Cates v. United States of America

Filing 18

ORDER signed by Judge J P Stadtmueller on 1/27/16: DENYING in its entirety 1 Plaintiff's § 2255 Motion to Vacate, Set Aside or Correct Sentence; GRANTING a certificate of appealability as to the 8 questions detailed therein and DENYING as to the remaining questions; DENYING 15 Plaintiff's Motion for Disclosure of Grand Jury Materials; and, DISMISSING this action with prejudice. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LADMARALD CATES,
Plaintiff,

Case No. 14-CV-1092-JPS

v.
UNITED STATES OF AMERICA,
Defendant.

ORDER

In a July 10, 2015 Order, the Court resolved the majority of claims in
Ladmarald Cates’ motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. (Docket #9). One claim, however, remained
open for review: whether trial counsel was ineffective in failing to review
grand jury materials she received. (See, e.g., Docket #9 at 35–36, 64–65). The
court requested that the Government submit documents relevant to that
claim, and then provided Mr. Cates ample opportunity to further brief that
claim (in fact, the Court provided him with multiple extensions to file a
brief). (See, e.g., Docket #9 at 64–65; Docket #11, #12, #14, #16). Mr. Cates
never filed a brief, though, so the Court found that he had waived his
opportunity to brief the claim further and requested that the Government
submit its final brief addressing the claim. (Docket #16 at 1–2). The
Government has now submitted its brief, and the matter is ready for
resolution. (Docket #17).
The Court is obliged to dismiss Mr. Cates’ remaining claim for relief.
With this claim, Mr. Cates argued that his trial counsel, Bridget Boyle,
improperly “failed to review the grand jury materials consisting of
transcripts and minutes that would reveal in any violations, including but
not limited to false testimony, was presented to the grand jury in order to

indict the Movant. Counsel could have reviewed the Indictment to examine
if it was duplicitous…. Counsel could have examined to see if the
government had committed any violations or abuses in indicting the
Movant.” (Docket #1 at 5). “Under the familiar two-pronged test of Strickland,
[Mr. Cates] must show both that his attorney’s performance was deficient
and that he was prejudiced as a result.” Vinyard v. United States, 804 F.3d
1218, 1225 (7th Cir. 2015) (citing Strickland v. Washington, 466 U.S. 668, 684–86
(1984); Harrington v. Richter, 562 U.S. 86, 104 (2011); Carter v. Douma, 796 F.3d
726, 735 (7th Cir. 2015)). Mr. Cates cannot establish either prong. To begin,
there is no evidence that Ms. Boyle’s performance was deficient. She has
stated that she reviewed the grand jury materials she received and found no
evidence of abuse. (Docket #7 ¶ 7(b)). Mr. Cates, meanwhile, has not cast any
doubt on that representation. Additionally, the indictment of Mr. Cates was
not duplicitous, as the Court established more fully in earlier orders. (Docket
#9 at 36). There is also evidence in the record that Ms. Boyle did review the
grand jury materials in her possession: she referred to testimony given
therein during her examination of a witness. (Case No. 11-CR-200, Docket
#65 at 408:25–409:13). Especially in light of the “‘strong presumption that
counsel’s conduct falls within the wide range of professional assistance,’”
Vinyard, 804 F.3d at 1225 (quoting Strickland, 466 U.S. at 688), the Court
cannot find any deficient performance on Ms. Boyle’s behalf with regard to
her review of the grand jury materials. Moreover, given that there is no basis
in the transcripts for finding errors in the grand jury process, Mr. Cates also
could not possibly establish the prejudice prong of Strickland. Therefore, the
Court is obliged to dismiss Mr. Cates’ final claim for relief.
Having addressed and found without merit each of Mr. Cates’ claims
for relief, the Court will deny in full his § 2255 motion; and, in doing so, the
Page 2 of 15

