United States of America v. Wright
Filing
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Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 1/28/2016. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL WRIGHT,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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No. 14 C 5387
MEMORANDUM OPINION AND ORDER
In January 2012, a federal jury found Michael Wright
(“Wright”) guilty of possessing over 500 grams of cocaine with
intent to distribute and selling cocaine to a confidential
informant.
I sentenced Wright to 150 months in prison and the
Seventh Circuit affirmed his conviction.
See U.S. v. Wright,
722 F.3d 1064 (7th Cir. 2013).
Before me is Wright’s motion under 28 U.S.C. § 2255 to
vacate his sentence on the ground that he was denied the
effective assistance of counsel.
I deny Wright’s motion for the
reasons stated below.
I.
On February, 26, 2010, Wright spoke with a confidential
informant (“CI”) who recorded their conversation.
he had a customer who wanted to buy cocaine.
The CI said
Wright responded
that he was “stocked up” and boasted that he always tried to
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stay two or three weeks ahead of expected demand.
The CI
indicated that he would call Wright in a few days.
On March 3, with several law enforcement officers
surveilling the area, the CI went to Wright’s apartment building
with $4,650 in marked currency and returned with 192 grams of
cocaine.
Based on that controlled buy, the government obtained
a warrant to search Wright’s apartment, where they seized 455
grams of cocaine; smaller bags of cocaine packaged for
distribution; various materials used to prepare cocaine for
sale; and $4,600 in marked bills that the CI had given Wright
during the controlled buy.
When Wright was arrested with the
remaining $50 marked bill on his person, he said, “Look, you got
me; let’s just start the sentence right now.”
Wright was
eventually charged with possessing 500 grams or more of cocaine
with intent to distribute (Count I) and distributing cocaine
(Count II).
See U.S. v. Wright, No. 10 CR 1075 (N.D. Ill.).
Wright’s attorney, Joshua B. Adams (“Adams”), filed a
motion to suppress arguing that the search warrant application
deliberately or recklessly omitted two facts that would have
precluded a probable cause finding: (1) law enforcement did not
search the CI’s car for contraband before sending him to buy
cocaine from Wright and (2) the CI did not wear a wire during
the controlled buy.
Id. at Dkt. No. 26 (requesting evidentiary
hearing under Franks v. Delaware, 438 U.S. 154 (1978)).
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The
Government countered that adding those two facts to the warrant
application would not have defeated a probable cause finding.
Id. at Dkt. No. 31.
I agreed with the Government and denied
Wright’s motion to suppress.
Id. at Dkt. Nos. 32, 99.
The Government later disclosed that it did not intend to
call the CI as a witness at trial.
At the same time, the
Government moved in limine to (1) admit portions of the recorded
conversation between Wright and the CI on February 26 in which
they discussed the drug buy that occurred five days later and
(2) bar Wright from making a missing witness argument.
attorney opposed both motions.
Wright’s
He argued that admitting the
recorded conversation would violate the Confrontation Clause and
Rule 404(b)’s bar against propensity evidence.
He also
maintained that a missing witness instruction was appropriate
because the CI was peculiarly within the Government’s control
and had relevant testimony regarding the controlled buy.
I granted the Government’s motion to admit portions of the
February 26 recorded call between Wright and the CI for the
following reasons:
Testimony by the cooperating witness is not essential.
The statements of the cooperating witness on the
transcript submitted by the government at the pretrial
conference, which defendant acknowledges are nontestimonial, do not violate defendant's right of
confrontation, nor are they hearsay since they are not
offered for the truth of the matters asserted.
I
agree with the government's contention that the
evidence is directly related to the crime charged, and
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that, alternatively, it is admissible
evidence of intent and absence of mistake.
Id. at Dkt. No. 60.
as
404(b)
I also granted the Government’s motion to
bar Wright from making missing witness arguments on the
condition that, if requested, the CI must be made available as a
defense witness.
Id.
At trial, the defense argued that reasonable doubt existed
about Wright’s guilt.
On Count I, Wright’s lawyers tried to
distance their client from the cocaine found in his apartment by
suggesting that the CI was stashing his drugs there.
They also
drew attention to the fact that Wright had only $500 in his
apartment before the controlled buy.
According to Wright’s
lawyers, a cocaine dealer would have had far more cash on hand.
