United States of America v. Hale
Filing
68
Opinion and Order. Signed by the Honorable James T. Moody on 10/27/2011:Judicial staff mailed notice(gl, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MATTHEW HALE,
Defendant-Movant,
v.
UNITED STATES OF AMERICA,
Plaintiff-Respondent.
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No. 1:08 CV 94
OPINION AND ORDER
This matter is before the court on defendant-movant Matthew Hale’s motion
pursuant to RULE 59(e) of the FEDERAL RULES OF CIVIL PROCEDURE, (DE # 52), requesting
the court to reconsider its decision and vacate its final judgment of July 22, 2010, which
denied his motion collaterally attacking his conviction via 28 U.S.C. § 2255. The
government responded in opposition, (DE # 58), and Mr. Hale filed a reply. (DE # 64).
Mr. Hale later supplemented his motion. (DE # 66). The government has not responded
to the supplement.1
There are only three grounds for a motion pursuant to RULE 59(e): the court may
alter or amend a judgment when the movant presents newly-discovered evidence,
shows that there has been an intervening change in the law, or demonstrates that the
1
The government may have assumed no response was necessary, because the
supplement is in effect an attempt to bring additional evidence in support of his § 2255
motion, after judgment, even though the evidence was previously available to him. In
the interest of complete consideration of the issue whether Mr. Hale’s motion should be
granted (and, if the § 2255 were re-opened, the additional evidence would then be
allowed), the court will consider the supplement. See Rodriguez v. United States, 286 F.3d
972, 980 (7th Cir. 2002) (although party should have judgment reopened pursuant to
RULE 59, then seek to amend, justice may require something less).
court has committed a manifest error of law. Obriecht v. Raemisch, 517 F.3d 489, 494 (7th
Cir. 2008); Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998). Mr. Hale’s motion falls
squarely in the latter category. In brief, Mr. Hale contends that: 1) the court erred by not
holding an evidentiary hearing, more specifically by a) instead presuming that a
number of decisions made by his defense counsel were based on strategy, and b) not
hearing Hale’s testimony supporting his claim he always knew Tony Evola was a
government informant; 2) the court erred by applying the wrong legal standard in
deciding his § 2255 motion; 3) the court failed to understand his argument regarding his
defense attorney’s concession regarding the solicitation of the murder of lawyer James
Amend; 4) the court erred in finding that Mr. Hale waived (by not raising it in his direct
appeal) the issue of his absence from portions of the voir dire of prospective jurors; and
5) the court overlooked a transcript of a recorded conversation confirming that Mr. Hale
told government informant Tony Evola that he (Hale) wished that Ben Smith had shot
Hale in the leg, rather than going on a shooting spree targeting minority individuals.
I. Whether the court erred by not holding an evidentiary hearing
A. Presumption trial counsel made strategic decisions
Mr. Hale’s first argument is that:
The Court erred by repeatedly presuming to know what was on the mind
of defense counsel – whether their thoughts were guided by a reasonable
strategy, an unreasonable strategy, or by ignorance – without holding an
evidentiary hearing to determine through testimony what those thoughts
and strategies or non-strategies were. Without an evidentiary hearing, one
simply does not know why counsel performed, or failed to perform,
many, if not most, of their actions.
2
(DE # 52 at 3.2) He then provides several specific examples of decisions which the court
found were reasonable strategic decisions, but as to which he believes he has made
enough of a showing to require a hearing to demonstrate that the decisions were either
non-strategic, thoughtless errors, or were made for a reason other than a reasonable
strategy (for example, animosity towards Mr. Hale).
As an initial matter, Mr. Hale is simply wrong in asserting that this court—or any
court reviewing a § 2255 motion—errs by “presuming to know what was on the mind of
defense counsel.” Instead, ineffective-assistance is measured by an objective standard,
with a strong presumption that counsel’s performance was effective, Strickland v.