Court must also issue or deny a certificate of appealability (“COA”). See Rule
11 of the Rules Governing § 2255 Cases in the United States District Courts.
The Court can grant Mr. Cates a COA only if it finds that Mr. Cates “has
made a substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), such that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotations and citations omitted). If the Court determines
that it should issue a COA, it must “indicate which specific issue or issues”
the COA covers. 28 U.S.C. § 2253(c)(3). The Court will, therefore, consider
each of Mr. Cates’ claims separately to determine whether it should issue a
COA as to those claims. In doing so, it will use the same framework as in its
earlier order addressing the majority of Mr. Cates’ claims. (See Docket #9 at
29–64).
INEFFECTIVENESS OF TRIAL COUNSEL
Ground

COA Determination

One

Because Mr. Cates was indicted, he was not entitled to a
preliminary hearing. Fed. R. Cr. P. 5.1(a); 18 U.S.C. § 3060(e).
Trial counsel was, therefore, not ineffective for failing to
request one. No reasonable jurist could disagree.
The Court will deny a COA on this question.

Two

(1) There was no basis for a motion to suppress and,
therefore, trial counsel was not ineffective for failing to file a
suppression motion. No reasonable jurist could disagree.
The Court will deny a COA on this question.

Page 3 of 15

(2) Trial counsel reviewed the grand jury materials she
received, and thus did not offer deficient performance in that
regard. Even if she had not reviewed those materials, there is
no indication of prejudice. No reasonable jurist could
disagree.
The Court will deny a COA on this question.
(3) The indictment was not duplicitous, so failure to
challenge it as such was not deficient performance. No
reasonable jurist could disagree.
The Court will deny a COA on this question.
(4) There is no indication that any witness offered false
testimony, so trial counsel could not be ineffective in failing
to challenge false or manufactured evidence. No reasonable
jurist could disagree.
The Court will deny a COA on this question.
(5–6) Trial counsel met with Mr. Cates on numerous
occasions, and so was not deficient in preparing him for trial.
Even if she had not met with him often enough, though, there
is no indication that Mr. Cates was prejudiced. No reasonable
jurist could disagree.
The Court will deny a COA on this question.
(7) Reasonable jurists might disagree over whether Ms.
Boyle’s lack of trial strategy discussions with Mr. Cates was
constitutionally ineffective. She was not required to obtain
Mr. Cates’ consent to “every tactical decision,” see Taylor v.
Illinois, 484 U.S. 400, 417–18 (1988), and so the Court does not
believe that trial counsel acted deficiently in this regard.
Additionally, Mr. Cates has not established prejudice
stemming from any such deficient performance. Nonetheless,
the duty of attorneys to discuss strategy with clients is not
perfectly defined, see Florida v. Nixon, 543 U.S. 175, 187 (2004),
so the Court can envision reasonable jurists disagreeing on
this point.
The Court will issue a COA on this question.

Page 4 of 15

(8) Trial counsel effectively prepared Mr. Cates to testify, and
Mr. Cates performed well in his testimony. Thus, neither
Strickland prong is satisfied on this claim. No reasonable jurist
could disagree.
The Court will deny a COA on this question.
(9) Trial counsel performed well during trial; any later
disciplinary proceedings against her do not establish
otherwise. The Court has not found any indication of
deficient performance or prejudice in trial counsel’s conduct
at trial. To the extent that Mr. Cates rested an argument on
this point, no reasonable jurist could disagree.
The Court will deny a COA on this question.
(10) Reasonable jurists might disagree over whether trial
counsel should have called Kandice Velez as a witness. Ms.
Velez provided a version of events that differed slightly from
the victim’s version. The Court believes that any difference
would be so minor that Mr. Cates did not suffer prejudice as
a result of trial counsel’s failure to call Ms. Velez. But
reasonable jurists might disagree over that point.
The Court will issue a COA on this question.
On the other hand, it is not clear what other witnesses trial
counsel might have called on Mr. Cates’ behalf. Thus, the
Court cannot find that she was deficient in failing to call those
witnesses, nor that such failure prejudiced Mr. Cates. No
reasonable jurist could disagree.
The Court will deny a COA on this question.
(11) There is no evidence whatsoever that the FBI’s reports
were fabricated. Accordingly, trial counsel was not ineffective
for challenging those reports and Mr. Cates did not suffer
prejudice as a result. No reasonable jurist could disagree.
The Court will deny a COA on this question.

