Cubie v. United States of America

Filing 23

ORDER Denying Petitioner's Motion to Vacate, Set Aside, or Correct Sentence 1 , Dismissing Case,and Denying Certificate of Appealability. (cc: all counsel; via US Mail to Petitioner) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARK ANTHONY CUBIE,
Petitioner,
v.

Case No. 12-C-1099

UNITED STATES OF AMERICA,
Respondent.

ORDER DENYING PETITIONER’S MOTION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE (DOC. 1), DISMISSING CASE,
AND DENYING CERTIFICATE OF APPEALABILITY
After the Seventh Circuit Court of Appeals issued its mandate affirming Mark
Anthony Cubie’s 2008 judgment of conviction, Cubie has continued to challenge his
conviction on multiple fronts. Most of the motions he filed in the underlying criminal case
have been resolved. In the pending civil case, this court allowed Cubie to proceed on two
ineffective assistance of counsel claims. The initial brief in support of the motion provided
insufficient facts to demonstrate that counsel failed his Sixth Amendment duties. However,
Cubie has since filed a 13-page reply to the government’s responsive brief and a 79-page
declaration and exhibits, shedding a little more insight into the factual bases for his claims.
Before turning to the merits, the court will deny Cubie’s request to strike material
from pages 1, 2, 5, and 6 of the government’s brief. The identified portions of the
government’s brief are neither redundant nor immaterial. (Doc. 21 at 7.) Additionally, for
the reasons set forth below, Cubie’s § 2255 motion will be denied.

BACKGROUND
On June 7, 2005, a grand jury sitting in the Eastern District of Wisconsin returned
a seven-count indictment against Mark A. Cubie, Orlandes Nicksion, Ronald Q. Terry,
Anthony L. Burke, Delano Hill, Edward Cubie, and Sylvester Pigram on June 7, 2005.
(Case No. 05-CR-146, Doc. 37.) Count one charged each defendant with, beginning
sometime in 2004 and continuing through May 16, 2005, knowingly and intentionally
conspiring to distribute controlled substances (cocaine and crack cocaine) in violation of
21 U.S.C. § 841(a)(1) and 846. Counts two and three charged Cubie with distribution of
a controlled substance and possession of a controlled substance with intent to distribute
the same, on January 28, 2005, and February 2, 2005, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B). Count four charged Cubie with knowingly carrying a firearm
during and in relation to the drug trafficking crime charged in count three of the indictment,
in violation of 18 U.S.C. § 924(c)(1)(A)(I). Count five charged Cubie with possession of
a firearm by a convicted felon on February 2, 2005, in violation of 18 U.S.C. § 922(g)(1).
Count six charged Cubie and Terry with possession of a controlled substance with intent
to distribute the same on May 12, 2005, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). Count seven charged Nicksion with possession of a firearm by a convicted
felon. A superseding indictment, returned on July 19, 2005, added Jose Lopez to the drug
conspiracy charge. (Case No. 05-CR-146, Doc. 81.)
Cubie challenged the indictment with a motion to suppress Title III wire intercepts,
a motion to suppress all evidence that was recovered during a February 2, 2005, stop and
search of defendant’s vehicle, a motion to suppress the evidence recovered during the
execution of a search warrant at the defendant’s residence, a motion for a Santiago
2

hearing, a motion to strike surplusage, a motion to require notice of intent to use other
crimes, wrongs or acts evidence, and a motion to disclose the identity of the confidential
informants. (Case No. 05-CR-146, Docs. 126, 129, 130-134.) Attorney Thomas Hayes,
counsel for Cubie, filed two motions to adjourn the evidentiary hearing scheduled by the
magistrate to address previously undisclosed police reports, including a traffic citation.
(Case No. 05-CR-146, Docs. 184, 187-188.)

The magistrate judge granted the

continuance and set the evidentiary hearing for December 27, 2005. (Case No. 05-CR146, Docs. 190, 192, 199.) After hearing testimony, the magistrate judge issued a 70-page
recommendation that all of the motions be denied, except for the motion to disclose
confidential informants (granted in part) and the motion for a Santiago hearing (deferred
for a ruling by this court).