Washington, 466 U.S. 668, 688, 690 (1984), and decisions that appear to have been made
pursuant to a viable strategy will not be second-guessed by a judge playing the role of
“Monday-morning quarter-back.” Smith v. Gaetz, 565 F.3d 346, 354 (7th Cir. 2009). It is in
this light that Mr. Hale’s assertion regarding the court’s failure to hold a hearing to
evaluate his counsel’s decisions must be reviewed. That alone is essentially enough to
reject Mr. Hale’s claim of error, based on the performance-prong alone of ineffective
assistance analysis.3 The court will briefly elaborate on Mr. Hale’s specific assertions,
2
Throughout this order, the court cites to the record using the docket number
and pagination from the banner placed on the document by the CM/ECF system.
3
Mr. Hale’s defense counsel succeeded in obtaining a jury acquittal on the charge
that he had solicited Jon Fox to murder Judge Lefkow: a charge which, in the court’s
view, the evidence of Hale’s guilt was very strong. “There is a strong presumption for
finding counsel effective, and Banks bears the burden of proving otherwise. In cases
such as this, where counsel has succeeded in having his client acquitted of at least one
of the charges brought, the presumption is likely to be even more difficult to rebut.”
3
however, explaining why counsel’s actions were objectively reasonable, and
commenting on the prejudice prong as well.
First, Mr. Hale asserts that the court erred by failing to hold a hearing to
determine whether, had trial counsel interviewed government witness James Burnett
prior to trial, counsel would have learned that Burnett’s testimony was coerced. A claim
that failure to interview a witness is ineffective assistance requires a § 2255 movant to
demonstrate specifically what information, helpful to the defense, the interview would
have uncovered. See United States v. Lathrop, 634 F.3d 931, 939 (7th Cir. 2011). Hale
believes he has done this by alleging that an interview would have revealed that the
government had coerced Burnett into giving false testimony at trial. This is based on
speculation piled upon speculation, however, and not upon an evidentiary proffer
which requires a hearing.
First, it assumes that Burnett would have voluntarily revealed government
coercion, at the very time he was being coerced (and which he did not reveal under
strong cross-examination at trial). Moreover, there is no viable showing of any such
coercion. An affidavit from Burnett, stating that his testimony against Mr. Hale resulted
from governmental coercion is required at a minimum. See Wright v. Gramley, 125 F.3d
1038, 1044 (7th Cir. 1997). Instead, all that Mr. Hale offers is his brother’s affidavit
recounting having run into Burnett in a bar following the trial, at which time Burnett
tearfully explained that he testified against Mr. Hale because of government coercion.
United States v. Banks, 405 F.3d 559, 568 (7th Cir. 2005) (citation omitted).
4
The hearsay nature of Burnett’s alleged statement makes Mr. Hale’s brother’s affidavit
of no evidentiary value on the issue.4 Even assuming Burnett did make the statement,
under the circumstances—a teary, bar-room apology—it is not a post-trial recantation
that rings with credibility. Without an affidavit from Burnett (which has not even been
supplied in support of Mr. Hale’s RULE 59(e) motion), the court did not err re was no
reason to hold a hearing.
Second, Mr. Hale argues that the court should have held an evidentiary hearing
to find out if the reason that his defense attorneys didn’t call any witnesses was because
they wanted to “get the trial over with in order to begin work on the ‘new big case’ and
because they did not feel that Mr. Hale’s family had paid them enough money,” as
Mr. Hale alleges they told him in his affidavit. (DE # 52 at 3-4.) Although this assertion
is facially implausible—if true, why would his defense attorneys reveal this to him, and
why would his defense team, headed by one of the more prominent criminal defense
attorneys in Chicago, want to give short-shrift to a trial which at the time was receiving
extensive media coverage to work on some other “big case”—implausibility is not the
reason the assertion does not require a hearing. A hearing is not required because the
subjective reason defense counsel didn’t call witnesses is unimportant, unless Mr. Hale
can identify witnesses whose testimony would have made a difference to the outcome.
4
“As this court has noted before, “ ‘[i]t is the rule of this [c]ourt that in order for a
hearing to be granted, the petition must be accompanied by a detailed and specific
affidavit which shows that the petitioner had actual proof of the allegations going
beyond mere unsupported assertions.’ ” Galbraith v. United States, 313 F.3d 1001, 1009
(7th Cir. 2002) (citations omitted).