On Count II, Wright’s lawyers emphasized that the
Government did not record the controlled buy on March 3 or
search the CI’s car for drugs before sending him to Wright’s
apartment.
They also elicited from a Chicago police sergeant
that the CI had been arrested for a narcotics offense involving
cocaine.
Tr. at 325.
The upshot, according to Wright’s
lawyers, was that the CI gave law enforcement cocaine that was
hidden in his car and framed Wright for cocaine distribution by
giving him marked currency.
After deliberating for only one hour, the jury found Wright
guilty on both counts.
In his motion for a new trial, Wright’s
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attorneys argued that admitting the recorded conversation from
February 26 violated the Confrontation Clause because the CI’s
statements were testimonial.
They also argued that Wright
should have been allowed to cross examine the Government’s
witnesses about the CI’s criminal history.
I denied Wright’s
motion by minute order.
The most contested issue at sentencing was whether Wright
should receive a two-level enhancement under U.S.S.G. §
2D1.1(b)(12) for “maintain[ing] a premises for the purpose of
manufacturing or distributing a controlled substance.”
Wright’s
attorney argued that the enhancement was inappropriate because
Wright used his apartment primarily as his living quarters, not
as a place from which to sell cocaine.
objection.
I overruled Wright’s
The CI told law enforcement that he had been
purchasing drugs from Wright for several years, which was
corroborated by the cocaine distribution supplies found in
Wright’s apartment.
Wright qualified as a career offender under U.S.S.G. §
4B1.1 based on three cocaine offenses from 1997, so his advisory
guidelines range was 360 months to life in prison. 1
He also
faced a statutory minimum of 120 months’ imprisonment under 21
U.S.C. § 841(b)(1)(B)(ii)(II).
Ultimately, I sentenced Wright
1
Absent Wright’s career offender classification, his guidelines
range would have been 110 to 137 months.
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to 150 months in prison and imposed an eight-year term of
supervised release.
On appeal, Wright’s attorneys argued that admitting the
CI’s statements from his recorded call with Wright on February
26 violated the Confrontation Clause.
They also argued that I
should have given a missing witness instruction.
Circuit rejected both arguments.
The Seventh
The recorded call did not
implicate the Confrontation Clause because the CI’s statements
were not testimonial; they simply provided context for Wright’s
own admissions.
Wright, 722 F.3d at 1067.
The court also held
that Wright was not entitled to a missing witness instruction
because he did not show that the CI’s testimony would have been
helpful to his defense.
Id. at 1069.
Wright’s conviction became final when the time for him to
petition the Supreme Court for a writ of certiorari expired.
See Clay v. U.S., 537 U.S. 522 (2003).
II.
Wright has moved under 28 U.S.C. § 2255 to vacate his
sentence on the ground that it was imposed in violation of his
Sixth Amendment right to the effective assistance of counsel.
See Strickland v. Washington, 466 U.S. 668 (1984).
A motion
under § 2255 is the prudent way for a federal defendant to raise
an ineffective assistance of counsel claim.
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See Massaro v.
U.S., 538 U.S. 500, 504 (2003); see also Ramirez v. U.S., 799
F.3d 845, 853 (7th Cir. 2015) (collecting cases).
“Counsel is unconstitutionally ineffective if his
performance is both deficient, meaning his errors are ‘so
serious’ that he no longer functions as ‘counsel,’ and
prejudicial, meaning his errors deprive the defendant of a fair
trial.”
Maryland v. Kulbicki, 136 S. Ct. 2, 3 (2015) (per
curiam) (quoting Stickland, 466 U.S. at 687).
The performance
and prejudice inquires can be addressed in either order.
Strickland, 466 U.S. at 697.
I start with the performance inquiry, which requires Wright
to “identify the acts or omissions of counsel that are alleged
not to have been the result of reasonable professional
judgment.”
Id. at 690.
“[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Id. at 689 (internal quotation omitted).
Wright’s ultimate
burden is to show that his “counsel’s representation fell below
an objective standard of reasonableness.”
Id. at 688.
Wright’s motion includes a laundry list of ways in which
his two attorneys were allegedly ineffective in litigating
suppression issues, during plea negotiations, at trial and
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sentencing, and on direct appeal.
See Dkt. No. 1 (“Mot.”) at
20.
A.
Wright’s first claim is that his attorneys “failed to move
to suppress unfounded and illegally acquired evidence.”
