Tucker v. United States of America

Filing 23

DECISION AND ORDER signed by Judge Lynn Adelman on 11/9/16 that Tuckers § 2255 motion 1 is DENIED; Tuckers motion for summary judgment 13 is DENIED; Tuckers motion for recusal 17 is DENIED as moot; Tuckers motion to enlarge the record 20 is GRANTED with respect to consideration of Lawler and DENIED as moot in all other respects; Tuckers motion for an evidentiary hearing 16 is DENIED; Tuckers motion for discovery 19 is DENIED; Tuckers motions for appointment of counsel 12 , 18 are DENIED; a certificate of appealability is also DENIED. This action is DISMISSED and The Clerk of Court is DIRECTED TO ENTER JUDGMENT accordingly. (cc: all counsel, via USPS to Ivy Tucker) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________
IVY TUCKER,
Movant,
v.

Case Nos. 14-C-1303, 14-C-1304
(Criminal Case No. 09-CR-131)

UNITED STATES OF AMERICA,
Respondent.
______________________________________________________________________
DECISION AND ORDER
_____________________________________________________________________
Pro se Movant Ivy Tucker has filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, raising claims of ineffective assistance of trial
counsel and appellate counsel. The government filed an answer, asserting that the
motion should be denied.
BACKGROUND 1
On May 12, 2009, Tucker and nine co-defendants were charged with conspiracy
to distribute more than one kilogram of heroin, the use of which resulted in a death on
January 9, 2009. A seven-count superseding indictment, returned on June 23, 2009,
re-alleged the conspiracy count against Tucker and his co-defendants and added six
additional counts charging several of Tucker's co-conspirators with distribution of heroin
on specific occasions during 2008 and 2009. All of Tucker’s co-defendants pleaded
guilty; Tucker proceeded to trial.
1

The background facts are based on the Court of Appeals decision on Tucker’s direct
appeal, United States v. Tucker, 714 F.3d 1006 (7th Cir. 2013), as augmented by the
record. The Court uses “R.” when citing to the docket in the underlying criminal case
and “ECF No.” when citing to the docket in the § 2255 action.

The prosecutor’s opening statement explained that the evidence against Tucker
would consist mostly of testimony from his co-conspirators, all of whom had criminal
backgrounds and drug problems.

After summarizing the investigation that led to

Tucker’s arrest, the prosecutor commented on the devastating effects of heroin, and
referenced some prospective jurors’ personal experiences with family members’ drug
abuse, which had been shared with the court during voir dire. He said, “And heroin is a
highly addictive drug. It’s a horrible drug. And as we all know from news accounts, and
some of the people told us during jury selection, it’s a drug that can kill you. It can kill
you the first time you use it.” (R. 584, 15.)
Tucker’s trial counsel did not object to these statements.
Tucker's nine co-conspirators testified that Tucker ran a heroin distribution ring in
Racine, Wisconsin, from 2008 through 2009.

The jury also heard from the lead

investigator on the case, Officer Jason Baranek, a twelve-year veteran of the Oak
Creek, Wisconsin, Police Department and a member of the Drug Enforcement Unit.
Baranek’s testimony described how his investigation of Tucker unfolded and
provided context for the rest of the Government’s case. Baranek explained that Oak
Creek was troubled by rising heroin overdoses and related theft cases in early 2008.
This trend and information obtained from users prompted Baranek to begin an
investigation into the Racine County sources of that heroin.
Baranek explained that as part of the investigation, local law enforcement,
working in conjunction with the Federal Drug Enforcement Administration (DEA),
conducted “controlled purchases,” in which a cooperating informant used government
money to buy heroin from his drug source. (Id. at 36-37.) The individuals arrested after