5
This is not to say that Mr. Hale has failed to name witnesses and proffer their testimony,
only that the court believes its explanation when denying his § 2255 motion why those
witnesses would have made no difference was more than adequate.5
Next, Mr. Hale argues that an evidentiary hearing must be held to determine
whether or not his defense counsel “actually did believe” (DE # 52 at 4) that the word
“information” in a recorded conversation between Hale and informant Evola meant
only one address (not multiple addresses, which counsel allegedly would have
understood had he prepared for trial more extensively). The court has explained at
length, both in rejecting post-trial motions and Mr. Hale’s § 2255 motion, why this
argument is meritless, to such an extent that saying more now is redundant.
Nevertheless, reiterating and in addition to everything said previously, an evidentiary
hearing is unnecessary because: 1) the record shows that counsel did understand that
the word meant multiple addresses;6 and 2) counsel’s choice to present a defense based
on a view that a jury would understand the conversation at issue to be focused on Judge
5
It should also be noted that Mr. Hale’s attorney argued to the jury during
closing that the government’s case was so preposterous that a defense case was
unnecessary, evidence that this was a strategic decision intended to emphasize the
unreliability and bias of the government’s witnesses, and the entrapment defense
presented.
6
Defense counsel’s cross-exam of Evola illustrates: “Now, that e-mail I just
showed you, December 4, that was an e-mail where he’s [Hale] asking for addresses,
correct?” (Trial transcript, Vol. 9 at 76) (emphasis added.) “And it says in there
[December 5 e-mail] that he’s [Hale] in the process of getting the people’s home addresses
in there, correct?” (Id. at 79) (emphasis added.)
6
Lefkow’s address was objectively reasonable, thus defense counsel’s subjective
understanding (although shown by his cross-examination of Evola) is irrelevant.
See Ebert v. Gaetz, 610 F.3d 404, 415 (7th Cir. 2010) (noting that even defense counsel’s
own admission that he was ineffective is entitled to no weight, because ineffective
assistance is judged by objective standard).
Fourth, Mr. Hale argues that a hearing is necessary to determine whether his
defense counsel in fact secured his assent to be absent from portions of individual voir
dire of prospective jurors. The court addressed this issue at length in its order denying
Mr. Hale’s 2255 motion, explaining, among a number of other reasons including lack of
prejudice, that Mr. Hale did not even clearly assert that he had not consented to the voir
dire method used, and if that should be presumed to be his contention, it was an afterthe-fact contradiction of the record unworthy of credence. Cf. United States v. Boyd, 86
F.3d 719, 722-23 (7th Cir. 1996) (post-trial objection to lawyer’s peremptory challenge of
juror simply “too facile”). Mr. Hale has not explained in his present motion why the
court’s prior reasoning was legally flawed, and the court therefore sees no reason to
discuss this issue further.
Fifth, Mr. Hale argues that a hearing is necessary to determine whether his
defense counsel misrepresented to the court that Mr. Hale only wished to testify as to
certain counts. Given the court’s holding in its order denying the § 2255 motion that
Mr. Hale, who is an attorney, executed a valid written waiver of his right to testify,
which the court questioned him about in open court, this contention is meritless.
7
Sixth, Mr. Hale argues a hearing is required to determine whether his attorneys’
“personal contempt for Mr. Hale negatively affected their legal judgment concerning
jury selection, choice of defense, investigation, and putting on a case.” Again, ineffective
assistance is measured by the objective standard set out in Strickland. Without showing
how his attorneys’ performance failed to meet this standard and caused him prejudice,
their personal feelings towards Mr. Hale are irrelevant, United States v. Mutuc, 349 F.3d
930, 934 (7th Cir. 2003), making a hearing unnecessary.
Seventh, Mr. Hale argues a hearing is necessary to determine whether his
attorney discriminated against potential white jurors on purely racial grounds. Just as
the court previously stated when denying his § 2255 motion, Mr. Hale has simply
shown nothing suggesting that white jurors were discriminated against, except
speculation based on the use of peremptory challenges against white, but not black,
venire members.7 He argues now that the support the court demands on this issue can
only come from the testimony of defense counsel and Mr. Hale himself at an
evidentiary hearing, but that would be a fishing expedition. A hearing is not required
based on nothing more than speculation. Galbraith v. United States, 313 F.3d 1001, 1009
(7th Cir. 2002).
