Cates v. United States of America

Filing 9

ORDER signed by Judge J P Stadtmueller on 7/10/15: denying 5 Petitioner's Motion for Reconsideration; granting 3 Petitioner's Motion for Production of Grand Jury Materials; within 14 days of entry of this order the Government shall produce to Petitioner and the Court copies of the grand jury materials that were available to Ms. Boyle; within 30 days of receiving those materials, Petitioner shall file a brief addressing his grand jury-related claim; within 30 days of receiving Petitioner's brief, the Government shall file a response thereto; and, pending resolution of the grand jury-related claim, 1 Petitioner's § 2255 motion is hereby HELD in abeyance. (cc: Petitioner, all counsel) (nm)

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

Case No. 14-CV-1092-JPS

v.
UNITED STATES OF AMERICA,
Respondent.

ORDER

The petitioner, Ladmarald Cates, a former Milwaukee police officer
was convicted by a jury of violating 18 U.S.C. § 242. (Case No. 11-CR-200,
Docket #22).1 Specifically, he was accused and convicted of depriving a
victim of her civil rights under color of law by sexually assaulting her while
he was working as a police officer. (See Case No. 11-CR-200, Docket #22). He
has now moved to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. (Docket #1). The Court screened Mr. Cates’ § 2255 motion,
dismissing a number of claims and allowing Mr. Cates to proceed on others.
(Docket #4). Mr. Cates asked the Court to reconsider its dismissal of a
number of those claims (Docket #5), and the Court directed the parties to
brief both the claims on which the Court allowed Mr. Cates to proceed and
Mr. Cates’ separate motion for reconsideration (Docket #6). The Government
filed a brief addressing those matters (Docket #7) and Mr. Cates filed a
response (Docket #8). The Government chose not to file a reply, so the Court
views this matter as having been fully briefed and ready for decision.

1

Where the Court refers to docket entries in Mr. Cates’ prior criminal case,
it will cite to “Case No. 11-CR-200, Docket #XX.” Where the Court refers to a docket
entry in the civil case opened with Mr. Cates’ § 2255 motion, it will not cite to a case
number, instead providing only a docket entry number.

The Court will begin its order on Mr. Cates’ § 2255 motion by
describing the background of this case in greater detail. It will then discuss
Mr. Cates’ specific claims. Finally, the Court will set forth its legal analysis.
1.

BACKGROUND
1.1

Indictment

The grand jury returned a two-count indictment against Mr. Cates on
September 20, 2011. (Case No. 11-CR-200, Docket #1). Count One charged
that:
On or about July 16, 2010, at Milwaukee, in the state and
Eastern District of Wisconsin, LADMARALD CATES acting
under color of law as a police officer for the city [sic] of
Milwaukee, wilfully subjected I.L. to the deprivation of rights
secured and protected by the Constitution and laws of the
United States, that is, the due process right to bodily integrity
protected by the Fourteenth Amendment to the Constitution.
The defendant did this by sexually assaulting I.L. This assault
included aggravated sexual abuse and resulted in bodily
injury. All in violation of Title 18, United States Code, Section
242.
(Case No. 11-CR-200, Docket #1 at 1). Count Two charged that:
On or about July 16, 2010, at Milwaukee, in the state and
Eastern District of Wisconsin, LADMARALD CATES used
and carried a firearm during and in relation to a crime of
violence that could be prosecuted in a court of the United
States and possessed a firearm in furtherance of that crime of
violence, which was the offense charged in Count One of this
indictment. All in violation of Title 18, United States Code,
Section 924(c)(1)(A).
(Case No. 11-CR-200, Docket #1 at 2).
1.2

Pretrial Process

Attorney Bridget Boyle appeared on behalf of Mr. Cates. (See Case No.
11-CR-200, Docket #2 (letter mailed to defendant in care of Ms. Boyle)). At

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the time, she was successful in arguing for pretrial release for Mr. Cates.
(Case No. 11-CR-200, Docket #4, #5).
Approximately one month later, this Court scheduled the case for a
trial to begin on January 9, 2012. (Case No. 11-CR-200, Docket #11). This left
slightly less than three months for the parties to prepare for trial (and slightly
less than four months between the grand jury’s return of the indictment and
the trial date). (See Case No. 11-CR-200, Docket #11). Mr. Cates apparently
opted to take the matter to trial, and, on December 30, 2011, the parties filed
a joint final pretrial report. (Case No. 11-CR-200, Docket #16).
That same day, the Government filed a trial brief, generally describing
its view of the facts and the law. (Case No. 11-CR-200, Docket #17). The
Government provided that brief on its own initiative, apparently to provide
the Court with a summary of its position (see Case No. 11-CR-200, Docket #17
at 19); no response was necessary and Mr. Cates’ attorney did not file one.
Also on December 30, 2011, the Government filed a motion in limine,
seeking to bar evidence that the victim allegedly kicked a separate officer
after Mr. Cates had allegedly sexually assaulted her. (Case No. 11-CR-200,
Docket #18). Mr. Cates, through Ms. Boyle, opposed the Government’s
motion in limine. (Case No. 11-CR-200, Docket #20). Prior to trial, the Court
gave the parties an opportunity to further argue that issue, which both
parties did. (Case No. 11-CR-200, Docket #26 at 1; Case No. 11-CR-200,
Docket #64 at 3:20–6:9). Ultimately, the Court sided with Mr. Cates, denying
the Government’s motion in limine and allowing Mr. Cates to introduce
evidence regarding the victim’s actions (and resulting arrest and statements
to police). (Case No. 11-CR-200, Docket #64:10–23).
The Court held its final pretrial conference on January 4, 2012. (Case
No. 11-CR-200, Docket #19). At that conference, Ms. Boyle raised a new issue
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regarding prior statements made by the victim; the Government responded
that there likely would not be a dispute over that issue. (Case No. 11-CR-200,
Docket #19 at 1). The Court then described its trial process. (Case No. 11-CR200, Docket #19 at 1). After that, the Government asked a question about
juror selection; presented several stipulations between the parties; and asked
whether the Court would rule on its motion in limine (which was still
pending at the time. (Case No. 11-CR-200, Docket #19 at 1). Ms. Boyle
responded that she would shortly be filing a response to the motion in
limine and raised an additional issue that may have required briefing from
the parties. (Case No. 11-CR-200, Docket #19 at 1). The Court closed the final
pretrial conference by requesting that Ms. Boyle discuss with Mr. Cates the
fact that his taking the case to trial might expose him to a sentence
enhancement for obstruction of justice and lack of ability to seek reduction
for acceptance of responsibility. (Case No. 11-CR-200, Docket #19 at 1–2).
Aside from receiving Mr. Cates’ response to the Government’s motion in
limine (Case No. 11-CR-200, Docket #20), that final pretrial conference was the
last contact that the Court had with the parties prior to the start of trial (see
Case No. 11-CR-200, Docket #26).
1.3

Trial
1.3.1

Jury Selection and Opening Statements

The Court conducted voir dire and excused three jurors for cause.
(Case No. 11-CR-200, Docket #26 at 1–3). The parties then exercised their
peremptory strikes, after which the jury was selected and sworn in. (Case
No. 11-CR-200, Docket #26 at 3). At no point during peremptory strikes or
thereafter did Mr. Cates’ attorney object to the Government’s strikes or to the
selected members of the jury. (Case No. 11-CR-200, Docket #26 at 3).

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The parties then provided opening statements, during which nothing
of note occurred.
1.3.2

Government’s First Witness: Victim

After opening statements, the Government called the victim as its first
witness. (Case No. 11-CR-200, Docket #26 at 3–4).
1.3.2.1

Victim’s Direct Examination

On direct examination, the victim testified that:
(1)

on the date that Mr. Cates had allegedly assaulted her, she had
called the police after an altercation with her neighbors;

(2)

Mr. Cates was on duty and responded to her call;

(3)

he had previously pulled her over twice for traffic violations
and that during the first traffic stop he had given her his phone
number instead of a citation;

(4)

after ensuring that no other individuals remained in the house,
Mr. Cates ordered her to perform oral sex on him and to have
vaginal sex with him;

(5)

she complied out of fear, because he was a police officer, was
much larger than her, and had a gun;

(6)

Mr. Cates pulled her hair, grabbed her neck, and bent her over
a sink to accomplish this; she did not immediately tell her
boyfriend about the incident out of fear that her boyfriend
would start a fight;

(7)

she was angry about the treatment of her family by Mr. Cates’
partner and was arrested;

(8)

while in police custody, she told two of her friends (who were
also in custody) about the incident;

(9)

Mr. Cates spoke with her while she was in custody and, out of
fear, she said that she was going to say that Mr. Cates’ partner
raped her;

(10)

she became ill and was taken to the hospital; and

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(11)

she was later interviewed by police about her allegations
against Mr. Cates.

(Case No. 11-CR-200, Docket #64 at 36:19–77:21).
1.3.2.2

Victim’s Cross Examination

Ms. Boyle then cross examined the victim. It appears that her plan on
cross examination was two-fold: she attempted to both impeach the victim
and also to elicit a more definite version of events, which might show that the
victim’s story was impossible, implausible, or inconsistent. Ms. Boyle
attempted to impeach the victim by establishing that the victim:
(1)

lied in a prior proceeding while under oath;

(2)

when interviewed at the hospital, gave slightly inconsistent
answers regarding
(a)

who requested that the victim’s children leave the
residence,

(b)

what occurred before the victim’s boyfriend went to the
store to get bottled water for Mr. Cates, and

(c)

where and how the sexual assault occurred;

(3)

told Mr. Cates that she would blame the rape on his partner;

(4)

did not tell the first officer who interviewed her at the police
station that she had been raped;

(5)

provided slightly different answers regarding the appearance
of Mr. Cates’ penis; and

(6)

had retained an attorney (implying that the victim planned to
sue regarding the sexual assault).

Ms. Boyle also had the victim provide more details about the specifics of the
event, including having the victim:
(1)

acknowledge that she was treated in an ambulance shortly
after the police arrived on scene and before she returned to her
house;

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(2)

acknowledge that, while Mr. Cates was in the house with her,
she requested that her boyfriend leave the house to buy her a
pack of cigarettes, thus leaving Mr. Cates and her alone;

(3)

provide additional details about the sexual assault and what
happened thereafter (specifically, when and how she exited the
house, where she went after exiting, and who she told about
the assault);

(4)

describe pictures of her injuries that were taken at the hospital;
and

(5)

acknowledge that she stated during her interview at the
hospital that she had not told Mr. Cates to stop.

(Case No. 11-CR-200, Docket #64 at 78:4–143:8).
1.3.2.3 Victim’s Re-Direct and Re-Cross Examinations
The Government then engaged in a short re-direct examination of the
victim, asking questions about her injuries, prior lies under oath, decision to
retain an attorney, and motivations in testifying against Mr. Cates. (Case No.
11-CR-200, Docket #64 at 144:13–145:20).
Ms. Boyle re-crossed the victim, further attacking her prior lies under
oath and injuries. (Case No. 11-CR-200, Docket #64 at 145:22–146:18).
1.3.3

Government’s Second Witness: Kristi Brooks

The Government next called Kristi Brooks, one of the victim’s
neighbors, whom the victim testified that she told about the sexual assault
shortly after it occurred. (Case No. 11-CR-200, Docket #64 at 147:4–5). On
direct examination, Ms. Brooks described: arriving at the scene; seeing the
victim’s brother and victim in a disagreement with the police; witnessing the
victim leave her house and state “[h]e raped me”; and hearing the victim’s
story of how Mr. Cates sexually assaulted the victim. (Case No. 11-CR-200,
Docket #64 at 147:4–157:24).

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Ms. Boyle then cross examined Ms. Brooks, attacking Ms. Brooks’
credibility and using Ms. Brooks’ testimony to undermine the victim’s
version of events. Ms. Boyle attacked Ms. Brooks’ credibility by having Ms.
Brooks admit that:
(1)

she had been smoking marijuana and drinking on the day in
question;

(2)

she may have been interviewed other times regarding the
sexual assault but could not remember those times; and

(3)

she had not provided much information to Milwaukee police
employees regarding the incident, but provided more
information to an FBI agent involved in the prosecution of the
case.

To undermine the victim’s testimony, Ms. Boyle also got Ms. Brooks to state
that she could see and smell Mr. Cates’ semen on the victim’s stomach, which
conflicted slightly with the victim’s version of events. (Case No. 11-CR-200,
Docket #64 at 158:4–172:21).
On re-direct, the Government made a quick attempt to mitigate any
damage done to Ms. Brooks’ credibility regarding her statements to the FBI
officer, but did not ask any other questions. (Case No. 11-CR-200, Docket #64
at 172:23–173:6). Ms. Boyle declined to re-cross Ms. Brooks. (Case No. 11-CR200, Docket #64 at 173:7–8).
1.3.3

Government’s Third Witness: Reginald Thompson

The Government next called Detective Reginald Thompson, who was
a detective with the Professional Performance Division (essentially, internal
affairs) of the Milwaukee Police Department at the time of the sexual assault.
(Case No. 11-CR-200, Docket #64 at 173:24–174:24). Det. Thompson testified
that he took the victim’s statement, visited the crime scene, and interviewed
Mr. Cates. (Case No. 11-CR-200, Docket #64 at 176:4–179:7). Specifically, Det.