Page 5 of 15

Three

(1) Reasonable jurists might disagree over whether trial
counsel was ineffective in failing to challenge the jury’s and
venire’s racial makeup. The Court does not believe that any
challenge was likely to be successful and trial counsel stated
that her failure to make such a challenge was strategic.
Accordingly, the Court found that there was neither deficient
performance nor prejudice in this regard. Nonetheless, given
that there was only one African-American on the venire (a
very low number), the Court can envision reasonable jurists
disagreeing on this point.
The Court will issue a COA on this question.
(2) There was no exculpatory evidence that trial counsel
failed to use that might have helped Mr. Cates’ case. Trial
counsel highlighted inconsistencies in the testimony of the
Government’s witnesses and allowed Mr. Cates to provide
his version of events. That is all that the Court is aware that
she could have introduced. Failure to do more was, therefore,
not deficient and did not prejudice Mr. Cates. No reasonable
jurist could disagree.
The Court will deny a COA on this question.
(3) Trial counsel’s stipulation to entry of DNA evidence was
not ineffective. Mr. Cates had admitted during an early
interrogation that he had sex with the victim and also
admitted that fact during trial. The DNA evidence established
only that fact, and thus made no difference to the outcome of
the case. Trial counsel’s stipulation, therefore, did not
prejudice Mr. Cates. No reasonable jurist could disagree.
The Court will deny a COA on this question.
(4) Trial counsel was not ineffective for failing to raise the
Milwaukee County District Attorney’s decision not to
prosecute the case. The Court would not have let that
evidence come before the jury, pursuant to Rules 401, 402,
and 403 of the Federal Rules of Evidence. Trial counsel’s
failure in that regard, therefore, did not prejudice Mr. Cates.
No reasonable jurist could disagree.
The Court will deny a COA on this question.

Page 6 of 15

(5) Trial counsel was not ineffective for failing to impeach the
victim with her prior criminal record. There is no indication
that any such evidence would have been admissible under
Fed. R. Ev. 609(a)(1). The failure to impeach the victim on that
basis, therefore, was not deficient and did not prejudice Mr.
Cates. No reasonable jurist could disagree.
The Court will deny a COA on this question.
(6) Trial counsel was not ineffective in addressing a question
sent to the Court by the jury. The Court adopted trial
counsel’s position in addressing that question. It is not clear
what more she could have asked for. Therefore, she did not
act deficiently and the Court cannot identify any prejudice to
Mr. Cates. No reasonable jurist could disagree.
The Court will deny a COA on this question.
(7) The Court has already found that Mr. Cates is entitled to
a COA regarding trial counsel’s failure to call Ms. Velez.
Four

There is no evidence whatsoever to support Mr. Cates’ claim
that trial counsel colluded with the Government. No
reasonable jurist could disagree.
The Court will deny a COA on this question.

Five

The Court applied 18 U.S.C. § 3143(a) and concluded that it
was required to detain Mr. Cates following the return of the
jury’s verdict. The Court believes that it was clearly required
to do so under the terms of that statute. Trial counsel,
therefore, did not act deficiently in failing to achieve Mr.
Cates’ release. Moreover, it is not clear how he was
prejudiced by his post-trial detention. No reasonable jurist
could disagree.
The Court will deny a COA on this question.

Six

(1) There is no evidence that the Government falsified or
altered any reports in this case. There also is not any evidence
(aside from Mr. Cates’ unsubstantiated beliefs) that there was
a rumor of such falsification. Trial counsel, therefore, could
not have acted deficiently in failing to investigate such nonexistent rumors. No reasonable jurist could disagree.
The Court will deny a COA on this question.