7
Without more explanation, Mr. Hale is essentially arguing that peremptory
challenges should have been used against blacks simply because of their race. He
personally made a similar argument to the court, during jury selection. (Trial Tr. Vol. 3
at 24-27.)
8
Eighth, Mr. Hale argues that the court erred by not holding an evidentiary
hearing to determine if “counsel’s concern about opening up Mr. Hale to crossexamination was in fact greatly exaggerated, the concern stemming largely from
counsel’s personal contempt for Mr. Hale rather than based on reasoned legal
judgment.” (DE # 52 at 5). For the reasons already given—Mr. Hale validly waived his
right to testify, and his attorneys’ personal regard (or lack thereof) for him is
irrelevant—this contention is meritless. In addition, his attorney requested a bifurcation
of certain counts precisely so that Mr. Hale could testify, which request the court
denied. That request, along with counsels’ explanation for not having Mr. Hale testify,
shows that a strategic decision was made which was objectively reasonable, and which
will not be second-guessed. Thus, there is no need for an evidentiary hearing on this
issue.
B. Hale’s contention that he knew Evola was an informant
As a separate argument, Hale maintains that his contention that he knew Evola
was a government informant has been supported by substantial evidence. He argues
that a hearing should have been held for him to give a detailed explanation of that
belief,8 and to explore why his defense counsel did not utilize that belief to show the
8
Mr. Hale has provided a lengthy and detailed declaration (DE # 52-2)
explaining all of the reasons he suspected that Evola was a government informant,
which he believes justifies an evidentiary hearing. However, he could have testified to
all of this information at trial, and the short answer to why this is not fodder for an
evidentiary hearing is that Mr. Hale chose to waive his right to testify.
9
jury that Hale did not have criminal intent when meeting with Evola, but instead playacted with Evola knowing that no harm would come to Judge Lefkow.
In this form, this argument is to some extent—perhaps largely—a new argument,
and RULE 59(e) motions cannot be used to advance new arguments that could have been
made previously. County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 818 (7th Cir.
2006). Hale’s original argument went only to his counsel’s failure to call witnesses
Robertazzo and Peterson, who would have testified that Mr. Hale had told them he
suspected Evola was an informant. It bears noting immediately, as the court pointed out
when denying the § 2255 motion, Robertazzo’s affidavit didn’t even say that: she states
only that she had told Mr. Hale that she suspected that Evola was an informant.
Taking the argument as it is presented, however, by assuming Mr. Hale is merely
clarifying his previous argument, his alleged belief that Evola was an informant could
have come in at trial only through his own testimony, perhaps corroborated by the
evidence provided in Mr. Hale’s supplemental filing, and that of Robertazzo and
Petersen (except as noted, Robertazzo’s affidavit doesn’t say that Mr. Hale told her
that). The court had already held that Mr. Hale’s waiver of his right to testify was valid,
so there would have been no evidence from him, leaving only Peterson to testify that
Mr. Hale had told him that.
But if the court puts all that aside, and assumes that Mr. Hale would have
testified that he thought Evola was an informant, and that Peterson and Robertazzo
would have corroborated that testimony, defense counsel would have had to weigh the
10
value of that evidence, intrinsically and in light of the other evidence. First, Peterson
and Robertazzo were both sympathizers of Mr. Hale and of his white supremacist
philosophy, and this bias would have discounted their credibility. Second, Mr. Hale’s
testimony on the issue would have been obviously self-serving, particularly in light of
evidence that: 1) the chain of events leading to the charges against Mr. Hale had started
with an e-mail he sent to a number of his followers—not just Evola—mentioning that a
state of war existed against Judge Lefkow and others, and then quoting his church’s
“bible” teaching that they “obviously are the criminals, and we can then treat them like
the criminal dogs they are and take the law into our own hands. . . . We must then meet
force with force and open warfare exists. It will then be open season on all Jews;” 2) that
then Mr. Hale sent an e-mail only to Evola, seeking Judge Lefkow’s home address; and
3) testimony from a former close associate of Mr. Hale’s, Jon Fox, that after Mr. Hale
was charged he wrote a letter to Fox asking him to “remember” that he (Hale) had
thought Evola was an informant. Fox testified that Hale had never said that, and he
therefore thought Hale was asking him to lie about the issue.