(Case No. 05-CR-146, Doc. 209.) Notwithstanding the

objections filed by Attorney Hayes, the court adopted the recommendation. (Case No. 05CR-146, Docs. 235, 241.)
On August 22, 2006, the grand jury returned a second superseding indictment for
the purpose of adding Donald Buchanan as a defendant. (Case No. 05-CR-146, Doc.
259.) Attorney Hayes filed proposed jury instructions and voir dire, and the court set a new
motions deadline. (Case No. 05-CR-146, Docs. 256, 257.)
Next, Cubie filed a pro se motion for “authorization to obtain order for services of a
chemical analyst expert and for compensation of such expert.” (Case No. 05-CR-146, Doc.
281.) In his motion, Cubie asserted that the substance seized on January 28, 2005, did
not involve cocaine base. (Case No. 05-CR-146, Doc. 281.) Notably, Cubie did not assert
that the January 28, 2005, controlled buy did not happen. The magistrate judge denied the
pro se motion because it was not filed by counsel. (Case No. 05-CR-146, Doc. 297.)
3

With respect to the motion to suppress the Title III intercepts, the magistrate judge
conducted evidentiary hearings on December 6, 2006, and December 20, 2006. (Case
No. 05-CR-146, Docs. 315, 326, 330-331.) The second hearing was scheduled to allow
the defendants the opportunity to cross-examine Milwaukee Detective Daniel Thompson
after he had filed an affidavit. (Case No. 05-CR-146, Doc. 341.) Thompson was the only
witness at the two hearings, and the magistrate judge acknowledged that Thompson gave
conflicting testimony regarding important points of the government’s case. (Case No. 05CR-146, Doc. 341 at 14.) Specifically, Thompson stated incorrectly that he had used a pen
register on Ronald Terry’s phones to help determine that x5638 was Cubie’s new number,
and he testified incorrectly that the woman with the x1716 phone called x5638 a couple of
hours after the confidential informant called x1716. (Id.) Nevertheless, the magistrate
judge concluded that these inconsistences brought into question Thompson’s ability to
remember how he identified x5638 as the new number but did not suggest illegality in
obtaining the call records. (Id. at 15.) Further, the timing of the x1716 call to x5638 did
not taint the analysis because it was supplemental information which aided Thompson in
identifying x5638 as Cubie’s new number. (Id.) The magistrate judge recommended that
the motion be denied, and Attorney Hayes filed an objection.
On May 14, 2007, Attorney Hayes filed a motion to withdraw from representation
because Cubie had not fulfilled his obligations under the retainer agreement. (Case No.
05-CR-146, Doc. 409.) This court conducted a motion hearing, and appointed Attorney
Hayes to represent Cubie under the Criminal Justice Act after both Cubie and Attorney
Hayes reported that they had a good attorney/client relationship. (Case No. 05-CR-146,

4

Doc. 414.) Soon thereafter, the court adopted the report and recommendation that Cubie’s
motion to suppress be denied. (Case No. 05-Cr-146, Doc. 416.)
On September 18, 2007, the grand jury returned a third superseding indictment
expanding the time frame of the conspiracy set forth in count one. (Case No. 05-CR-146,
Doc. 419.) Cubie filed a request for new counsel on October 2, 2007, claiming that
Attorney Hayes had been remiss in his duties in the following respects:
•

•

First and foremost I would like to address his lack of communication
and lackluster which thus far has hindered the growth and
development of my defense by him not doing the following things; I’m
having issues about my Search Warrant Motion, how it wasn’t
address, that 8 officers ran in my apartment before Det. Ken Smith
arrived with the Search Warrant, this was an Illegal Enter and a
Warrant less Entry. This was a chief evil misconduct by the agents
that the 4th Amendment has directed them not to do.

•

Second, Det. Thompson being at more than two/three places at the
same time; my apartment and waiting on a Search Warrant and
securing my apartment and booking my co-defendant, Anthony Burke;
in which he, Det. Thompson. Is supposed to be at my apartment.
This is our Discovery at A & S 0002, A & S 00029, and at Search
Warrant 0001.

•

Third, how agents are following me around without me being in my car
that has a GPS on it and also I’m not having the 1716# or phone.