Page 7 of 15

(2) There was no basis for trial counsel to request a new
trial and, therefore, her failure to do so was not deficient
performance and did not prejudice Mr. Cates. No reasonable
jurist could disagree.
The Court will deny a COA on this question.
(3) Trial counsel was not constitutionally ineffective in failing
to visit Mr. Cates between the verdict and the completion of
the presentence report. Mr. Cates would have had a right to
trial counsel’s presence at any meeting regarding the
preparation the presentence report. And, while trial counsel’s
law partner did make attempts to meet with Mr. Cates, it
does not appear that trial counsel ever did so. This may have
been deficient, but it is not clear that this prejudiced Mr. Cates
in any way. Through replacement sentencing counsel, Mr.
Cates was able to object to the presentence report. It is,
therefore, unclear how trial counsel’s visiting Mr. Cates could
have impacted him. No reasonable jurist could disagree.
The Court will deny a COA on this question.
(4) Trial counsel’s failure to inform Mr. Cates of the
disciplinary proceedings against her was not deficient and
did not prejudice Mr. Cates. It is not clear that trial counsel
had any duty to inform Mr. Cates of the disciplinary
proceedings. Moreover, trial counsel made other
arrangements to ensure that Mr. Cates had counsel. The
Court, therefore, cannot find deficiency or prejudice. No
reasonable jurist could disagree.
The Court will deny a COA on this question.
(5) Because Mr. Cates had an opportunity to object to his
presentence report via his replacement sentencing counsel,
any failure by trial counsel to prepare Mr. Cates for his
presentence report had no effect on Mr. Cates. There was,
accordingly, no prejudice. No reasonable jurist could
disagree.
The Court will deny a COA on this question.

Page 8 of 15

Seven

It is unclear how the disciplinary proceedings against trial
counsel in an unrelated case could constitute deficient
performance or prejudice to Mr. Cates. No reasonable jurist
could disagree.
The Court will deny a COA on this question.

INEFFECTIVENESS OF SENTENCING/APPELLATE COUNSEL
Ground
Eight

COA Determination
(1) Reasonable jurists might disagree over whether sentencing
counsel was ineffective in failing to make a record regarding
trial counsel’s deficient performance or to move for a new
trial. As the Court has already noted, reasonable jurists might
disagree over whether some of trial counsel’s performance
was deficient. Thus, reasonable jurists might also disagree
whether sentencing counsel should have recognized those
potential errors and made a record and/or motion for a new
trial on that basis.
The Court will issue a COA on this question.
(2) Sentencing counsel’s failure to document allegedly false
trial testimony was not deficient and did not prejudice Mr.
Cates. As the court has discussed extensively throughout the
pendency of this action, there is no indication that there was
any false testimony. Therefore, failure to document such
testimony, could not have been deficient nor could it have
prejudiced Mr. Cates. No reasonable jurist could disagree.
The Court will deny a COA on this question.
(3) Sentencing counsel’s work on the presentence report was
effective and, in fact, helped Mr. Cates. Sentencing counsel
challenged the presentence report in multiple ways, and the
Court sustained his challenges. Mr. Cates has not provided
any additional basis on which sentencing counsel could have
challenged the presentence report. Accordingly, the Court
cannot find any basis to hold sentencing counsel ineffective.
No reasonable jurist could disagree.
The Court will deny a COA on this question.

Page 9 of 15

(4) Sentencing counsel was not ineffective for failing to
challenge the presentence report’s version of the factual
events on which Mr. Cates was convicted. A jury found
Mr. Cates guilty of those very events. Therefore, sentencing
counsel had no basis to challenge those facts in the presentence report, and his failure to do so could not have been
deficient or have prejudiced Mr. Cates. No reasonable jurist
could disagree.
The Court will deny a COA on this question.
Nine