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Thompson stated that he interviewed Mr. Cates on three separate occasions;
the Government played clips of those interviews, establishing—consistent
with Det. Thompson’s trial testimony—that Mr. Cates had altered his story
throughout the course of those interviews. (Case No. 11-CR-200, Docket #64
at 179:6–191:1). Whereas Mr. Cates had originally denied any sexual contact
with the victim, he later stated that he had had sexual contact with her before
the date in question, and then later changed his story again to state that they
had consensual sex on the date in question. (Case No. 11-CR-200, Docket #64
at 179:6–191:1). Det. Thompson also testified that he had interviewed the
victim, whose story remained consistent (and that story also was consistent
with the victim’s trial testimony). (Case No. 11-CR-200, Docket #64 at
191:2–192:7).
Ms. Boyle then cross examined Det. Thompson. (Case No. 11-CR-200,
Docket #64 at 192:16–211:6; Case No. 11-CR-200, Docket #65 at 219:24). Ms.
Boyle attempted to diminish the impact of Mr. Cates’ inconsistent statements
in interviews by establishing that the original interview of Mr. Cates occurred
on the date in question when Mr. Cates was likely very tired that day and
that Mr. Cates initiated another interview, during which he changed his
story, because he might have been confused, upset, and embarrassed. (Case
No. 11-CR-200, Docket #64 at 192:16–197:23). Ms. Boyle also attempted to
have Det. Thompson provide testimony that would undermine Kristi Brooks’
testimony; this was partially successful, as Det. Thompson remembered an
interview of Ms. Brooks that Ms. Brooks herself could not remember. (Case
No. 11-CR-200, Docket #64 at 197:24–201:13). Ms. Boyle then questioned Det.
Thompson about his interviews with the victim, pointing out minor
inconsistencies between the victim’s statements and trial testimony. (Case
No. 11-CR-200, Docket #64 at 201:14–208:13; Case No. 11-CR-200, Docket #65
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at 222:25–228:4). She also had Det. Thompson provide information about the
weight of police officers’ equipment, which would have made it difficult for
Mr. Cates to keep his pants up, thus undermining the victim’s version of
events. (Case No. 11-CR-200, Docket #64 at 208:14–211:6; Case No. 11-CR-200,
Docket #65 at 222:19–24). Ms. Boyle also returned to the fact that Mr. Cates
had gotten back in touch with Det. Thompson to provide a further statement,
which Det. Thompson admitted was a very rare occurrence. (Case No. 11CR-200, Docket #65 at 220:6–221:1).
On re-direct examination of Det. Thompson, the Government elicited
testimony to establish that Mr. Cates was treated well during his interview
and that the victim’s inconsistencies were limited. (Case No. 11-CR-200,
Docket #65 at 228:12–231:18). Ms. Boyle decided not to re-cross Det.
Thompson.
1.3.4

Government’s Fourth Witness: Jermaine Ford

Next, the Government called Jermaine Ford, the boyfriend of the
victim. (Case No. 11-CR-200, Docket #65 at 232:1–2). The main thrust of the
Government’s examination of Mr. Ford established that his recollection of
events was consistent with that described by the victim. (Case No. 11-CR-200,
Docket #65 at 235:19–241:13). Mr. Ford also testified that the victim later told
him that she had been raped and that, since the incident, the victim’s
demeanor had changed. (Case No. 11-CR-200, Docket #65 at 241:14–243:1).
On cross examination, Ms. Boyle had Mr. Ford provide additional
details about his recollection of the day in question, which, at most, were
slightly inconsistent with the victim’s recollections. (See Case No. 11-CR-200,
Docket #65 at 243:8–258:4). Ms. Boyle also questioned Mr. Ford about being
interviewed by police officers, pointing out minor inconsistencies in his

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interviews and rehashing the ways in which his recollection slightly differed
from the victim’s. (Case No. 11-CR-200, Docket #65 at 258:5–271:9).
The Government declined re-direct examination.
1.3.5

Government’s Fifth Witness: Robert Toeller

Next, the Government called Officer Robert Toeller of the Milwaukee
Police Department. (Case No. 11-CR-200, Docket #65 at 271:21–272:16).
Officer Toeller testified that he arrived at the scene of the incident,
responding to a call for backup, and that he heard a victim scream that she
had been raped. (Case No. 11-CR-200, Docket #65 at 272:24–275:11). Officer
Toeller also testified that he later interviewed the victim as part of her being
booked and that Mr. Cates wanted to speak with the victim, which was
somewhat unusual. (Case No. 11-CR-200, Docket #65 at 275:24–279:5).
Ms. Boyle cross examined Officer Toeller, eliciting testimony that was
largely consistent with what he had testified to on direct examination as well
as with the victim’s version of events. (Case No. 11-CR-200, Docket #65 at
279:12–289:9).
On re-direct examination: the Government asked a few clarifying
questions; Ms. Boyle asked a single clarifying question on re-cross; neither redirect nor re-cross examination produced extremely relevant testimony.
(Case No. 11-CR-200, Docket #65 at 289:15–291:1).
1.3.6

Government’s Sixth Witness: Mackenzee Kuczmarski

The Government’s final witness was Mackenzee Kuczmarski, a
registered nurse who had treated the victim. (Case No. 11-CR-200, Docket
#65 at 292:22–293:21). Nurse Kuczmarski worked as a sexual assault nurse
examiner at Aurora Sinai Hospital and examined the victim after the sexual
assault. (Case No. 11-CR-200, Docket #65 at 299:3–304:18). At trial, Nurse
Kuczmarski testified that she had prepared a medical record from her
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examination of the victim; that record was admitted as evidence and Nurse
Kuczmarski testified regarding its contents and her recollection of the
examination. (Case No. 11-CR-200, Docket #65 at 304:19–237:14). Nurse
Kuczmarski recalled: that the victim alleged she had been raped by a police
officer; that the victim appeared shaky and upset; that Nurse Kuczmarski’s
interview and examination of the victim occurred outside of the presence of
law enforcement officers; that the victim used the word “rape”; that the
victim described pain and nausea; and that the victim described threats,
including physical, verbal, and with a weapon. (Case No. 11-CR-200, Docket
#65 at 304:19–327:14). Nurse Kuczmarski also read the victim’s statement
from the examination record, and that statement was very consistent with
the victim’s trial testimony. (See Case No. 11-CR-200, Docket #65 at
304:19–327:14).
After Nurse Kuczmarski’s direct examination, the Government read
into the record a stipulation between the parties:
DNA analysis was done on clothing worn by [the victim] and
Ladmarald Cates on the afternoon of July 16th, 2010. DNA
material from [the victim] was found on the uniform pants and
boxer shorts worn by Mr. Cates. No other DNA identifications
were made.
(Case No. 11-CR-200, Docket #65 at 327:19–328:4).
Ms. Boyle then cross examined Nurse Kuczmarski: pointing out slight
inconsistencies between the victim’s testimony and her interview with Nurse
Kuczmarski; questioning Nurse Kuczmarksi about the nature and findings
of the exam; and eliciting more information about the victim’s injuries,
including the fact that Nurse Kuczmarski did not observe any injuries to the
victim’s sex organs. (Case No. 11-CR-200, Docket #65 at 328:14–367:18).
Thereafter, there was a re-direct and re-cross examination of Nurse
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Kuczmarksi, but neither examination was of importance. (Case No. 11-CR200, Docket #65 at 367:22–368:12).
1.3.7

Government Rests, Court Addresses Exhibit 130, Mr.
Cates Asserts Rule 29 Motion

After Nurse Kuczmarski’s testimony, the Government rested, after
which the Court excused the jury. (Case No. 11-CR-200, Docket #65 at
368:13–14).
The Court then addressed Exhibit 130, which the parties had
addressed with the Court earlier at sidebar. (Case No. 11-CR-200, Docket #65
at 369:11–370:6). With the understanding that the Government would file a
redacted copy, the Court received Exhibit 130. (Case No. 11-CR-200, Docket
#65 at 369:11–370:6). Mr. Cates, through Ms. Boyle, agreed to this solution
and the Government submitted its redacted copy prior to the return of the
jury. (Case No. 11-CR-200, Docket #65 at 369:11–370:6, 371:18–23).
Finally, prior to the return of the jury, Mr. Cates orally moved for
acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure.
(Case No. 11-CR-200, Docket #65 at 370:24–371:9). The Court noted the
motion and took it under advisement. (Case No. 11-CR-200, Docket #65 at
371:11–12). Mr. Cates then began his presentation of evidence.
1.3.8

Mr. Cates’ First Witness: Douglas Marx

Mr. Cates’ first witness was Milwaukee Police Department Detective
Douglas Marx. (Case No. 11-CR-200, Docket #65 at 372:7–22). Ms. Boyle’s
examination of Det. Marx was limited to establishing that, during an
interview, the victim’s boyfriend had told Det. Marx that: (1) the victim did
not appear to be upset following the incident; and (2) the victim had vomited
on the floor before the police arrived as opposed to after the assault, as the
victim had testified at trial. (Case No. 11-CR-200, Docket #65 at 372:7–376:9).
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On cross examination, the Government elicited further testimony
regarding the victim’s boyfriend’s intellectual capacity and statements. (Case
No. 11-CR-200, Docket #65 at 376:15–378:24). Mr. Cates declined re-direct.
(Case No. 11-CR-200, Docket #65 at 379:1–3).
1.3.9

Mr. Cates’ Second Witness: Alvin Hannah

Mr. Cates next called Milwaukee police officer Alvin Hannah. (Case
No. 11-CR-200, Docket #65 at 379:5–21). Officer Hannah testified about the
events after he and Mr. Cates had arrived on the scene, and gave detailed
testimony about the events leading up to the victim’s arrest. (Case No. 11CR-200, Docket #65 at 379:5–399:16).
On cross examination, Officer Hannah clarified his recollection of
events after he and Mr. Cates arrived on scene; he also testified that Mr.
Cates acted somewhat strangely after exiting the victim’s house: “staring
straight ahead and not saying too much of anything,” briefly leaving Officer
Hannah alone, and seemingly lying regarding who had provided him with
a set of handcuff keys. (Case No. 11-CR-200, Docket #65 at 399:19–407:10).
On re-direct, Ms. Boyle had Officer Hannah provide additional
testimony about Mr. Cates’ behavior. (Case No. 11-CR-200, Docket #65 at
408:11–412:7). The Government declined to re-cross Officer Hannah. (Case
No. 11-CR-200, Docket #65 at 412:8–11).
1.3.10 Mr. Cates’ Third Witness: James Fidler
Mr. Cates’ next witness was Sergeant James Fidler, also of the
Milwaukee Police Department. (Case No. 11-CR-200, Docket #65 at
412:13–413:5). Sgt. Fidler testified that the victim had resisted arrest, made a
rape accusation at the scene, and then reiterated the rape accusation when
she was in custody at the police station—although she did not tell him about

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the rape when he first asked her whether she had any problems with the
police officers. (Case No. 11-CR-200, Docket #65 at 412:13–422:11).
On cross examination, the Government had Sgt. Fidler clarify the
events about which he testified. (Case No. 11-CR-200, Docket #65 at
422:17–424:4). Ms. Boyle declined re-direct examination. (Case No. 11-CR200, Docket #65 at 424:5–6).
1.3.11 Mr. Cates’ Fourth Witness: Thomas Glasnovich
Mr. Cates next called Detective Thomas Glasnovich, who investigated
Mr. Cates as part of the Milwaukee Police Department’s Professional
Performance Division. (Case No. 11-CR-200, Docket #65 at 424:11–424:24).
Det. Glasnovich testified that he could not find any ticket previously issued
by Mr. Cates to the victim; this contradicted a portion of the victim’s
testimony. (Case No. 11-CR-200, Docket #65 at 425:8–426:24). Det. Glasnovich
also testified that he interviewed the victim’s boyfriend and that the victim’s
boyfriend did not state that the victim had seemed upset. (Case No. 11-CR200, Docket #65 at 426:24–428:5).
The Government did not cross examine Det. Glasnovich.
1.3.12 Mr. Cates’ Fifth Witness: Ladmarald Cates, Testifying
on His Own Behalf
Mr. Cates closed his presentation of evidence by testifying on his own
behalf. (Case No. 11-CR-200, Docket #65 at 428:15–469:19). Mr. Cates
provided a version of events that was at odds with that of the victim. (Case
No. 11-CR-200, Docket #65 at 428:15–469:19).
1.3.12.1 Mr. Cates’ Direct Examination
According to Mr. Cates, the entire encounter with the victim was
voluntary. He testified that he asked the victim about a tattoo on her
lower back, after which the victim and Mr. Cates flirted. (Case No.

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11-CR-200, Docket #65 at 435:20–437:21). After that, Mr. Cates and the
victim—voluntarily in Mr. Cates’ telling of events—went to the back of the
house and into the bathroom. (Case No. 11-CR-200, Docket #65 at
437:22–439:1).
There, according to Mr. Cates, the victim asked to see his penis and
thereafter voluntarily performed oral sex on Mr. Cates for two to three
minutes. (Case No. 11-CR-200, Docket #65 at 439:2–440:7). After two to three
minutes, the victim stopped performing oral sex out of fear that someone
would see them; Mr. Cates zipped his pants and flirted with the victim more
before the victim’s boyfriend returned to the house (Case No. 11-CR-200,
Docket #65 at 440:8–22).
Mr. Cates stated that he then talked with the boyfriend, after which
the boyfriend left the house on his own, leaving Mr. Cates and the victim
alone again. (Case No. 11-CR-200, Docket #65 at 440:23–442:11). Mr. Cates
and the victim walked around the house for a few minutes until the victim’s
boyfriend returned, this time with a beverage from the local store; Mr. Cates
said he would like something to drink and the victim’s boyfriend voluntarily
agreed to go back to the store. (Case No. 11-CR-200, Docket #65 at
442:12–443:5).
This left Mr. Cates and the victim in the house alone, again; Mr. Cates
testified that he then walked to the back “and she’s back there with me, and
I don’t know how it occurred but she performed oral sex again.” (Case No.
11-CR-200, Docket #65 at 443:6–443:11). This instance of oral sex also occurred
in the bathroom area and lasted three to four minutes while the victim was
holding her cell phone to her ear, on hold with a social worker regarding her
brother. (Case No. 11-CR-200, Docket #65 at 443:12–444:17). According to Mr.
Cates, he did not order or force the victim to perform either act of oral sex on
Page 16 of 65

him. (Case No. 11-CR-200, Docket #65 at 444:18–445:1). Mr. Cates did not
ejaculate; instead, the victim stopped performing oral sex because she
believed she heard someone approaching. (Case No. 11-CR-200, Docket #65
at 445:2–13).
At that point, Mr. Cates and the victim left the bathroom; the victim’s
boyfriend had returned with Mr. Cates’ beverages. (Case No. 11-CR-200,
Docket #65 at 445:13–446:3). Next, Mr. Cates left the house with the victim’s
boyfriend. (Case No. 11-CR-200, Docket #65 at 446:5–446:21). Mr. Cates
returned to the house, however, to urinate because he had drank an
antioxidant tea that morning that caused him to need to urinate very badly.
(Case No. 11-CR-200, Docket #65 at 446:21–447:19). He believed he was alone
in the house at the time. (Case No. 11-CR-200, Docket #65 at 447:20–22).
However, shortly after Mr. Cates entered the bathroom, the victim
entered and voluntarily began to perform oral sex again. (Case No. 11-CR200, Docket #65 at 448:24–450:5). Mr. Cates then asked whether the victim
wanted to have vaginal sex, to which the victim responded “um-hum.” (Case
No. 11-CR-200, Docket #65 at 450:6–18). Mr. Cates and the victim then had
vaginal sex in the bathroom for approximately four to five minutes until Mr.
Cates ejaculated in the toilet. (Case No. 11-CR-200, Docket #65 at
450:19–451:11).
Mr. Cates then cleaned up, left the house, and found that his partner
was about to released the victim’s brother. (Case No. 11-CR-200, Docket #65
at 451:25–452:15). Mr. Cates gave the victim’s brother a bottled water and
then got into his squad car. (Case No. 11-CR-200, Docket #65 at 452:17–21).
While Mr. Cates was sitting in his squad car, the victim and her
neighbor, Kandice Velez, began to fight with others on scene, prompting Mr.
Cates’ partner to confront the victim and Ms. Velez. (Case No. 11-CR-200,
Page 17 of 65

