Finnell v. USA
OPINION AND ORDER: Defendant's motion for 2255 relief is DENIED. Accordingly, this Court DENIES a certificate of appealability. Signed by Judge Joseph S Van Bokkelen on 10/4/2019. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
UNITED STATES OF AMERICA
Case No. 2:13-cv-00397-JVB
(arising from 2:11-cr-108-JVB-PRC)
OPINION AND ORDER
Defendant Titus Finnell moves for relief under 28 U.S.C. § 2255. This Court previously
granted his accompanying motions for a hearing and for appointment of counsel. For the reasons
below, this Court denies Defendant’s motion for § 2255 relief.
Overview of the Case
On July 21, 2011, a grand jury indicted Defendant on four counts related to his
involvement in a conspiracy to rob a false stash house.1 (DE 11.) As part of the plan, an agent of
the Bureau of Alcohol, Tobacco, Firearms and Explosives (the “ATF”) posed as a disgruntled
drug courier of a fictional kingpin who dealt in cocaine. (DE 124 at 5.) The agent discussed with
an individual named Lee Gilyard a plan to rob the kingpin’s stash house, which would contain
“at least ten kilos of cocaine,” but would be defended by two armed guards. (Id.) Gilyard told the
agent that he could sell the cocaine and that he was willing to participate. (Id.) Later, codefendant Terence Peterson and another individual were brought on board. (Id.) Peterson
likewise told the agent that he could sell the cocaine and that “he was born and raised for this
[stuff].” (Id. at 6.) Throughout the following week, Peterson assured the agent that he knew
people who would be willing to participate in the robbery. (Id.) Eventually, Defendant entered
A stash house is a place where drugs are stored.
the picture. (Id. at 7.) He indicated that this was not his first rodeo. (Id.) Another week later, the
agent offered Peterson a chance to back out, which he declined. (Id.) He also mentioned that
Defendant was “ready” and that Defendant “ke[pt] calling.” (Id.)
On the day of the robbery, Peterson, Defendant, and two youths joined the agent for final
preparations. (Id.) Defendant “brought with him black bandanas, shirts that were marked
‘Police,’ and shotgun shells.” (Id.) The agent then led the group to a takedown location, where
they were all taken into custody. (Id.) A later search of Defendant’s residence uncovered two
shotguns. (Id. at 8.) Guns were also found in Peterson’s house. (Id.)
This Court held a hearing on Defendant’s § 2255 motion. (DE 230.) The parties did not
present evidence, instead electing to stand on the briefs they have submitted up to this point. (Id.)
Standard of Review
Defendant waived the right to challenge his conviction and sentence “on any ground . . .
[other than] ineffective assistance of counsel relat[ing] directly to this waiver or its negotiation”
in his plea agreement regarding count two.2 (DE 96 at 4.) His decision to plead without a plea
agreement to counts three and four carries similar consequences. See United States v. Nunez, 958
F.2d 196, 200 (7th Cir. 1992) (“[The defendant’s] plea of guilty [without an agreement] waives
any defense he might have offered at trial.”) (holding that the defendant waived the defense of
The Sixth Amendment grants to criminal defendants the right to counsel. U.S. Const.
amend. VI. The Supreme Court clarified that a defendant can be denied this right when his
counsel renders ineffective assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984). To
The government dismissed count one as part of the plea agreement. (See DE 134.)
establish ineffective assistance, the defendant must show deficiency—“that counsel’s
representation fell below an objective standard of reasonableness”—and prejudice—“that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 688, 694. In the context of guilty pleas, the “difference” must
be that the defendant “would not have pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985.) “[W]here the alleged error of counsel is a failure to
advise the defendant of a potential affirmative defense to the crime charged, the resolution of the
‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have
succeeded at trial.” Id. Because hindsight is 20/20, the defendant cannot simply nitpick and
second-guess counsel’s performance. Strickland, 466 U.S. at 689 (“A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of hindsight.”).
