United States of America v. Payne

Filing 28

MEMORANDUM Opinion and Order: The Court denies petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [1, 5, 25.] The Court declines to certify any issues for appeal under 28 U.S.C. § 2253(c)(2). Civil case terminated. Signed by the Honorable Sharon Johnson Coleman on 11/5/2019. Mailed notice. (ym, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARSHALL PAYNE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)
)

Case No. 17 C 7356
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Pro se petitioner Marshall Payne filed the present motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255.1 For the reasons stated below, the Court denies Payne’s
motion and declines to certify any issues for appeal. 28 U.S.C. § 2253(c)(2).
Background
A grand jury returned an indictment charging Payne with felon-in-possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Payne originally pleaded not guilty and moved to suppress his
post-arrest statements and evidence recovered during the search of his car, including two loaded
semi-automatic handguns.
At the motion to suppress hearing, evidence revealed that Chicago Police Officers and the
U.S. Drug Enforcement Administration were investigating drug trafficking activities in the Chicago
area. As part of the investigation, law enforcement obtained court-authorized wire taps and then
intercepted communications between Payne and his brother Dwayne Payne. Chicago Police Officer
John Dolan testified that he had listened to intercepted calls on November 26, 2012 between Payne

1 Although the docket reflects that Payne filed three motions under 28 U.S.C. § 2255 [1, 5, 25], the motion filed
on January 17, 2018 is Payne’s memorandum of law in support of his § 2255 motion, and the motion filed on November
8, 2018 is his reply brief.

and his brother, at which time Officer Dolan determined that Payne was headed to the corner of
Central Park Avenue and Division Street in Chicago to meet his brother and would have guns
concealed under children’s costumes in the back of his car.
Officer Dolan and other surveillance officers proceeded to that intersection where Officer
Dolan observed Payne in a Chrysler 300 parked on Central Park Avenue. Officer Dolan testified
that he saw Payne reach toward the back of the car and relayed this information to the other
officers. After these observations, Officer Dolan approached Payne on foot, but Payne began
running to a nearby CVS store while locking his car with a key fob. Officer Dolan pursued Payne
and saw him throw his keys on to the store’s roof. Police then apprehended and handcuffed Payne.
According to Officer Dolan, Payne spontaneously admitted that he had two guns in his car and gave
verbal consent to search his car.
Chicago Police Officer Edward Zablocki testified that he also observed Payne standing near
a Chrysler 300 at the intersection of Central Park Avenue and Division Street. Officer Zablocki
then ran the Chrysler’s license plate number and found that the car was registered to Payne. After
circling the block, Officer Zablocki saw Payne run from his car to the CVS, heard the car horn
honk, and saw the car’s lights flash as Payne locked the doors. Based on the intercepted calls,
Officer Zablocki believed there were guns in the car and decided to stay put until Payne was
apprehended. Officer Zablocki testified that he could see costumes in the backseat of the vehicle,
but was instructed not to recover the guns or search the car.
Once police recovered Payne’s keys, an officer unlocked Payne’s car and Officer Zablocki
looked under the costumes where he found a TEC-9 millimeter semi-automatic handgun. Another
Chicago Police Officer drove Payne’s car to the police station where a second TEC-9 millimeter
semi-automatic handgun was recovered from the trunk.

2

The Court denied Payne’s motion to suppress concluding that the officers had probable
cause to arrest Payne and search his car based on the wiretap interceptions, surveillance, and the
automobile exception, and that Payne’s statements were made voluntarily. Payne then entered into a
conditional plea of guilty as to the felon-in-possession count, which allowed him to appeal the
motion to suppress ruling. The Court sentenced Payne to a total term of 88 months and Payne
appealed.
The Seventh Circuit affirmed the Court’s suppression ruling, concluding that law
enforcement had probable cause to arrest Payne and search his car and that Payne’s post-arrest
statements were not a product of interrogation. This § 2255 motion followed. Construing Payne’s
pro se § 2255 motion liberally, see Chronis v. United States, 932 F.3d 544, 554 (7th Cir. 2019), he asserts
that his trial counsel was constitutionally ineffective under the Sixth Amendment for failing to
present exculpatory and impeachment evidence at his suppression hearing.
Legal Standard
“Relief under [§ 2255] is available only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results
in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013); see
also Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006) (“Motions to vacate a conviction or
sentence ask the district court to grant an extraordinary remedy to one who already has had an
opportunity for full process.”). To obtain relief under § 2255, a petitioner must show that his
“sentence was imposed in violation of the Constitution or laws of the United States, the court lacked
jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject
to collateral attack.” Swanson v. United States, 692 F.3d 708, 714 (7th Cir. 2012) (citation omitted).
Because Sixth Amendment ineffective assistance of counsel claims often involve evidence outside of