(1) Reasonable jurists might disagree over whether appellate
counsel should have challenged the Court’s jury instructions
on appeal. The Court found that appellate counsel’s
performance on appeal could not have been deficient,
because he raised his strongest argument. But reasonable
jurists could disagree over that point and could also disagree
over whether appellate counsel could have shown clear error
in the jury instructions on appeal.
The Court will issue a COA on this question.
(2) Appellate counsel’s failure to challenge factual issues in
the presentence report was not ineffective. Even if the issue
that appellate counsel raised on appeal was not the strongest,
the presentence report issue was clearly meritless. Therefore,
failure to raise it did not prejudice Mr. Cates. No reasonable
jurist could disagree.
The Court will deny a COA on this question.
(3) Appellate counsel’s failure to challenge the alleged
inconsistencies in witness testimony was not ineffective. Even
if the issue that appellate counsel raised on appeal was not the
strongest, the inconsistency issue was clearly meritless.
Therefore, failure to raise it did not prejudice Mr. Cates. No
reasonable jurist could disagree.
The Court will deny a COA on this question.

Page 10 of 15

(4) Reasonable jurists might disagree over whether appellate
counsel should have challenged trial counsel’s effectiveness
on appeal. The Court found that appellate counsel’s
performance on appeal could not have been deficient,
because he raised his strongest argument. But reasonable
jurists could disagree over that point and, as the Court has
already noted, reasonable jurists might also disagree over
whether trial counsel acted ineffectively, so reasonable jurists
might also disagree over whether appellate counsel should
have challenged that activity on direct appeal.
The Court will issue a COA on this question.
(5) Reasonable jurists might disagree over whether appellate
counsel should have raised a sufficiency-of-the-evidence
argument on direct appeal. The Court found that appellate
counsel’s performance on appeal could not have been
deficient, because he raised his strongest argument. But
reasonable jurists could disagree over that point and could
also disagree over whether appellate counsel should have
challenged the sufficiency of the evidence on direct appeal.
The Court will issue a COA on this question.
(6) Reasonable jurists might disagree over whether appellate
counsel should have raised a challenge to Mr. Cates’
sentence. The Court found that appellate counsel’s
performance on appeal could not have been deficient,
because he raised his strongest argument. But reasonable
jurists could disagree over that point and could also disagree
over whether appellate counsel should have raised a
challenge to Mr. Cates’ sentence.
The Court will issue a COA on this question.

Page 11 of 15

CHALLENGES TO SENTENCE
Ground

COA Determination

Ten

Alleyne does not apply retroactively on direct appeal, Crayton
v. United States, 799 F.3d 623, 624 (7th Cir. 2015), so Mr. Cates
could not raise this ground and the Court’s dismissal of it was
correct. No reasonable jurist could disagree.
The Court will deny a COA on this question.

Eleven

The jury specifically found Mr. Cates guilty of aggravated
sexual abuse, subjecting him to a higher term in prison than
he believes was correct. No reasonable jurist could disagree.
The Court will deny a COA on this question.

CHALLENGES TO PRETRIAL AND TRIAL PROCEDURE
Ground

COA Determination

Twelve

Mr. Cates’ indictment was neither duplicitous nor
multiplicitous (no matter which ground Mr. Cates sought to
argue). Mr. Cates was charged with two entirely separate
crimes and the jury was asked to answer which of those
crimes he was guilty of. There was nothing improper in the
indictment. No reasonable jurist could disagree.
The Court will deny a COA on this question.

Fifteen

Mr. Cates was subject to an indictment and, therefore, not
entitled to a preliminary hearing. Fed. R. Cr. P. 5.1(a)(2). No
reasonable jurist could disagree.
The Court will deny a COA on this question.

Sixteen

Trial counsel did not challenge the makeup of the jury or the
venire, so Mr. Cates cannot raise a substantive challenge to
that effect in this collateral proceeding. See Aki-Khuam v.
Davis, 339 F.3d 521, 526 (7th Cir. 2003). No reasonable jurist
could disagree (although the Court notes that it is issuing a
COA allowing Mr. Cates to argue that trial counsel was
ineffective for failing to raise this argument).
The Court will deny a COA on this question.