2

the controlled purchase were “debrief[ed]” in an effort to uncover the source of their
drug supply, the identity of any other individuals involved, any practices used to deliver
the drugs, and whether any other crimes were being committed. (Id. at 38.) Controlled
buys were made from Louis McCormick, Nevondae Perry, Destiny Merritt, William White
and Charles Stuck. (Id. at 37, 46.) Stuck, a mid-level dealer who was cooperating with
the government, made a controlled purchase of heroin from Merritt. (Id. at 42-43, 47.)
Stuck told Baranek and two other law enforcement officers that Tucker was offering to
sell heroin directly to him. (Id. at 47-48.) Based on his experiences as a member of the
Drug Enforcement Unit, Baranek also provided the jury with details about the use of
“stash house[s]” and other drug-trafficking practices. (Id. at 39-40.)
Merritt, Tucker’s co-conspirator, said that he had given her cocaine in 2006,
some of which she used and some of which she re-sold. (Id. at 63-64.) The two stayed
in contact and began dating in 2008. (Id. at 65.) Merritt testified that Tucker paid her
expenses, such as rent and car payments (Id. at 66-67), and in exchange Merritt sold
heroin for Tucker and allowed him to store drugs in her apartment (Id. at 68-69). Merritt
stated that she accompanied Tucker on trips where he purchased heroin, paying
approximately $70,000 for a kilogram. (Id. at 69-70.) Merritt also testified that she
supplied Stuck with heroin she received from Tucker. (Id. at 74.) Tucker would “front”
the drugs to Merritt, and she would reimburse him once she was paid. (Id. at 75.)
Merritt also assisted Tucker in supplying heroin to other customers. (Id. at 81.)
Merritt identified Ronsanta Tucker 2 as a member of Tucker’s family who assisted
him in the distribution of heroin. (Id. at 83.) She testified that Tucker got lots of money

2

To avoid confusion with the movant, I refer to Ronsanta Tucker as Ronsanta.
3

from McCormick — she had seen him pick up $13,000 or $15,000 — and she knew that
Dadra Lockridge and James Silas assisted McCormick in the distribution of heroin. (Id.
at 81-82.)
Lockridge, a co-conspirator, testified that she began purchasing cocaine from
McCormick in early 2009, developed a romantic relationship with him and began to
assist in his heroin-dealing operation, including sales to Perry. (Id. at 98-100.)
McCormick was purchasing heroin from Tucker in April 2009, and Lockridge testified
about an occasion when she helped McCormick count out $10,000, which he paid
Tucker for 100 grams of heroin.

(Id. at 101-03.)

Lockridge helped McCormick

repackage the heroin for distribution, and she knew McCormick’s customers, including
Jason Wood. (Id. at 103-04.) Lockridge also testified that she knew Merritt, that Merritt
and Tucker had a romantic relationship, and that Tucker provided Merritt with cars for
her use. (Id. at 105.)
Stuck, another co-conspirator, testified that he met Merritt in January 2008 and
began purchasing heroin from her shortly thereafter. (Id. at 114.) Stuck kept some of
the heroin for personal use and sold the rest in South Milwaukee. (Id. at 117.) Stuck
also testified that Merritt told him her boyfriend was her heroin supplier (Id. at 121), and
that on at least one occasion Tucker accompanied Merritt when she sold to Stuck (Id. at
122).

Stuck described purchasing increasing amounts of heroin from Merritt from

August through October of 2008. (Id. at 120.) He tried to reduce the amount of his
purchases in November and December because his girlfriend was placed in a
rehabilitation program, and he wanted to quit and remain with her. (Id.)

4

Co-conspirator Ronsanta testified that at some point in 2008 or 2009, Tucker
asked him to help sell heroin. (Id. at 134.) Tucker dropped off the heroin at Ronsanta’s
house and told him when people were expected to pick up the packages.
Ronsanta handed over the packages and collected the payments.

(Id.)

(Id.)

Ronsanta

identified McCormick, White, and Perry as people who picked up heroin from his house.
(Id. at 135.) He also indicated that Merritt was working with Tucker. (Id. at 137.)
McCormick testified that Tucker was his heroin supplier in 2008 and 2009. (R.
585, 5, 9.)

Initially he purchased it through a “mutual friend,” and later the friend

introduced him to Tucker. (Id. at 7.) McCormick stated that he began purchasing two to
three grams per week, periodically increasing the quantity until he was buying 100
grams every couple weeks, which he sold in Racine. (Id. at 8-10.) McCormick stated
that he sometimes picked up heroin from Ronsanta. (Id. at 20-21.) McCormick also
knew Merritt as a Tucker associate. (Id. at 21-22.)
McCormick said Lockridge, Jessica Detlaff, and Wood acted as heroin
distributors for him. (Id. at 12-13.) McCormick described a drug transaction with Tucker
when Wood accompanied him. Wood paid McCormick for heroin and they drove to a
Racine mall where McCormick then paid the money he had received from Wood to
Tucker, obtained heroin for distribution, and gave Wood his share.