This is where Mr. Hale’s supplemental filing comes in, which he contends
corroborates his proposed testimony that he knew, beginning in January, 2001, that
Evola was an informer. The filing (DE # 66-1) is a transcript of a videotaped
conversation among Hale, Evola and John Schlismann that occurred on December 3,
2000. In it, Hale explains that he knows an individual named Eric McGowan is an
informant, posits that the reason McGowan didn’t propose committing crimes might be
11
because “he knew that that would be a real big red flag,” (DE 66-1 at 5 lines 16-18), and
explains that there were good reasons to keep McGowan active in Mr. Hale’s
organization, without letting McGowan know that Hale was wise to him.
Mr. Hale has provided a verified declaration explaining that he first suspected
Evola was an informant in January, 2001, when Evola suddenly proposed violence be
committed against a former Hale associate, Ken Dippold, which he viewed as a “red
flag.” (DE # 52-2 at 2, ¶ 4.) Thus, the conversation recorded one month earlier, in which
he expressed the same “red flag” theory about McGowan, and explained why keeping
McGowan active in the organization, would corroborate his explanation that he knew
Evola was an informant and had good reasons to keep an unknowing Evola within his
confidence.
There is an obvious reason, however, why defense counsel would not have
found this evidence as compelling as Hale portrays it now. According to Hale, he first
suspected Evola when Evola spontaneously proposed violence against Dippold, in
January 2001; but in the very recording at issue, from December 3, 2000, Evola proposes
violence against Dippold. Evola asks: “What are we gonna do about this, this uh, traitor?”
(DE # 66-1 at 1, line 1.) After Mr. Hale explains that while he wishes he could snap his
fingers and “the bastard would drop dead hideously right now,” (DE # 66-1 at 1, line
11), there are reasons instead to be legal, peaceful and follow the rules, Evola proclaims:
“I kinda think that he should be tooken care of though.” (DE # 66-1 at 2, line 11.) It is
clear that Mr. Hale understands Evola to mean violence, because he responds: “I
12
wouldn’t lose any damn sleep over it, but you know my policy has to be well, you
know, we’re legal and we’re peaceful and that’s the only way we can survive right now,
you know.” (DE # 66-1 at 2, lines 12-15.) Later in the conversation, Hale explains his
“red flag” theory about McGowan. Therefore, Mr. Hale had a reason to suspect Evola
earlier than he acknowledges, and it would be odd for him to proceed to explain to
Evola how an informer might tip himself off, after Evola had done just that. More
precisely, it is reasonable to determine a jury would view the conversation in this way,
and so decide not use it.9
In short, defense counsel—and Mr. Hale himself—had to weigh weak evidence
of Hale’s supposed belief that Evola was an informant against the risks inherent in Mr.
Hale testifying in his own defense. Choosing not to use the evidence was not an
unreasonable decision. Moreover, all of this evidence would have been in service to
Mr. Hale’s now-proposed alternative defense, and the court has explained extensively
why it wasn’t objectively unreasonable to choose to use an entrapment defense instead.
As a result, an evidentiary hearing now to delve into the details of the truth or falsity of
whether Mr. Hale believed that Evola was an informant is not necessary.
9
Mr. Hale also argues that portions of the conversation showing that he believed
in peaceful, legal action should have been played for the jury. As he admits, however
(DE # 66 at 1, n. 1), portions of the conversation showing just that (DE # 66-1 at 1, lines
2-6; at 2, lines 13-16) were played to the jury. Attorneys are not ineffective for not using
cumulative evidence. United States v. Jackson, 935 F.2d 832, 845-46 (7th Cir. 1991).
