United States of America v. Edmond

Filing 52

MEMORANDUM Opinion and Order. Signed by the Honorable Matthew F. Kennelly on 7/14/2017. Mailed notice (meg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
vs.
TRALVIS EDMOND,
Defendant.

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Case No. 15 C 3566

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Tralvis Edmond was convicted in 2012 of drug and gun charges and sentenced
to a term of imprisonment. He has moved under 28 U.S.C. § 2255 to set aside his
conviction and sentence based on ineffective assistance of counsel. Edmond claims
that his trial counsel rendered ineffective assistance by (1) failing to file a motion to
suppress evidence seized during a search and (2) failing to call Edmond to testify at a
hearing on a motion to suppress statements he was claimed to have made while in
custody.
The Court conducted an evidentiary hearing on Edmond's first claim on June 16,
2016. The Court then determined that trial counsel's failure to file the motion to
suppress was objectively unreasonable but reserved for later determination the issue of
whether this failure prejudiced Edmond. See United States v. Edmond, No. 15 C 3566,
2016 WL 4179176 (N.D. Ill. Aug. 7, 2016). The Court now considers the issue of
prejudice as well as Edmond's second claim for ineffective assistance of counsel based

on counsel's failure to call Edmond to testify at the suppression hearing. For the
reasons stated below, the Court denies Edmond's section 2255 motion.
Background
Edmond was convicted on firearms and narcotics charges, and the Court
sentenced him to a prison term of eighty-four months. He has moved under 28 U.S.C. §
2255 to set aside his conviction and sentence, alleging ineffective assistance of
counsel. Specifically, Edmond contends that his trial counsel rendered ineffective
assistance by failing to file a motion to suppress evidence seized via the execution of a
search warrant at 736 N. Ridgeway in Chicago. The evidence seized included the key
evidence that was the basis for the charges against Edmond: two loaded firearms and
significant amounts of heroin and crack cocaine packaged for distribution. Edmond also
contends that his trial counsel rendered ineffective assistance by failing to call him to
testify at a hearing held by the judge then assigned to the case on a motion trial counsel
had filed seeking to suppress a post-arrest statement that Edmond had given to the
authorities.
The standard governing both of Edmond's claims for ineffective assistance of
counsel is the familiar two-part test established by Strickland v. Washington, 466 U.S.
668 (1984). The first question is whether counsel's action or inaction was objectively
unreasonable. The second question is whether the defendant was prejudiced as a
result of counsel's action or inaction. See id. at 687-88, 693.
The Court appointed counsel to represent Edmond in the section 2255
proceedings and held an evidentiary hearing to address certain contested factual
issues. The Court elected to address first the question of whether Edmond's trial

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counsel had acted in an objectively unreasonable way in failing to file a motion to
suppress the evidence seized in the search of the home on N. Ridgeway. The Court
concluded that Edmond had made the necessary showing, specifically that counsel's
decision not to file a motion to suppress was based on an objectively unreasonable
misunderstanding of the law of Fourth Amendment "standing." See Edmond, 2016 WL
4179176, at *5.
This leaves the following questions for the Court's determination: 1) whether
Edmond was prejudiced by counsel's failure to file the motion to suppress the fruits of
the search; 2) whether counsel's failure to call Edmond to testify at the hearing on the
motion to suppress his statement was objectively unreasonable; and 3) if so, whether
Edmond was prejudiced by counsel's failure to call him to testify at that hearing.
On June 27, 2017, the Court held an evidentiary hearing regarding whether
Edmond was prejudiced by counsel's failure to file the motion to suppress the fruits of
the search. Specifically, the parties were asked to present evidence addressing
whether Officer Frano, the Chicago police officer who obtained the search warrant,
acted with reckless disregard for the truth when applying for the warrant. The Court will
discuss this evidence in greater detail later in this opinion.
Discussion
A.