(Id. at 15-17.)

McCormick sold heroin that he purchased from Tucker to George Malone, Silas, White,
and Perry.

(Id. at 17-19.)

On cross-examination, Tucker’s counsel questioned

McCormick about the dates of his meetings with Tucker. McCormick testified that he
told the DEA he first met Tucker in January or February 2008. (Id. at 28.)

5

Silas testified that he was introduced to Tucker by a friend and that he asked
Tucker to supply him with heroin. (Id. at 56-57.) At first Silas was purchasing one to
three grams two to three times per day, going through Ronsanta to purchase the drugs.
(Id. at 58-59.)

He then began purchasing one to five grams per day directly from

Tucker. (Id. at 59.) Silas continued purchasing heroin from Tucker until May 2009. (Id.
at 61.) Silas testified that in early 2008 he won $1,500 at a casino, and used some of
the money to purchase heroin from Tucker. (Id. at 59-60.) On cross-examination, Silas
indicated that the gambling win and heroin purchase occurred in January 2008. (Id. at
71.)
In 2009, Wood lived in Burlington, Wisconsin, and bought heroin from
McCormick.

(Id. at 75.) He purchased drugs from McCormick for about 14 or 15

months from mid-2008 through mid-2009. (Id. at 77.) McCormick did not always have
the drugs on hand, so Wood sometimes accompanied McCormick when he picked up
heroin from Tucker. (Id at 79-80.) At times Wood drove McCormick to pick up drugs.
(Id. at 81.) On one occasion, Tucker entered their car, and Wood paid McCormick for
heroin he had previously purchased. (Id.) McCormick then gave the money to Tucker
in exchange for more heroin, some of which was supplied to Wood. (Id. at 81-82.) On
cross-examination, Wood testified that he probably started purchasing heroin from
McCormick at the end of 2008. (Id. at 85.)
Perry and White grew up together in Racine; both were heroin users and at times
would loan each other heroin to avoid withdrawal. (Id. at 94-95.) White introduced
Perry to Tucker, who referred Perry to Ronsanta. (Id. at 96.) Initially Perry purchased
one or two gram quantities from Ronsanta, and Perry had a group he would regularly

6

sell to. (Id. at 98.) He would make arrangements to purchase the heroin by calling
either Tucker or Ronsanta.

(Id. at 99.)

On cross-examination, Perry testified that

between April and May 2009 he made 15 heroin purchases from Tucker; although he
generally purchased a gram, two purchases were for five grams, and one was for ten
grams. (Id. at 102-104.)
White testified that he became familiar with Tucker as someone from the street
who sold heroin. (Id. at 116.) He knew Ronsanta. (Id. at 119.) White bought heroin
from Tucker, who later directed him to start buying from Ronsanta. (Id. at 120.) From
time to time White also purchased heroin from Silas. (Id. at 121.) White was selling
heroin to young people he called the “Oak Creek kids,” who came to Racine from South
Milwaukee, Oak Creek, and Franklin. (Id. at 120.) Prior to purchasing heroin through
Tucker, White bought from McCormick.

(Id. at 128.) During August 2008 he was

buying through Tucker. (Id. at 131.)
During his defense Tucker offered into evidence a stipulation that if called to
testify, Noconnco Price — who was never charged in relation to the case — would state
that he spoke with DEA investigators on January 14, 2009, identified Tucker as a heroin
customer of Silas; and reported that he had seen Tucker give Silas money on one
occasion. (R. 586, 11.) Tucker exercised his right not to testify, and the court instructed
the jury that no inference of guilt could be drawn from that decision. (Id. at 12.)
During closing arguments, defense counsel questioned the credibility of the
Government’s witnesses by implying that they had a motivation to lie in exchange for
favorable plea deals. In rebuttal, the prosecutor stated, “But we're supposed to trust
that they’re smart enough that they all get together somewhere, somehow — some of