Page 12 of 15

CHALLENGES TO GOVERNMENT’S HANDLING OF EVIDENCE
Ground

COA Determination

Thirteen

There is no evidence whatsoever that the government
fabricated any evidence at any point of any proceeding in this
case. The Court’s dismissal of this claim was, therefore,
appropriate. No reasonable jurist could disagree.
The Court will deny a COA on this question.

Fourteen

There is no evidence whatsoever that the government
fabricated any evidence at any point of any proceeding in this
case. The Court’s dismissal of this claim was, therefore,
appropriate. No reasonable jurist could disagree.
The Court will deny a COA on this question.

Seventeen

There is no evidence whatsoever that the government
fabricated any evidence at any point of any proceeding in this
case. The Court’s dismissal of this claim was, therefore,
appropriate. No reasonable jurist could disagree.
The Court will deny a COA on this question.

Eighteen

There is no indication whatsoever that the Government failed
to turn anything over to Mr. Cates. Therefore, there cannot be
a Brady violation. No reasonable jurist could disagree.
The Court will deny a COA on this question.

Nineteen

There is no evidence whatsoever that the government
fabricated any evidence at any point of any proceeding in this
case. The Court’s dismissal of this claim was, therefore,
appropriate. No reasonable jurist could disagree.
The Court will deny a COA on this question.

In sum, the Court will deny a COA over most of the questions it
addressed in its earlier orders, but will issue a COA on the following eight
questions:
(1)

whether trial counsel was constitutionally ineffective in failing
to discuss trial strategy more fully with Mr. Cates;

(2)

whether trial counsel was constitutionally ineffective in failing
to call Kandice Velez as a witness;

Page 13 of 15

(3)

whether trial counsel was constitutionally ineffective in failing
to challenge the jury's and venire's racial makeup;

(4)

whether sentencing counsel was constitutionally ineffective in
failing to make a record regarding trial counsel's deficient
performance or to move for a new trial on that basis;

(5)

whether appellate counsel was constitutionally ineffective in
failing to challenge the Court's jury instructions on appeal;

(6)

whether appellate counsel was constitutionally ineffective in
failing to challenge trial counsel's effectiveness on appeal;

(7)

whether appellate counsel was constitutionally ineffective in
failing to raise a sufficiency-of-the-evidence argument on
appeal;

(8)

whether appellate counsel was constitutionally ineffective in
failing to challenge Mr. Cates' sentence on appeal.

The last matter that the Court must take up is Mr. Cates’ most recent
motion for disclosure of grand jury materials. (Docket #15). The Court agrees
with the Government that the request should be denied. (Docket #17 at 3–5).
The basis for Mr. Cates’ request is his unsubstantiated conclusion that
the Government somehow abused the grand jury process. Mr. Cates’
actions—taken at their most innocent, he had sex with the victim of a crime
while on active duty and investigating that crime—clearly supported his
indictment in this case. There simply is no evidence of abuse of the grand
jury process. Moreover, some of the requests Mr. Cates has made do not even
appear to be available from the Government. (See Docket #17 at 4–5). And the
documents that are available have either already been disclosed or are
irrelevant to Mr. Cates’ allegations. (See Docket #17 at 4–5). For these reasons,
the Court will deny Mr. Cates’ most recent motion for disclosure of grand
jury materials.
Accordingly,
Page 14 of 15

IT IS ORDERED that Mr. Cates’ § 2255 motion (Docket #1) be and the
same is hereby DENIED in its entirety;
IT IS FURTHER ORDERED that, the Court having rejected all of Mr.
Cates’ claims in his § 2255 motion, a certificate of appealability be and the
same is hereby GRANTED as to the eight questions detailed above and
DENIED as to the remaining questions;
IT IS FURTHER ORDERED that Mr. Cates’ most recent motion for
disclosure of grand jury materials (Docket #15) be and the same is hereby
DENIED; and
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 27th day of January, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 15 of 15