Id.
That argument is frivolous because Wright’s attorneys did, in
fact, file a motion to suppress the evidence seized from his
apartment.
Wright makes a series of related arguments that are
also baseless.
He claims that his attorneys did not “conduct a
proper investigation into the sting operation,” “challenge the
validity of the controlled buy with no truck search,” “challenge
the illegality of the search upon officers seizing [his] keys,”
“address the timeline of the search warrant after officers
entered [his apartment],” or “suppress evidence when there
existed no surveillance or video.”
Id.
Far from ignoring those
arguments, Wright’s attorneys highlighted two alleged flaws in
the underlying investigation in the motion to suppress: law
enforcement’s alleged failure to search the CI’s car before the
controlled buy and the failure to record the transaction.
Wright has not identified any other arguments for suppression
that a reasonably prudent attorney would have made.
B.
Wright’s next claim is that his attorneys failed to “advise
[him] on plea options and simply moved to a jury trial” without
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giving him a “realistic assessment” of his likely outcomes at
Mot. at 20. 2
trial and sentencing.
Advising a defendant to
reject a plea offer may constitute ineffective assistance in
some circumstances.
(2012).
See Lafler v. Cooper, 132 S. Ct. 1376, 1385
In order to obtain a hearing on his counsel’s
effectiveness during plea negotiations, Wright must make “some
threshold showing of the evidentiary basis, beyond mere
conclusory allegations, that supports a finding that the
government in fact offered a plea deal.”
Martin v. U.S., 789
F.3d 703, 707 (7th Cir. 2015) (citing Gallo-Vasquez v. U.S., 402
F.3d 793, 798 (7th Cir. 2005)).
“This preliminary burden is not
meant to be onerous” and “may be satisfied in a number of ways.”
Id.
For example, Wright could present: “a copy of the proposed
[plea] agreement, correspondence concerning the plea, an
affidavit from counsel, a statement as to when or by whom the
offer was made, a detailed account of the material terms of the
plea agreement, [or] an entry on the docket setting a date for
change of plea.”
Id.
Wright has not presented any evidence regarding the plea
agreement that his attorneys allegedly advised him to reject.
Id. (affirming denial of evidentiary hearing where defendant
2
Confusingly, Wright also says that his attorneys persuaded him
to plead guilty by guaranteeing him a particular outcome at
sentencing. Mot. at 39-40. That argument has no basis in fact
because Wright did not enter a guilty plea in this case.
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made only “vague and conclusory allegations” regarding plea
agreement that he rejected based on advice of counsel).
To make
matters even more confusing, Wright makes inconsistent
statements about the advice he received from his attorneys
regarding whether to plead guilty.
Initially, Wright accuses
his attorneys of steering him towards trial “based upon a set of
unrealistic expectations of a sentencing outcome to fall below
120 months.”
Mot. at 36.
In the next breath, Wright says his
attorneys promised to cross-examine the CI at trial and secure a
finding of actual innocence.
Wright is not entitled to a
hearing to resolve the conflict in his own mind about which
false promise his attorneys allegedly made in advising him not
to plead guilty.
In short, Wright’s claim that he was denied the effective
assistance of counsel during plea negotiations is too vague and
conclusory to warrant a hearing.
Cf. Estremera v. U.S., 724
F.3d 773, 778-79 (7th Cir. 2013) (remanding for evidentiary
hearing where defendant submitted rejected plea agreement and
detailed affidavit stating that counsel failed to review the
plea offer with him and made a false statement about one of its
key terms).
C.
Wright’s next claim is based on his counsel’s performance
at trial.
The most common flaw in Wright’s arguments is that
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they ignore the trial record.
For instance, Wright says his
attorneys should have argued to the jury that the CI’s car was
not searched before the controlled buy, that the transaction was
not recorded, and that the CI was a drug user who could not be
trusted.
Mot. at 20.
The jury heard all of those arguments
from Wright’s own attorneys, which undermines his related
argument that they lacked an overarching strategy.
If anything,
the record suggests that Wright and his attorneys were in
agreement about the best way to sow the seeds of reasonable
doubt in the jury’s mind.
Wright also faults his attorneys for failing to ensure that
the CI was present at trial so his credibility could be
attacked.
Wright’s attorneys did everything in their power to
make the Government’s case turn on the CI’s credibility.