Motion to suppress fruits of search
As indicated, the Court previously concluded that trial counsel's decision not to

file a motion to suppress was objectively unreasonable. The parties agree that the
evidence seized in the search of the N. Ridgeway apartment was critical to the
government's success in prosecuting Edmond. Thus the question is whether Edmond

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has shown a reasonable likelihood that a motion to suppress would have been
successful had counsel filed it. See Strickland, 466 U.S. at 696; Harrington v. Richter,
562 U.S. 86, 111-12 (2011). Edmond argues that the motion would have been
successful because no probable cause existed to support the search warrant and the
good faith exception does not apply. Def. Tralvis Edmond's Mem. of Law
Demonstrating that He Suffered Prejudice As a Result of His Trial Counsel's Objectively
Unreasonable Performance (Def.'s Mem. on Prejudice) at 6–13.
1.

Probable cause

The search was conducted pursuant to a warrant issued by a Cook County judge
upon submission of an application by Officer John Frano stating the following:
The following facts are as follows: I, P.O. John Frano #11772 have been
a Chicago police officer for the [sic] over 9 years and have made over
1000 narcotics related arrests. On the 18 may 2010 I had the opportunity
to speak with a Registered Confidential Informant who R/O will refer to as
RCI. R/O has known this RCI for the past 5 years during which time RCI
has provided and been a reliable source of information concerning
narcotics activities. On over 6 different occasions in the past two months
R/O has acted upon the information provided by this RCI and on these
occasions R/O has recovered illegal narcotics. From every occasion R/O
made an arrest. Recovered narcotics from RCI information was submitted
to the Illinois State Police crime lab for testing and analysis. On these
occasions the crime lab found the presence of a controlled substance in
items submitted.
On 18 May 2010 RCI related to R/O that RCI was at the residence of 736
N Ridgeway and in the presence of Edmond, Tralvis E. in the basement
apartment. RCI related to R/O that RCI was in the rear of the apartment in
an area with a bed. RCI related to R/O that Edmond, Tralvis E. walked
over to the bed, pushed the mattress away from the wall and pulled from
under the bed a shoe box. RCI related to R/O that Edmond, Tralvis E.
then opened the shoe box at which point RCI observed 20-30 golf ball
sized clear plastic bags filled to the top of the shoe box. RCI related to
R/O that each golf ball sized clear plastic bag had between 10 and 13 zip
lock bags containing suspect heroin.
Def.'s Mem. on Prejudice, Ex. 1.
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An affidavit "establishes probable cause to support a search warrant when it sets
forth sufficient evidence to convince a reasonable person that a search will uncover
evidence of the alleged crime." United States v. Bell, 585 F.3d 1045, 1049 (7th Cir.
2009). When an informant supplies the facts in the affidavit, the probable cause
determination turns on the informant's credibility. Id. A court considers: (1) the extent
to which police corroborated the informant's statements; (2) the degree to which the
informant acquired knowledge through first-hand observation; (3) the amount of detail
provided; and (4) the interval between the date of the events and the officer's
application for the search warrant. Id; United States v. Johnson, 655 F.3d 594, 600 (7th
Cir. 2011). Also relevant is whether the informant personally appeared to testify before
the judge issuing the warrant. Bell, 585 F.3d at 1049; Johnson, 655 F.3d at 600. "No
one factor is dispositive, so a deficiency in some areas can be compensated by a
stronger showing in others." Bell, 585 F.3d at 1049. A judge's decision to issue a
warrant is given considerable weight and is overruled only when the supporting affidavit,
"read as a whole in a realistic and common sense manner, fails to allege specific facts
and circumstances to allow the judge to reasonably conclude that the items sought to
be seized are associated with the crime and located in the place indicated." United
States v. Koerth, 312 F.3d 862, 866–67 (7th Cir. 2002).
In arguing that the affidavit does not support a finding of probable cause,
Edmond relies primarily on the fact that it does not indicate the date on which the
confidential informant allegedly purchased drugs from Edmond at the N. Ridgeway
apartment. Edmond argues that without this information, one cannot reasonably
conclude that the drugs would still have been located at the apartment at the time the

