Coleman v. USA

Filing 5

MEMORANDUM AND ORDER, The Court DENIES Colemans § 2255 motion (Doc. 1 ) and DIRECTS the Clerk of Court to enter judgment accordingly. The Court further DECLINES to issue a certificate of appealability. Signed by Judge J. Phil Gilbert on 12/8/2014. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOE GILLESPIE COLEMAN,
Petitioner,
v.

Civil No. 14-cv-1066-JPG

UNITED STATES OF AMERICA,

Criminal No. 11-cr-40011-JPG

Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Joe Gillespie Coleman’s motion to
vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). On December 4,
2012, a jury found the petitioner guilty of one count of disposing of ammunition to a convicted
felon in violation of 18 U.S.C. § 922(d). On March 31, 2013, the Court sentenced the petitioner to
serve seven months in prison. The petitioner appealed his sentence, but on October 4, 2013, the
Court of Appeals dismissed Coleman’s appeal pursuant to his request. Coleman is currently
serving a term of supervised release.
I.

§ 2255 Motion
In his timely § 2255 motion, Coleman argues that his counsel, James I. Karraker, was

constitutionally ineffective in violation of his Sixth Amendment right to counsel when he:
Ground 1:

Failed to observe professional standards in a number of ways;

Ground 2:

Abandoned the petitioner on appeal;

Ground 3:

Failed to argue that a statement the petitioner made was obtained by
law enforcement while the defendant was mentally unstable and to
present expert medical witnesses in support of that argument; and

Ground 4:

Failed to call Wilbur Collier, who was present at trial and available
to provide exculpatory evidence.

In an order dated October 29, 2014 (Doc. 2), the Court determined that it was plain from
the motion and the record of the prior proceedings that the petitioner is not entitled to relief on
Ground 1. See Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Courts. The Court ordered the Government to respond to Grounds 2-4, which it has done
(Docs. 3 & 4).
II.

Analysis
The Court must grant a § 2255 motion when a defendant’s “sentence was imposed in

violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However,
“[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt
v. United States, 83 F.3d 812, 816 (7th Cir. 1996). “Relief under § 2255 is available only for
errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental
defect which inherently results in a complete miscarriage of justice.” Kelly v. United States, 29
F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion
without an evidentiary hearing if “the motion and the files and records of the case conclusively
demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Sandoval v.
United States, 574 F.3d 847, 850 (7th Cir. 2009). The Court declines to hold a hearing on
Grounds 2-4 of Coleman’s motion because, as explained below, the records of the case clearly
demonstrate he is entitled to no relief on those grounds.
In his § 2255 motion, Coleman alleges he received ineffective assistance of counsel in
violation of the Sixth Amendment. The Sixth Amendment to the Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence.” U.S. Const. amend. VI. This right to assistance of counsel encompasses the
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right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970);
Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party claiming ineffective assistance of
counsel bears the burden of showing (1) that his trial counsel’s performance fell below objective
standards for reasonably effective representation and (2) that this deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F.3d
909, 915 (7th Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009); Fountain v.
United States, 211 F.3d 429, 434 (7th Cir. 2000).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to
specific acts or omissions of his counsel. Wyatt, 574 F.3d at 458. The Court must then consider
whether in light of all of the circumstances counsel’s performance was outside the wide range of
professionally competent assistance. Id. The Court’s review of counsel’s performance must be
“highly deferential[,] . . . indulg[ing] a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; accord Wyatt,
574 F.3d at 458. Counsel’s performance must be evaluated keeping in mind that an attorney’s
trial strategies are a matter of professional judgment and often turn on facts not contained in the
trial record. Strickland, 466 U.S. at 689. The Court cannot become a “Monday morning
quarterback.” Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second prong of the Strickland test, the plaintiff must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different, such that the proceedings were fundamentally unfair or unreliable.
Jones, 635 F.3d at 915; Fountain, 211 F.3d at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir.
2006). “A reasonable probability is defined as one that is sufficient to undermine confidence in
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an outcome.” Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694).
A.