13
II. Whether the court erred by applying the wrong legal standard
Mr. Hale’s second argument is that the court erred by applying the wrong legal
standard in evaluating his ineffective assistance claim, improperly treating it as a
motion for a judgment of acquittal, by:
holding that, anytime a reasonable jury could have found guilt, Mr. Hale’s
counsel also ipso facto acted reasonably. This is of course not the issue.
Whether a reasonable jury could still have found Mr. Hale guilty without
the alleged errors of counsel is not relevant as to whether the errors of the
counsel were themselves unreasonable (and thus deficient) and
undermined confidence in the outcome (and thus prejudicial).
(DE # 52 at 7.) He then quotes a number of passages from the court’s opinion and order
to support this assertion, for example: “Viewing the evidence most favorably to the
government, however, a reasonable jury could, and did, find that Hale inveigled
Evola.” (DE # 52 at 7 (Opinion and Order at 70, n. 41 (DE # 50 at 70, n. 41))) Mr. Hale
then concludes:
The issue is not what a “reasonable view” of the evidence might be nor
what a reasonable jury could have found “[v]iewing the evidence most
favorable to the government” but rather whether counsel were
unreasonable in failing to challenge key elements of the government’s
case. . . . Simply put, the government is not supposed to receive the benefit
of any evidentiary inferences against Mr. Hale pursuant to the resolution
of a § 2255 motion. By allowing the standard for a motion for judgment of
acquittal to repeatedly seep into its reasoning, the Court subjected Mr.
Hale to a much higher burden than the law for ineffective assistance
provides, namely forcing him to prove that no jury would have seen
matters other than as he claims, which is an impossible standard on its
face.
(DE # 52 at 9.)
14
As an initial matter, although the court agrees with Mr. Hale that the standard
applicable to an ineffective assistance of counsel claim (brought in a § 2255 motion or
elsewhere) is different than the standard applicable to a motion for a judgment of
acquittal, the court does not agree with Mr. Hale’s implied assertion that obtaining
relief via § 2255 presents a movant with a lesser burden than does a motion for a
judgment of acquittal. “Because habeas relief is an extraordinary remedy, the standards
that a §2255 petitioner must meet are necessarily more stringent than those required of a
criminal complainant on direct review, or a plaintiff in a civil suit.” Paters v. United
States, 159 F.3d 1043, 1060 (7th Cir. 1998) (Coffey, J., concurring and dissenting). A
motion for a judgment of acquittal, which may be made even before the jury returns its
verdict, is not directed at a final judgment, while a motion under § 2255 is a collateral
attack on a final judgment. The interest in the finality of judgments limits the scope of
collateral review, Ryan v. United States, 645 F.3d 913, 915 (7th Cir. 2011), and when the
claim is based on ineffective assistance, “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 690.
Nevertheless, and no matter where the two motions should be placed on the
continuum of stringency in the standard for relief, the court does not believe that it
erred by applying the wrong standard. As the court clearly stated in its order denying
Mr. Hale’s § 2255 motion, the standard for a § 2255 motion was established by
Strickland, and requires the movant to show that his attorney’s performance fell below
15
an objective standard of reasonableness (that is, outside the wide range of professional
competence), and prejudice, that is, a reasonable probability of a different outcome had
the attorney’s errors not occurred. This is the standard the court applied.
As the government argues in its response to Mr. Hale’s motion, in assessing
counsel’s performance under that standard, the court used the language Mr. Hale
objects to either: 1) in commentary which has nothing to do with counsel’s performance
under that standard; or 2) in assessing the reasonableness of counsel’s strategic choices
in light of the way the evidence might be viewed, as part of the application of the
appropriate standard. As an example of the first of these two uses, the comment quoted
above (“[v]iewing the evidence most favorably to the government, however, a
reasonable jury could, and did, find that Hale inveigled Evola”) was made in a footnote
observing that the alternative defense theory proposed by Mr. Hale in his § 2255 motion
would have required the jury to find that Evola proposed the scheme to Hale, and that
same theory was at the heart of the entrapment defense which was used, and which the
jury rejected. Another example is on page 13 (DE # 50 at 13) of the order: “[T]he court
has already painstakingly explained why, when the evidence is viewed as a whole, the
most plausible interpretation of the initial conversation between Hale and Evola is that
Hale understood Evola to be referring to the “extermination” of Judge Lefkow.” This
comment was directed at one of the evidentiary arguments underpinning Mr. Hale’s
alternative defense theory, and was intended to incorporate the court’s prior
explanations of the reasons why that interpretation was not plausible.