Docket #65 at 453:16–454:4). While Mr. Cates’ partner began to argue with the
victim and Ms. Velez, Mr. Cates left the squad car suddenly and without
telling anyone to go to a nearby restaurant to use the bathroom, because he
suddenly “had to use the bathroom real bad.” (Case No. 11-CR-200, Docket
#65 at 453:24–454:22). While walking back to the scene, Mr. Cates alerted
dispatch that he was still on scene. (Case No. 11-CR-200, Docket #65 at
454:23–455:11). Upon arriving back at the scene, Mr. Cates found his partner
arguing with the victim and her brother. (Case No. 11-CR-200, Docket #65 at
455:14–456:7). Mr. Cates’ partner then got into an altercation with the victim’s
brother; the victim got involved, leading to her arrest (and the arrest of Ms.
Velez and the victim’s other neighbor, Kristi Brooks). (Case No. 11-CR-200,
Docket #65 at 456:5–460:20). While the victim was being detained, she yelled
that she had been raped. (Case No. 11-CR-200, Docket #65 at 460:21–24).
The victim was then transported to the police station, where she
reasserted her rape allegations—first telling Mr. Cates that she would make
the allegations against Mr. Cates’ partner. (Case No. 11-CR-200, Docket #65
at 461:6–465:7). Another officer took the victim’s statement, whereafter Mr.
Cates was interviewed several times. (Case No. 11-CR-200, Docket #65 at
465:1–466:25).
At trial, Mr. Cates acknowledged that he told a number of lies during
those interviews, but testified that he did so because he was tired and
concerned about losing his job. (Case No. 11-CR-200, Docket #65 at 467:1–24).
Mr. Cates also discussed the fact that he later scheduled another interview
to tell the truth. (Case No. 11-CR-200, Docket #65 at 467:25–469:5).
Mr. Cates closed his direct examination by stating that he did not rape
the victim. (Case No. 11-CR-200, Docket #65 at 469:8–15).

Page 18 of 65

1.3.12.2 Mr. Cates’ Cross Examination
On cross examination, the Government primarily attacked his version
of events by pointing out all of the reasons that it was implausible that the
victim would want to have sex: she had called the police under stressful
circumstances; her windows had been broken; and her brother was being
detained in the back of a squad car while she tried to reach a social worker
(Case No. 11-CR-200, Docket #65 at 469:25–476:2). The Government also
pointed out concerns with Mr. Cates’ story: he left his partner alone at the
scene to use a bathroom at a restaurant, despite the fact that there was a
bathroom in the victim’s house; he had changed his version of events over
the course of several interviews and had been uncooperative with the
investigation; and, despite professing concerns for his family, he had cheated
on his wife on a number of occasions. (Case No. 11-CR-200, Docket #65 at
476:3–485:16). The Government also pointed out that Mr. Cates’ version of
the sex acts was confusing and that he provided extremely untruthful
answers in his interviews, despite knowing that he should be truthful. (Case
No. 11-CR-200, Docket #65 at 485:20–496:25).
1.3.12.3 Mr. Cates’ Re-Direct Examination
On re-direct examination, Mr. Cates testified that he had lied during
interviews to protect himself and provided additional information about the
victim’s activities during the incident in question. (Case No. 11-CR-200,
Docket #65 at 497:1–500:12). The Government did not re-cross Mr. Cates.
1.3.13 Defense Rests, Court and Parties Engage in Jury
Instructions Conference, Parties Offer Closing
Arguments, and Court Submits Case
After Mr. Cates’ testimony, he rested his case. (Case No. 11-CR-200,
Docket #65 at 500:18).

Page 19 of 65

The Court then held a jury instructions conference. (Case No. 11-CR200, Docket #65 at 503:9–505:5). The Court and parties together discussed a
typed, draft version of jury instructions prepared by the Court. (Case No. 11CR-200, Docket #65 at 503:9–505:5). All agreed to remove several passages
that were unnecessary, but had no other substantial changes to the
instructions. (Case No. 11-CR-200, Docket #65 at 503:9–505:5).
The Court instructed the jury, after which the parties offered their
closing arguments. (Case No. 11-CR-200, Docket #66 at 514:1–516:9). The
Court then selected and excused an alternate juror and submitted the case to
the jury for deliberation. (Case No. 11-CR-200, Docket #66 at 517:1–521:5).
1.3.14 Question From Jury
The Court reconvened several hours later to address a question
submitted by the jury. (Case No. 11-CR-200, Docket #66 at 521:21). The jury
sent a question to the Court asking, “If we answer guilty on count number
1 and we answer no to either question 1 or 2, do we invalidate the verdict?”
(Case No. 11-CR-200, Docket #66 at 521:2–3). Immediately after receiving the
jury’s question, the Court drafted a proposed response, stating, “The court
has received your note, a copy of which is attached. By way of reply, the
court is unable to respond to your inquiry beyond the court’s instructions on
the law applicable to the case which are already before you.” (Case No. 11CR-200, Docket #24). The Government proposed that the Court respond to
that question by referring to relevant page numbers in the jury instructions
and providing a specific answer to the question. (Case No. 11-CR-200, Docket
#66 at 522:13–523:6). Mr. Cates, through Ms. Boyle, suggested that the Court
use its own proposal and that, if it was necessary to reference any pages, such
reference refer to the entire substantive portion of the jury instructions (Part
II, pages 10 through 24). (Case No. 11-CR-200, Docket #66 at 523:8–23).
Page 20 of 65

In the end, the Court sent the jury a response comprised of the Court’s
proposed language, without any reference to page numbers. (Case No. 11CR-200, Docket #24). The Court chose to do so, recognizing that it was
dangerous to re-instruct the jury in any way, and so preferred its proposed
language, which simply referred the jury back to the instructions before
them. (Case No. 11-CR-200, Docket #66 at 523:24–525:14).
1.3.15 Jury Verdict and Post-Verdict Procedure
Approximately 30 minutes after the Court sent its response to the jury,
the jury informed the Court that it had reached a verdict. (Case No. 11-CR200, Docket #66 at 525:18–19). The Court and parties reconvened, at which
time the verdict was read in open court. (Case No. 11-CR-200, Docket #66 at
526:21–527:11).
In sum, the jury found Mr. Cates guilty on Count One of the
Indictment and not guilty on Count Two of the Indictment. (Case No. 11-CR200, Docket #22). The jury was also instructed to answer two additional
questions in the event that they found Mr. Cates guilty on Count One. First,
they were required to determine whether “the actions of defendant
Ladmarald Cates result[ed] in bodily injury” to the victim; the jury answered
“No.” (Case No. 11-CR-200, Docket #22). Second, they were required to
determine whether “the actions of defendant Ladmarald Cates include[d]
aggravated sexual abuse”; the jury answered “Yes.” (Case No. 11-CR-200,
Docket #22).
The Court asked whether the verdict, as submitted and read, was
indeed the verdict of the jury; the jury answered “Yes” in unison. (Case No.
11-CR-200, Docket #66 at 527:7–10). Mr. Cates, through Ms. Boyle, declined
to poll the jury. (Case No. 11-CR-200, Docket #66 at 527:15–19). With that, the

Page 21 of 65

Court thanked the jurors and excused them. (Case No. 11-CR-200, Docket #66
at 527:20–529:5).
The jury having found Mr. Cates guilty, the Court directed that the
probation department complete a presentence report. (Case No. 11-CR-200,
Docket #66 at 529:8–530:2). The Court also set a sentencing hearing to take
place on April 11, 2012. (Case No. 11-CR-200, Docket #66 at 530:3–4).
The Government then requested that Mr. Cates be detained pending
the sentencing hearing. (Case No. 11-CR-200, Docket #66 at 530:7–531:17). Ms.
Boyle, on behalf of Mr. Cates, objected. (Case No. 11-CR-200, Docket #66 at
531:20–533:6).
The Court declined to resolve that issue at the time, instead asking the
parties for additional submissions on the issue. (Case No. 11-CR-200, Docket
#66 at 533:7–14). The Court scheduled an additional hearing on the matter,
and allowed Mr. Cates to remain free pending that hearing. (Case No. 11-CR200, Docket #66 at 533:7–14).
After receiving the parties’ submissions regarding Mr. Cates’ post-trial
release, the Court held a hearing, at which it determined that Mr. Cates must
be detained pending his sentencing. (Case No. 11-CR-200, Docket #31); 18
U.S.C. §§ 3142, 3143, 3145, 3156.
1.3.16 Ms. Boyle’s Disciplinary Proceedings and Appointment of New Attorney to Mr. Cates
Unfortunately, while the presentence report was being created and
only a few days after the detention hearing, Ms. Boyle was disciplined by the
Seventh Circuit. In the Matter of: Bridget Boyle-Saxton, 668 F.3d 471 (7th Cir.
2012). In an entirely separate case, United States v. Rodriguez, Case No. 111590, Ms. Boyle had apparently failed to respond to an order to show cause
from the Seventh Circuit (the show-cause order itself resulted from Ms.
Page 22 of 65

Boyle’s filing of two incomplete responses and three outright failures to
respond to other orders of the Seventh Circuit in the underlying case). BoyleSaxton, 668 F.3d at 471. As a result of Ms. Boyle’s failures, the Seventh Circuit
concluded that:
Because Boyle-Saxton has not responded to the Chief Judge’s
order, and thus has not asked for an evidentiary hearing, the
disciplinary matter is ready for decision.
She is unfit to practice law in this court. Abandonment of a
client in a criminal case is reprehensible. Ignoring orders
entered by a court is inexcusable. We have disbarred lawyers
in similar circumstances. See, e.g., In re Riggs, 240 F.3d 668 (7th
Cir. 2001). That is the appropriate step here too. Boyle-Saxton
is disbarred. She is further ordered to refund to Rodriguez all
fees she may have been paid for handling this appeal, and to
provide the court within 21 days evidence that this has been
done. Failure to do so will be treated as contempt of court.
The court will send copies of this opinion to the Office of
Lawyer Regulation of the Wisconsin Supreme Court, and to
the clerks of each district court within the circuit. Boyle-Saxton
must send a copy to any other jurisdiction in which she may be
licensed to practice law.
Id. at 473. In sum, the Seventh Circuit barred Ms. Boyle from practicing in the
Seventh Circuit. Id. Thus, Ms. Boyle’s father and partner—Gerald
Boyle—apparently took over handling Mr. Cates’ case. (See Case No. 11-CR200, Docket #32).
But Mr. Cates was not happy with this substitution. (See Case No. 11CR-200, Docket #32, #36). On April 11, 2012—the date on which the
sentencing was scheduled to occur—Mr. Cates informed the Court that he
did not wish to proceed with either Ms. or Mr. Boyle as his attorney. (Case
No. 11-CR-200, Docket #36). The Court asked both Ms. and Mr. Boyle to

Page 23 of 65

formally withdraw and informed Mr. Cates that new counsel would be
secured for him. (Case No. 11-CR-200, Docket #36).
As of April 23, 2012, Attorney Dennis Coffey was appointed to
represent Mr. Cates. (Case No. 11-CR-200, Docket #37). Thereafter, the Court
scheduled a sentencing hearing for June 29, 2012, which was later
rescheduled for July 2, 2012. (Case No. 11-CR-200, Docket #38, #40).
1.3.17 Mr. Coffey’s Motion for Extension of Time
On June 27, 2012, Mr. Coffey filed motions on Mr. Cates’ behalf
requesting to continue the sentencing hearing and additional time to file
post-conviction motions. (Case No. 11-CR-200, Docket #42, #43). It was
unclear precisely why Mr. Coffey did not make his requests sooner; he was
appointed in late April of 2012, meaning that two months passed between his
retention and filing of the motions. (See Case No. 11-CR-200, Docket #37, #41,
#42, #43). In a letter accompanying the motions, Mr. Coffey stated “I am sorry
that these requests are made now and not earlier but my review of materials
and conversations with my client have led me to the conclusion that I need
to seek this assistance from the Court.” (Case No. 11-CR-200, Docket #41). In
any event, the Court agreed to adjourn the sentencing date, and requested
further briefing from the parties on the issue of extending the post-conviction
motions deadline. (Case No. 11-CR-200, Docket #45). The Government
opposed that extension. (Case No. 11-CR-200, Docket #46).
In the end, the Court held that “excusable neglect does not exist in this
case,” and accordingly denied the requested extension of time. (Case No. 11CR-200, Docket #48 at 6). The Court also pointed out that Mr. Cates would
“still ha[ve] the opportunity to appeal his conviction and to raise many of the
matters he would otherwise raise in a post-conviction motion before this
Court.” (Case No. 11-CR-200, Docket #48 at 6). While—hypothetically—
Page 24 of 65

