United States of America v. Collins
MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 11/21/2022.Mailed notice.(jlj, )
Case: 1:22-cv-03688 Document #: 17 Filed: 11/21/22 Page 1 of 6 PageID #:49
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
22 C 3688
Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Larry Collins pleaded guilty to conspiracy to distribute one or more kilograms of heroin
under 21 U.S.C. §§ 841(a)(1), 846, and possession of a firearm in furtherance of a
drug-trafficking offense under 18 U.S.C. § 924(c). United States v. Collins (Collins I),
15 CR 379-3 (N.D. Ill.), ECF No. 575. Collins appealed his conviction, raising issues not
relevant here, and the Seventh Circuit affirmed. United States v. Collins, 986 F.3d 1029 (7th Cir.
2021). Collins now moves for relief under 28 U.S.C. § 2255. Doc. 1.
The Government contends that Collins’s § 2255 motion is untimely. Doc. 12 at 3. A
§ 2255 motion generally must be filed within one year of “the date on which the judgment of
conviction becomes final.” 28 U.S.C. § 2255(f)(1). A judgment is “final” for § 2255 purposes
when the Supreme Court “affirms a conviction on the merits on direct review or denies a petition
for a writ of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United
States, 537 U.S. 522, 527 (2003). The Seventh Circuit affirmed Collins’s conviction on
February 3, 2021, and he did not seek certiorari. In the Government’s view, Collins had ninety
days to seek certiorari, see 28 U.S.C. § 2101(c), giving him until May 4, 2022, to file his § 2255
motion. Yet Collins did not file his motion until July 2022.
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The Government’s calculation does not account for a 60-day extension to seek certiorari
that the Supreme Court ordered in March 2020, Miscellaneous Order, 589 U.S. __ (Mar. 19,
2020), and which remained in effect through July 19, 2021, Miscellaneous Order, 594 U.S. __
(July 19, 2021). Adding those 60 days to May 4, 2021, Collins had until July 3, 2021, to seek
certiorari, and thus until July 3, 2022, to file his § 2255 motion. See United States v. Olguin,
2022 WL 1117692, at *1 (5th Cir. Apr. 14, 2022) (explaining that the 60-day extension added to
the time to file a § 2255 motion); United States v. Williams, 2022 WL 2208855, at *1-2 (N.D. Ill.
June 21, 2022) (same). Although the motion did not reach the court until July 11, 2022, Doc. 1,
Collins’s certificate of service avers that he placed the motion in the prison mailbox on July 1,
2022, id. at 6. The Government does not challenge that averment, Doc. 12 at 3, and its
timeliness argument accordingly fails. See Taylor v. Brown, 787 F.3d 851, 859 (7th Cir. 2015)
(“[A] pro se prisoner’s legal documents are considered filed on the date that they’re tendered to
prison staff in accordance with reasonable prison policies.”).
Collins’s § 2255 claim arises from the Government’s failure to timely seal wiretap
recordings as required by 18 U.S.C. § 2518(8)(a). According to the Government, it attempted on
January 14, 2015, to seal recordings it had intercepted over wiretaps on “Target Phone 5” and
“Target Phone 6.” United States v. Levaughn Collins (Collins II), 15 CR 379-1 (N.D. Ill.),
ECF No. 614, at 2. Instead of sealing copies of both recordings, however, the Government
inadvertently made two sealed copies of Target Phone 6 and no sealed copy of Target Phone 5.
Ibid. The Government did not detect its error until October 2, 2018, and it sealed the Target
Phone 5 recording the next day. Id. at 5.
Collins contends that his counsel was ineffective for failing to investigate and discover
the unsealed recordings and for failing to move to suppress the Target Phone 5 recordings.
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Doc. 1 at 3-4. He pleaded guilty just a week before the Government detected and revealed its
error, id. at 3, and he claims that he would not have done so but for his counsel’s alleged
shortcomings, id. at 4; Doc. 3 at 1-2. To establish ineffective assistance of counsel, Collins must
show that: (1) his counsel’s performance was deficient; and (2) he was prejudiced as a result of
that deficiency. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Carter v. Douma, 796
F.3d 726, 735 (7th Cir. 2015).
A co-defendant (and Collins’s brother), Levaughn Collins, moved to suppress the same
wiretapped recordings on the theory that Target Phone 5 was not timely sealed under
§ 2518(8)(a). Collins II, 15 CR 379-1, ECF No. 599. In response to the motion, the Government
explained that because the Target Phone 5 recordings “[were] not central to the government’s
case against Levaughn Collins or other defendants,” it “[did] not intend to offer as evidence the
… recordings.” Id., ECF No. 614 at 6. Because the Government agreed not to use the Target
Phone 5 recordings, the court denied as moot Levaughn’s motion as to that wiretap. Id., ECF
No. 625. (The court also considered and denied on the merits the motion as to other recordings
that were obtained downstream of the evidence gathered from the Target Phone 5 recordings.
Ibid. Collins does not raise any argument as to those recordings.)