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search warrant was executed. The government argues in response that, when read in
context, the affidavit makes it clear that the confidential informant purchased drugs from
Edmond on May 18, 2010, the same date he spoke with Frano. The Court has already
determined, however, that the affidavit does not specify when the informant went to N.
Ridgeway. Edmond, 2016 WL 4179176, at *1. The government's argument to the
contrary is unpersuasive.
Therefore the Court must determine whether the information in the affidavit
supports a finding of probable despite the fact that it lacks details regarding when the
informant met with Edmond. The Seventh Circuit has indicated that "'[s]taleness' is
highly relevant to the legality of a search for a perishable or consumable object, like
cocaine." United States v. Seiver, 692 F.3d 774, 777 (7th Cir. 2012). This is because
probable cause exists "only if it is established that certain identifiable objects are
probably connected with certain criminal activity and are probably to be found at the
present time in a certain identifiable place." United States v. Mitten, 592 F.3d 767, 775
(7th Cir. 2010) (emphasis added). It is not enough to establish that the location to be
searched at one time contained evidence of a crime. Id. Without any temporal
reference point, a judge is unable to determine whether the information in the affidavit
reasonably suggests that evidence of a crime might currently be found in the location to
be searched. See United States v. Lamon, 930 F.2d 1183, 1188–89 (7th Cir. 1991)
("Because the affidavit did not indicate when the informant had observed Mr. Lamon
dealing drugs from his automobile, that information standing alone would be insufficient
to establish probable cause.") Thus Frano's failure to indicate when the informant
visited Edmond at N. Ridgeway undermines a determination that probable cause

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existed to search the apartment.
Under some circumstances, the Seventh Circuit has excused an affidavit's failure
to provide some indication of the age of the information, but typically only when other
details in the affidavit provide evidence of ongoing criminal activity. In Lamon, the court
concluded that probable cause existed to search defendant's car—despite the fact that
the affidavit did not indicate when the informant had observed defendant dealing drugs
from his car—because the informant had also observed defendant selling drugs out of
his home within the past seventy-two hours and that together "these pieces of
information suggested a pattern of drug trafficking" that supported probable cause to
search the car. Lamon, 930 F.2d at 1189. The Seventh Circuit drew a similar
conclusion in Mitten, where the affidavit failed to indicate when one confidential
informant purchased drugs at the apartment to be searched and, regarding a different
informant, stated only that he had purchased drugs sometime during the previous
month. Mitten, 592 F.3d at 775. The court indicated that the information from multiple
informants that they had purchased drugs at the apartment demonstrated ongoing
criminal activity, which reduced the importance of the information's staleness in the
probable cause inquiry. See id. (noting that "the passage of time is less critical when
the affidavit refers to facts that indicate ongoing continuous criminal activity").
The details in the affidavit for the search of the N. Ridgeway apartment do not
provide evidence of ongoing criminal activity. According to the affidavit, the informant
told Frano only that he purchased drugs at the apartment once, and there are no other
informants with similar stories. The affidavit does not mention any belief that Edmond
was known to deal drugs, see United States v. Hicks, 650 F.3d 1058, 1066 (7th Cir.

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2011), nor does it discuss the frequency of an ongoing operation, see United States v.
Thompson, 139 F. App'x 724, 729 (7th Cir. 2005). This case is similar to United States
v. Harris, 464 F.3d 733 (7th Cir. 2006), in which the Seventh Circuit concluded that the
affidavit's information that at some specified time an informant visited the home and
observed drugs for sale failed to suggest ongoing criminal activity in the home. Id. at
739.
The government points to the quantity of drugs observed by the informant—20 to
30 golf-ball sized bags each containing 10 to 13 individual user quantities of heroin—in
arguing that there was reason to believe heroin remained in the apartment. Govt.'s
Resp. to Def.'s Mem. of Law on Prejudice (Govt.'s Resp.) at 5. But the government
cites to no case indicating that this quantity of drugs is sufficient to demonstrate ongoing
criminal activity irrespective of how much time had passed since the drugs were seen
on the premises. Even with this quantity of drugs, there remains (for example) the
possibility that Edmond moved or planned to move them to a different location or sold
all he had. This evidence is not enough to show ongoing criminal activity.
Because the affidavit failed to indicate when the informant purchased drugs from
Edmond at N. Ridgeway—and lacks any details indicating ongoing criminal activity—the
information in the affidavit does not support a finding of probable cause.
2.