(Case No. 05-CR-146, Doc. 430.) After discussing the motion with Cubie, Attorney Hayes
filed a motion to withdraw expressing concern that Cubie’s attitude towards him “may effect
Mr. Cubie’s ability to meaningfully process pertinent information . . . . for the purpose of
making the multitude of important decisions that a criminal defendant, awaiting trial, must
make.” (Case No. 05-CR-146, Doc. 432-2.)
At the October 15, 2007, hearing on Attorney Hayes’s motion to withdraw, Cubie
represented that his mother had retained a new attorney for him but he did not know her
5

name. Attorney Hayes represented that he was ready for trial. (Case No. 05-CR-146,
Doc. 447.)

Then, during the October 16, 2007, pretrial conference, Cubie stated that

Attorney Andrea E. Gambino had been retained to represent him but she did not appear
and the court could not reach her at her office. Therefore, the court instructed Attorney
Hayes to remain as counsel and found that Cubie and Attorney Hayes appeared to have
an intact attorney-client relationship. (Case No. 05-CR-146, Doc. 452.) Less than two
weeks later, the government filed a signed plea agreement with respect to Cubie. (Case
No. 05-CR-146, Doc. 469.) Cubie confirmed during his October 29, 2007, plea hearing,
that he wished to proceed with Attorney Hayes as counsel and that he was satisfied with
Hayes’s performance. (Case No. 05-CR-146, Docs. 469, 475.)
In the plea agreement, Cubie agreed to plead guilty to count one (conspiracy to sell
5 kilograms or more of cocaine and 50 grams or more of cocaine base beginning sometime
in 2004 and continuing through May 16, 2005) and count five (knowingly carrying a firearm
in relation to a drug trafficking crime on or about February 2, 2005). Cubie retained the
right to appeal “any claim that he raised in a pretrial motion.” (Case No. 05-CR-146, Doc.
469.) He did not seek to withdraw his plea and has never attacked counsel’s performance
with respect to the plea agreement.
On June 14, 2006, Attorney Gambino filed a motion to substitute as Cubie’s
attorney, and the court granted the motion. (Case No. 05-CR-146, Docs. 538, 539.)
Attorney Gambino also filed a motion to adjourn the sentencing hearing so she would have
adequate time to prepare. (Case No. 05-CR-146, Doc. 548.) The court convened on
August 22, 2008, for Nicksion, and Terry’s sentencing hearings; however, Cubie’s
sentencing was adjourned to October 30, 2008. (Case No. 05-CR-146, Doc. 556.)
6

Attorney Gambino filed objections and supplemental objections to Cubie’s presentence
investigation report, vigorously challenging the drug quantity and any reference to the
Benion homicide.

(Case No. 05-CR-146, Docs. 553.) The court rejected Attorney

Gambino’s calculation of drug quantity, in part because it omitted the drugs from the
February 2, 2005, stop, and ruled that it would not consider the Benion homicide. (Case
No. 05-CR-146, Docs. 572, 570.) Cubie was sentenced to 295 months, which has since
been reduced to 248 months based on a change in the sentencing guidelines. (Case No.
05-CR-146, Docs. 579, 776.)
After entry of judgment, Cubie filed a direct appeal arguing that his pretrial motion
to suppress evidence seized from his car during the February 2, 2005, traffic stop was
denied improperly. (Case No. 05-CR-146, Doc. 642.) He also argued that the court should
have granted his request for a pretrial proffer or hearing regarding the admissibility of coconspirator statements and that the court erred in calculating the drug quantity at
sentencing. The Seventh Circuit rejected his arguments, noting that the district court had
properly made a credibility determination with respect to the officers involved in the stop
and that law enforcement collectively knew that Cubie had made a controlled drug
purchase on January 28, 2005, that the informant had made a controlled payment of
$5,000 on the day of the stop, and that Cubie appeared to be involved in other drug
transactions shortly before the stop. United States v. Cubie, 628 F.3d 368, 377 (7th Cir.
2010). Additionally, the Seventh Circuit rejected Cubie’s arguments regarding a pretrial
proffer because the statements of his co-conspirators would have been admissible against
Cubie had he not pled guilty. Finally, the sentencing arguments were rejected because
Cubie’s estimates were too low inasmuch as he neglected to include the 35 grams of crack
7