Ground 2: Abandonment on Appeal

Coleman claims Karraker, who served as his counsel at trial and sentencing, was
constitutionally ineffective because he failed to assist Coleman in filing a notice of appeal after his
conviction and failed to respond to multiple orders from the Court of Appeals. The Government
responds that Coleman was not prejudiced by any deficient performance.
It is highly likely that Karraker was deficient in his representation of Coleman in
connection with the appeal of Coleman’s criminal case. Karraker did not file a timely notice of
appeal on Coleman’s behalf. Instead, Coleman was forced to file a notice pro se and seek
permission of the Court to file it beyond the deadline. On appeal, Karraker failed to respond to
several orders from the Court of Appeals and was eventually required to show cause why he
should not be disciplined for abandoning Coleman on appeal. The Court of Appeals eventually
discharged Karraker and appointed Coleman new counsel, who, with Coleman’s consent, moved
to voluntarily dismiss Coleman’s appeal. Coleman does not complain about his new counsel’s
performance.
While Karraker was likely deficient in his performance on appeal, Coleman suffered no
prejudice from that performance. Despite Karraker’s failure to file a notice of appeal, the Court
allowed Coleman to file a late pro se notice. After the appeal had been filed, Coleman eventually
received advice from competent counsel and agreed to voluntarily dismiss his appeal. Any taint
from Karraker’s deficient performance was removed by the Court’s decision to allow Coleman’s
late pro se appeal and by his eventual representation by competent counsel. Thus, the
proceedings were not reasonably likely to have ended in a different result had Karraker’s
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performance not been deficient. Because Coleman suffered no prejudice from Karraker’s
performance in connection with his appeal, Coleman is not entitled to § 2255 relief on this basis.
B.

Ground 3: Coleman’s Statement to Law Enforcement

Coleman argues Karraker was constitutionally ineffective because he (1) failed to argue
that an incriminating videotaped interview Coleman gave was obtained by law enforcement while
Coleman was mentally unstable and (2) failed to present expert medical testimony from Dr.
Randall L. Stahly, Coleman’s neurologist, in support of that argument. With his § 2255 motion,
Coleman has provided letters from Dr. Stahly indicating that inconsistencies and “lapses” in
Coleman’s videotaped statement could have been attributable to a seizure the prior day, that it
appears Coleman may suffer from a period of sleepiness, difficulty in processing, confusion and
memory loss for more than 24 hours after a seizure, and that Coleman may suffer from “transient
confusion episodes or post ictal problems with recall and amnesia in addition to difficulty with
processing information, confusion and memory loss.” He has also provided a letter from Dr.
Linda J. Finn, a psychologist, stating that Coleman suffers from anxiety and memory problems.
The Government notes that Karraker did argue Coleman’s mental condition at the time of
his statement and that it was reasonable trial strategy not to call the expert medical witness in
person because his testimony would have been cumulative and risked inviting closer review of the
incriminating videotaped interview, in which Coleman did not appear mentally unstable.
The evidence at trial showed that, after receiving information indicating that Coleman had
provided ammunition to convicted felon Walter Collier, law enforcement interviewed Coleman.
In the videotaped interview, Coleman admitted that he knew Collier, knew he was a convicted
felon, provided him ammunition, and knew that giving Collier the ammunition was illegal because
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Collier was a convicted felon. The videotape was played to the jury during trial. Trial Tr. at 32.
In the Court’s opinion, Coleman appeared alert and did not appear confused or mentally unstable
during the interview.
Karraker attempted to convince the jury that Coleman’s videotaped statement was not
reliable because of his mental state at the time of the alleged criminal conduct and at the time he
was interviewed by law enforcement. In fact, that was one of Karraker’s main arguments in
Coleman’s defense. To that end, Karraker questioned Coleman’s wife about his history of
epilepsy. She testified that his seizures left him “spaced out,” “totally confused,” “disoriented,”
unable to “comprehend a lot of things,” and “groggy” for days afterward.. Trial Tr. at 72, 74-75.
She further testified that Coleman had had a seizure the day before his interview and did not
“appear to be himself” during the interview. Trial Tr. at 80. Karraker also elicited testimony
from Coleman himself that during interview he was suffering loss of memory and confusion and
that he had had difficulty understanding the law enforcement officer’s questions as a consequence
of the seizure he had had the night before. Trial Tr. at 140-44. He also testified he was suffering
similar disabilities on the date of the charged offense. Trial Tr. at 165. Karraker also submitted a
written report from Dr. Stahly regarding the mental state of individuals recovering from seizures,
Trial Tr. at 153, and other lay evidence that Coleman was “on the cusp of an attack” before he
spoke with law enforcement in the videotaped interview, Trial Tr. at 176. Finally, he highlighted
in his closing argument the evidence showing that Coleman was simply confused during his
interview due to his seizure the day before.
It is clear that Karraker’s performance was not deficient for failing to argue Coleman’s
mental state during the videotaped interview. On the contrary, Karraker made a valiant effort
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well within the scope of competent representation to convince the jury that the interview statement
was unreliable because Coleman was too confused at the time to speak the truth or to know what he
was saying. Coleman speculates that had Karraker actually called Dr. Stahly to testify in person,
as opposed to offering a written report, the jury would have been persuaded to disregard
Coleman’s videotaped interview. That appears highly unlikely in light of the fact that Coleman
did not appear to the Court to be confused or to be suffering from a loss of memory in the
interview. Coleman has not provided any indication Dr. Stahly would have been able to testify
specifically about Coleman’s mental condition on the date of the interview, and his general
testimony about the effects of Coleman’s seizures on his mental condition would have been
cumulative of the testimonial and documentary evidence already admitted. There is simply no
reason to believe live testimony from Dr. Stahly would have had a reasonable chance of causing
the jury to disregard Coleman’s statement where his written report and other testimony from live
witnesses did not. Furthermore, the decision to call a live witness risked inviting further attention
to Coleman’s incriminating statements, similar to the Government’s cross examination of
Coleman that highlighted in an excruciatingly repetitive manner the particularly damaging
portions of that interview. Thus, the failure to call Dr. Stahly as a live witness was a reasonable
trial strategy and did not prejudice Coleman’s case.
C.

