Smith v. United States of America

Filing 9

ORDER signed by Judge J P Stadtmueller on 5/7/10 as follows: denying 1 petitioner's Motion to Vacate, Set Aside or Correct Sentence (2255); dismissing the case with prejudice; and denying a certificate of appealability. (cc: petitioner, all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ H IR A M R. SMITH, Petitioner, v. U N IT E D STATES OF AMERICA, R e s p o n d e n t. ____________________________________________ C a s e No. 09-CV-286

ORDER
P e titio n e r Hiram R. Smith ("Smith") files this motion to vacate, set aside, or c o rre c t his sentence, pursuant to 28 U.S.C. § 2255. Smith pleaded guilty to one c o u n t of discharging a firearm in furtherance of a drug trafficking crime and was s e n te n c e d to 144 months of imprisonment. Smith now asks the court to vacate his s e n ten c e because he received ineffective assistance of counsel from his attorney, A n th o n y Cotton ("Attorney Cotton"). For the reasons stated below, the court will d e n y Smith's motion. B AC K G R O U N D S m ith was originally indicted by a grand jury on one count of conspiracy to d is trib u te five grams or more of cocaine and one count of discharging a firearm in fu rth e ra n c e of a drug trafficking crime. If convicted, Smith faced consecutive 10-year m a n d a to ry minimum terms of imprisonment. Despite this potential 20 years of p r i s o n time, Smith intended to proceed to a jury trial. Smith and a co-defendant, J a n s o n Johnson, appeared for trial on the morning of April 2, 2008. However, at the

la s t moment, the defendants decided to plead guilty rather than take their chances w ith a jury. The court adjourned the trial and accepted Smith's plea to Count Two o f the Indictment later the same day. Smith appeared for sentencing before this c o u rt on June 30, 2008, and the court filed judgment two days later. Smith initially a c c e p te d his fate and chose not to appeal the conviction and sentence. H o w e v e r, Smith later changed his mind. He decided to pursue alternative re lie f and filed the instant § 2255 motion on March 13, 2009. In his petition, Smith a s s e rte d two bases for habeas relief: 1) insufficient evidence to support his c o n vic tio n ; and 2) ineffective assistance of counsel. The court screened Smith's p e titio n in compliance with Rule 4 of the Rules Governing § 2255 Proceedings and d e te rm in e d that Smith had procedurally defaulted and waived his first claim alleging in s u ffic ie n t evidence. Smith's second claim for ineffective assistance of counsel s u rvive d the screening process and the court ordered Attorney Cotton and the g o ve rn m e n t to file responses addressing the merits of Smith's claim. The parties file d all required responses and briefs and the petition is now before the court for d e c is io n . ANALYSIS A federal prisoner may file a motion for habeas relief pursuant to 28 U.S.C. § 2255. The statute allows a prisoner to move for his sentence to be vacated, set a s id e , or corrected when: a) his sentence was imposed in violation of the C o n s titu tio n of federal law; b) the court did not have jurisdiction to impose the

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s e n te n c e ; c) the sentence was in excess of the maximum authorized by law; or d) th e sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. This type o f § 2255 habeas corpus relief, however, is "reserved for extraordinary situations." P r e w itt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (quoting Brecht v. A b r a h a m s o n , 507 U.S. 619, 63-34 (1993)). S m ith argues that his sentence must be vacated because it was imposed in vio la tio n of his right to counsel under the Sixth Amendment. Smith asserts that A tto rn e y Cotton provided ineffective assistance because he failed to interview two w itn e s s e s who would have provided exonerating testimony for Smith, and because h e coerced Smith into pleading guilty. Smith urges the court to vacate his sentence o n the basis of this ineffective assistance of counsel, or alternatively, to grant an e vid e n tia ry hearing. T o succeed on an ineffective assistance of counsel claim, a habeas petitioner m u s t prove that: 1) his attorney's performance fell below an objective standard of r e a s o n a b le n e s s ; and 2) he suffered prejudice as a result. Wyatt v. United States, 5 7 4 F.3d 455, 457 (7th Cir. 2009) (citing Strickland v. Washington, 466 U.S. 688, 6 8 7 -8 8 , 693 (1984)). The reasonableness of an attorney's performance is measured u n d e r prevailing professional norms. Hough v. Anderson, 272 F.3d 878, 890 (7th Cir. 2 0 0 1 ) . A court's review of counsel's performance is "highly deferential" and a p e titio n e r must overcome the presumption that an attorney's challenged act or o m iss io n may be considered sound trial strategy. Id. at 891. Further, even if