Good faith exception

Even in the absence of probable cause, a search made pursuant to a warrant
can be saved by the good faith exception. United States v. Prideaux-Wentz, 543 F.3d
954, 959 (7th Cir. 2008). Under this exception, evidence obtained in violation of the
Fourth Amendment is nonetheless admissible if the officer who conducted the search

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acted in good faith reliance on a search warrant. United States v. Pappas, 592 F.3d
799, 802 (7th Cir. 2010). The fact that an officer obtained a search warrant is prima
facie evidence of good faith. Id. A defendant may rebut this evidence by demonstrating
that
(1) the issuing judge wholly abandoned his judicial role and failed to
perform his neutral and detached function, serving merely as a rubber
stamp for the police; (2) the affidavit supporting the warrant was so lacking
in indicia of probable cause as to render official belief in its existence
entirely unreasonable; or (3) the issuing judge was misled by information
in an affidavit that the affiant knew was false or would have known was
false except for his reckless disregard of the truth.
Id (citing United States v. Elst, 579 F.3d 740, 744 (7th Cir. 2009)). Edmond argues that
the good faith exception does not apply here, both because the affidavit was lacking in
indicia of probable cause and because Frano acted in reckless disregard of the truth
when preparing the application for the search warrant.
a.

Indicia of probable cause

Edmond argues that Frano's complaint was so lacking in indicia of probable
cause so as to make reliance on the search warrant unreasonable. In doing so,
Edmond points to four alleged deficiencies: (1) the lack of reference to when the
informant purchased the drugs; (2) Frano's failure to present the informant to the judge
for questioning; (3) Frano's failure to corroborate the information; and (4) the lack of
specific facts describing the apartment. Def.'s Mem. on Prejudice at 10.
The Court disagrees. First, the affidavit provided a number of details to suggest
the existence of probable cause. The informant gave the precise address for the N.
Ridgeway apartment and identified Edmond as the individual inside. Def.'s Mem. on
Prejudice, Ex. 1. He described in detail the location of the drugs in a shoe box under
the bed, as well as the packaging and approximate quantity of drugs. Id. The affidavit
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also provided information indicating how the informant knew that the substance was
heroin—namely, that the informant used the substance after purchasing it and
experienced the effects of heroin. Id; see also United States v. Bell, 585 F.3d 1045,
1050 (7th Cir. 2009) (emphasizing the importance of indicating how the informant was
able to identify the substance as an illegal narcotic). The Seventh Circuit has indicated
that statements against an informant's penal interest—such as a statement that the
informant purchased the drug—are "a weighty factor in establishing probable cause."
United States v. Lake, 500 F.3d 629, 633 (7th Cir. 2007). Finally, the affidavit provided
information regarding the informant's credibility, indicating that he had provided reliable
information to Frano in the five years preceding the warrant and that in the preceding
two months, his information had on six occasions led to the recovery of illegal narcotics
and an arrest. Def.'s Mem. on Prejudice, Ex. 1. Thus the affidavit provided sufficient
detail to permit an officer to reasonably rely on the warrant that was later issued. The
fact that the affidavit did not include temporal information does not preclude application
of the good faith exception. See Prideaux-Wentz, 543 F.3d at 959; Mitten, 592 F.3d at
775. In light of the details discussed above, this deficiency is insufficient to make
reliance on the affidavit unreasonable.
In addition, Frano adequately corroborated the information that the informant
provided. He showed the informant a picture of Edmond obtained from a police
database, which the informant positively identified as the person who sold him the
drugs. Def.'s Mem. on Prejudice, Ex. 1. Frano also drove the informant past the N.
Ridgeway apartment, and he identified the building in which he purchased drugs from
Edmond. Id. These steps are sufficient to corroborate the information in the affidavit.