certain of Ms. Boyle’s errors impacted the standard to be applied on appeal,
the Court also found that the standard to be applied would make little
difference to the outcome and, further, that Mr. Cates had several other
arguments that he could raise to avoid the issue. (Case No. 11-CR-200,
Docket #48 at 6).
1.3.18 Sentencing
The Court finally held Mr. Cates’ sentencing on July 30, 2012. (Case
No. 11-CR-200, Docket #49). At the hearing, before formally imposing Mr.
Cates’ sentence, the Court addressed a number of outstanding issues.
First, the Court granted Mr. Cates’ motion to strike several paragraphs
from the presentence report. (Case No. 11-CR-200, Docket #50). Those
paragraphs all related to separate allegations of sexual misconduct by Mr.
Cates. (Case No. 11-CR-200, Docket #33 ¶¶ 63–67). The Government agreed
with Mr. Cates’ motion and asked the Court not to rely on the paragraphs in
question. (Case No. 11-CR-200, Docket #68 at 3:20–4:7). Accordingly, the
Court granted Mr. Cates’ motion and disregarded the paragraphs. (Case No.
11-CR-200, Docket #68 at 5:7–16).
Second, the Court rejected Mr. Cates’ objection to the enhancement of
his offense level for obstruction of justice. (Case No. 11-CR-200, Docket #68
at 11:22–13:9). Mr. Cates argued that he should not be subject to the
obstruction of justice enhancement. (Case No. 11-CR-200, Docket #68 at
9:14–17). The Court rejected that argument, noting that it had warned Mr.
Cates that he might be subject to the enhancement if he chose to go to trial.
(Case No. 11-CR-200, Docket #68 at 11:22–12:16). The Court also found that,
in addition to lying throughout the investigation, Mr. Cates had testified
untruthfully at trial, as evidenced by the jury’s verdict returned against him.
(Case No. 11-CR-200, Docket #68 at 12:21–13:19). The Court, thus, imposed
Page 25 of 65

the obstruction of justice enhancement against Mr. Cates. (Case No.
11-CR-200, Docket #68 at 12:21–13:19).
In the final analysis, the Court was left with the following guidelines
construct:
Total Offense Level: 42
Criminal History Category: I
Guideline Term of Imprisonment: 360 months to Life
Guideline Term of Supervised Release: 2 years to 5 years
Guideline Fine Range: $25,000.00 to $250,000.00
Special Assessment: $100.00
(Case No. 11-CR-200, Docket #68 at 13:23–14:7).
Next, the parties offered statements in support of their requested
sentences. (Case No. 11-CR-200, Docket #68 at 14:21–26:5). Mr. Cates spoke
on his own behalf, after which Mr. Coffey provided an additional statement,
requesting a below-guidelines sentence of 10 to 15 years of imprisonment.
(Case No. 11-CR-200, Docket #68 at 14:21–20:10). In support of that request,
Mr. Coffey made several points: first, that, in a separate police brutality case,
the guideline construct was approximately half of Mr. Cates’ construct;
second, that Mr. Cates would not be subject to such a significant sentence if
prosecuted in state court for a sexual assault; third, that the sentence would
not do much in the way of specific or general deterrence; and, fourth, that
Mr. Cates was not in great need of rehabilitation. (Case No. 11-CR-200,
Docket #68 at 16:17–20:10). The Government followed, requesting a sentence
of 30 years, at the low end of the guideline range. (Case No. 11-CR-200,
Docket #68 at 20:13–26:5). The Government focused primarily on: the
seriousness of the offense; the effect on the victim; the effect on the
community, due to the fact that Mr. Cates was a police officer; the potential
to generally deter other police officers; and, Mr. Cates’ “dangerous” and

Page 26 of 65

“deceitful” nature. (Case No. 11-CR-200, Docket #68 at 20:13–26:5). The
victim then spoke briefly, agreeing with the Government’s recommendation.
(Case No. 11-CR-200, Docket #68 at 27:10–24).
Finally, the Court spoke. (Case No. 11-CR-200, Docket #68 at
28:11–38:5). The Court began by noting that the guidelines overstated the
seriousness of the offense, leading to a sentence that would be unduly harsh
and expensive. (Case No. 11-CR-200, Docket #68 at 28:24–30:20). Next,
addressing deterrence, the Court found that—especially in light of the fact
that he would need to register as a sex offender and serve a term of
supervised release—a within-guidelines sentence would not specifically
deter Mr. Cates. (Case No. 11-CR-200, Docket #68 at 30:21–31:21, 33:15–23).
Nonetheless, the Court did acknowledge the need for general deterrence to
the law enforcement community. (Case No. 11-CR-200, Docket #68 at
30:21–23, 31:22–32:6, 33:3–10). The Court also acknowledged the seriousness
of the offense—made all the more serious by Mr. Cates’ role as a police
officer. (Case No. 11-CR-200, Docket #68 at 31:22–32:2). Next, the Court
discussed Mr. Cates’ troubling lack of candor. (Case No. 11-CR-200, Docket
#68 at 32:7–33:2).
In the end, the Court imposed a sentence of 24 years (288 months).
(Case No. 11-CR-200, Docket #68 at 34:7–14, 35:12–17). The Court attributed
2 years of that sentence to Mr. Cates’ obstruction of justice. (Case No. 11-CR200, Docket #68 at 34:15–35:5). The Court also: imposed a three-year term of
supervised release with a number of conditions; waived any fine; and,
imposed a $100.00 special assessment. (Case No. 11-CR-200, Docket #68 at
35:18–37:9).

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The Court then advised Mr. Cates of his right to appeal and directed
Mr. Coffey to confer with Mr. Cates regarding the merit of an appeal. (Case
No. 11-CR-200, Docket #68 at 37:10–38:3).
1.3.19 Direct Appeal
The Court entered its sentencing judgment against Mr. Cates on the
same day as the sentencing hearing. (Docket #54). Several days later, Mr.
Coffey filed a notice of appeal on Mr. Cates’ behalf. (Docket #58).
On appeal, Mr. Cates, proceeding with Mr. Coffey as his attorney,
challenged a single aspect of the case: the Court’s denial of Mr. Cates’ motion
for an extension of time to file post-conviction motions. See United States v.
Cates, 716 F.3d 445, 447 (7th Cir. 2013).
On June 13, 2013, the Seventh Circuit issued its decision, affirming the
judgment against Mr. Cates. Id. at 451. The Seventh Circuit found that the
denial of Mr. Cates’ motion for an extension of time was proper. Id. at 450.
Nonetheless, the Seventh Circuit noted that it was “particularly unhappy”
with the result because Mr. Coffey did not raise any substantive challenges
to Mr. Cates’ conviction or sentence. Id. As the Seventh Circuit noted, this
Court had previously acknowledged that—despite the denial of the motion
for an extension—Mr. Cates “still had the opportunity to appeal his
conviction and raise any issues he would have raised in his post-trial
motions.” Id. The Seventh Circuit reiterated the point, noting that any waiver
issues would be viewed liberally in Mr. Cates’ favor and that, if nothing else,
some issues could be reviewed for plain error. Id. at 450–51. Nonetheless,
because Mr. Cates had raised only the denial of the extension on direct
appeal, and because the Seventh Circuit found no error in that regard, the
Seventh Circuit affirmed the judgment against Mr. Cates. Id.

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Mr. Cates did not file a petition for a writ of certiorari with the
Supreme Court.
1.3.20 Mr. Cates’ § 2255 Motion
On September 11, 2014, Mr. Cates filed a § 2255 motion seeking to
vacate, set aside or correct his sentence. (Docket #1). The Court screened that
motion, dismissing a number of claims and allowing Mr. Cates to proceed on
others. (Docket #4). Mr. Cates asked the Court to reconsider its dismissal of
a number of those claims (Docket #5), and the Court directed the parties to
brief both the claims on which the Court allowed Mr. Cates to proceed and
Mr. Cates’ separate motion for reconsideration (Docket #6). The Government
filed a brief addressing those items (Docket #7) and Mr. Cates filed a
response (Docket #8). The Government chose not to file a reply, so the Court
views this matter as having been fully briefed.
2.

MR. CATES’ CLAIMS
As the Court noted in its screening order, Mr. Cates’ § 2255 motion

raised nineteen separate grounds for relief. These grounds for relief fall into
five categories:
(1)

ineffectiveness of trial counsel,2 which includes the following
grounds:
(a)

(b)

2

Ground One: denial of effective assistance of trial
counsel during preliminary hearing stage (Case No. 14CV-1092, Docket #1 at 1–5);
Ground Two: denial of effective assistance of trial
counsel during pretrial stage (Case No. 14-CV-1092,
Docket #1 at 5–9);

In discussing “trial counsel,” the Court is referring to Ms. Boyle-Saxton.

Page 29 of 65

(c)

(d)

Ground Four: improper collusion between trial counsel
and Government counsel (Case No. 14-CV-1092, Docket
#1 at 15–16);

(e)

Ground Five: denial of effective assistance of trial
counsel during detention hearing (Case No. 14-CV-1092,
Docket #1 at 17–18);

(f)

Ground Six: denial of effective assistance of trial
counsel during post-trial stage as a result of
abandonment (Case No. 14-CV-1092, Docket #1 at
19–21);

(g)

(2)

Ground Three: denial of effective assistance of trial
counsel during trial (Case No. 14-CV-1092, Docket #1 at
10–14);

Ground Seven: “conflict of interest” caused by Seventh
Circuit disciplinary proceedings against trial counsel
(Case No. 14-CV-1092, Docket #1 at 22–24);

ineffectiveness of sentencing/appellate counsel,3 which includes
the following grounds:
(a)

(b)

(3)

Ground Eight: denial of effective assistance of
sentencing/appellate counsel as to post-trial period and
sentencing (Case No. 14-CV-1092, Docket #1 at 25–29);
Ground Nine: denial of effective assistance of
sentencing/appellate counsel on appeal (Case No. 14CV-1092, Docket #1 at 29–31);

challenges to sentence, including the following grounds:
(a)

(b)

3

Ground Ten: improper sentence, pursuant to Alleyne v.
United States, --- U.S. ----, 133 S. Ct. 2151 (2013) (Case
No. 14-CV-1092, Docket #1 at 32);
Ground Eleven: improper sentence under statutory
language of 18 U.S.C. § 242 (Case No. 14-CV-1092,
Docket #1 at 32–34);

In discussing “sentencing/appellate counsel,” the Court is referring to Mr.

Coffey.

Page 30 of 65

(4)

challenges to pretrial and trial procedure, including the
following grounds:
(a)
(b)

Ground Fifteen: failure to provide preliminary hearing
pursuant to Rule 5.1(a) of the Federal Rules of Criminal
Procedure (Case No. 14-CV-1092, Docket #1 at 43–44);

(c)

(5)

Ground Twelve: improper duplicitous indictment (Case
No. 14-CV-1092, Docket #1 at 34–36);

Ground Sixteen: improper exclusion of minorities from
jury pool and petit jury (Case No. 14-CV-1092, Docket
#1 at 44);

challenges to Government’s handling of evidence, including
the following grounds:
(a)

Ground Thirteen: Government fabrication of evidence
during investigation (Case No. 14-CV-1092, Docket #1
at 36–41);

(b)

Ground Fourteen: Government presentation of
fabricated evidence to grand jury (Case No. 14-CV-1092,
Docket #1 at 41–42);

(c)

Ground Seventeen: Government presentation of false
testimony from witnesses (Case No. 14-CV-1092, Docket
#1 at 44–50);

(d)

Ground Eighteen: Government failure to disclose
exculpatory evidence, in violation of Brady v. Maryland,
373 U.S. 83 (1963) (Case No. 14-CV-1092, Docket #1 at
50–55);

(e)

Ground Nineteen: Government presentation of
fabricated evidence at sentencing (Case No. 14-CV-1092,
Docket #1 at 56).

The Court dismissed a substantial portion of those grounds.
Specifically, the Court dismissed: Mr. Cates’ challenges to his sentence
(Grounds Ten and Eleven); his challenges to pretrial and trial procedure
(Grounds Twelve, Fifteen, and Sixteen); and all but one of his challenges to

Page 31 of 65

the Government’s handling of evidence (grounds Thirteen, Fourteen,
Seventeen, and Nineteen). (See Docket #4). Mr. Cates challenged the Court’s
dismissal of those grounds in a motion for reconsideration. (Docket #5).
On the other hand, the Court allowed Mr. Cates to proceed on all of
his ineffective assistance claims (Grounds One through Nine) and one of his
evidentiary challenges (specifically, Ground Eighteen, alleging a Brady
violation). (See Docket #4).
3.