7

these people are out, some are in jail. They’re all over the place. But they all sit down
shortly after their arrest and say this is what happened. And — what? All their stories
are the same? It’s the same guy? It’s Mr. Tucker.” (Id. at 49.)
The prosecutor also explained to the jury how their plea agreements might affect
the testifying co-conspirators, saying, “They testified as to their deal. Their deal — their
deal isn’t made with the Government. They’re still facing long prison terms. And their
deal and their ultimate sentence isn’t decided by the Government. It’s not decided by
the United States Attorney’s Office. It’s decided by one man. That’s Judge Randa,
who’s sitting in here. Who’s listening to this testimony. Who’s examining what these
witnesses say. And he’ll make the ultimate determination.” (Id. at 50.)
The prosecutor went on to add, “You know, it’s one person’s witness against
another. And in this case it’s nine witnesses against Mr. Tucker, saying that he was
involved in this role, in this conspiracy. You've heard the evidence in this case. You —
each and every one of you know what the truth in this case is.” (Id. at 61.) The
prosecutor utilized imagery of local children purchasing heroin from street dealers, “And
he was selling it to the Oak Creek kids, as Mr. White testified to. There are all these
kids coming down from Oak Creek, Franklin, South Milwaukee. You know, we know
that there’s an increase in heroin because we read about it every day in the paper. And
these kids are going down there looking for one thing. They’re looking for heroin.” (Id.
at 24.)
After closing arguments, the court instructed the jury as to the law, reminded the
jury that lawyers’ statements are not evidence (Id. at 64), and admonished the jury that
Tucker’s decision not to testify should not be regarded or considered by it in arriving at a

8

verdict (Id. at 66). Ultimately, the jury returned a verdict of guilty on the conspiracy
count and found that the offense involved more than one kilogram of heroin. Tucker
was sentenced to 480 months’ imprisonment, followed by five years of supervised
release. Tucker filed a timely notice of appeal on February 7, 2012.
On appeal Tucker contended that the prosecutor made numerous improper
remarks that denied him his right to a fair trial under the due process clause of the Fifth
Amendment to the United States Constitution.

Tucker, 714 F.3d at 1011.

He

contended that the prosecutor: (1) referenced prior witness statements not in evidence;
(2) improperly commented on Tucker’s decision not to testify; (3) misconstrued the
nature of the co-conspirators’ plea agreements; and (4) improperly referenced familial
experiences with heroin that jurors had shared with the court during voir dire. Id. at
1012. He also argued that Baranek was improperly allowed to testify as a “dual
capacity” witness. Id. at 1011. The court of appeals affirmed Tucker’s conviction in a
decision issued April 30, 2013. Id. at 1017. Tucker filed a petition for rehearing, which
the court of appeals denied on July 24, 2013. United States v. Tucker, No. 12-1281,
docket available at www.pacer.gov (last visited Sept. 28, 2016). Tucker did not file a
petition for certiorari review.
On October 17, 2014, the Clerk of Court opened two actions for § 2255 relief:
14-C-1303 (the 1303 action), which Tucker filed pro se; and 14-C-1304 (the 1304
action), which was filed on Tucker’s behalf by counsel.

Each § 2255 motion was

accompanied by a declaration under penalty of perjury that it was placed in the prison
mailing system on October 16, 2014. The two actions, both of which raise ineffective
assistance of counsel claims, were consolidated into the 1303 action by the November

9

4, 2014, order of Judge Randa, and the government was ordered to file an answer to all
grounds for relief presented in the consolidated action. (ECF No. 5.)
Due to Judge Randa’s unavailability, this action was transferred to me.
ANALYSIS
“A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States . . . may move the court which
imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C.
§ 2255(a).
Time of Filing
The government contends that Tucker’s motion is untimely because it was not
filed within one year of the date his conviction became final.

See 28 U.S.C.

§ 2255(f)(1). The government cites Clay v. United States, 537 U.S. 522, 524 (2003),
and states that Tucker’s conviction became final on July 29, 2014, or 90 days after the
Seventh Circuit affirmed his conviction and the time period expired for filing a petition for
certiorari review. (ECF No. 7, 8.)
“Finality attaches when [the Supreme Court] affirms a conviction on the merits on
direct review or denies a petition for a writ of certiorari, or when the time for filing a
certiorari petition expires.” Clay, 537 U.S. at 527. As previously noted, Tucker did not
file a petition for certiorari review, but he did file a request for a rehearing, so the 90-day
period did not begin to run until July 24, 2013, when the Seventh Circuit denied that
request. See Sup. Ct. R. 13(3). Consequently, Tucker’s conviction became final 90
days later, October 22, 2013.

