Finley v. USA

Filing 2

OPINION AND ORDER DENYING Motion to Vacate, Set Aside or Correct Sentence (2255). The Court declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).. Signed by Judge Joseph S Van Bokkelen on 12/15/14. cc: Finley(mc)

United States District Court
Northern District of Indiana
Hammond Division
UNITED STATES OF AMERICA

(Under Seal)

v.

Case No. 2:14-CV-295 JVB
(Arising out of 2:12-CR-133)

DAVID FINLEY

OPINION AND ORDER
David Finley, a federal prisoner, has filed a motion under 28 U.S.C. § 2255 to vacate, set
aside, or amend his conviction (DE 114). The question before the Court is whether it must hold
an evidentiary hearing on his motion, and, if no evidentiary hearing is required, whether Finley is
entitled to any relief under § 2255.

A.

Background
Finley was charged by indictment with: two counts of distributing cocaine (Counts 1 and

2); making a false statement during the purchase of a firearm (Count 3); sale of a firearm to a
prohibited person (Count 4); distributing marijuana (Count 5); possession with intent to
distribute cocaine (Count 6); and possession of a firearm in furtherance of a drug trafficking
crime (Count 7). The Government dismissed all but Counts 3 and 5. Finley pleaded guilty to
those Counts without the benefit of a plea agreement. He was sentenced to 30 months in prison.
Finley now claims that his guilty plea was involuntary because it was the result of
ineffective assistance of counsel. While his motion does not clearly so state, the Court infers that
Finley now wishes to withdraw his guilty plea and proceed to trial.

B.

Legal Standards
Title 28 U.S.C. § 2255(b) provides that unless a § 2255 motion and the files and records

of the case conclusively show that the prisoner is entitled to no relief, the court must grant a
hearing on the motion. A § 2255 petitioner is entitled to an evidentiary hearing if he alleges
facts that, if proven, would entitle him to relief. Galbraith v. United States, 313 F.3d 1001, 1009
(7th Cir. 2002). However, an evidentiary hearing is not required when a petitioner’s allegations
are “vague, conclusory, or palpably incredible rather than detailed and specific.” Kafo v. United
States, 467 F.3d 1063, 1067 (7th Cir. 2006) (quoting Bruce v. United States, 256 F.3d 596, 597
(7th Cir. 2001)).
To prevail on a claim for ineffective assistance of counsel in the context of a guilty plea,
a defendant must show that counsel’s performance fell below an objective standard of
reasonableness; and that there is a reasonable probability that, but for counsel’s errors, the
defendant would not have pleaded guilty and would have gone to trial, Bethel v. United States,
458 F.3d 711, 717 (7th Cir. 2006). In other words, the defendant must show that he suffered
prejudice as a result of the alleged ineffective assistance. Wyatt v. United States, 574 F.3d 455,
457 (7th Cir. 2009). However, a mere allegation by a defendant that he would have insisted on
going to trial is not sufficient to establish prejudice. Bethel, 458 F.3d at 718. Moreover,
counsel’s deficient performance must have been a decisive factor in the defendant’s decision to
enter a guilty plea. Wyatt, 574 F.3d at 458.

C.

Ineffective Assistance of Counsel Claims
Finley claims that his counsel was ineffective because he failed to pursue an entrapment

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defense. When the alleged error of counsel is the failure to advise the defendant of a potential
defense to the crime charged, the resolution of the question of prejudice to the defendant depends
largely on whether the defense likely would have succeeded at trial. Hill v. Lockhart, 474 U.S.
52, 59 (1985). But Finley does not allege in his § 2255 motion facts sufficient to show that he
would have been permitted to present an entrapment defense to the jury if he had proceeded to
trial. In order to present a jury question on an entrapment defense, there must be evidence of
both government inducement and a lack of predisposition to commit the crime. United States v.
Haddad, 462 F.3d 783, 790 (7th Cir. 2006).
The Seventh Circuit Court of Appeals has very recently clarified the inducement prong of
an entrapment defense:
We hold that inducement means more than mere government solicitation of the
crime; the fact that government agents initiated contact with the defendant,
suggested the crime, or furnished the ordinary opportunity to commit it is
insufficient to show inducement. Instead, inducement means government
solicitation of the crime plus some other government conduct that creates a risk
that a person who would not commit the crime if left to his own devices will do so
in response to the government’s efforts. The “other conduct” may be repeated
attempts at persuasion, fraudulent representations, threats, coercive tactics,
harassment, promises of reward beyond that inherent in the customary execution
of the crime, pleas based on need, sympathy, or friendship, or any other conduct
by government agents that creates a risk that a person who otherwise would not
commit the crime if left alone will do so in response to the government’s efforts.
United States v. Mayfield, No.11-2439, 2014 WL 5861628, at *17 (7th Cir. Nov. 13, 2014).
With regard to inducement, Finley claims only that an acquaintance who, unbeknownst to
him was a confidential informant (CI), asked him to help the CI’s father buy a gun and to get
marijuana for his mother, and that he did so. He claims no repeated attempts to convince him to
engage in illegal conduct, no fraud, threats, coercion, harassment, promises of great reward or
appeals to need, sympathy, or friendship. The government’s agent did nothing more than solicit
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the crimes. The government’s conduct cannot be considered inducement so as to permit an
entrapment defense. Thus, even assuming that Finley’s counsel did not discuss a possible
entrapment defense with him before he decided to plead guilty, he cannot show that he was
prejudiced by the failure. No hearing is necessary on this issue.
Finley also claims that he is actually innocent of the crimes to which he pleaded guilty.
However, in his plea colloquy as well as in his motion under § 2255, he admitted to facts that
establish he is guilty of distributing marijuana. His claim that distribution of 2.3 grams of
marijuana does not constitute a crime under 21 U.S.C. § 841(a)(1) is unfounded. The plain
language of the statute makes it unlawful to distribute a controlled substance. Under 21 U.S.C. §
812(c)(10), “any material, compound, mixture, or preparation, which contains any quantity of . .
. marijuana” is a controlled substance.
As for the offense of making a false statement during the sale of a firearm, he admitted in
the plea colloquy that the CI gave him funds to buy a firearm and that, after he bought the
firearm he handed it over to the CI, but filled out paperwork to the effect that he was buying the
firearm for himself. In his § 2255 motion he does not retract the statements he made at his
change of plea hearing, but suggests that, because he believed the ultimate recipient of the
firearm was to be the CI's father instead of the CI himself, he committed no crime. The fact
remains that he does not deny that he filled out paperwork stating that he was buying the firearm
for himself, when he was not, which constitutes a violation of 18 U.S.C. § 922(a)(6).1 See