ANALYSIS
Relief under § 2255 “is reserved for extraordinary situations,” Prewitt

v. United States, 83 F.3d 812, 816 (7th Cir. 1996), “because it asks the district
court essentially to reopen the criminal process to a person who has already
had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518,
521 (7th Cir. 2007). District courts may grant § 2255 relief only when an error
is “jurisdictional, constitutional, or is a fundamental defect which inherently
results in a complete miscarriage of justice.” Barnickel v. United States, 113
F.3d 704, 705 (7th Cir. 1997) (quoting Oliver v. United States, 961 F.2d 1339,
1341 (7th Cir. 1992)).
Mr. Cates, in filing his § 2255 motion, asserts that such “jurisdictional,
constitutional, or…fundamental” errors occurred in his case, thus entitling
him to the extraordinary relief of § 2255. As discussed in the section above,
the Court allowed Mr. Cates to proceed on a number of his assertions. The
Court will start by analyzing those grounds that it allowed Mr. Cates to
proceed on. Thereafter, the Court will analyze Mr. Cates’ motion for
reconsideration.
3.1

Grounds Before the Court on Their Merits

There are three subsets of grounds for relief before the Court on their
merits. First, there are seven separate allegations that Ms. Boyle offered
Page 32 of 65

ineffective assistance prior to, during, and after trial (Grounds One through
Seven). Second, there are two allegations that Mr. Coffey offered ineffective
assistance during sentencing proceedings and on appeal (Grounds Eight and
Nine). Third, there is one allegation of a Brady violation (Ground Eighteen).
The Court addresses these three subsets in order.
3.1.1

Ineffective Assistance by Ms. Boyle

To prevail in showing that Ms. Boyle provided him ineffective
assistance, Mr. Cates “must satisfy the familiar two-part test articulated in
Strickland v. Washington, 466 U.S. 668 (1984).” Martin v. United States, --- F.3d
----, No. 13-3826, slip op. at 5 (7th Cir. June 12, 2015). First, Mr. Cates “must
show that counsel’s representation fell below an objective standard of
reasonableness, and second, that ‘there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.’” Martin, No. 13-3826, slip op. at 5 (quoting Strickland, 466
U.S. at 688). This is a highly deferential standard, in particular the first prong:
To reflect the wide range of competent legal strategies and to
avoid the pitfalls of review in hindsight, our review of an
attorney’s performance is highly deferential and reflects a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance. [Strickland,
466 U.S. at] 689. “The defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Koons v.
United States, 639 F.3d 348, 351 (7th Cir. 2011). So long as an
attorney articulates a strategic reason for a decision that was
sound at the time it was made, the decision generally cannot
support a claim of ineffective assistance of counsel. United
States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). See also
United States v. Lathrop, 634 F.3d 931, 937–38 (7th Cir. 2011),
petition for cert. filed, (U.S. June 13, 2011) (Nos. 10–11044,
10A1145) (noting that, provided counsel's reasons for not
questioning further were not “so far off the wall that we can
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refuse the usual deference that we give tactical decisions by
counsel, his performance will not qualify as deficient.”).
Yu Tian Li v. United States, 648 F.3d 524, 527-28 (7th Cir. 2011)
The Court will next apply that standard to the various forms of
ineffective assistance posited by Mr. Cates.
3.1.1.1

Failure to Move for Preliminary Hearing

Mr. Cates first argues that Ms. Boyle provided ineffective assistance
by failing to move for a preliminary hearing. This ground fails as a matter of
law because Mr. Cates was plainly not entitled to a preliminary hearing.
Under Rule 5.1(a) of the Federal Rules of Criminal Procedure, “a magistrate
judge must conduct a preliminary hearing unless…the defendant is
indicted.” See also 18 U.S.C. § 3060(e) (preliminary examination not required
if “an indictment is returned”). Mr. Cates was indicted. (Case No. 11-CR-200,
Docket #1). Thus, even if Ms. Boyle had requested a preliminary hearing, it
would not have been necessary for Mr. Cates to receive one. Fed. R. Cr. P.
5.1(a); 18 U.S.C. § 3060(e). Therefore, Ms. Boyle’s failure to request a
preliminary hearing was not ineffective and did not prejudice Mr. Cates. Mr.
Cates is not entitled to relief on this ground.
3.1.1.2

Activities During Pretrial Stage

Mr. Cates next argues that Ms. Boyle should have taken the following
pretrial actions: (1) filed a motion to suppress; (2) reviewed grand jury
materials to find grand jury violations; (3) challenged the indictment as
duplicitous; (4) moved to dismiss the case due to the Government’s use of
manufactured/false evidence in a conspiracy to convict Mr. Cates; (5) kept in
better contact with Mr. Cates prior to trial; (6) reviewed discovery with Mr.
Cates more thoroughly prior to trial; (7) discussed trial strategy with Mr.
Cates prior to trial; (8) prepared Mr. Cates better for his testimony at trial
Page 34 of 65

(and/or otherwise not permitted Mr. Cates to testify at trial); (9) prepared
better for trial, generally; (10) subpoeanaed additional witnesses for trial; and
(11) challenged the FBI reports on the case as being altered. Mr. Cates argues
that Ms. Boyle’s failure to take some and/or all of these actions constituted
ineffective assistance that prejudiced him. The Court will assess each.
First, Ms. Boyle’s failure to file a motion to suppress was not
ineffective and did not prejudice Mr. Cates. Mr. Cates has not indicated—and
neither the Court nor Ms. Boyle can identify (see Docket #7, Ex. 1,
¶ 7(a))4—any evidence that would have been subject to a motion to suppress.
The parties stipulated to the fact that the victim’s DNA material was found
on Mr. Cates’ pants, and the Court cannot envision any way in which that
evidence could have been challenged. Mr. Cates’ statements to investigators
were not coerced; indeed, he even initiated one of the interrogations. The
evidence and testimony regarding the physical examination of the victim was
all properly admitted. In short, the Court cannot conceive of any potential
suppression motion that would possibly have had any merit. Thus, Ms.
Boyle’s failure to posit such a motion was not ineffective and did not
prejudice Mr. Cates.
Second, Ms. Boyle’s alleged failure to review grand jury materials and
to challenge Mr. Cates’ indictment as resulting from grand jury violations
4

Throughout his brief, Mr. Cates attacks the affidavits of his counsel as
untruthful. His primary method of doing so is by pointing out (slight)
inconsistencies between counsel’s representations regarding meetings and phone
calls and his own recollections thereof. Generally, the Court cites to the affidavits
of counsel only to parenthetically support the Court’s conclusion. Even accepting
as true the non-conclusory allegations that Mr. Cates has made (and his objections
to counsel’s purported lies). However, even if the Court were to totally discount the
credibility of the affidavits and rejected them whole-cloth, there still is not any
evidence of prejudice, so the Court need not hold an evidentiary hearing or grant
Mr. Cates’ § 2255 motion.

Page 35 of 65

requires further briefing. On this point, neither the Court nor the defendant
has copies of the grand jury materials turned over to Ms. Boyle. The Court
will, accordingly, grant Mr. Cates’ motions for production of grand jury
materials (Docket #3; Case No. 11-CR-200, Docket #85) and order, pursuant
to Fed. R. Cr. P. 6(e)(3)(E)(i), the Government to produce to Mr. Cates and to
the Court copies of the materials previously provided to Ms. Boyle. Because
the Court is analyzing Mr. Cates’ claim in this regard through the lens of Ms.
Boyle’s performance, the Government needs to provide only those materials
to which Ms. Boyle had access. The Court reserves ruling on this issue until
after Mr. Cates has had an opportunity to review those materials and further
brief the matter.
Third, Ms. Boyle’s failure to challenge the indictment as duplicitous
was not ineffective and did not prejudice Mr. Cates. As the Court discussed
at length in its screening order, the indictment was not duplicitous. (Docket
#4 at 9 (citing United States v. Hassebrock, 663 F.3d 906, 916 (7th Cir. 2011);
United States v. Allender, 62 F.3d 909, 912 (7th Cir. 1995); United States v. Smith,
26 F.3d 739, 753 (7th Cir. 1993); United States v. Acosta, 207 F. App’x 39, 43 (2d
Cir. 2006) (simultaneously-charged 18 U.S.C. § 242 and 18 U.S.C. § 924(c)
counts did not expose defendant to double jeopardy))). Therefore, any
challenge to it on that basis would necessarily have failed. Failure to raise
such a doomed argument was not ineffective and could not have prejudiced
Mr. Cates.
Fourth, Ms. Boyle was not aware of any false or manufactured
evidence; thus, she could not have raised a challenge to such evidence and
was not ineffective in failing to do so. Mr. Cates does not specify what
evidence against him was allegedly false or manufactured. The closest he
comes is in arguing that witnesses provided inconsistent testimony. But, as
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the Court discussed in its screening order, inconsistencies do not constitute
fabrication; only knowing use of perjured testimony by the Government
would provide a basis for relief. (Docket #4 at 11–12 (citing Gray v. United
States, 341 F. App’x 193, 197 (7th Cir. 2009); United States v. Burke, 425 F.3d
400, 412 (7th Cir. 2005) United States v. Verser, 916 F.2d 1268, 1271 (7th Cir.
1990); United States v. Serola, 767 F.2d 364, 373 (7th Cir. 1985); Carey v.
Duckworth, 738 F.2d 875, 878 (7th Cir. 1984); Anderson v. United States, 403
F.2d 451, 454 (7th Cir. 1968); United States v. Griley, 814 F.2d 967, 971 (4th Cir.
1987); 18 U.S.C. § 1621)). There still is absolutely no evidence that the
Government knowingly used perjured testimony or any other fabricated
evidence. There certainly was no indication of such abuse to Ms. Boyle.
(Docket #7, Ex. 1 ¶ 7(d)). And, absent such indication, Ms. Boyle’s failure to
raise a challenge to the unidentified, allegedly-fabricated evidence was not
ineffective.
Fifth and sixth, Ms. Boyle’s alleged failures to keep in contact with Mr.
Cates prior to trial and to review discovery with him were not ineffective and
did not prejudice Mr. Cates. To begin, Ms. Boyle has listed a number of
contacts that she or others from her office had with Mr. Cates prior to trial.
(Docket #1, Ex. 1 ¶ 7(e)). Even taking Mr. Cates’ position as true, though, and
assuming that Ms. Boyle had very little personal interaction with Mr. Cates,
the Court still does not see any indication that Ms. Boyle acted ineffectively.
There is no magic number of times that counsel must meet with a client to
provide effective counsel, but it seems to the Court that Ms. Boyle’s efforts
were sufficient. That is especially true in light of the fact that Ms. Boyle had
been assisting Mr. Cates since before he was federally indicted. (See Docket
#7, Ex. 1 ¶ 7(e)). Thus, it appears that Ms. Boyle had plenty of contact with
Mr. Cates. In any event, it is unclear how, if at all, Ms. Boyle’s alleged failures
Page 37 of 65

to remain in contact and discuss discovery could have negatively impacted
Mr. Cates. His position in the case was simple: to undermine the victim’s and
Government’s version of events. In that regard, Mr. Cates appeared fully
prepared for his testimony. He was a strong witness on the stand.
Unfortunately for him, the Government’s case was stronger, at least in the
jury’s eyes. Thus, the Court cannot find prejudice in this regard. Without
evidence of ineffective assistance or prejudice as it relates to Ms. Boyle’s
pretrial contact or discussion of discovery with Mr. Cates, the Court must
reject these bases for relief.
Seventh, Ms. Boyle’s alleged failure to discuss her trial strategy with
Mr. Cates was not ineffective and did not prejudice Mr. Cates. It is not
entirely clear what Mr. Cates believes he should have been consulted about.
(See Docket #8 at 10). As best the Court can tell, Mr. Cates is unhappy that he
“never discussed any trial strategy, witnesses and possible impeachment of
government witnesses,” with Ms. Boyle. (Docket #8 at 9). But it does not
appear that there is any constitutional requirement for Ms. Boyle to have
discussed those matters with Mr. Cates.
An attorney undoubtedly has a duty to consult with the client
regarding “important decisions,” including questions of
overarching defense strategy. Strickland, 466 U.S., at 688. That
obligation, however, does not require counsel to obtain the
defendant's consent to “every tactical decision.” Taylor v.
Illinois, 484 U.S. 400, 417-418 (1988) (an attorney has authority
to manage most aspects of the defense without obtaining his
client's approval). But certain decisions regarding the exercise
or waiver of basic trial rights are of such moment that they
cannot be made for the defendant by a surrogate. A defendant,
this Court affirmed, has “the ultimate authority” to determine
“whether to plead guilty, waive a jury, testify in his or her own
behalf, or take an appeal.” Jones v. Barnes, 463 U.S. 745, 751
(1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1 (1977) (Burger,
Page 38 of 65

C. J., concurring). Concerning those decisions, an attorney
must both consult with the defendant and obtain consent to the
recommended course of action.
Florida v. Nixon, 543 U.S. 175, 187 (2004). Thus, Ms. Boyle’s failure to discuss
those matters with Mr. Cates was not constitutionally ineffective.
Additionally, it did not prejudice Mr. Cates. It is unclear how Mr. Cates’ trial
was affected at all by his lack of conversation with Ms. Boyle about their trial
strategy, and he makes no argument in that regard. For these reasons, the
Court is obliged to conclude that Ms. Boyle’s failure to discuss trial strategy
with Mr. Cates was not ineffective and did not prejudice Mr. Cates.
Eighth, Ms. Boyle’s alleged failure to prepare Mr. Cates to testify was
not ineffective and did not prejudice Mr. Cates. As already discussed, there
is no indication that Ms. Boyle, in fact, failed to prepare Mr. Cates to testify.
(See, e.g., Docket #7, Ex. 1 ¶¶ 7(e), (h)). Additionally, Mr. Cates’ testimony
was strong; nothing indicates that he was unprepared and the Court cannot
envision any way in which he could have provided better testimony. The
jury simply did not believe his testimony, which was understandable in light
of the evidence against him.
Ninth, Ms. Boyle’s preparation for trial, in general, was not ineffective
and did not prejudice Mr. Cates. The only evidence to support Mr. Cates’
contention in this regard—and, indeed, most of his allegations of ineffective
assistance by Ms. Boyle generally—seems to be the adverse disciplinary
decisions against her. To be sure, Ms. Boyle performed well before this Court
in Mr. Cates’ case. There was nothing that she could or should have done
better. She cross examined witnesses effectively and presented the strongest
case for Mr. Cates that he could hoped to have received. As the Court has
already mentioned, and will mention several more times, this case was,

Page 39 of 65

essentially, a credibility contest; if the jury believed Mr. Cates’ version of
events, it would have acquitted him. The jury simply did not believe that
version of events, but it was not through Ms. Boyle’s fault. Every indication
to the Court both during trial and now on § 2255 review (see Docket #7, Ex.
1 ¶ 7) was that Ms. Boyle was amply prepared and provided Mr. Cates with
a strong defense. The Court certainly cannot find that her representation of
Mr. Cates was in any way ineffective or prejudicial.
Tenth, Ms. Boyle’s alleged failure to subpoena additional witnesses
was not ineffective and did not prejudice Mr. Cates. It is unclear who else Ms.
Boyle should have called. Mr. Cates identifies Kandice Velez, but there is no
reason, whatsoever, to believe that Ms. Velez—a neighborhood friend of the
victim’s—would have provided any testimony helpful to Mr. Cates. Mr.
Cates argues that Ms. Velez’s version of events was slightly different than the
victim’s. (Docket #8 at 13–16). But there were such minor inconsistencies in
all of the witness’ testimony, and Ms. Velez’s (alleged) inconsistencies were
not so serious that they would have supported Mr. Cates’ position alone. If
anything, it is more likely that Ms. Velez would have provided testimony
that largely supported the consistency of the victim’s statement, thus shoring
up the Government’s position further. (See Docket #7, Ex. 1 ¶ 7(j)). The only
information to the contrary is Mr. Cates’ own unfounded statement, which
is not sufficient to create the need for an evidentiary hearing. See Martin, No.
13-3826, slip op. at 5 (“a hearing is not necessary if the petition makes
allegations that are ‘vague, conclusory, or palpably incredible,’ rather than
‘detailed and specific.’”) (quoting Kafo v. United States, 467 F.3d 1063, 1067
(7th Cir. 2006)). Other than Ms. Velez, it is not clear who Ms. Boyle should
have called. Neither Ms. Boyle (Docket #7, Ex. 1 ¶ 7(i)) nor the Government
(Docket #7 at 12) knows of any additional witnesses who would have
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provided testimony positive to Mr. Cates’ position. For these reasons, the
Court must reject Mr. Cates’ contention that the failure to call additional
witnesses was in any way ineffective; and, even if it was somehow
ineffective, Mr. Cates does not identify how he was prejudiced by the failure.
He is not entitled to relief on this point.
Eleventh, Ms. Boyle’s alleged failure to show that the FBI’s reports
regarding the incident were altered was not ineffective and did not prejudice
Mr. Cates. Just as with Mr. Cates’ allegations regarding fabricated evidence,
there is absolutely no evidence before the Court to show that the FBI’s
reports were altered. Moreover, even if the reports were altered, it is not clear
how that affected the outcome of the trial, and Mr. Cates provides no
argument in that regard. Absent any evidence of alteration, Ms. Boyle could
not have rendered ineffective assistance in failing to challenge the reports,
and there is no indication that Mr. Cates was prejudiced in any way, so this
ground fails.
3.1.1.3

Activities at Trial

Mr. Cates next argues that Ms. Boyle rendered ineffective assistance
in various forms at trial: (1) in failing to challenge the racial makeup of the
jury; (2) in failing to use exculpatory evidence; (3) in failing to consult Mr.
Cates before entering the stipulation regarding DNA evidence; (4) in failing
to present evidence to the jury regarding the Milwaukee County District
Attorney’s decision not to prosecute the case; (5) in failing to introduce the
victim’s prior criminal record to impeach her; (6) in failing to challenge the
Court’s response to a question from the jury; and (7) in failing to call Kandice
Velez as a witness.

