hold a hearing “[u]nless the
motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). “[M]any of
the material allegations,” Bryant says, “concern events which took
Page 37 of 40
place outside the courtroom and are not, therefore, part of the ‘files
and records’” (d/e 1-1 at 32). An evidentiary hearing, Bryant
argues, is required. Virgin Islands v. Weatherwax, 20 F.3d 572,
573 (3d Cir. 1994) (remanding for evidentiary hearing); Stoia v.
United States, 22 F.3d 766, 773 (7th Cir. 1994) (remanding for
evidentiary hearing because district court wrongly concluded that
petitioner had waived claim); Shaw v. United States, 24 F.3d 1040,
1043 (8th Cir. 1994) (remanding for evidentiary hearing because
record did not conclusively show petitioner was entitled to no relief).
First, with respect to Bryant’s ineffective assistance claim
regarding his attorney’s grand jury advice, the Court finds that the
record conclusively shows that Bryant’s version of events is
inaccurate: Bryant declined to testify despite his attorney’s repeated
warnings, not because of any bad legal advice.
Second, with respect to Bryant’s ineffective assistance claim
regarding the alleged courtroom closure: (1) the record conclusively
shows that the courtroom was not closed during jury selection; (2)
even if the public’s temporary exclusion while the jury was sworn in
did violate Bryant’s Sixth Amendment rights, his attorneys’ decision
not to object did not fall below an objective standard of
Page 38 of 40
reasonableness; and (3) even if the decision not to object had fallen
below an objective standard of reasonableness, there is not a
reasonable probability that the result of the trial would have been
different if the attorneys had objected.
Third, with respect to Bryant’s alleged absence when the judge
addressed the jury note, an evidentiary hearing would not be
warranted even if the record conclusively showed that Bryant had
indeed been absent because Bryant has not alleged any prejudice
resulting from his absence.
For these reasons, the Court declines to hold an evidentiary
hearing on Bryant’s claims.
III.
Conclusion
Petitioner Freddell Bryant’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (d/e 1) is DENIED for the reasons above. Because Bryant
has not made a substantial showing of the denial of a constitutional
right, the Court also denies a certificate of appealability under Rule
11(a) of the Rules Governing Section 2255 Proceedings. See 28
U.S.C. § 2253(c)(2).
This case is closed.
Page 39 of 40
IT IS SO ORDERED.
ENTER: May 19, 2016
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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