To succeed, he must show that foresight should have been 20/20 as well.
Defendant’s pro se § 2255 motion raised several challenges related to the advice he
received that led him to plead guilty. Mr. Bosch, in the lead-up to the § 2255 hearing, focused
principally on Defendant’s allegations that his attorneys paid no attention to the possible
defenses of entrapment, racial profiling, and selective prosecution.3 However, as the government
correctly points out, Defendant’s arguments “must be viewed entirely through the lens of
ineffective assistance of counsel.” (DE 205 at 12.) Thus, Defendant must show that (1) his
defenses have merit, (2) a reasonable investigation, at the time, would have uncovered that merit,
and (3) Defendant would have proceeded to trial had he been informed of that merit. Hill, 474
This Court has reviewed Defendant’s additional allegations and find that they lack merit. (See DE 178) (granting a
hearing but noting that “it is clear that not all of [Defendant’s] arguments have possible merit”).
U.S. at 59–60. Here, Defendant has failed to prove that his defenses have merit.
For starters, Defendant’s entrapment defense suffers from a fatal flaw: the evidence
indicates that Peterson, not the government, recruited Defendant to the plot. (See DE 124 at 6.)
Thus, even if this Court were to presume that Defendant was entrapped, he would need to show
that Peterson was also entrapped. See United States v. Conley, 875 F.3d 391, 402. (“[T]he
defense of derivative entrapment can only be applied to a defendant who was entrapped through
a first entrapee.”). Because Defendant has produced no evidence to show entrapment as to
Peterson, Defendant cannot show that he himself was entrapped.
As for racial profiling and selective prosecution, Defendant, in his pre-hearing briefs and
status reports, relied heavily on an expert report by Dr. Jeffrey Fagan, who conducted a statistical
study on whether defendants in a case in the Northern District of Illinois were subject to selective
prosecution. (See DE 209.) Like here, the defendants there conspired to rob a false stash house.
United States v. Brown, 299 F. Supp. 3d 976, 986 (N.D. Ill. 2018). The Honorable Rubén
Castillo, in a thorough and well-reasoned opinion, rejected the Fagan report and, consequently,
the defendants’ selective prosecution argument. Id. at 1013. This Court finds Judge Castillo’s
logic persuasive and likewise rejects the Fagan report.
This leaves Defendant with the notion that “the United States Attorney’s Office for the
Northern District of Indiana has prosecuted only 4 stash house sting cases . . . [that] produced 18
defendants, all of whom were black.” (DE 201 at 4.) However, Defendant must go further and
show that the United States Attorney’s Office (regarding selective prosecution) or the ATF
(regarding racial profiling) could have prosecuted or ensnared non-black suspects but chose not
to. See Jarrett v. United States, 822 F.2d 1438, 1443 (7th Cir. 1987) (“[T]he defendant must
establish . . . that he was singled out for prosecution while others similarly situated were not
prosecuted.”); United States v. Barlow, 301 F.3d 1007, 1012 (7th Cir. 2002) (“Barlow needed to
present evidence that the DEA agents observed whites engaging in the same behavior as Barlow
. . . but chose not to approach them.”). He has failed to meet this burden.
Having denied Defendant’s § 2255 motion, this Court must now decide whether to issue a
certificate of appealability under Rule 11(a) of the Rules Governing Section 2255 Proceedings.
To be entitled to a certificate of appealability, Defendant must “ma[ke] a substantial showing of
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and “must demonstrate that
reasonable jurists would find [this Court’s] assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, given the lack of evidence before
this Court, no reasonable jurist would find that Defendant met his burden. This Court thus
declines to issue a certificate of appealability.
Defendant has not provided enough evidence to meet his burden of proof. Accordingly,
Defendant’s motion for § 2255 relief is DENIED. Additionally, this Court DENIES a certificate
SO ORDERED on October 4, 2019.
S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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