Page 41 of 65

First, Ms. Boyle’s failure to challenge the racial makeup of the jury was
not ineffective and did not prejudice Mr. Cates. “The Sixth Amendment
secures to criminal defendants the right to be tried by an impartial jury
drawn from sources reflecting a fair cross section of the community.”
Berghuis v. Smith, 559 U.S. 314, 319 (2010) (citing Taylor v. Louisiana, 419 U.S.
522 (1975)). “To make a prima facie showing that the fair cross-section
requirement has been violated, a defendant must show that: (1) the group
allegedly excluded is a distinctive group in the community, (2) the
representation of this group in venires from which juries are selected is not
fair and reasonable in relation to the number of such persons in the
community, and (3) this underrepresentation is due to systematic exclusion
of the group in the jury selection process.” Duren v. Missouri, 439 U.S. 357,
364 (1979); United States v. Neighbors, 590 F.3d 485, 491 (7th Cir. 2009); United
States v. Raszkiewicz, 169 F.3d 459, 463 (7th Cir. 1999). Mr. Cates argues that
Ms. Boyle should have objected to the makeup of the jury pool, because there
were very few African-Americans in the jury pool. The Seventh Circuit has,
indeed, found that African-Americans are a distinctive group in the
community. Neighbors, 590 F.3d at 491. But Mr. Cates has not argued that
they are underrepresented in this district’s venires (let alone that such
underrepresentation is due to systematic exclusion). And, while AfricanAmericans do, indeed, make up a sizeable portion of the City of Milwaukee’s
population, their numbers in the five-county area from which this district
draws its venires is substantially lower. There was at least one prospective
African-American juror in this case (see Docket #7, Ex. 1 ¶ 8(a)), which is
admittedly a low number; but the question posed by Duren and the
related cases is whether the representation of African-Americans is
underrepresented in the district’s juries as a whole. The Court has no
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indication that such is the case. In any event, Ms. Boyle’s decision not to
challenge the racial makeup of the jury was apparently strategic. (See Docket
#7, Ex. 1 ¶ 8(a)). Ms. Boyle was aware that, given the racial makeup of the
counties from which the district draws its juries, there are often low numbers
of potential African-American jurors, thus making a challenge unlikely to
succeed. (Docket #7, Ex. 1 ¶ 8(a)). She struck—with Mr. Cates’ concurrence—
the only prospective African-American juror in the case. (Docket #7, Ex. 1
¶ 8(a)). Finally, Ms. Boyle had limited concerns about the racial makeup of
the jury in light of the fact that the victim, herself, is African-American.
(Docket #7, Ex. 1 ¶ 8(a)). The Court agrees that a challenge to the makeup of
the venire would have been extremely unlikely to succeed, and would have
made little difference to the outcome of the case. In sum, there is not nearly
enough evidence to overcome the strong presumption that Ms. Boyle acted
in accordance with a sound trial strategy in failing to challenge the makeup
of the venire. See Koons, 639 F.3d at 351. Thus, the Court cannot find that she
rendered ineffective assistance in this regard or that her actions prejudiced
Mr. Cates.
Second, Ms. Boyle was not ineffective in allegedly failing to use
exculpatory evidence. Mr. Cates does not even identify what exculpatory
evidence was in existence, such that Ms. Boyle could be deemed ineffective
for failing to use it. In fact, as should be clear from the Court’s exhaustive
description of trial proceedings, above, Ms. Boyle did her best to highlight
inconsistencies in witness testimony and to present evidence. In the end, Mr.
Cates’ case was straightforward and, perhaps, not extremely strong: it
essentially rested on a credibility contest between Mr. Cates and the victim.
There simply was not much in the way of exculpatory evidence, aside from
Mr. Cates’ own version of events, which Ms. Boyle elicited through
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testimony. Thus, any alleged failure to use (unspecified) exculpatory
evidence was not ineffective.
Third, Ms. Boyle’s stipulation regarding the DNA evidence was not
ineffective and did not prejudice Mr. Cates. Mr. Cates, in his statements to
law enforcement officers and in his trial testimony, admitted that he had sex
with the victim. Thus, the stipulation that the victim’s DNA evidence was
found on his clothing was of practically no importance to the outcome of the
case. Given Mr. Cates’ admission to having sex with the victim, the jury
would have expected his DNA to be present on her clothing. Ms. Boyle’s
stipulation to the DNA evidence was sound trial strategy: it avoided a
needless witness who would ultimately prove an uncontested and nondamaging fact; indeed, calling a DNA witness could have hurt Mr. Cates if
the jury felt that the Government’s proving up of the DNA evidence
constituted a “smoking gun.”5 Again, the Court will not take issue with Ms.
Boyle’s sound trial strategy. Moreover, as already noted, Mr. Cates was not
prejudiced by the stipulation in light of his admissions.
Fourth, Ms. Boyle’s failure to raise the Milwaukee County District
Attorney’s decision not to prosecute the case was not ineffective. Mr. Cates
complains that Ms. Boyle should have presented evidence to the jury to show
that Mr. Cates had not been prosecuted in the Wisconsin court system,
because the case was not strong. (Docket #8 at 8). The Court cannot envision

5

Mr. Cates is very unhappy with the DNA stipulation. (See Docket #8 at
11–13). The Court understands that it must seem incorrect that counsel could
stipulate to something as important as DNA evidence. But what would Mr. Cates
have gained by challenging the evidence. He was not proceeding with the
argument that he had not had sex with the victim. Rather, he readily admitted that
fact. Thus, he had absolutely nothing to gain by challenging the DNA evidence and
was not harmed by its stipulated admission.

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allowing this evidence to come before the jury; the federal government, of
course, has independent discretion to bring charges, so the decision by a state
body not to bring charges (for a different crime, the Court must add) would
be of no relevance and, on the other hand, only serve to confuse the jury,
making such evidence inadmissible under Rules 401, 402, and 403 of the
Federal Rules of Evidence. Thus, Ms. Boyle’s failure to raise that point could
not possibly have been ineffective.6
Fifth, Ms. Boyle’s failure to impeach the victim with her prior criminal
record was not ineffective. Mr. Cates asserts that the victim was convicted of
at least two crimes, but a search of Wisconsin public records yields (aside
from traffic violations) a single criminal case, which involved only
misdemeanor conduct. See Fond Du Lac County Case No. 2011-CM-29
(victim was charged with a Class A and a Class U misdemeanor; both were
eventually dismissed; and, even if the victim had been found guilty, she
would have been subject to, at most, 9 months in prison, see Wis. Stat.
§ 939.51(3), which would not have qualified her crime for admission under
Fed. R. Ev. 609(a)(1)). There is no other evidence of admissible criminal
conduct. Accordingly, even if Ms. Boyle had attempted to have such conduct
admitted, she would have been unsuccessful. Accordingly, she was not
ineffective in failing to do so and her failure did not prejudice Mr. Cates.
Sixth, Ms. Boyle was not ineffective in her response to the question
sent by the jury to the Court during deliberations. On this point, Mr. Cates’

6

On this point, Mr. Cates' contentions are somewhat unclear; to the extent
he is arguing that Ms. Boyle should have presented evidence that caused the
Milwaukee County District Attorney not to prosecute the case, he does not indicate
what such evidence consists of. Thus, he is not entitled to an evidentiary hearing
and the Court certainly cannot find ineffectiveness or prejudice on this point. See
Martin, No. 13-3826, slip op. at 5 (citing Kafo, 467 F.3d at 1067).

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position is verifiably incorrect. Ms. Boyle urged the Court to use the nonspecific language it had proposed to avoid re-instructing the jury; this was
contrary to the Government’s position. (Case No. 11-CR-200, Docket #66 at
523:8–23). The Court sided with Ms. Boyle’s position. Thus, Ms. Boyle having
taken a position favorable to Mr. Cates (and there being no indication that
Ms. Boyle might, somehow, have been successful in suggesting a stronger
response), she certainly did not act ineffectively in this regard.
Seventh, Ms. Boyle’s failure to call Kandice Velez as a witness was not
ineffective and did not prejudice Mr. Cates. As already discussed, all
evidence indicates that Ms. Velez’s testimony would have been consistent
with the victim’s. (See Docket #7, Ex. 1 ¶¶ 7(i), (j)). Mr. Cates seems to
disagree, but provides no basis for that disagreement. If anything, calling Ms.
Velez may have hurt Mr. Cates, adding to the long list of individuals offering
stories consistent with the victim’s. Thus, failing to call her cannot be deemed
ineffective assistance. Additionally, without any evidence that Ms. Velez’s
testimony would have undermined the victim’s story, there is no reason to
believe that Mr. Cates was in any way prejudiced by Ms. Boyle’s failure to
call Ms. Velez.
3.1.1.4

Improper Collusion Between Ms. Boyle and
the Government

Mr. Cates next argues that Ms. Boyle inappropriately colluded with
the Government. But there is absolutely no evidence to support this claim.
Ms. Boyle admits to having occasional private conversations with the
Government, but this is not atypical in criminal prosecutions and Ms. Boyle
attests that nothing untoward occurred in any of her conversations. (Docket
#1, Ex. 1 ¶ 9). Mr. Cates’ unspecific allegations are not enough to earn him a

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hearing on this point—let alone § 2255 relief. See Martin, No. 13-3826, slip op.
at 5 (citing Kafo, 467 F.3d at 1067).
3.1.1.5

Post-Trial Detention

Mr. Cates next argues that Ms. Boyle provided ineffective assistance
in defending against the Government’s request to detain Mr. Cates pending
trial.
But, Ms. Boyle’s actions were not ineffective. In reality, there was little
that Ms. Boyle could have done to prevent Mr. Cates from being detained.
She wrote a strong brief in support of Mr. Cates’ position and argued
forcefully in support of that position at the detention hearing. But her
arguments simply could not overcome the dictates of 18 U.S.C. § 3143(a). The
second subsection of that statute directs that “the judicial officer shall order
that a person who has been found guilty of an offense in a case described in
subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is
awaiting imposition or execution of sentence be detained….” 18 U.S.C.
§ 3143(a)(2) (emphasis added). And, indeed, Mr. Cates had been convicted
of an offense described in both 18 U.S.C. § 3142(f)(1)(A) and (B): a crime of
violence, 18 U.S.C. § 3142(f)(1)(A), and an offense for which the maximum
sentence is life imprisonment, 18 U.S.C. § 3142(f)(1)(B). Thus, 18 U.S.C.
§ 3143(a)(2) required the Court to detain Mr. Cates pending his sentence
unless certain conditions were met: (1) that the judicial officer “finds there is
a substantial likelihood that a motion for acquittal or new trial will be
granted” or the Government “has recommended that no sentence of
imprisonment be imposed”; and (2) the judicial officer finds that the
defendant is unlikely to flee or pose a danger to the community. 18 U.S.C.
§ 3143(a)(2)(A–B). And, unfortunately for Mr. Cates, he did not meet those
conditions. There was not a substantial likelihood that a motion for acquittal
Page 47 of 65

or new trial would be granted; the Court still cannot discern a basis for such
motion, nor has Mr. Cates offered one. Likewise, the Government was
recommending a substantial sentence. Thus, neither of the conditions
described in 18 U.S.C. § 3143(a)(2)(A) were met. Ms. Boyle argued on Mr.
Cates’ behalf, but it was a losing argument from the outset. Thus, she did not
act ineffectively.
In any event, Mr. Cates does not say how his detention pending
sentencing affected the outcome of his proceedings. Aside from the fact of
being detained, Mr. Cates was not prejudiced by being held in custody. He
had already been convicted and was simply awaiting sentencing and appeal.
His detention or freedom had little effect on those proceedings. Thus, the
Court also does not believe that Mr. Cates was prejudiced by Ms. Boyle’s
actions in the overall outcome of his proceedings. See Martin, No. 13-3826,
slip op. at 5 (to prove prejudice, defendant must show that “‘there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’”) (quoting Strickland, 466 U.S.
at 688).
For these reasons, the Court finds that Ms. Boyle’s actions in relation
to Mr. Cates’ post-trial detention hearing were not ineffective and did not
prejudice Mr. Cates.
3.1.1.6