They
argued that the Confrontation Clause prohibited the Government
from introducing any of the CI’s statements without calling him
as a witness; they asked for a missing witness instruction that
would have allowed the jury to presume that the CI’s testimony
would have been harmful to the Government; they objected on
hearsay grounds when a Government witness testified about one of
the CI’s out of court statements concerning Wright, Tr. 131; and
they elicited from a different Government witness that the CI
had been arrested for a cocaine offense before he started
cooperating with law enforcement, id. at 325.
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Wright’s
attorneys can hardly be faulted for missing opportunities to
attack the CI’s credibility even though he was a non-testifying
witness.
To the extent Wright thinks his attorneys were
ineffective for not calling the CI as a defense witness, that
argument fails for the same reason that a missing witness
instruction was not appropriate: Wright “fails to make any nonspeculative showing that the CI’s testimony would have actually
been helpful to him.”
Wright, 722 F.3d at 1069.
Wright’s remaining arguments are that his attorneys failed
to “vet a jury of peers through the voir dire process,”
“challenge the jury instructions to find guilt on transaction
only,” or “bring forward expert testimony to challenge drug
quantities.”
Mot. at 20.
Those arguments are conclusory and do
not require further discussion.
See Mahaffey v. Ramos, 588 F.3d
1142, 1146 (7th Cir.2009) (“Perfunctory, undeveloped arguments
without discussion or citation to pertinent legal authority are
waived.”).
In sum, Wright has not established that any of his
attorneys’ decisions at trial were objectively unreasonable.
D.
In a recurring theme, Wright’s complaints about his
counsel’s performance at sentencing are at odds with the record.
Wright’s chief complaint is that his attorneys did not
“challenge any enhance that would exceed the 120 month minimum.”
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Mot. at 20.
To the contrary, Wright’s attorney argued at
sentencing that the two-level enhancement in U.S.S.G. §
2D1.1(b)(12) for “maintain[ing] a premises for the purpose of
manufacturing or distributing a controlled substance” was
inappropriate.
Wright’s attorney also urged me to deviate from
the career offender guidelines, U.S.S.G. § 4B1.1, because his
client’s prior drug convictions were from 1997, thirteen years
before the conduct at issue in this case.
See U.S. v. Corner,
598 F.3d 411, 415 (7th Cir. 2010) (en banc) (sentencing judges
may reject career offender guidelines based on policy
disagreement).
To say that Wright’s attorney did not oppose any
sentencing enhancements is to ignore the record.
Wright also complains that his attorneys did not “challenge
the guideline range that was based on the elements,” “move the
court from the elements toward a sentence [based] on evidence,”
or challenge the validity of the drug quantities against
evidence.”
Mot. at 20.
The driving factors in Wright’s
guidelines calculation were the jury’s drug quantity findings
and Wright’s prior drug convictions from 1997. 3
Wright’s
attorney could not change either of those factors, so he
sensibly focused on opposing the § 2D1.1(b)(12) enhancement and
3
Wright’s reliance on Alleyne v. U.S., 133 S. Ct. 2151 (2013),
is misplaced because the 120 year mandatory minimum he faced was
based on (a) a drug quantity finding made by a jury and (b)
prior drug convictions that did not need to be proven to a jury.
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emphasizing that his client’s drug convictions were more than
ten years old.
Wright has not explained what else his attorney
could have done to lower his advisory guidelines range.
Wright also faults his attorney for not “challeng[ing] the
conditions set forth under the Pre-Sentence Report.”
20.
Mot. at
This argument is a non-starter because Wright has not even
specified which conditions of supervised release he finds
objectionable.
E.
Wright’s final series of complaints is about his counsel’s
performance on direct appeal.
According to Wright, his
attorneys did not “preserve certain objectionable issues ripe
for appeal,” “introduce Circuit-specific precedence in
Certiorari against case,” or “bring forward an appeal under the
auspices of ‘Actual Innocence.’”
Mot. at 20.
Those arguments
are too conclusory and under-developed to warrant further
discussion.
III.
Wright’s motion to vacate his sentence is DENIED for the
reasons stated above.
I decline to issue a certificate of
appealability because Wright has not made “a substantial showing
of the denial of a constitutional right.”
28 U.S.C. §
2253(c)(2); see also Rule 11(a) of the Rules Governing Section
2255 Proceedings for the United States District Courts.
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ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: January 28, 2016
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