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See United States v. Sutton, 742 F.3d 770, 773–74 (7th Cir. 2014).
Edmond's final argument is that the informant failed to appear before the issuing
judge. But, as previously noted, no one factor is dispositive in the determination of
probable cause. United States v. Taylor, 471 F.3d 832, 840 (7th Cir. 2006). It is true
that when the informant appears before the issuing judge, the judge has a better
opportunity to ascertain the credibility of the informant. Sutton, 742 F.3d at 773. That
issue is less of a concern here, however, where the affidavit indicated that the informant
had proven reliable in the past and therefore was not an unknown, untested informant.
See United States v. Jones, 376 F. App'x 627, 629 (7th Cir. 2010); Taylor, 471 F.3d at
840.
The Court therefore finds that the affidavit supporting the warrant was not so
lacking in indicia of probable cause as to render reliance on it unreasonable.
b.

Reckless disregard

Edmond next argues that the good faith exception does not apply because Frano
acted in reckless disregard of the truth by omitting from the affidavit the following facts
about the informant: (1) the informant had been convicted of at least four drug-related
felonies before May 2010; (2) the informant faced a pending charge for possession of
cocaine on May 19, 2010; (3) the informant forfeited his bail bond on May 6, 2010; and
(4) an arrest warrant had been issued for the informant on May 6, 2010. Def.'s Mem. on
Prejudice at 12. Edmond argues that this information was essential to the issuing
judge's credibility determination and therefore that its omission defeats the good faith
exception.

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i.

Officer Frano's testimony

At the evidentiary hearing on June 27, 2017, the Court heard testimony from
Officer Frano regarding the application for the search warrant. Frano testified that he
provided the affidavit used to apply for the search warrant and that he has been the
affiant in over 200 similar cases. He stated that the affidavit was based on information
from a registered confidential informant (RCI). To become an RCI, an individual must
be "signed up" with the police department, meaning he must have previously provided
the department with reliable information. Frano testified that, at the time of the warrant
application, he had no reason to believe the informant was unreliable, as the informant
had never given him false information in the past. Frano knew at the time of the
application that the informant had a criminal history involving drug charges and possibly
theft or disorderly conduct. He also knew that the informant had a pending criminal
case related to charges for trafficking and possession of cocaine on which he was
arrested in 2008. Frano did not include any of this information in the affidavit for the
search warrant because, at the time, the Chicago Police Department's standard practice
did not require this information. The policy has since changed, and officers are now
required to provide the judge to whom a warrant application is presented with an
informant's criminal history. In May 2010, however, the Cook County state's attorney's
office approved Frano's warrant application without requesting criminal history
information for the informant.
Edmond presented at the hearing a copy of the informant's criminal history
report, which indicated that a warrant for his arrest had been issued on May 6, 2010.
Frano stated that—despite the fact that he spoke with the informant on May 18, 2010

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and reviewed his criminal history information prior to doing so—he was unaware of the
outstanding warrant. The copy of the report presented at the hearing indicated,
however, that it was generated on August 9, 2011, meaning it was not the same report
that Frano had reviewed prior to speaking with the informant. Frano also stated that, at
the time he submitted his affidavit, he was unaware that the informant had recently
forfeited his bail.
Frano testified that he was not trying to hide anything from the judge by omitting
the informant's criminal history from his affidavit. He further stated that he had no
reason to believe that this information was particularly important to the warrant
application, because he included information regarding the informant's track record of
providing reliable information to the department. Frano stated that the informant was
not under arrest at the time they spoke, nor did Frano later "get him off the hook" in
relation to his pending drug charges, for which the informant was ultimately sentenced
to one year in prison. He also testified that RCIs are typically paid for providing
information and that it is possible the informant in this case was compensated for the
information he provided against Edmond.
ii.