Post-Trial Activities

Mr. Cates next challenges a number of Ms. Boyle’s alleged post-trial
activities: (1) failing to look into rumors that the Government had altered
reports in the case; (2) failing to file a motion for a new trial; (3) failing to
meet with Mr. Cates after the detention hearing; (4) failing to notify Mr.
Cates that the Seventh Circuit had taken disciplinary action against her; and

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(5) failing to prepare Mr. Cates for his interview with the presentence
investigator.
First, Ms. Boyle’s failure to look into alleged rumors that the
Government had altered reports in the case was not ineffective. To begin,
there is absolutely no evidence that the Government altered anything in this
case. Any “rumors” of such alterations are “vague, conclusory, [and]
palpably incredible,” assertions crafted by Mr. Cates in his submissions in
this case and thus there is no reason to conclude that he is entitled to a
hearing on this point. See Martin, No. 13-3826, slip op. at 5 (quoting Kafo, 467
F.3d at 1067). Ms. Boyle’s failure to counter unsubstantiated rumors (that do
not appear to have been known to anyone but Mr. Cates) (Docket #7, Ex. 1
¶ 11(a)), could not possibly be ineffective assistance.
Second, Ms. Boyle’s failure to move for a new trial was not ineffective
and did not prejudice Mr. Cates. Again, Mr. Cates’ vague assertions
regarding the merits of such a motion are insufficient to earn him even a
hearing on this point. See Martin, No. 13-3826, slip op. at 5 (quoting Kafo, 467
F.3d at 1067). It is not clear what the basis of a motion for acquittal or a new
trial would even have been. As the Court earlier noted, this case was,
ultimately, a credibility contest, and thus was extremely fact-based. After
having extensively reviewed the record, the Court cannot find any major
evidentiary ruling that could have been challenged post-trial; there were not
any infirmities with jury selection or the jury’s verdict; nothing occurred
during trial that was extremely prejudicial to Mr. Cates. Simply put, even
with perfect 20/20 hindsight, the Court cannot see the value of a post-trial
motion. Ms. Boyle apparently agreed after trial and attests that the lack of
any meritorious grounds informed her decision not to request a new trial.
(Docket #7, Ex. 1 ¶ 11(b)). And, without any meritorious grounds to raise in
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a post-trial motion, Ms. Boyle was not ineffective in failing to submit such a
motion. Likewise, because a post-trial motion would not have rested on any
meritorious bases, it would not have succeeded, and thus Mr. Cates was not
prejudiced by Ms. Boyle’s failure to file a post-trial motion.
Third, Ms. Boyle’s failure to meet with Mr. Cates after the detention
hearing was not ineffective and did not prejudice Mr. Cates. Ms. Boyle has
attested that she did not believe it necessary to meet with Mr. Cates between
the verdict and the completion of the presentence report, and so did not do
so. (Docket #7, Ex. 1 ¶ 11(c)). The Court does not believe that decision was so
far outside of the norms of the profession as to overcome the strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance. Nixon, 543 U.S. at 187 (citing Strickland, 466 U.S. at
689). That is all the more true, here, because Ms. Boyle’s father and law
partner did, in fact, visit Mr. Cates in jail to begin preparing for sentencing;
this was made necessary by Ms. Boyle’s two hospitalizations. (Docket #7, Ex.
1 ¶ 11(c)). Thus, while Ms. Boyle may not have visited Mr. Cates, she did
make efforts to compensate for her difficulties meeting with Mr. Cates. In any
event, Ms. Boyle’s failure to meet with Mr. Cates did not prejudice him in
any way. Mr. Cates does not identify anything in the presentence process
that negatively impacted his sentence, nor can the Court identify anything.
Fourth, Ms. Boyle’s failure to notify Mr. Cates of the disciplinary
action taken against her was not ineffective and did not prejudice Mr. Cates.
The Seventh Circuit’s disciplinary order did not clearly specify its effect on
Ms. Boyle’s ability to practice in front of this Court. In relevant part, the
order stated: “She in unfit to practice law in this court…Boyle-Saxton is
disbarred…The court will send copies of this opinion to the Office of Lawyer
Regulation of the Wisconsin Supreme Court, and to the clerks of each district
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court within the circuit.” Boyle-Saxton, 668 F.3d at 473. That order clearly
prohibits Ms. Boyle from practicing in front of the Seventh Circuit, but is
unclear as to how it impacted her ability to practice before the Circuit’s
district courts. In fact, because the Seventh Circuit sent a copy of its order to
the district courts of the circuit—just as it did to Wisconsin’s disciplinary
body—the Court assumed that the decision over whether to prohibit Ms.
Boyle from practicing would lie with each district court separately. In other
words, it seems as though Ms. Boyle was allowed to practice before this
Court, and so did nothing wrong in not telling Mr. Cates about the
disciplinary issues. In any event, even if that was an error, it did not
negatively impact Mr. Cates. Ms. Boyle sent her father to work with Mr.
Cates, and Mr. Cates ended up getting replacement counsel, anyway. If Ms.
Boyle had attempted to represent Mr. Cates before the Seventh Circuit, that
would have been problematic, but that did not occur. Without more, the
Court simply cannot see how Ms. Boyle’s disciplinary issues in another case
impacted Mr. Cates in any way. Thus, those issues did not constitute
ineffective assistance nor did they prejudice Mr. Cates.
Fifth, Ms. Boyle’s alleged failure to prepare Mr. Cates for his interview
with the presentence investigator was not ineffective and did not prejudice
Mr. Cates. As Ms. Boyle points out in her affidavit, there was little that Mr.
Cates needed to prepare for: he planned to provide only information
regarding his personal background. (Docket #7, Ex. 1 ¶ 11(e)). He later had
ample opportunity with replacement counsel to review and object to the
presentence report, as it was submitted to the Court. (Case No. 11-CR-200,
Docket #68 at 5:7–8:23). He did so, and the Court even sustained a number
of his objections. (See Case No. 11-CR-200, Docket #68 at 5:7–8:23). Other than
the information that the Court disregarded, there was very little in the
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presentence report that negatively impacted Mr. Cates. Thus, it is unclear
how any additional preparation would have helped Mr. Cates; or, stated in
the negative, it is not clear how Ms. Boyle’s alleged failure to prepare Mr.
Cates negatively impacted him or his sentence. For these reasons, the Court
finds that Ms. Boyle’s alleged failure in that regard was not ineffective and
did not prejudice Mr. Cates.
3.1.1.7

Conflict of Interest

Mr. Cates’ final allegation relating to Ms. Boyle is that the Seventh
Circuit’s action against her somehow created a conflict of interest. It is
entirely unclear what Mr. Cates means by that and how he believes that it
impacted him in any way. As with practically everything in Mr. Cates’ § 2255
submissions, he does nothing more than provide vague and conclusory
allegations that are insufficient to warrant an evidentiary hearing. See Martin,
No. 13-3826, slip op. at 5 (quoting Kafo, 467 F.3d at 1067).
To the extent that Mr. Cates is alleging that Ms. Boyle’s disciplinary
troubles de facto establish that she was ineffective, he is incorrect. The Court
gets the sense from Mr. Cates’ petition that he believes that he is entitled to
relief because the Seventh Circuit took issue with Ms. Boyle’s representation
in another case. To be sure, her behavior in that other case was concerning.
But it was still behavior in another case. In reality, Mr. Cates does not identify
any significantly concerning behavior on the part of Ms. Boyle. Likewise, the
Court cannot find any. In fact, the Court felt that Ms. Boyle did as good of a
job as possible in the circumstances. She had a tough case to present: it was
a credibility contest and she was representing Mr. Cates who had provided
multiple inconsistent statements, whereas the victim had offered consistent
statements. And, while she may have abandoned her client before the

Page 52 of 65

Seventh Circuit, there is no indication that she did the same to Mr. Cates.
3.1.2

Ineffective Assistance by Mr. Coffey

Mr. Cates argues that Mr. Coffey provided ineffective assistance to
him at both the sentencing and appellate phases of the proceedings.
3.1.2.1

Sentencing Phase

Mr. Cates argues that Mr. Coffey provided him with ineffective
assistance of counsel in multiple ways during the phase leading up to
sentencing: (1) by failing to make a record regarding Ms. Boyle’s allegedly
deficient performance; (2) by failing to document allegedly false trial
testimony; (3) by failing to contest various factual matters in the presentence
report; and (4) by disregarding Mr. Cates’ argument that he should not have
been found to have engaged in aggravated sexual abuse.
First, Mr. Coffey’s failure to make a record regarding Ms. Boyle’s
allegedly deficient performance did not prejudice Mr. Cates. The Court will
assume, arguendo, that Mr. Coffey should have made a record regarding Ms.
Boyle’s allegedly-deficient performance. But, even if he had made that
record, Mr. Cates still would not have been entitled to relief. As the Court
extensively discussed in the prior section, there is no indication that Ms.
Boyle did anything in Mr. Cates’ case that approached ineffective assistance.
Thus, even if Mr. Coffey had timely moved for a new trial on the basis of Ms.
Boyle’s alleged deficient performance, the Court would have denied that
motion. As such, Mr. Cates suffered no prejudice from Mr. Coffey’s
performance.
Second, Mr. Coffey’s failure to document allegedly false trial
testimony was not ineffective and did not prejudice Mr. Cates. The allegedly
false testimony, as the Court has already discussed and as Mr. Coffey
recognized (Docket #7, Ex. 2 ¶ 7(b)), was made up of nothing more than
Page 53 of 65

inconsistencies (which the jury chose to disregard). There was no need to
make a record of those inconsistencies because they could not possibly have
entitled Mr. Cates to relief. There was more than sufficient evidence to
convict Mr. Cates, and so those inconsistencies were of little value to Mr.
Cates. For these reasons, this action was not ineffective and did not prejudice
Mr. Cates.
Third, Mr. Coffey’s work on the presentence report was not ineffective
and did not prejudice Mr. Cates. In fact, Mr. Coffey challenged various
portions of the presentence report, and the Court sustained his challenges.
(Case No. 11-CR-200, Docket #68 at 5:7–8:23). Thus, the Court cannot see any
way in which Mr. Coffey acted ineffectively; in fact, he acted effectively on Mr.
Cates’ behalf. Mr. Cates also does not identify any prejudice on this topic.
Fourth—and this is what Mr. Cates really seems to be challenging
regarding Mr. Coffey’s work on his presentence report—Mr. Coffey’s failure
to object to the offense conduct described in the presentence report was not
ineffective and did not prejudice Mr. Cates. To be clear, Mr. Cates had been
found guilty beyond a reasonable doubt of the conduct described in the
presentence report. To be sure, he disagreed with that version of
events—that was his theory of the case, and the Court heard that theory. But,
after the jury effectively resolved that factual dispute, there was no basis
remaining for Mr. Cates to object to the description of the offense conduct.
That description, effectively, became the factual version of events after the
jury rendered its verdict. And the Court would have rejected any objection
to that description as baseless. Thus, the Court agrees with the Government
and Mr. Coffey that there was no basis to interpose an objection on that
ground (see Docket #7, Ex. 1 ¶ 7(d)); Mr. Coffey did not act ineffectively in
doing so, nor would such an objection possibly have been successful.
Page 54 of 65

Finally, the Court notes that Mr. Cates is likely unhappy that Mr.
Coffey failed to timely file a motion for a new trial or acquittal. But, as the
Court has already recounted, there is no indication that any such motion
would have been successful. The Court cannot find any ground for such a
motion that would have been successful Accordingly, Mr. Coffey’s failure to
timely move for a new trial or acquittal—even if it was ineffective—did not
prejudice Mr. Cates.
3.1.2.2

Appeals Phase

“The general Strickland standard governs claims of ineffective
assistance of appellate counsel as well as trial counsel.” Makiel v. Butler, 782
F.3d 882, 897 (7th Cir. 2015) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)).
With that said, “[a]ppellate counsel is not required to present every nonfrivolous claim on behalf of her client.” Makiel, 782 F.3d at 897 (citing Mason
v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996)). Rather, “[a]ppellate counsel’s
performance is deficient under Strickland only if she fails to argue an issue
that is both ‘obvious’ and ‘clearly stronger’ than the issues actually raised.”
Makiel, 782 F.3d at 898 (citing Brown v. Finnan, 598 F.3d 416, 425 (7th Cir.
2010); Lee v. Davis, 328 F.3d 896, 900–01 (7th Cir. 2003)). This is a difficult
showing to make, “because the comparative strength of two claims is usually
debatable.” Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013).
Mr. Cates alleges that he asked Mr. Coffey to raise a number of
arguments on appeal to no avail. Specifically, Mr. Cates states that he wanted
to challenge the following issues on appeal: (1) jury instructions; (2) false
information in the presentence report; (3) false statements to the Court and
jury; and (4) deficient performance by Ms. Boyle.

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At the outset, the Court notes that the Seventh Circuit expressly
criticized Mr. Coffey’s approach on appeal. It stated:
we note that we are particularly unhappy with the result in this
case because Cates does not challenge any aspect of his
conviction or sentence on appeal—despite this being his direct
appeal from his conviction—and instead argues only that the
district court should have allowed him to file late
post-conviction motions. In denying Cates' motion, the district
court noted that Cates still had the opportunity to appeal his
conviction and raise any issues he would have raised in his
post-trial motions. But Cates has declined to do so, stating only
that “those appellate issues not preserved by appropriate trial
counsel action are not available to the Defendant on this
appeal.”
As we indicated at oral argument, we are puzzled by this
position. Of course, the doctrines of waiver and forfeiture
would come into play for any issues not properly preserved
below, but as “[w]aiver principles must be construed liberally
in favor of the defendant,” United States v. Anderson, 604 F.3d
997, 1002 (7th Cir. 2010) (citation omitted), and we “assume
forfeiture where the government fails to proffer a strategic
justification for a defendant's decision to bypass an argument,”
United States v. Johnson, 668 F.3d 540, 542 (7th Cir. 2012)
(citation omitted), we imagine that at least some issues would
be reviewed for plain error. See, e.g., United States v. Rea, 621
F.3d 595, 602 (7th Cir.2010) (sufficiency of the evidence
challenge reviewed for plain error when defendant fails to
raise the issue in a Rule 29 motion for judgment of acquittal at
the district court). And plain error review, while a demanding
standard, is better than no review at all. See, e.g., United States
v. Meadows, 91 F.3d 851, 855–56 (7th Cir. 1996) (reversing
conviction for insufficient evidence under plain error
standard). Nevertheless, Cates has failed to raise any potential
challenges to his conviction or sentence, and they are therefore
waived on appeal and left for post-conviction proceedings.