The Government contends that the denial of Levaughn’s motion means that an equivalent
motion from Collins would have been denied as well. Doc. 12 at 9. That logic does not hold up.
The court denied Levaughn’s motion as moot as to the Target Phone 5 recordings because the
Government agreed not to use them. Collins had already pleaded guilty, however, so the
Government’s agreement not to use them against Levaughn says nothing about how it would
have reacted to a counterfactual motion from Collins, who, unlike Levaughn, was captured on
the Target Phone 5 wiretap. Id. at 10.
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The Government also suggests that a motion to suppress by Collins would have been
denied on the merits. Id. at 8. “When the claim of ineffective assistance is based on counsel’s
failure to present a motion to suppress, [the Seventh Circuit has] required that a defendant prove
the motion was meritorious.” United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005); see
also United States v. Stewart, 388 F.3d 1079, 1085 (7th Cir. 2004) (“[C]ounsel cannot have been
ineffective for failing to pursue what we have concluded would have been a meritless
suppression motion.”); United States v. Jackson, 103 F.3d 561, 574-75 (7th Cir. 1996)
(explaining that a defendant is not prejudiced by his counsel’s failure to make a losing
Under § 2518(8)(a), an untimely sealed recording need not be suppressed if there is a
“satisfactory explanation” for the Government’s failure to timely seal the recording. 18 U.S.C.
§ 2518(8)(a). “[A]n explanation is satisfactory if, in the circumstances, it dispels any reasonable
suspicion of tampering.” United States v. Coney, 407 F.3d 871, 875 (7th Cir. 2005). To satisfy
this standard, the explanation “must be both accurate and believable.” United States v. Martin,
618 F.3d 705, 716 (7th Cir. 2010). Relevant to evaluating the explanation are “[t]he length of
the delay,” “the nature of the crime, including its notoriety or the notoriety of the defendant, and
thus the pressure on the government to obtain a conviction,” “the importance of the tapes to the
government’s case,” Coney, 407 F.3d at 875, and “whether the Government has established a
procedure for complying with its sealing obligations,” Martin, 618 F.3d at 716.
Collins does not show the Government’s explanation for its failure to timely seal the
Target Phone 5 recordings to be unsatisfactory. The Government’s explanation that it
inadvertently sealed Target Phone 6 twice, when it intended to seal both Target Phone 5 and
Target Phone 6, is believable. Nothing about the nature of Collin’s case, which involved
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ordinary drug and weapons charges, suggests that the Government was uniquely pressured to
obtain a conviction. Other evidence referenced in Collins’s plea agreement—including the
seizure of heroin he had packaged and other intercepted calls involving him—suggest that the
Target Phone 5 recordings were not essential to the case against him. Collins I, 15 CR 379-3,
ECF No. 575 at 6. Nor is there any suggestion that the Government did not have standard
procedures for complying with its sealing obligations; there is no indication, for example, that
other wiretaps were mishandled in the same manner. See Martin, 618 F.3d at 717-18 (explaining
that the existence of well-established sealing protocols contributed to the believability of the
Government’s explanation of operator error). (Earlier in the case, the Government had partially
failed to seal two other wiretaps, but those failures apparently resulted from a different type of
operator error. Collins II, 15 CR 379-1, ECF No. 349 at 4; id., ECF No. 349-2 at 2.)
The only factor favoring Collins is the lengthy delay—about three and a half years—in
the failure to seal the Target Phone 5 recordings. Nevertheless, the Government’s explanation
remains believable and dispels any suspicion of tampering. In Martin, a “significant”
thirty-eight day delay was excused because the Government rectified its failure to seal as soon as
it discovered the error and because the nature of the case did not evince any “unique incentive”
for it to ignore its sealing obligations. 618 F.3d at 718. The delay here is much longer, but the
principle is the same; the delay itself casts no suspicion on the Government’s failure to seal given
the nature of the case, the other evidence against Collins, and the immediate sealing of the
recordings after the discovery of the error. See id. at 717 (“The fact that a few of those tapes
were defective was unknown until the Government’s investigation nearly was completed, and the
sealing error certainly did not interfere with the statutory objectives of ensuring judicial
oversight and non-tampering with wiretap recordings.”). Rather, all signs are that the
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Government sincerely believed that Target Phone 5 had been properly sealed until it realized its
mistake in October 2018.
For these reasons, a motion to suppress Target Phone 5 would have failed. Collins
therefore was not prejudiced by his counsel’s failure to pursue such a motion. See Cieslowski,
410 F.3d at 360; Stewart, 388 F.3d at 1085; Jackson, 103 F.3d at 574-75.
Collins’s § 2255 motion is denied. Because the files and records of the case conclusively
show that Collins is entitled to no relief, his request for an evidentiary hearing, Doc. 1 at 4-5, is
denied as well. See 28 U.S.C. § 2255(b). A certificate of appealability shall not issue because he
has not made a substantial showing of the denial of a constitutional right. See id. § 2253(c)(2).
November 21, 2022
United States District Judge
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