Outstanding warrant and bail forfeiture

Edmond argues first that Frano acted with reckless disregard for the truth by
omitting from the affidavit information regarding the informant's outstanding arrest
warrant and forfeiture of his bail. To establish that Frano acted with reckless disregard
for the truth, Edmond must show that Frano entertained serious doubts about the truth
of his statements, had obvious reasons to doubt their accuracy, or he failed to disclose
facts that he knew would negate probable cause. Betker v. Gomez, 692 F.3d 854, 860

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(7th Cir. 2012). Edmond has failed to do so regarding the arrest warrant and the bail
forfeiture, because the evidence shows that Frano was unaware of either of these facts.
Frano testified credibly that the criminal history report he reviewed prior to speaking with
Edmond did not include the arrest warrant and bail forfeiture, which had happened only
a matter of days earlier. And Frano cannot be said to have failed to disclose facts that
he knew would negate probable cause when he was unaware of these facts in the first
place. The Court therefore finds that Frano did not act with reckless disregard for the
truth when he did not include in the affidavit information regarding the informant's
outstanding warrant and forfeiture of bail.
iii.

Prior criminal history

The next issue involves the omission of information regarding the informant's
criminal history. The evidence presented at the hearing shows that Frano was aware of
the informant's prior convictions and arrests at the time that the informant gave
information regarding Edmond. But Frano testified credibly that he did not question the
reliability of the informant's information regarding Edmond because the informant had
never provided false information in the past. Thus Frano never entertained serious
doubts regarding the accuracy of the information.
Edmond has also failed to show that the informant's criminal history should have
caused Frano to doubt the informant's reliability or that Frano knew this information
would negate probable cause. The Seventh Circuit has indicated that "an informant's
criminality does not in itself establish unreliability." Taylor, 471 F.3d at 840. And there
was sufficient reason in this case for Frano to trust the informant's information. The
affidavit indicated that the informant had, on multiple prior occasions, provided reliable

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information which led to arrests and the recovery of illegal narcotics. And Frano
testified that none of the informant's prior arrests or convictions related to crimes of
untruthfulness. Thus the criminal history did not give Frano an obvious reason (beyond
what the affidavit disclosed about drug use) to question the informant's statements
regarding Edmond, particularly given that the informant was not under arrest at the time
and Frano did not assist him on his pending charge. Further, there is no evidence that
Frano's omission of this information was deliberately or recklessly deceptive. Frano
testified credibly that he did not intend to mislead the judge regarding the informant's
credibility. And his affidavit indicated that the informant purchased cocaine from
Edmond and later used it. This statement "could easily be read as giving the
impression that the police were not trying to hide the fact that [the informant] was
currently in trouble with the law." United States v. Williams, 718 F.3d 644, 653 (7th Cir.
2013).
c.

Summary

The Court concludes that Edmond has failed to show that the good faith
exception does not apply to the search warrant in this case. The warrant was not so
lacking in indicia of probable cause so as to render Frano's reliance on it unreasonable.
And Frano did not act in reckless disregard of the truth in preparing the warrant
application. For these reasons, the Court finds that Edmond has failed to show that he
was prejudiced by trial counsel's failure to move to suppress the fruits of the search,
because the motion would not have been successful.
B.