1

Form 4473 gives an example that clearly shows that a person in Finley's position is not the actual buyer of
a firearm. “Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr. Jones the money for
the firearm. Mr. Jones is NOT THE ACTUAL TRANSFEREE/BUYER of the firearm and must answer “NO” to
question 11 a.” ATF Form 4473 Revised April 2012, page 4. Finley suggests in his § 2255 motion that he was the
actual buyer of the firearm because it was intended as a gift. On the basis of the facts Finley admitted to at his
change of plea hearing and did not contravene in his § 2255 motion, any gift would have been from the CI to his

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Abramski v. United States, 134 S.Ct. 2259 (2014) (a defendant’s misstatement as to the actual
buyer of a firearm violates 18 U.S.C. § 922(a)(6) even though the actual purchaser is eligible to
own a firearm.) No hearing is necessary on this issue and his claims of actual innocence do not
entitle him to any relief.
Finley further maintains that he pleaded guilty despite his belief in his innocence and
desire to go to trial because he did not think his counsel was prepared for trial. He declares in
the affidavit accompanying his § 2255 motion that he “wanted to go to trial, but not with Mr.
Cantrell.” (DE 114, § 2255 mot., at 27). The Court finds his claim palpably incredible. If Finley
had truly wanted to go to trial, the solution that would be apparent to anyone in his
circumstances would be not to plead guilty, but to fire his retained attorney and seek new
counsel. Moreover, he stated under oath at his change of plea hearing that he had had enough
time to discuss his case with his attorney and that he was fully satisfied with the services he had
provided. No hearing is necessary on this issue and Finley is entitled to no relief.
Finley also contends that he gave his lawyer information regarding other crimes but that
none of the information “made it into the intended hands for processing.” (DE 114, § 2255 mot.,
at 5). How this could have impacted his decision to plead guilty is not clear. Furthermore, the
Government points out in its response to Finley’s motion that Finley did meet with the FBI and
the assistant U.S. attorney assigned to the case to provide information about criminal activity.
However, the information Finley provided was not useful to law enforcement. Even assuming his
lawyer did not pass on to the Government or the Court all the information Finley gathered,
Finley cannot show that the failure prejudiced him. It is not as if such information would have
father, since the CI supplied the money for the purchase, which still does not make Finley the actual buyer of the
firearm.

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had any bearing on his guilt or innocence or would have provided any defense to the charges he
pleaded guilty to. He offers no factual support for the notion that the Government or the Court
would have treated him any differently if they had received the information. No hearing is
necessary and Finley is entitled to no relief on this issue.

D.

Certificate of Appealability
Rule 11 of the Rules Governing Section 2255 Proceedings requires a district court to

issue or deny a certificate of appealability when it enters a final order adverse to a petitioner on a
§ 2255 motion. A petitioner is entitled to a certificate of appealability only if he can present “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must
demonstrate that reasonable jurists would find this Court’s assessment of his constitutional
claims debatable or wrong. See United States v. Fleming, 676 F.3d 621, 635 (7th Cir. 2012).
Finley has not demonstrated that reasonable jurists would debate or agree that the Court should
have resolved his claims differently. Therefore, the Court declines to certify any issues for
appeal.

E.

Conclusion
For the foregoing reasons, the Court DENIES Finley’s motion to vacate, set aside, or

amend his conviction under 28 U.S.C. § 2255 (DE 114) and declines to certify any issues for
appeal pursuant to 28 U.S.C. § 2253(c)(2).

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SO ORDERED on December 15, 2014.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge

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