Accordingly, under 28 U.S.C. § 2255(f)(1), Tucker’s

10

motion was due on or before October 22, 2014. Tucker’s motions were filed before that
date. 3 Therefore, the action is timely.
Ineffective Assistance of Trial Counsel Claims
In grounds one through four of his pro se motion, Tucker contends that trial
counsel was ineffective because he failed to challenge the sufficiency of the indictment;
failed to review the presentence report (PSR) with Tucker; failed to make a challenge
pursuant to Batson v. Kentucky, 476 U.S. 79 (1986); and failed to file pro se motions.
The government argues that these contentions cannot be raised because Tucker did
not raise them on direct appeal.
However, ineffective assistance of counsel claims can be brought for the first
time on collateral review. See Massaro v. United States, 538 U.S. 500, 504 (2003)
(“We hold that an ineffective-assistance-of-counsel claim may be brought in a collateral
proceeding under § 2255, whether or not the petitioner could have raised the claim on
direct appeal.”); Vinyard v. United States, 804 F.3d 1218, 1227 (7th Cir. 2015).
A defendant’s Sixth Amendment right to effective assistance of counsel is
violated when two conditions are met: first, “the defendant must show that counsel’s
performance was deficient,” in that “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment;”
and second, “the defendant must show that the deficient performance prejudiced the
defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984).

3

The defendant is

Tucker’s pro se § 2255 motion is deemed filed on October 16, 2014. See Taylor v.
Brown, 787 F.3d 851, 858 (7th Cir. 2014) (“The ‘prison mailbox rule’ . . . provides that a
prisoner’s notice of appeal is deemed filed at the moment the prisoner places it in the
prison mail system, rather than when it reaches the court clerk.”) (citation omitted).

11

prejudiced when counsel’s errors “were so serious as to deprive the defendant of a fair
trial, a trial whose results are reliable.” Id.
For the performance prong of the Strickland standard, courts “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered sound trial
strategy.’” Id. at 689. The defendant must also “establish the specific acts or omissions
of counsel that he believes constituted ineffective assistance; [the court] then
determine[s] whether such acts or omissions fall outside the wide range of
professionally competent assistance.” Wyatt v. United States, 574 F.3d 455, 458 (7th
Cir. 2009) (citation omitted). The Court must eliminate the effects of hindsight and
evaluate performance based on the attorney’s perspective at the time. See Strickland,
466 U.S. at 689. “To overcome [the] presumption, a defendant must show that counsel
failed to act ‘reasonabl[y] considering all the circumstances.’” Cullen v. Pinholster, 131
S.Ct. 1388, 1403 (2011).

“The question is whether an attorney’s representation

amounted to incompetence under ‘prevailing professional norms,’ not whether it
deviated from best practices or most common custom.” Harrington v. Richter, 131 S.Ct.
770, 788 (2011).
“Ineffective assistance of counsel is a single ground for relief no matter how
many failings the lawyer may have displayed.” Pole v. Randolph, 570 F.3d 922, 934
(7th Cir. 2009) (citation omitted). Thus, Strickland requires that counsel’s performance
be evaluated as a whole rather than focusing on a single failing or oversight. Peoples v.
United States, 403 F.3d 844, 848 (7th Cir. 2005). “It is essential to evaluate the entire

12

course of the defense, because the question is not whether the lawyer's work was errorfree, or the best possible approach, or even an average one, but whether the defendant
had the ‘counsel’ of which the sixth amendment speaks.” Williams v. Lemmon, 557
F.3d 534, 538 (7th Cir. 2009).
To satisfy the prejudice prong of Strickland, the 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.

A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Failure to Challenge the Indictment
Tucker contends that trial counsel was ineffective for failing to file a motion to
dismiss the indictment for lack of jurisdiction because it did not allege a single violation
involving one kilogram or more of heroin. Unless a defendant can demonstrate that the
indictment was defective, his counsel cannot be deemed to be ineffective for having
failed to file a motion on that basis. See Blake v. United States, 723 F.3d 870, 885 (7th
Cir. 2013) (regarding ineffective assistance of counsel claim based on failure to file
motion to dismiss based on Speedy Trial Act violations).
Defects in an indictment do not deprive a district court of jurisdiction over the
case. United States v. Cotton, 535 U.S. 625, 630 (2002). Any argument that a defect in
Tucker’s indictment was jurisdictional is foreclosed by Cotton. Additionally, Tucker has
not shown that the indictment was defective. Count one of the superseding indictment
charged Tucker and 14 co-defendants with conspiring to distribute one kilogram or more
of a substance containing heroin, with a resulting death, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A) and 846. (R. 74.) A drug conspiracy may encompass a