16
An example of the second use of such comments, on page 14 (DE # 50 at 14) of
the order the court stated: “As has been explained previously and again herein, while
that [Hale didn’t need to correct Evola] might be a reasonable view of the evidence , it is
not the only reasonable view, and is one the jury rejected.” The context of this comment
is as follows. In his § 2255 motion, Mr. Hale argued he thought that Evola was
proposing the murder of James Amend, but then Evola suddenly switched the plan to
Judge Lefkow. In his reply to the government’s response questioning why Hale didn’t
object to the change in plans, Hale argued that he didn’t need to correct Evola, because
he had never asked Evola to do anything in the first place.
The court’s comment that “while that might be a reasonable view of the
evidence, it is not the only reasonable view” went to the court’s explanation of why it
was a reasonable strategic decision, based on the evidence, for Mr. Hale’s counsel to
proceed on the theory that Hale had always understood Evola to be discussing Judge
Lefkow, rather than on the alternative defense proposed by Hale in his § 2255 motion
(which depended on interpreting the first conversation between Evola and Hale as
having Hale understanding Evola to be talking about attorney Amend). It should go
without saying that the only way to determine whether an attorney’s choices are
objectively reasonable is to interpret those choices in light of the evidence.
The above discussion refutes three of the ten examples provided by Mr. Hale of
the court supposedly applying the wrong standard. Rather than belaboring the point
further by going through the remaining seven, the court reiterates that each of them, in
17
context, is understood in a similar fashion, and that the court applied the correct
standard in analyzing Mr. Hale’s ineffective assistance claim.
III. Whether the court misunderstood argument concerning attorney Amend
Summarizing as briefly as is possible, in his § 2255 motion Mr. Hale argued that
his attorney was ineffective for not using Hale’s “best” defense, which was, he asserts,
that he understood Evola to be proposing the murder of lawyer Amend. When he
realized that Evola was changing the target to Judge Lefkow, he rejected the plan. The
government responded that this would have been a risky defense choice, as it required
conceding that Hale had a murderous intent, but directed at someone other than Judge
Lefkow. In his reply, Mr. Hale argued that his alternative defense would not have
required that concession. In denying Mr. Hale’s § 2255 motion, the court commented
that it did not understand “the nuances” of how avoiding that concession would have
been possible.
In his RULE 59(e) motion, Mr. Hale elaborates. The government responds that this
is simply a re-hashing of Hale’s original argument, which the court should not even
consider, but does respond to the merits. The court will briefly do the same.
Mr. Hale’s elaboration, in a nutshell, is that his defense counsel could have
attempted to show that when Evola mentioned “exterminating” a “Jew rat” in a
conversation on December 5, 2002, Hale understood Evola to mean attorney Amend,
and not Judge Lefkow. This could have been done without conceding that Hale was
18
soliciting Evola to murder Amend, or agreeing with Evola in any way. This would be
possible because of the evidence showing that Mr. Hale knew Evola was an informant.
The argument made in Mr. Hale’s § 2255 motion was that he thought, on
December 5, 2002, that Evola was announcing a plan to murder lawyer Amend
(Mr. Hale says “good” after Evola said “consider it done”), but then “categorically
rejected” Evola’s plan when he understood that Evola meant Judge Lefkow. The court
still fails to see how that argument makes sense, or has any impact, were Mr. Hale not
actually agreeing with the Amend plan. Beyond that, even if the court accepts
Mr. Hale’s argument now that it would not have been logically inconsistent to argue
that he knew the Amend plan was phony so had no need to reject it, but then
categorically rejected the plan when it switched to Judge Lefkow, this still does not
amount to a showing that the alternative defense, entrapment, chosen by his counsel,
was objectively unreasonable. The court has examined Mr. Hale’s proposed alternative
defense argument at length, and explained why, based on all the evidence available, the
defense strategy that was actually used was reasonable, if not better than Mr. Hale’s
“hindsight” defense. The court need not repeat that discussion here, anymore than it
already has, but instead only states that it does not believe that Mr. Hale’s RULE 59
motion has shown the court erred in this regard.