seized from the February 2, 2005, traffic stop, and the district court did not consider the
Benion homicide. Cubie, 628 F.3d at 378. The United States Supreme Court denied
Cubie’s petition for writ of certiorari on October 31, 2011. Cubie v. United States, 132
S. Ct. 536 (2011).
CONCLUSIONS OF LAW
Under 28 U.S.C. § 2255, a prisoner can seek to vacate his sentence on “the ground
that the sentence was imposed in violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such sentence, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”
28 U.S.C. § 2255. Under the Sixth Amendment, a criminal defendant is entitled to
“effective assistance of counsel-that is, representation that does not ‘fall below an objective
standard of reasonableness' in light of ‘prevailing professional norms.’“ Bobby v. Van
Hook, 558 U.S. 4, 16, 130 S. Ct. 13, 175 L. Ed. 2d 255 (2009) (quoting Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). To prevail on
such a claim, the petitioner must show: (1) counsel's performance was deficient; and
(2) the deficient performance prejudiced him. Strickland, 466 U.S. at 684–85.
At this stage, the Court's review of counsel's performance is highly deferential: “The
question is whether an attorney's representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or most
common custom.” Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 178 L. Ed.2d
624 (2011) (quoting Strickland, 466 U.S. at 690). In considering that question, the court
must avoid employing the benefit of hindsight, and must respect its “limited role in

8

determining whether there was manifest deficiency in light of information then available to
counsel.” Premo v. Moore, 562 U.S. 115, 131 S. Ct. 733, 178 L. Ed.2d 649, (2011). As
to the prejudice prong, the petitioner must establish a reasonable probability that “but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, not
just conceivable.” Harrington, 562 U.S. at 111.
Cubie is proceeding on two ineffective assistance of counsel claims, although the
first has multiple subparts. First he argues that counsel failed to hire a private investigator,
seek severance from the third indictment, obtain dispatch records of February 2, 2005,
related to his car, challenge the legality of the GPS device placed on his car (warrant
authorized different car), attend his presentence interview, hire a telecommunications
expert, check telephone service provider records to determine the date, time, and signature
of the individual who faxed data pertaining to him, and explore how the agents followed him
for three and a half days when he was not in the car with the GPS attached. Next, Cubie
asserts that counsel failed to object to the December 20, 2006, Franks hearing and failed
to hire a forensics expert to conduct a critical fingerprinting analysis of documents from the
PENS 260-292 to check for authentication of all wiretap applications and extensions as
well as their dates, times, and signatures.
Noticeably absent from any of Cubie’s submissions is an attack on the validity of the
plea agreement. He challenges various aspects of counsel’s performance, all of which
predate the signing of his plea agreement. Moreover, the court notes that Cubie reserved
the right to appeal any claim he raised in a pretrial motion while acknowledging that he was
surrendering certain rights. (Case No. 05-CR-146, Doc. 469.) Significantly, above Cubie’s
9

signature on the plea agreement he stated that he discussed all aspects of this case with
his attorney and was satisfied that his attorney provided effective assistance of counsel.
(Id.)
During the plea hearing, Cubie unequivocally stated it was his intention to plead
guilty and the court found him legally competent to proceed. Cubie confirmed under oath
that he signed the plea agreement, read the acknowledgment above his signature, and that
all of his statements respecting these matters were true. Then, he entered a guilty plea
with respect to counts one and five. He did not plead guilty to the January 28, 2005,
controlled buy or the Benion homicide.
It is equally problematic that Cubie was represented by three different attorneys
through the time of sentencing, yet seems to challenge the representation of Attorney
Thomas Hayes who withdrew after the plea but prior to sentencing. In his declaration,
Cubie states that he became dissatisfied with Attorney Hayes when he failed to appear for
the “PSR/PSI meetings signaling that he would not participate.” However, the record
suggests that Cubie expressed dissatisfaction with Attorney Hayes prior to the plea
agreement and that his concerns were resolved by the time of the plea. Additionally,
Cubie’s mother retained Attorney Gambino who filed objections to the presentence report,
appeared and argued on behalf of Cubie during the contested sentencing hearing, and
continued to represent Cubie on appeal.
In his reply brief, Cubie points to error and breach of fiduciary duty but clarifies he
is not referring to “Attorney Gambino but rather the prior attorney Hayes.” (Case No. 12-C1099, Doc. 21 at 1.) Hence, Cubie could have raised the above issues prior to his plea
and/or sentencing, and certainly before judgment was entered. Indeed, Cubie filed a pro
10