13

series of drug transactions, and those transactions may be aggregated when calculating
a mandatory minimum. See United States v. Rivera, 411 F.3d 864, 866 (7th Cir. 2005).
Tucker has not demonstrated that counsel failed to act reasonably considering all the
circumstances.
Sentencing
Tucker also claims that counsel never reviewed the PSR with him. As a part of
ground four, Tucker also states that counsel did not afford him effective assistance
during sentencing, and that Tucker informed the Court of the problem. (See R. 537.)
An October 25, 2011, sentencing hearing was adjourned to allow counsel an
opportunity to review the PSR with Tucker. (R. 535; 587, 3-4.) At the February 3, 2012,
continued sentencing hearing, Judge Randa asked defense counsel whether he had
talked to Tucker about the PSR.

Counsel said he had, without comment or

contradiction by Tucker. (R. 593, 2-3, 16.) The record therefore contradicts Tucker’s
unsupported contention. Tucker has not established that counsel was ineffective in
such regard. Moreover, he has not demonstrated that the outcome would be different.
Batson
Tucker maintains that counsel was ineffective because he did not make a Batson
challenge when the government used preemptory challenges to strike the only two
black jurors from the jury. Tucker offers no factual support for this contention.
Batson, 476 U.S. 79, established that a prosecutor cannot use peremptory
challenges to dismiss African-American jurors, unless he can provide a credible raceneutral reason for doing so. Batson establishes a three-step framework for challenging
a peremptory strike. First, the defendant must make out a prima facie case that a strike

14

was exercised on the basis of race. Id. at 94. Second, the government must articulate
a race-neutral justification for the strike. Id. at 97. Third, the trial court must determine
whether the defendant has shown purposeful discrimination. Id. at 98. Tucker has not
demonstrated a prima facie case that a strike was exercised on the basis of race.
Moreover, to establish prejudice, Tucker would have to show that it is reasonably
probable that his Batson claims would have been successful had they been raised at
trial. Tucker has not made that showing.
Pro Se Motions
Tucker contends that counsel was ineffective because he did not file and/or
pursue pro se motions that Tucker filed. Tucker filed a number of pro se motions and
was represented by a series of attorneys from the time of his indictment through
sentencing.

Tucker has not shown that counsel’s performance was deficient.

Moreover, he has not shown that the motions, if filed and pursued, would have had a
reasonable probability of making a difference in his case.
Prosecutor’s Improper Arguments and Presentation of Perjured Testimony
In his pro se motion, Tucker contends that trial counsel was ineffective because
he did not object to improper opening and closing arguments by the government
(grounds five, eight and nine), and because he did not object to or attempt to correct the
prosecutor’s presentation of perjured testimony and counsel allowed the false testimony
to goad Tucker into disclosing that he was incarcerated in early 2008 to refute the
alleged false testimony (grounds six and seven). The government asserts that under
the law of the case, which is applicable to § 2255 proceedings, Tucker cannot re-litigate

15

issues which were decided on direct appeal or in his motion for a new trial by attempting
to reformulate them under the ineffective assistance of counsel label.
The Seventh Circuit has stated, “We hold that once this court has decided the
merits of a ground of appeal, that decision establishes the law of the case and is binding
on a district judge asked to decide the same issue in a later phase of the same case,
unless there is some good reason for reexamining it.” United States v. Mazak, 789 F.2d
580, 581 (7th Cir. 1986); Daniels v. United States, 26 F.3d 706, 711-12 (7th Cir. 1994).
A Section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal.
Daniels, 26 F.3d at 711.
Tucker’s complaints regarding the prosecutor’s improper opening and closing
arguments were raised and addressed on appeal.