Motion to suppress statements
Edmond also claims that his trial counsel provided ineffective assistance when

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he failed to call Edmond to testify at a hearing on a motion to suppress statements he
was claimed to have made while in custody. Edmond was arrested after being stopped
for a traffic violation approximately one month after officers searched the apartment at
N. Ridgeway. While he was detained, Frano interviewed him about the items recovered
at N. Ridgeway during the search. In the police report summarizing the interview, Frano
stated that he gave Edmond Miranda warnings and that Edmond proceeded to admit
that he owned the drugs and guns found in the apartment. Def.'s Mem. on Prejudice,
Ex. 6. Edmond denies both that he received the warnings and that he waived his rights.
During pre-trial proceedings, Edmond's trial counsel filed a motion to suppress
the alleged statement on these grounds. Trial counsel submitted a sworn affidavit from
Edmond stating that he never received Miranda warnings and did not he waive his
rights. Judge Blanche Manning, to whom the case was then assigned, ordered a
hearing on the motion. Frano testified at the hearing that he gave the warnings and that
Edmond waived his rights. Trial counsel did not call Edmond to testify, choosing
instead to rely on his cross-examination of Frano. Judge Manning credited Frano's
testimony and denied the motion to suppress.
Edmond now argues that trial counsel's failure to call him to testify constitutes
ineffective assistance of counsel. As stated previously, to prevail Edmond must show
both that counsel's performance fell below an objective standard of reasonableness and
that the deficient performance prejudiced him. McDowell v. Kingston, 497 F.3d 757,
761 (7th Cir. 2007). A court considering an ineffective assistance claim is not required
to consider these points in this sequence, and if it concludes that the defendant has not
made a sufficient showing on one point, it need not consider the other. Strickland, 466

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U.S. at 697; see also Spiller v. United States, 855 F.3d 751, 755 (7th Cir. 2017) ("When
applying Strickland to the facts of a particular case, there is no reason for a court to
approach the inquiry in the same order or even to address both components of the
inquiry if the defendant makes an insufficient showing on one.") (internal quotation
marks omitted). The Court considers only whether Edmond was prejudiced by
counsel's failure to call him to testify and concludes that he was not.
To demonstrate prejudice, Edmond must show that, absent counsel's deficient
performance, he would have won the motion to suppress. Johnson v. Thurmer, 624
F.3d 786, 792 (7th Cir. 2010). Edmond has failed to make this showing. Judge
Manning heard Frano's testimony and concluded that it was credible. See United
States v. Edmond, No. 11 CR 378, dkt. no. 33. There is little reason to believe that
Edmond's testimony would have altered this conclusion. See Bynum, 560 F.3d at 685.
If counsel had called Edmond to testify, he would have testified to the same facts in his
affidavit: that he did not receive Miranda warnings, nor did he waive his rights. Mem. of
Facts and Law in Supp. of Pet'r's Mot. to Vacate or Set Aside or Correct a Sentence
(Pet'r's § 2255 Motion) at 14. Although testifying would have given Judge Manning the
opportunity to evaluate Edmond's credibility, there is no reason to believe that it would
have changed her decision to credit Frano's testimony.
Edmond argues that, if he had testified, Judge Manning would not have credited
Frano's testimony given that (1) Frano is the one who prepared the police report
omitting mention of a waiver of his rights; (2) no third party witness was present; and (3)
there was no audio or video recording of the interview. Def.'s Reply Br. Demonstrating
that He Suffered Prejudice as a Result of His Trial Counsel's Objectively Unreasonable

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Performance (Def.'s Reply) at 15. But all of these points were already made, based on
Frano's testimony alone. Edmond's testimony would have added nothing on these
points.
Edmond's argument basically boils down to the proposition that it would have
made a difference if he had taken the witness stand and simply denied being read his
rights or having waived them; he does not suggest that there would have been anything
to his testimony other than this. The Court concludes that Edmond has failed to show
that his denial under oath of Frano's testimony would have altered Judge Manning's
evaluation of Frano's credibility. Edmond has thus failed to show the requisite
prejudice.
Conclusion
For the foregoing reasons, the Court denies Edmond's motion to vacate his
conviction and sentence under 28 U.S.C. § 2255 [dkt. no. 1]. The Clerk is directed to
ender judgment in favor of the United States.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: July 14, 2017

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