se motion for authorization to hire a chemical analyst almost one year prior to his guilty
plea, but never raised the arguments identified in the pending motion—even though he
states he brought them to counsel’s attention.
It is within this context that the court turns to the merits of Cubie’s § 2255 motion.
Although the government has not had the opportunity to respond to the many arguments
raised in the reply brief, no further briefing is necessary because the record belies Cubie’s
assertions. For example, Cubie suggests that Attorney Hayes, who represented him
through the entry of the plea, promised—but failed—to hire an investigator. The crux of
the claim appears for the first time in his reply and is predicated on his belief that an
investigator:
[C]ould have and would have aided in the following discoveries and proofs
procurement(s): (a) there was no controlled buy on 1/28/05 (which explains
why when I requested to hear the recordings on the controlled buy and to
see proof consistent with a controlled buy it was never produced; (b) the
investigator would have honed in on the fact that the quantity and drugs
format claimed obtained in a controlled buy on 1/28/05 doubled nearly and
was in a totally differeent format; (c) the investigator would have uncovered
evidence bolstering the fact that I was not involved in any conduct or
conspiracy before 2004 at the earliest.
Cubie also believes that an investigator could have interviewed Milwaukee Police Officers,
a CI, Officers Terrell, Mitchell, Ward, Devalkenaere, Brousseau and Detectives Smith and
Wellens to uncover inconsistences “to suggest manufacturing of evidence and
embellishment of evidence.” Moreover, he submits that an investigator could have
uncovered and obtained a statement from the phone service provider that his phone was
no longer in service or capable of facilitating anything between the dates of March 29,
2005, and April 2, 2005.

11

As to these arguments, Cubie cannot establish deficient performance or prejudice.
Significantly, Cubie did not plead guilty to the charge arising from the January 28, 2005,
controlled buy. Instead, he entered a plea with respect to the February 2, 2005, traffic
stop. Likewise, Cubie did not plead guilty to a conspiracy commencing prior to “sometime
in 2004.” Meanwhile, Cubie had the opportunity to challenge the January 28, 2005,
controlled buy in his pro se motion to hire an expert but only disputed that the controlled
buy involved cocaine base—he did not assert that the buy never happened.
The magistrate judge, district court and Seventh Circuit rejected Cubie’s challenges
to the February 2, 2005, traffic stop on a finding that the police had probable cause to take
him into custody because he provided a half of kilogram of cocaine to the confidential
informant on January 28, 2005. (Case No. 05-CR-146, Doc. 209, p. 39.) These rulings
followed an evidentiary hearing in which the magistrate judge found Cubie’s passenger less
than credible and counsel for the various defendants had the opportunity to cross-examine
the officers.
Finally, to the extent that Cubie suggests he suffered prejudice from the weight of
the drugs attributed to the January 28, 2005, controlled buy, Attorney Gambino filed two
sets of objections to the presentence report and attacked probation’s calculation of the
drug quantity calculation. Yet he does not challenge Attorney Gambino’s performance at
sentencing. Attorney Gambino argued that Cubie’s base offense level was a 34 and in,
“no case, more than 36” because the report overestimated the drug quantity attributable
to Cubie. She proposed that a fair estimate would result in a range of 15-50 kilos based
on Lopez’s account of when he began supplying Cubie with cocaine, the controlled
contacts and surveillance from January 26 to February 1, 2005, and “possible delivery of
12