3

the trial record, such claims may be brought for the first time in a § 2255 motion. Massaro v. United
States, 538 U.S. 500, 504 (2003).
Discussion
Payne argues that his trial counsel was constitutionally ineffective at his suppression hearing
and that appellate counsel was ineffective for failing to raise certain suppression hearing-related
arguments on appeal. See Schmidt v. Foster, 911 F.3d 469, 478 (7th Cir. 2018) (en banc) (right to
counsel “means more than a lawyer at trial,” it “ensures that defendants facing incarceration will
have counsel at ‘all critical stages of the criminal process.’”) (citation omitted). To establish
ineffective assistance of counsel in violation of the Sixth Amendment, Payne must show (1) his trial
attorney’s performance “fell below an objective standard of reasonableness,” informed by
“prevailing professional norms” and (2) “but for counsel’s unprofessional errors the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
Intercepted Telephone Calls and Numbers
At the suppression hearing, Officer Dolan testified that Payne used two telephone numbers
to communicate with his brother, including numbers ending in 3828 and 7154. In the motion to
suppress, Payne’s counsel argued that the 7154 number was not connected to Payne until after his
arrest, and at the hearing, counsel cross-examined Officer Dolan about the 7154 number calling into
question the officer’s identification of Payne’s voice. In fact, counsel elicited a response from
Officer Dolan that he recognized Payne’s voice only after police had arrested Payne.
In the motion for reconsideration, Payne’s counsel re-argued this issue highlighting the
evidence surrounding the 7154 number. Counsel explained that unlike the other intercepted calls
where Payne used words such as “bro”, “mommy,” and “uncle,” the 7154 calls had not contained
these code words. After hearing counsel’s reconsideration arguments, the Court explained:
4

You made a very thorough argument, a very thorough presentation as you have
attempted to do on the motion for reconsideration. But you haven’t stated that
there’s new evidence. You haven’t stated that the Court misapplied the law that was
available to the Court. You haven’t talked about new case law. There’s no basis for
a motion to reconsider here, and your motion is respectfully denied.
(13 CR 175-1, R. 80, 9/17/14 Tr., at 5-6.)
Despite counsel’s thorough presentation calling into question Officer Dolan’s recognition of
Payne’s voice and the use of the 7154 number, Payne takes issue with counsel’s performance in
regard to perceived inconsistencies in the intercepted telephone calls and numbers. In making his
arguments, Payne ignores the other suppression hearing testimony showing that Payne and his
brother spoke to each other on multiple telephones with different telephone numbers. Payne also
argues that counsel should have fronted the issue that he did not make a certain call on the 7154
phone to his brother, yet Payne admits he called his brother that day.
Finally, Payne’s argument that counsel should have subpoenaed records showing that he was
the subscriber of both the 3828 and 7154 numbers does not establish ineffective assistance of
counsel because it would not have advanced Payne’s defense to admit that he was the subscriber to
both phone numbers. Payne’s claims based on the intercepted phone numbers and calls are without
merit.
Impeachment Evidence and Cross-Examination
Payne next argues that his counsel was constitutionally ineffective for failing to use the grand
jury testimony of arresting Chicago Police Officer Jorge Lopez to impeach Officers Dolan and
Zablocki at his suppression hearing. Payne’s argument fails because not only is Officer Lopez’s
grand jury testimony inadmissible hearsay, but under Federal Rule of Evidence 613, a crossexaminer cannot impeach a witness with another person’s statement. Any such challenge would
have been without merit and “an attorney is not ineffective for failing to raise a meritless argument.”
Washington v. Boughton, 884 F.3d 692, 701 (7th Cir. 2018).
5

