United States of America v. Lawrence
MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 12/20/2016: Defendant's § 2255 motion 1 is denied. Pursuant to Rule11(a) of the Rules Governing Section 2255 Cases, the Court must consider whether to grant a certi ficate of appealability. Based on the foregoing analysis, Defendant has not established that reasonable jurists could debate the correctness of the Court's decision. Accordingly, the Court declines to issue a certificate of appealability. Civil case terminated. [For further details see statement]. Mailed notice(is, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
United States of America,
Case No: 16 C 5237
Judge Ronald A. Guzmán
MEMORANDUM OPINION AND ORDER
For the reasons stated below, Defendant’s § 2255 motion  is denied. Pursuant to Rule
11(a) of the Rules Governing Section 2255 Cases, the Court must consider whether to grant a
certificate of appealability. Based on the foregoing analysis, Defendant has not established that
reasonable jurists could debate the correctness of the Court’s decision. Accordingly, the Court
declines to issue a certificate of appealability. Civil case terminated.
On October 22, 2010, “[a]s part of a routine parole compliance check, state parole agents
searched convicted felon Brian Lawrence’s residence and found cocaine and ammunition.”
United States v. Lawrence, 788 F.3d 234, 237 (7th Cir. 2015). On June 7, 2011, Lawrence was
charged with knowingly possessing ammunition that had traveled in interstate commerce after
having previously been convicted of a crime punishable by a term of imprisonment exceeding
one year, in violation of 18 U.S.C. §§ 922(g)(2) and 924(e)(1) (Count One), and knowingly
possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Two),
for conduct that occurred on October 22, 2010 in Chicago. Prior to trial, the Court denied his
motion in limine to exclude evidence obtained by a drug-detecting dog. After a jury trial, he was
found not guilty of Count One and guilty of Count Two. Subsequent to denying his motion for a
new trial, the Court sentenced Lawrence to 262 months imprisonment with five years supervised
release. The Seventh Circuit affirmed his conviction and sentence on June 2, 2015. See
Lawrence, 788 F.3d at 247.
In his § 2255 motion, Lawrence alleges the following claims:
(1) ineffective assistance of trial counsel for failing to challenge the validity or
scope of Lawrence’s consent to search;
(2) ineffective assistance of counsel for failing to investigate A.C. Kinnard’s
statement to the government or call Kinnard at trial;
(3) ineffective assistance of counsel for failing to offer a rebuttal witness to
challenge the dog sniff evidence;
(4) ineffective assistance of counsel for failing to challenge the chain of custody
of the evidence found in his home;
(5) ineffective assistance of counsel for stipulating to the type and amount of
drugs that was found;
(6) ineffective assistance of counsel for failing to argue at sentencing that
application of § 4B1.1 of the Sentencing Guidelines was oppressive and
(7) ineffective assistance of counsel for failing to challenge the term of supervised
release as “inappropriate” because the Court did not reference the applicable
factors under 18 U.S.C. § 3553;
(8) ineffective assistance of appellate counsel for failing to state on appeal the
“particular portion” of the constructive possession instruction he was challenging.
(Pet’r’s Mem. Support § 2255 Motion, Dkt. # 3.)
In his reply brief, Lawrence abandons bases (1), (4), (5), (6), and (8), conceding that
there was no error with respect to these issues. (Pet’r’s Reply, Dkt. # 10, at 9.)
Section 2255 allows a defendant to move to vacate, set aside, or correct a sentence that
was imposed in violation of the Constitution of the United States. See 28 U.S.C. § 2255(a).
Relief under § 2255 is an extraordinary remedy, because a § 2255 petitioner has already had “an
opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
A defendant asserting an ineffective assistance of counsel claim must show that counsel’s
performance was objectively deficient and this lack of competent representation resulted in
prejudice. See United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011) (citing Strickland v.
Washington, 466 U.S. 668, 687–96 (1993)). To show prejudice, the defendant must demonstrate
there is a reasonable probability that but for counsel’s mistakes, the result of the proceedings
would have been different. See id. Regarding the deficient-performance prong, great deference
is given to counsel’s performance, and the defendant has a heavy burden to overcome the strong
presumption of effective performance. See id. at 690; Coleman v. United States, 318 F.3d 754,
758 (7th Cir. 2003) (citation omitted). A defendant must establish specific acts or admissions
that fall below professional norms. Strickland, 466 U.S. at 690. If one prong is not satisfied, it
is unnecessary to reach the merits of the second prong. Id. at 697.
Lawrence argues in claim (2) that counsel was ineffective for failing to question or call at
trial A.C. Kinnard, an Illinois Department of Corrections (“IDOC”) investigator who was
interviewed by the government with respect to his involvement in the parolee check and arrest of
Lawrence on October 22, 2010. (Pet’r’s Mot. Requesting Copy Counsel’s Work Schedule, Ex.