an additional one kilogram to Delano Hill on January 28.” The government responded that
the estimate was extremely conservative because it only considered the time frame of
2004 to the arrest and that Cubie failed to take into consideration the 35 grams of crack
cocaine seized from him on February 2, 2005. The court agreed with the government, and,
on appeal, the Seventh Circuit Court of Appeals rejected Cubie’s challenge inasmuch as
Cubie’s calculations ignored the 35 grams of cocaine recovered during the February 2,
2005, traffic stop and therefore his base offense level was 36. Cubie, 628 F.3d at 378.
Hence, Cubie cannot establish that, but for counsel’s alleged errors, the result of the
proceedings would have been different.
Next, Cubie argues that counsel should have sought a severance of the charges
against him in the third indictment. Cubie cannot be severed from an indictment. Rule 8(b)
of the Federal Rules of Criminal Procedure proves that an indictment may charge two or
more defendants if they are alleged to have participated in the same act or transaction, or
in the same series of acts or transactions, constituting an offense or offenses. Fed. R.
Crim. P. 8(b). Defendants may be charged in one or more counts together or separately,
and they do not need to be charged in each count. Rule 12 allows a defendant to seek a
severance of charges or defendants, and Rule 14 allows the court to order separate trials
of counts or defendants if the joinder of offenses or defenses in an indictment appears to
prejudice a defendant. Fed. R. Crim. P. 12, 14. Therefore, Cubie could have sought a
severance from the other defendants but he chose to enter a guilty plea to a conspiracy
beginning sometime in 2004 and 2005. The plea did not expand the scope of the
conspiracy to 2002. For that reason, the court ruled that it would not consider the Benion
homicide in connection with Cubie’s sentencing. As such, Cubie cannot establish that he
13

suffered any prejudice from counsel’s failure to seek severance respecting the third
indictment.
Cubie’s argument that counsel failed to obtain February 2, 2005, dispatch records
or otherwise challenge the legality of the GPS installation and his car records provides no
insight into how the results of the proceeding would have been different. Police dispatch
records would not have changed the outcome of the court’s disposition of Cubie’s motion
to suppress. As discussed above, the magistrate judge conducted an evidentiary hearing
regarding the traffic stop, heard the testimony of the officers involved and Cubie’s
passenger, ruled against Cubie on the motion, and made a credibility determination. Even
if there was no independent legal support for the stop, the officers had reason to pull Cubie
over based on their collective knowledge.
With respect to counsel’s failure to challenge the legality of the GPS placement on
Cubie’s car, this court already ruled in Nicksion v. United States, Case No. 12-240, that
counsel’s failure to bring such a motion was not deficient performance because, at all
relevant times there was no binding case law in this circuit recognizing that the attachment
and use of the GPS constituted a search under the Fourth Amendment. At the time of
Cubie’s appeal, United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), permitted the
attachment and use of the GPS tracker without a warrant on a showing of probable cause.
Although the Supreme Court held in 2012 that the intrusion on the property interest of a
car's owner is a “search,” valid only if reasonable, United States v. Jones, ––– U.S. ––––,
132 S. Ct. 945, 181 L. Ed.2d 911 (2012), the Seventh Circuit issued its mandate affirming
the decision of the district court on April 18, 2011. See generally United States v. Brown,
744 F.3d 474, 476 (7th Cir. 2014)(“It would be inappropriate to use the exclusionary rule
14

to suppress evidence derived from a GPS locator before the Supreme Court’s decision in
Jones.”) Further, on January 14, 2015, the Seventh Circuit Court of Appeals held that
officers acting prior to the Jones decision reasonably relied on existing precedent to
conclude that installation of a GPS device in a public space and the location data it
produces is not within the scope of the Fourth Amendment. U.S. v. Taylor, 2015 WL
162655 (7th Cir. Jan. 14, 2015). Consequently, Cubie cannot establish that his attorney’s
failure to raise this issue fell below the objective standard of reasonableness.
The argument that counsel was deficient for failing to attend the presentence
interview similarly fails because Cubie has provided nothing suggesting that legal matters
were discussed during the interview. Cubie’s evidence, page 79 of the exhibits attached
to his reply, is a letter from Attorney Hayes to United States Probation Agent Jerald Husz
on January 16, 2008, confirming that Agent Husz would only cover biographical information
during the presentence interview and would not address the facts comprising the base
offense level. (Case No. 12-C-1099, Doc. 22 at 79.) Attorney Hayes cautioned that if his
understanding was incorrect, Agent Husz should contact him immediately so that he could
be present during the presentence interview. After Attorney Gambino was retained and
Attorney Hayes withdrew, Attorney Gambino properly filed two sets of objections to the
presentence report and vigorously challenged it at sentencing. Moreover, she prevailed
on her argument that the Benion homicide should not be considered in sentencing Cubie.
Therefore, Cubie cannot establish either prong of the Strickland test.
Cubie’s remaining arguments under the first ground—that counsel should have hired
a telecommunications expert, checked with the service provider regarding the date, time,
and signature of the individual who faxed data regarding him, or explored how the agents
15