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c o u n s e l's performance was unreasonable, the petitioner must show that it prejudiced h is defense. A petitioner establishes prejudice when there is a "reasonable

p ro b a b ility that, but for counsel's unprofessional errors, the result of the proceeding w o u ld have been different." Id. (citing Strickland, 466 U.S. at 694). Smith fails to establish that Attorney Cotton's representation was either u n re a s o n a b le under professional norms, or prejudicial to his case. Smith makes two s p e c ific allegations against the effectiveness of Attorney Cotton's representation. F i r s t, he argues that Attorney Cotton failed to interview and elicit exonerating te s tim o n y from two of Smith's co-defendants, Kenyounta Harvester ("Harvester") and J a n s o n Johnson ("Johnson"). Second, Smith argues that Attorney Cotton coerced h im into pleading guilty. Smith's claims fall short, however, because he provides no s u p p o rt for his allegations and because the evidence before the court refutes his c la im s . S m ith and Johnson were both charged with conspiring to distribute cocaine a n d with discharging a firearm in furtherance of a drug trafficking crime. The two m e n served as "enforcers" for Harvester, who was the leader of the drug conspiracy. T h e firearm charge arose from the attempted shooting of Anthony Yateman ("Y a te m a n ") because of a drug debt. While Harvester initially told case agents that h e did not hire Smith and Johnson to shoot Yateman, he later recanted and stated th a t he contracted with the two men to commit the shooting. Smith now claims that H a rve s te r and Johnson "could and would have testified" that Smith was not ordered

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to shoot Yateman and was not involved in any conspiracy regarding the attempted s h o o tin g . S m ith fails to establish ineffective assistance because he provides no proof th a t Harvester or Johnson would have provided the testimony he claims. He did not o b ta in affidavits from Harvester or Johnson. Instead, Smith relies entirely upon his s e lf-s e rvin g allegations that the two men would have provided exonerating te s tim o n y. The court will not deem Attorney Cotton's representation ineffective in th e absence of any evidence supporting Smith's claims. In addition to lacking evidentiary support, Smith's claim about testimony from H a rve s te r and Johnson appears unlikely on its face. First, the testimony Smith a s s e rts that Harvester would provide is contradictory to Harvester's most recent s ta te m e n ts to law enforcement. Though he initially denied it, Harvester later

a d m itte d to police that he directed Smith to shoot Yateman. It is true that Harvester g a ve inconsistent accounts. However, his last statement to law enforcement

im p lic a te d Smith in the attempted shooting. Smith provides no explanation for why H a rve s te r would reverse his story again and testify to Smith's innocence if called as a witness at trial. Second, Johnson would jeopardize his own criminal defense if he p ro vid e d the testimony Smith asserts. Johnson was Smith's co-defendant and the tw o men were being tried in a single jury trial. Thus, Johnson would have had to w a ive his Fifth Amendment rights and testify in order to provide the exonerating s ta te m e n ts Smith alleges. There is no evidence that Johnson intended to do so.

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F u r th e r , the response filed by Attorney Cotton contradicts Smith's claims. S m ith argues that Attorney Cotton did not adequately investigate his case. However, A tto rn e y Cotton reports that he spent considerable time preparing Smith's case for tria l by reviewing the many debriefing reports and even hired investigators to confer w i t h witnesses and observe the shooting scene. (Cotton Aff., at ¶¶ 8-9). Attorney C o tto n acknowledges that some weaknesses existed in the government's case, but h e also notes that considerable evidence existed of Smith's involvement in the p la n n in g or organization of the shooting. (Id. at ¶ 9). Given the lack of evidence s u p p o r ti n g Smith's assertions and Attorney Cotton's contradictory affidavit, Smith u tte rly fails to establish that Attorney Cotton's representation of his case falls below p ro fe s s io n a l norms based on his investigation of Smith's case. S m ith 's argument that Attorney Cotton coerced him into pleading guilty is s im ila r ly unconvincing. Smith asserts that he was under extreme mental and

e m o tio n a l stress because his mother was deathly ill and in the hospital at the time o f his plea hearing. He also reports that Attorney Cotton applied undue pressure by s ta tin g : "you better plead guilty if you ever want to see your mother again." The c o u rt does not doubt that Smith was distraught over his mother's illness. However, this fact does not establish that Attorney Cotton coerced Smith into pleading guilty. S m ith himself testified that his guilty plea was entered knowingly and voluntarily. At h is plea hearing on April 2, 2008, Smith asserted in open court that he was satisfied w ith his attorney's representation and that he was not coerced into pleading guilty.