Ground 4: Witness Wilbur Collier

Coleman argues Karraker was constitutionally ineffective because he failed to call Collier
to testify although he was available in the courthouse holding cell and was willing to testify.
Collier had informed Karraker he would have testified that Coleman had not given him the
ammunition for which he was charged. Based on this expected testimony, Karraker had obtained
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Collier’s presence at the courthouse for the trial. The Government maintains that Karraker’s
decision not to call Collier was reasonable. Karraker knew Collier had given a videotaped
statement shortly after receiving the ammunition in question and stated, consistent with Coleman’s
interview, that he had gotten the ammunition from Coleman. Had Collier testified to the contrary,
the Government would have been able to play some or all of Collier’s incriminating videotaped
interview to the jury.
The Court has reviewed Collier’s interview and finds that Karraker’s trial strategy to keep
that evidence from the jury and instead to concentrate on discrediting Coleman’s own interview
was within the realm of reasonably competent counsel. Collier’s manner of speaking in his
interview appeared credible, his statements were consistent, and he would likely have been
compelling to a jury. His interview would have risked reinforcing the credibility of Coleman’s
incriminating statements. Furthermore, Collier’s live testimony, as a convicted felon, would have
been unlikely to convince the jury that his earlier videotaped statement and Coleman’s
incriminating statement were untrue. It was reasonable for Coleman to keep Collier from the
jury.
Because Karraker’s performance was not deficient, Coleman is not entitled to § 2255 relief
for the failure to call Collier as a witness.
III.

Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings and Rule 22(b)(1) of the

Federal Rules of Appellate Procedure, the Court considers whether to issue a certificate of
appealability of this final order adverse to the petitioner. A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
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U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska v. Cahill-Masching,
246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing, the petitioner must “demonstrate
that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have
been resolved in a different manner or that the issue presented was adequate to deserve
encouragement to proceed further.” Ouska, 246 F.3d at 1046; accord Tennard, 542 U.S. at 282;
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability should issue if the
petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.”). The Court finds that Coleman has not made such a
showing and, accordingly, declines to issue a certificate of appealability.
IV.

Conclusion
For the foregoing reasons, the Court DENIES Coleman’s § 2255 motion (Doc. 1) and

DIRECTS the Clerk of Court to enter judgment accordingly. The Court further DECLINES to
issue a certificate of appealability.
IT IS SO ORDERED.
DATED: December 8, 2014
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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