followed him for three and half days—fails because Cubie provides no explanation as to
how counsel’s failure to take either action resulted in any prejudice.
The second ground for relief focuses on counsel’s failure to object to the December
20, 2006, Franks hearing and failure to hire a forensics expert to check for fingerprints on
PENS. Curiously, Cubie argues that a final adverse decision was made and not objected
to by Attorney Hayes, allowing the government to proceed with its conspiracy theory and
wiretaps. This, according to Cubie, caused him to forfeit his crucial right to face his
accuser and his right to due process by “record accuracy, completeness, and relevance.”
Attorney Hayes filed a motion for and secured two Franks hearings on behalf of
Cubie and had the opportunity to cross-examine Thompson. Thus, Cubie was not deprived
of his right to face an accuser pretrial. At the end of the first Franks hearing, the
government was ordered to disclose the pen and trap orders and the 2703(d) orders that
were used to get information from Terry’s phone prior to April 12, 2005. The government
also filed a motion to reopen the hearing and asked the court to accept the affidavit of
Thompson and the attached exhibits. (Case No. 05-CR-146, Doc. 312.) Defendants
requested a continuation of the hearing from December 6, 2006, to cross-examine
Thompson and the second hearing was conducted on December 20, 2006. (Case No. 05CR-146, Doc. 326, 331.) Cubie and his co-defendant, Terry, filed a joint memorandum in
support of their second motion to suppress highlighting the inconsistencies in Thompson’s
testimony. (Case No. 05-CR-146, Doc. 336.)
Under these circumstances, the court does not find counsel’s participation in the
hearings nor counsel’s briefing of the issues to be deficient. Cubie would have preferred
that Attorney Hayes object to the second hearing, but he made a reasonable decision to
16

cross-examine Thompson regarding the inconsistencies in his testimony and Thompson’s
attempt to explain his testimony with a subsequent affidavit. Attorney Hayes elicited
favorable testimony for Cubie, including testimony that at the time of the application for the
Title III information Thompson did not know that x5638 was Cubie’s phone and that
Thompson did not have the recordings from the phone calls between the confidential
informant and the x1716 and x5638. (Case No. 05-CR-146, Doc. 330 at 22-25.) The
magistrate judge addressed the problems with Thompson’s testimony and the possible
inferences, but concluded that the government presented sufficient evidence to establish
that it legally obtained all of its call data information for x5638 through the analysis of the
pen register data for x1716, a call to x1716 by the informant, and the analysis of the pen
register data for Nicksion’s phone. This court adopted the recommendation, and rejected
a similar argument in Nicksion’s § 2255. (Case No. 12-C-240 at 14-15.) Aside from finding
that counsel’s performance was reasonable, Cubie has not shown prejudice with respect
to the alleged errors.
As a final matter, the court must consider whether to issue a 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. A certificate of appealability may
issue only if the applicant has made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 1153(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004). 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)(certificate of appealability should
17

issue if the petitioner demonstrates “that reasonable jurist would find the district court’s
assessment of the constitutional claims debatable or wrong.”). Having failed to meet his
burden, Cubie needs no encouragement to proceed further. Consequently,
IT IS ORDERED that Mark Anthony Cubie’s motion to vacate, set aside, or correct
sentence is denied.
IT IS FURTHER ORDERED that this case is dismissed.
IT IS FURTHER ORDERED that a certificate of appealability is denied.
Dated at Milwaukee, Wisconsin, this 21st day of September, 2015.
BY THE COURT

/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE

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