1, Gov’t’s Report of Investigation, Dkt. # 4, ¶ 1). According to the report, Kinnard “stated that
he was at the front door of the residence . . . with Agent Hopkins when a female answered the
door and let the Agents in . . . to conduct the check.” (Id. ¶ 2.) The report further states that
“[p]rior to entering the residence while Hopkins was talking to the female, Investigator Kinnard
observed a black male run up the stairs,” and “[a]fter they entered the residence[,] Investigator
Kinnard stated he saw Lawrence walk down the stairs to the first floor.” (Id.)
Lawrence contends that this contradicts the testimony of Agents Hopkins and
Hollenbeck, who stated that “they were the first ones who entered the house and observed . . .
[Lawrence’s] fiancee point to a bedroom on the first floor, where it was presumed [Lawrence]
was.” (Pet’r’s Mem. Support § 2255 Mot., Dkt. # 3, at 8.) Defense counsel attests that he
“considered but as a tactical matter decided not to call Investigator Kinnard as a defense witness,
because in my judgment, he would not have aided our theory of defense and would in fact have
been hurtful because [he] merely corroborated most of what the other government witness
observed. . . .” (Clancy Aff., Dkt. # 9-1, ¶ 5.) The Court will not question counsel’s strategic
conclusion, especially in this instance where counsel’s assessment appears accurate. See United
States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011) (“So long as an attorney articulates a
strategic reason for a decision that was sound at the time it was made, the decision generally
‘cannot support a claim of ineffective assistance of counsel.’”). The agents’ relevant testimony
as to Lawrence’s whereabouts was that he “was standing at the top of the stairs and that upon
[the agents] seeing [Lawrence] at the top of the stairs, [he] started walking down the stairs
toward [the agents].” (Id. at 10.) This testimony does not contradict Kinnard’s statement that he
saw someone run up the stairs and that after he and the agents entered the residence, Lawrence
started walking down the stairs. The two versions of events are easily reconcilable, with the jury
likely concluding that it was Lawrence who ran up the stairs, even if Kinnard could not
definitively testify to that fact.
While Lawrence claims that counsel failed to conduct a reasonable investigation
regarding Kinnard’s statement to the government, Lawrence does not provide the Court with any
specific information of what the investigation would have produced, other than the unavailing
“contradiction” just discussed. Lawrence’s observation that the government did not call Kinnard
as a witness – apparently in an effort to establish that Kinnard’s testimony would have been
helpful to the defense – is speculative and does not alter the Court’s conclusion that Lawrence
has failed to show a reasonable probability that but for defense counsel’s purported mistake of
not interviewing and calling Kinard as a witness, the result of the trial would have been different.
In his reply brief, Lawrence concedes that counsel was not ineffective for failing to move
to suppress the evidence found during the October 22, 2010 search of his home, failing to
challenge the chain of custody of the evidence, stipulating to the drug quantity, failing to
challenge the application of § 4B1.1 of the Sentencing Guidelines, or failing to raise on appeal a
challenge to the jury instruction. Therefore, the Court will not address these claims.
It is not clear whether Lawrence continues to claim that counsel was ineffective for
failing to offer a rebuttal witness to challenge the dog sniff evidence (claim 1) or that counsel
was ineffective for having failed to challenge the term of supervised release as not having been
imposed in compliance with 18 U.S.C. § 3553 (claim 7), so in the interest of completeness, the
Court addresses these two claims.
Lawrence’s contention that counsel was ineffective for failing to file a motion in limine
seeking to exclude the dog sniff evidence is unavailing given that counsel filed such a motion
(United States v. Lawrence, 11 CR 396, Dkt. # 35) on December 1, 2011, which this Court
denied in an order dated July 13, 2012. (Id., Dkt. # 55.) As already noted, the Seventh Circuit
affirmed the denial of the motion to exclude. See Lawrence, 788 F.3d at 243 (“The government
presented ample evidence of the training, controlled testing, certification, and reliability of the
drug-detecting dog in this case. This was more than sufficient to support the district court’s
finding that the results of the controlled canine drug-detection test offered probative value to the
case and could be considered by a jury as evidence that the currency found in the drawer and in
the safe had been in recent contact with drugs.”).