Page 56 of 65

Cates, 716 F.3d at 450. And, to be sure, Mr. Coffey’s decision was somewhat
perplexing. But, of course, the question before the Court is whether that
decision violated the Strickland standard.
In the Court’s opinion, Mr. Coffey raised the strongest ground on
appeal, and thus his performance on appeal cannot be deemed ineffective.
See Makiel, 782 F.3d at 897. Any ground that Mr. Cates could have raised on
appeal—be it one of the four grounds asserted by Mr. Cates as potential
bases for appeal (jury instructions, false information in presentence report,
false statements to the Court, and deficient performance); the ground of
sufficiency of the evidence, which the Seventh Circuit raised in passing, see
Cates, 716 F.3d at 450; or, perhaps, an unspecified sentencing issue—would
all have been extremely weak claims on appeal. First, the Court cannot
identify any issues with its jury instructions; in any event, because Mr. Cates
did not object to the jury instructions, he could have prevailed on appeal
only by showing clear error, which would not have been possible in light of
the fact that the jury instructions were correct. Second, the Court excised and
corrected any issues with the presentence report (aside from the description
of the crime, which the Court has already discussed at length), so Mr. Cates
would have no basis to challenge that information on appeal. Third, the false
statements that Mr. Cates addresses were all mere inconsistencies, which
(again, as the Court has already discussed at length) would not have entitled
him to any relief. Fourth, again as the Court has already noted, Ms. Boyle’s
performance was not deficient, meaning that Mr. Cates would not have
prevailed on that issue before the Seventh Circuit. Fifth, the evidence against
Mr. Cates was strong; a sufficiency-of-the-evidence challenge would have
been exceedingly unlikely to prevail. The Seventh Circuit will not set aside
a jury verdict unless there is no evidence in the record, regardless of how it
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is weighed, from which a jury could have returned a verdict of guilty. United
States v. Pesbitero, 569 F.3d 691, 704 (7th Cir. 2009). Here, where the victim
testified consistently with various prior statements and was supported in her
version of events by multiple other witnesses, the Seventh Circuit would
have been exceedingly unlikely to reverse Mr. Cates’ conviction. Finally, the
Court cannot identify any sentencing issue that would have come close to
warranting reversal. The Court: considered all of the 18 U.S.C. ¶ 3553(a)
factors (Case No. 11-CR-200, Docket #68 at 28:11–38:5); gave Mr. Cates a
significant break in refusing to consider his prior conduct (Case No. 11-CR200, Docket #68 at 5:7–16); amply explained its (correct) reasoning behind
rejecting Mr. Cates’ objection to the enhancement of his offense level for
obstruction of justice (Case No. 11-CR-200, Docket #68 at 11:22–13:9); and
sentenced Mr. Cates to a below-guidelines sentence (Case No. 11-CR-200,
Docket #68 at 34:7–14, 35:12–17). It is hard to see any strong basis for
appealing Mr. Cates’ sentence.
Compare those weak bases for relief with the ground that Mr. Coffey
did raise; that single issue spurred the Seventh Circuit to issue a lengthy and
extensively-cited opinion. It was certainly a close call, one much more likely
to prevail than any of the grounds discussed above.
As the Seventh Circuit recently discussed,
“This process of ‘winnowing out weaker arguments on appeal
and focusing on’ those more likely to prevail, far from being
evidence of incompetence, is the hallmark of effective appellate
advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986), quoting
Jones v. Barnes, 463 U.S. 745, 751–52 (1983). In fact, when
appellate judges address professional education programs on
appellate practice, they almost always stress this need for
careful selection of just a few issues on appeal. “Lawyers must
curtail the number of issues they present, not only because
briefs are limited in length but also because the more issues a
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brief presents the less attention each receives, and thin
presentation may submerge or forfeit a point.” Knox v. United
States, 400 F.3d 519, 521 (7th Cir. 2005).
Makiel, 782 F.3d at 897-98. Mr. Coffey certainly believed that he was taking
the right approach in limiting the number of claims to the one he believed
most meritorious (and that, in his opinion, would provide a safer and more
effective path to raising other issues, such as deficient performance). (Docket
#7, Ex. 2 ¶¶ 9(a–b). The Court finds that this strategy not only satisfies the
constitutional mandates of Mr. Coffey’s role as appellate counsel, but that,
in fact, Mr. Coffey’s approach was well-reasoned.
For these reasons, the Court rejects Mr. Cates’ attack on Mr. Coffey’s
actions on direct appeal.
3.1.3

Brady Violation

Mr. Cates alleges that he was deprived of certain pieces of exculpatory
evidence, in violation of Brady, 373 U.S. 83. This claim fails for various
reasons.
First, Ms. Boyle has attested that she received all possible exculpatory
evidence in the case and that she is not aware of any evidence that she did
not receive. (Docket #7, Ex. 1 ¶ 13).
Second, as the Government rightly points out, if Mr. Cates is
challenging anything Brady-related, he actually appears to be challenging the
manner in which Ms. Boyle presented the exculpatory evidence. (Docket #7
at 28). That is, he believes that Ms. Boyle did not do a good enough job
attacking witnesses with allegedly exculpatory evidence. There is no Brady
violation in that situation. United States v. Mota, 685 F.3d 644, 648–49 (7th Cir.
2012).

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Third, to the extent that Mr. Cates is, in fact, arguing that any evidence
was withheld, he fails to identify what it was (or even what it might be). (See
Docket #8 at 5 (noting that Government must turn over exculpatory
evidence, but not giving any indication of what was withheld, who withheld
it, etc.)). Again, Mr. Cates’ assertions in this regard amount to vague
generalities that do not even rise to the level of entitling him to an
evidentiary hearing. See Martin, No. 13-3826, slip op. at 5 (quoting Kafo, 467
F.3d at 1067).
For these reasons, the Court is obliged to reject Mr. Cates’ Brady
argument.
3.2

Grounds Before the Court on Motion for Reconsideration

The Court has rejected all of Mr. Cates’ arguments that were before it
directly on their merits. That leaves only the claims that the Court previously
dismissed and that are now subject to Mr. Cates’ motion for reconsideration.
Of course, there is a higher standard applied on motions for
reconsideration. See United States v. Gargano, 826 F.2d 610, 611 (7th Cir. 1987)
(noting that Fed. R. Civ. P. 59(e) standard applies to motions for
reconsideration in the context of § 2255 motions). And that does not mention
the fact that there may be problems with successiveness under § 2255(h)
when a § 2255 movant requests reconsideration. See Banks v. United States, 167
F.3d 1082, 1083–84 (7th Cir. 1999). But, even discarding those higher
standards and the successiveness concerns, Mr. Cates still is not entitled to
relief on any of the previously-dismissed grounds; the Court re-affirms its
dismissal of each one of those grounds, not only because Mr. Cates
procedurally defaulted each of the grounds (which he did), but also because
the grounds lack merit.

Page 60 of 65

3.2.1

Improper Sentence Pursuant to Alleyne

The Court dismissed Mr. Cates’ tenth ground, which argued that his
sentence was improper in light of Alleyne v. United States, --- U.S. ----, 133
S.Ct. 2151 (2013). That dismissal was correct, as evidenced by the Seventh
Circuit’s recent decision in Crayton v. United States, No. 13-3548, slip op. (7th
Cir. June 25, 2015), which held that Alleyne does not apply retroactively on
collateral review, id. at 6. Thus, the Court re-affirms its dismissal of this
ground.
3.2.2

Improper Sentence Under 18 U.S.C. § 242

The Court dismissed Mr. Cates’ eleventh ground, which argued that
the maximum sentence Mr. Cates should have been subject to under 18
U.S.C. § 242 was one year in prison. But the jury specifically found that Mr.
Cates was guilty of aggravated sexual abuse, which means that he was
subject to “any term of years or…life” imprisonment. 18 U.S.C. § 242 (“if such
acts include…aggravated sexual abuse…[the defendant] shall be fined under
this title, or imprisoned for any term of years or for life, or both”). Thus, the
Court re-affirms its dismissal of this ground.
3.2.3

Improper Duplicitous Indictment

The Court dismissed Mr. Cates’ twelfth ground, which argued that he
was subject to a duplicitous indictment. His argument in that regard was
extremely unclear, so the Court understood him to mean that his indictment
was multiplicitous and determined that it was not. (See Docket #4 at 9
(collecting cases in support)). In his motion for reconsideration, Mr. Cates
argues that he did, indeed, mean that his indictment was duplicitous, but
again he fails to offer any substance in support of his position. The Court
instructed the jury that it had to reach a unanimous verdict as to the relevant
questions on the verdict form and presented the jury with a verdict form that
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asked several separate questions that would lead to different convictions. The
jury answered each question in the verdict form, finding the defendant had
deprived the victim of her civil rights and engaged in aggravated sexual
abuse, but rejecting the Government’s contention that bodily injury resulted
or that Mr. Cates had used a firearm in connection with his offense. The fact
that the jury was able to answer each of these parts separately establishes
that the indictment and the verdict form were not duplicitous. Thus, the
Court re-affirms its dismissal of this ground.
3.2.4

Failure to Provide Preliminary Hearing

The Court dismissed Mr. Cates’ fifteenth ground, which argued that
Mr. Cates should have received a preliminary hearing. As the Court has now
discussed in both this order and its screening order, Mr. Cates was not
entitled to a preliminary hearing because he was indicted. Fed. R. Crim. P.
5.1(a)(2). There is no basis to disagree. Thus, the Court re-affirms its dismissal
of this ground.
3.2.5

Improper Exclusion of Minorities from Jury Pool

The Court dismissed Mr. Cates’ sixteenth ground, which argued that
Mr. Cates was prejudiced by a lack of minorities on the jury. Whether Mr.
Cates was making a Batson challenge, specific to his jury, or was making a
broader Duren challenge to the makeup of the venire in his case, the Court
has already provided ample reason why his argument fails. He has not even
come close to establishing a prima facie case as to either potential basis for
relief. Without anything beyond Mr. Cates’ speculation to support this
ground, the Court will not entertain it. Thus, the Court re-affirms its
dismissal of this ground

Page 62 of 65

3.2.6

Fabrication of Evidence Grounds

The Court dismissed Mr. Cates’ thirteenth, fourteenth, seventeenth,
and nineteenth grounds, all of which alleged Government fabrication of
evidence and presentation thereof. Even taking Mr. Cates’ allegations as true,
they raise nothing more than inconsistencies between witnesses; certainly,
they do not come near knowing presentation of perjured testimony. In
reality, these arguments are nothing more than unfounded speculation or
meritless attacks on the sufficiency of the evidence. Nothing therein comes
close to entitling Mr. Cates to an evidentiary hearing, let alone § 2255 relief.
Thus, the Court re-affirms its dismissal of these grounds.
Mr. Cates’ § 2255 motion is long on theory and short on substance. His
nineteen separate grounds for relief are actually far more than that, as many
of his grounds include multiple subparts. But none of them actually include
allegations that would support a claim for ineffective assistance of counsel.
The Seventh Circuit has implied that the cumulative effect of errors in
representation may satisfy the Strickland standards. See Yu Tian Li v. United
States, 648 F.3d 524, 533 (7th Cir. 2011). But, even looking for cumulative
error, the Court can find none. Mr. Cates opted to go to trial in a difficult case
and received a good defense. To be sure, his attorney later ran into serious
trouble with the Seventh Circuit and Wisconsin’s own bar regulators. But
misconduct in other cases is not proof of ineffective assistance in this case.
And, in the end, all appearances point to the conclusion that Ms. Boyle
(together with Mr. Coffey) rendered effective assistance to Mr. Cates
throughout the proceedings against him. Perhaps the parties’ additional
submissions relating to the single issue remaining (relating to Mr. Cates’
grand jury ground) will alter the Court’s analysis, and so the Court reserves

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finally ruling until after it has received those materials. But, on the record at
hand, the Court must dismiss nearly all of Mr. Cates’ grounds for relief.
4.

CONCLUSION
In sum, the Court has rejected all but one of Mr. Cates’ grounds for

relief. It may deny Mr. Cates’ motion for reconsideration, because it has (now
for the second time) rejected every contention Mr. Cates raised therein.
Nonetheless, with the grand jury-related ground still outstanding, the Court
cannot yet deny Mr. Cates’ § 2255 motion in full. In that regard, the Court
will grant Mr. Cates’ motions for production of grand jury materials (Docket
#3; Case No. 11-CR-200, Docket #85) and order, pursuant to Fed. R. Cr. P.
6(e)(3)(E)(i), that the Government produce to Mr. Cates and to the Court
copies of the materials previously provided to Ms. Boyle. After the
Government has produced those materials, Mr. Cates will have 30 days to
file a further brief addressing his grand jury-related contentions. The
Government shall, thereafter, file a response within 30 days of receiving Mr.
Cates’ brief. Until the Court has received those briefs, it will hold Mr. Cates’
§ 2255 motion in abeyance. Only after addressing the grand jury issue will
the Court finally address that motion and decide whether to grant or deny
a certificate of appealability.
Accordingly,
IT IS ORDERED that Mr. Cates’ motion for reconsideration (Docket
#5) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Mr. Cates’ motions for production
of grand jury materials (Docket #3; Case No. 11-CR-200, Docket #85) be and
the same are hereby GRANTED pursuant to Fed. R. Cr. P. 6(e)(3)(E)(i);
within fourteen (14) days of the entry of this order, the Government shall
produce to Mr. Cates and to the Court copies of the grand jury materials that
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were available to Ms. Boyle; within thirty (30) days of receiving those
materials, Mr. Cates shall file a brief addressing his grand jury-related claim;
and, within thirty (30) days of receiving Mr. Cates’ brief, the Government
shall file a response thereto; and,
IT IS FURTHER ORDERED that, pending resolution of the grand
jury-related claim, Mr. Cates’ § 2255 motion be and the same is hereby HELD
in abeyance.
Dated at Milwaukee, Wisconsin, this 10th day of July, 2015.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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