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( P le a Hr'g. Tr., at 21-22).1

The court sees no evidence that Attorney Cotton

u n re a s o n a b ly coerced Smith into entering a guilty plea. S m ith fails to establish the first prong of the Strickland test for ineffective a s s is ta n c e of counsel because he cannot demonstrate that Attorney Cotton's re p re s e n ta tio n was objectively unreasonable. This deficiency alone is enough to to rp e d o Smith's habeas petition. However, he also fails to establish the second p ro n g of the Strickland test because he cannot demonstrate that Attorney Cotton's a d vic e prejudiced his case. An attorney's representation in the context of a guilty p le a only constitutes ineffective assistance when, in the absence of counsel's errors, th e defendant would not have pleaded guilty but would have proceeded to trial. See B e th e l v. United States, 458 F.3d 711, 716-17 (7th Cir. 2006). Attorney Cotton avers in his affidavit that he believed Smith would not accept any plea deal, but that Smith h im s e lf asked the prosecutor about a plea agreement on the morning of trial. (Cotton
1

The transcript from Sm it h 's plea hearing reads in relevant part: D o you believe you adequately understand all of the relevant term s a n d provisions that are set forth in this docum e n t ? Yes. And did you have an opportunity to discuss them with Mr. Cotton, yo u r attorney? Yes. Did anyone threaten you or coerce you in any way in order to get yo u to sign this docum e n t ? No. Do you consider your desire to enter a plea of guilty to the conduct c h a r g e d in count two of the indictm e n t to be the product of a free a n d voluntary act on your part together with the advice of your a tt o r n e y? Yes.

T H E COURT: D E F E N D A N T SMITH: T H E COURT: D E F E N D A N T SMITH: T H E COURT: D E F E N D A N T SMITH: T H E COURT:

D E F E N D A N T SMITH: ( P le a Hr'g. T., at 21-22).

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A ff., at ¶ 12). Smith's aggressive pursuit of a plea agreement undermines any claim th a t Smith preferred to proceed to trial. Further, entering into a plea agreement g re a tly benefitted Smith. He greatly reduced his potential sentence exposure

b e c a u s e he plead to only one count of the indictment, rather than two counts. Given th a t Smith himself instituted plea discussions on the morning of trial and that p le a d in g guilty cut his potential sentence by 50%, Smith fails to show that he would h a v e proceeded to trial in the absence of Attorney Cotton's actions. S m ith does not establish that Attorney Cotton provided ineffective assistance o f counsel. Therefore, he does not merit the extraordinary remedy of habeas relief. T h e court also determines that an evidentiary hearing is unwarranted because the re c o rd does not support the issues raised in Smith's § 2255 petition. As a result, the c o u rt is obliged to deny Smith's motion in its entirety. A s a final matter, the court must decide whether to grant or deny Smith a c e rtific a te of appealability. Under the rules governing § 2255 cases, a district court m u s t issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rules Governing Section 2255 Proceedings for the United States D is tric t Courts, Rule 11(a). A habeas petitioner must obtain a certificate of

a p p e a la b ility before he may appeal an unfavorable decision to the Seventh Circuit C o u rt of Appeals. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A district court may o n ly issue a certificate of appealability to a habeas petitioner if he makes a s u b s tan tia l showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

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F o r the reasons discussed above, Smith fails to make a substantial showing of the d e n ia l of his Sixth Amendment rights and the court will deny him a certificate of a p p e a la b ilit y . A c c o r d in g ly , IT IS ORDERED that Smith's motion to vacate, set aside, or correct sentence p u rsu a n t to 28 U.S.C. § 2255 (Docket #1) be and the same is hereby DENIED and th e case is DISMISSED with prejudice. The court also DENIES a certificate of a p p e a l a b i li t y. T h e clerk is ordered to enter judgment accordingly. D a te d at Milwaukee, W is c o n s in , this 7th day of May, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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