Lawrence also argues that counsel was ineffective for failing to hire an expert to rebut the
government’s dog sniff evidence. He asserts that “had counsel obtained[,] as requested by the
petitioner[,] an expert witness[,] counsel would have been able to question the validity of the
technique on which [the government’s expert’s] testimony was based, and whether that
technique had been attested to and accepted as genuine . . . .” (Pet’r’s Mem. Support § 2255
Mot., Dkt. # 3, at 18.) However, as another court in this district has noted:
Even when the government puts on its own expert witness, a defendant’s lawyer
has no duty to consult with or call a rebuttal expert. United States v. Anderson,
61 F.3d 1290, 1298–99 (7th Cir. 1995). In order to demonstrate that trial
counsel’s failure to consult with or call an expert constituted deficient
performance, a movant must demonstrate that “an expert capable of supporting
the defense was reasonably available at the time of trial.” Ellison v. Acevado, 593
F.3d 625, 634 (7th Cir. 2010). A movant’s speculation regarding the testimony of
an unnamed expert witness is not sufficient to raise an
ineffective-assistance-of-counsel claim. Anderson, 61 F.3d at 1298-99. Instead, a
movant must put forward sufficiently precise information about the nature of the
expert’s testimony and the reason it would have made a difference. Id.
United States v. Royal, No. 08 C 5541, 2012 WL 1520820, at *5 (N.D. Ill. Apr. 30, 2012).
Lawrence fails to point to any specific facts supporting his contention that an expert was
available to offer a rebuttal regarding the drug dog’s certification or the expert’s opinion that the
currency contained traces of drug residue. Even if counsel was deficient in failing to offer such
an expert, Lawrence has failed to establish a reasonable probability that but for counsel’s failure
to call a rebuttal expert, the result of the trial would have been different.
Moreover, in his affidavit attached to the government’s response, defense counsel attests
that he “decided as a tactical matter not to attempt to call a ‘dog expert’ because [he] didn’t want
to highlight what [he] perceived to be a weak issue and because [he] was able to obtain the
necessary facts to support [the] defense by the cross examination of the government’s expert.”
(Clancy Aff., Dkt. # 9-1, ¶ 4.) “So long as an attorney articulates a strategic reason for a
decision that was sound at the time it was made, the decision generally ‘cannot support a claim
of ineffective assistance of counsel.’” Lathrop, 634 F.3d at 937. The Court finds no basis to
second guess counsel’s decision that a rebuttal expert would not have strengthened Lawrence’s
Finally, Lawrence asserts that counsel was ineffective at sentencing for failing to argue
that the Court did not consider or explain the sentencing factors set forth in 18 U.S.C. § 3553(a)
in imposing his term of supervised release. See United States v. Kappes, 782 F.3d 828, 847 (7th
Cir. 2015) (“[A] sentencing judge must always adequately explain his or her choice as to the
length of custody and supervised release, consistent with the relevant § 3553(a) factors.”).
Lawrence does not cite to any specific error, but generally contends that counsel’s failure
resulted in a violation of due process leading to a “potential” deprivation of liberty, as well as the
loss of wages, opportunities and employment. (Pet’r’s Mem. Support § 2255 Mot., Dkt. # 3, at
32-34.) Lawrence’s argument in this regard fails.
At sentencing, the Court indicated that it had considered all of the submissions on the
issue of sentencing, set forth Lawrence’s criminal history in detail, noted that Lawrence had been
given several opportunities to rehabilitate himself and had failed to do so, and that the need to
protect the public was a priority in this case given Lawrence’s criminal history and the offenses
at issue. The Court further noted its awareness of the “possibility for an unjust determination” of
imprisonment based on the career offender statute “if [it] is applied and followed in sentencing
technically without regard for the nuances and differences in the backgrounds and criminal
histories of different defendants.” (8/22/13 Sentencing Tr., United States v. Lawrence, 11 CR
396, Dkt. # 102, at 9-12.) After considering all of the sentencing factors, the Court sentenced
Lawrence to a term of 262 months imprisonment with a term of supervised release of five years,
which was at the bottom of the applicable sentencing range. As the Seventh Circuit recently
noted, “a district court need only provide one overarching explanation and
justification—tethered, of course, to the § 3553(a) factors—for why it thinks a criminal sentence
comprised of both terms of imprisonment and supervised release is appropriate.” United States
v. Bloch, 825 F.3d 862, 870 (7th Cir. 2016). The Court did exactly that in this case; therefore,
Lawrence’s claim alleging ineffective assistance of counsel regarding his term of supervised
release is denied.
For the reasons stated above, Lawrence’s motion under 28 U.S.C. § 2255  is denied.
Moreover, a habeas petitioner is entitled to a certificate of appealability only if he can make a
substantial showing of the denial of a constitutional right. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003); 28 U.S.C. § 2253(c)(2). Under this standard, the petitioner must demonstrate that,
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
As to Lawrence’s claims, the Court finds that reasonable jurists would not debate that the
petition does not present a valid claim of the denial of a constitutional right or that the petition
should have been resolved in a different manner. Therefore, the Court declines to certify any
issues for review pursuant to 28 U.S.C. § 2253(c). Civil case terminated.
Date: December 20, 2016
Ronald A. Guzmán
United States District Judge
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