In addition, Payne asserts that his trial counsel was ineffective because he failed to crossexamine Officer Zablocki about his inconsistent hearing testimony, which implied that he tailored
his testimony to create a narrative more favorable to the government. This proposed crossexamination in the context of Officer Zablocki’s suppression hearing testimony would have been
improper argument, and counsel’s decision not to assert this line of questioning is presumed to be
sound strategy. See Hicks v. Hepp, 871 F.3d 513, 525 (7th Cir. 2017) (Under Strickland, there is
“significant latitude for permissible attorney conduct,” and courts presume, “the challenged action
might be considered sound trial strategy.”) (citations omitted). Payne has failed to overcome this
presumption; therefore, this argument is without merit.
Gang Color Evidence
Payne also argues that his trial counsel was ineffective because he failed to sufficiently crossexamine Officers Dolan and Zablocki about the gang colors of the Spanish Cobras. To give
context, Payne’s police report stated that he was wearing Spanish Cobra colors, but he was wearing a
red jogging suit and the Spanish Cobra’s colors are green and black. At the hearing, Payne’s counsel
questioned Officer Dolan about the gang colors and Officer Dolan stated that the Spanish Cobra
colors were red, white, and green. When counsel questioned Officer Zablocki, however, he testified
that the Spanish Cobra colors were green and black and that Payne was wearing red and white at the
time of his arrest. Counsel further made the distinction that the police report was in error in the
suppression motion and memorandum attaching Payne’s affidavit explaining the gang’s colors.
Therefore, counsel effectively refuted Officer Dolan’s testimony regarding the gang colors via
Officer Zablocki’s hearing testimony and other evidence presented in support of the suppression
motion.
Payne next asserts that his counsel was ineffective because he failed to call a gang expert
witness, who would have testified that the gang colors for the Spanish Cobras were not red and
6

white as stated in the police report, along with testimony about gang territories. In general, an
attorney’s decision to call an expert witness is a matter of strategy. Bradford v. Brown, 831 F.3d 902,
915 (7th Cir. 2016). Here, there is a viable strategic reason not to call an expert witness, namely, any
such testimony would have been redundant to the fact witness’ testimony. Moreover, Payne does
not explain how he was prejudiced by counsel’s presentation of the gang color evidence, which was
only an ancillary concern in the probable cause determination. Payne’s gang color arguments fail.
Failure to Hire an Investigator and to Investigate
Further, Payne contends that his trial attorney was constitutionally ineffective because he
failed to hire an investigator and that his counsel conducted “virtually no investigation.” When a
petitioner claims his counsel was ineffective for failing to sufficiently investigate his case, the
petitioner has the burden of providing the Court with precise, comprehensive information as to
what the investigation would have uncovered. See Long v. United States, 847 F.3d 916, 920 (7th Cir.
2017); Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003).
Instead of providing precise, comprehensive information, Payne vaguely asserts that “had
counsel done adequate pre-trial investigations, he would have been able to develop substantial
evidence to raise reasonable doubts about the claims the government witnesses presented at [his]
suppression hearing.” Payne’s arguments in his reply brief fare no better where he explained that his
“counsel failed to properly and adequately investigate [his] criminal case by interviewing all
witnesses, visiting various crime scenes and other relevant locations, examining physical evidence,
[and] canvassing and marshalling facts and evidence in [his] defense.” Without a more detailed
explanation of what a “better” investigation would uncover, Payne’s claim is untenable.
Appellate Counsel
Last, Payne asserts that his appellate counsel was ineffective because counsel failed to raise
the meritless arguments outlined above. Without a meritorious claim, Payne “cannot possibly
7

demonstrate that he was prejudiced by his appellate counsel’s failure to argue such a claim.” Ashburn
v. Korte, 761 F.3d 741, 751 (7th Cir. 2014).
Certificate of Appealability
Under § 2253(c)(2), a petitioner does not have the absolute right to appeal a district court’s
denial of his § 2255 motion, instead, he must first request a certificate of appealability. Miller-El v.
Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Payne is entitled to a certificate
of appealability only if he can make a substantial showing of the denial of a constitutional right,
which requires him to show 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. at 336 (citation omitted).
Because Payne has not demonstrated that reasonable jurists would debate that the Court
should have resolved his claims in a different manner, the Court declines to certify any issues for
appeal pursuant to 28 U.S.C. § 2253(c)(2).
Conclusion
For these reasons, the Court denies petitioner’s motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. [1, 5, 25.] The Court declines to certify any issues for appeal
under 28 U.S.C. § 2253(c)(2). Civil case terminated.
SO ORDERED

________________________
Sharon Johnson Coleman
United States District Judge
DATED: 11/5/2019

8