IV. Whether issue regarding absence from voir dire was waived
Mr. Hale argues that it is not clear from the record that his absence from portions
of voir dire was involuntary, and so this issue could not have been raised on direct
19
appeal. Thus, he has not waived the issue and may raise it in this § 2255 proceeding.
The government’s response is that this is a new argument that cannot be made under
the guise of a RULE 59 motion; and that it rests on the substance of its prior response to
the issue as raised in Mr. Hale’s § 2255 motion.
The government is correct that Mr. Hale is attempting to amend his § 2255
motion and make a new argument. In his initial motion he attempted to avoid waiver
by arguing that he is actually, factually innocent; that he had cause for not raising the
argument on appeal, because voir dire transcripts were not available to him; and that in
any event, his absence is a structural error which can always be raised. He made these
non-waiver arguments in support of his original argument that the record was devoid of
evidence showing that he, or his counsel, consented to his absence from voir dire. (DE # 18 at
41). Thus, the issue Mr. Hale raised in his § 2255 motion could have been raised on
direct appeal, and the court’s discussion of waiver was adequate and will not be
reconsidered under RULE 59(e).
V. Whether transcript overlooked by court merits reconsideration
In his § 2255 motion Mr. Hale argued that his attorney was ineffective for not
offering exculpatory evidence including a comment he had in Evola’s presence that he
wished Ben Smith had shot him (Hale) in the leg instead of going on a multi-state
shooting spree targeting, and killing, several non-Caucasian individuals. (DE #18 at 25.)
In rejecting this argument, the court noted that because Mr. Hale did not testify, the
evidence would have had to come in through Evola, and nothing could have been done
20
if Evola denied that Hale made the remark. In his RULE 59(e) motion, Mr. Hale points
out that the court overlooked a transcript of conversation which Evola recorded,
containing the remark, which could have been used to confront Evola on the witness
stand.10
As the government argues in its response, the entire context of the remark makes
Mr. Hale’s argument based on it almost ludicrous. In the conversation, Mr. Hale is
recounting that he told someone “with absolute sincerity and conviction” that he
wished Smith had shot him in the leg, and that he:
[M]eant it actually. In a sense . . . you know, because I think it has hurt us
in some ways plus he’d be alive if he had shot me in the leg. . . . [A]nd
maybe I’d have my law license right now. There wouldn’t be these
lawsuits against us right now. . . . . And they nodded their heads, you
know, and there was nothing else they could say but if I had said well,
well, he shot a couple, you know, mud people, who cares? . . . You know
they would definitely, definitely want to use that against me, say that I
don’t have good moral character, you know?
(DE # 8-4 at 69.) This is not a condemnation of the violent acts committed by Smith, it is
instead, just as the government states, a “pragmatic analysis of the consequences of
Smith’s murderous spree.” (DE # 58 at 12.) Considering the other evidence in this case
(including the portion of this conversation where Mr. Hale laments that it would have
been “held against him” if he had said that Smith shot “mud people, who cares”) shows
10
In his § 2255 motion Mr. Hale did not provide a specific cite to this information,
leaving the court to ferret it out on its own. As is now clear, it appears at DE # 8-4, page
69, but as addendum # 3 to DE # 8 when viewing the docket text. This explains
Mr. Hale’s and the government disagreement in correctly identifying it. The confusion
in numbering results from a glitch in the CM/ECF system which, the court believes, has
been corrected in subsequent versions.
21
that there is no likelihood whatsoever that this evidence would have impacted the
outcome of the trial. Although the court did in fact overlook the transcript previously,
considering it now does not give the court pause or any reason to reconsider its prior
ruling.
CONCLUSION
For the reasons above, Mr. Hale’s motion pursuant to RULE 59(e) (DE # 52) is
DENIED. The court reaffirms its decision (DE # 50) denying Mr. Hale’s § 2255 motion,
and denying him a certificate of appealability.
SO ORDERED.
Date: October 27, 2011
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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