Since the court of appeals has

already addressed and rejected those issues and determined that those arguments,
even if improper, did not deny Tucker’s right to a fair trial, the law of the case bars him
from raising these issues again.
The prosecutor’s alleged presentation of perjured testimony by McCormick and
Silas was raised in a motion for new trial. (R. 630.) The motion was dismissed as
untimely. (R. 650.) Tucker appealed. (R. 652.) The appeal was dismissed for failure
to prosecute. (R. 668.) The issue was not addressed on its merits on appeal. Thus,
the government has not established that the law of the case bars this basis for Tucker’s
ineffective assistance of counsel claim.
It is only when public officers connive or knowingly acquiesce in the use of
perjured evidence that their misconduct denies a defendant due process of law. Napue
v. Illinois, 360 U.S. 264, 269 (1959). In Napue, the principal witness for the prosecution

16

falsely testified that he had been promised no consideration for his testimony. The court
held that the knowing use of false testimony to obtain a conviction violates due process,
regardless of whether the prosecution solicited the false testimony or merely allowed it
to go uncorrected when it appeared. A new trial is required if a petitioner establishes
that (1) the prosecution presented false testimony or failed to disclose that false
testimony was used to convict, (2) the prosecution knew or should have known that the
testimony was false, and (3) there is a reasonable likelihood that the testimony could
have affected the jury’s judgment. Griffin v. Pierce, 622 F.3d 831, 842 (7th Cir. 2010).
Tucker claims counsel was ineffective because he failed to object to the
prosecutor eliciting false testimony from Merritt. Tucker states that she testified she
became reacquainted with him in March or April 2008, and that she sold Stuck some
heroin. He states that Stuck testified he purchased heroin and crack cocaine from
Merritt in February 2008.
Stuck’s February 2008 date conflicts with the March or April 2008 date testified to
by Merritt.

However, Tucker has not explained how that conflict makes Merritt’s

testimony false.

Merritt’s testimony meshes with the March 2008 date of Tucker’s

release from custody.

Tucker has not rebutted the presumption of counsel’s

competence.
He also asserts that counsel was ineffective because he failed to object when the
prosecutor elicited perjured testimony from Ronsanta by asking, “But you never
supplied [Silas] with any heroin, right?” (R. 584, 139.) Ronsanta responded “No, Sir.”
(Id.) However, Silas later testified that he had to go through Ronsanta when he first
started purchasing heroin from Tucker. (R. 585, 58.) Given the overwhelming evidence

17

that Tucker was engaged in the heroin conspiracy, he does not explain how the
prosecutor’s question to Ronsanta could have affected the jury’s verdict.

Tucker has

not shown he was prejudiced by counsel’s failure to object to the question.
Tucker also maintains that counsel was ineffective because he did not object
when the prosecutor allowed McCormick and Silas to testify incorrectly as to the date
they first met Tucker and began to purchase controlled substances from him. However,
under cross-examination by Tucker’s attorney, McCormick admitted that he was unsure
of the date that he met Tucker. (R. 585, 27.) Tucker’s counsel also asserted that
McCormick and Silas had testified falsely when they indicated they purchased heroin
from Tucker in January and February of 2008, because Tucker was not released from
custody until sometime in March.

(Id. at 137-38.)

Thus, Silas and McCormick’s

misstatements were exposed for the jury’s consideration during the course of the trial.
Additionally, Ronsanta, McCormick, and Silas were not key witnesses for the
prosecution — they were three of nine co-defendant witnesses testifying against
Tucker, all of whom presented similar stories. Tucker has not established that he is
entitled to relief with respect to ineffective assistance of counsel related to the failure to
object to the alleged presentation of perjured testimony.
Tucker also asserts that counsel was ineffective, citing United States v. Lawler,
818 F.3d 281, 282 (7th Cir. 2016). (ECF No. 20.) In that case, defendant Jean Lawler
pleaded guilty to distributing heroin and conspiring to possess heroin with the intent to
distribute it. Id. The district court found by a preponderance of the evidence that Lawler
sold the heroin that killed one of the conspiracy’s customers. Id. On that basis the
court

determined

Lawler’s

Guidelines-recommended

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sentence

using

U.S.S.G.

§ 2D1.1(a)(2), which applies if “‘the offense of conviction establishes’ that death resulted
[from the use of the heroin].” Id. On direct appeal, Lawler argued that she was not
convicted of causing the death of the customer, and therefore § 2D1.1(a)(2) did not
apply. Id. at 283. The court of appeals held that the application of § 2D1.1(a)(2) was
erroneous because the “‘offense of conviction’ — distributing heroin and conspiring to
possess heroin with the intent to distribute it — [did] not ‘establish’ that a death
resulted,” and it vacated Lawler’s sentence and remanded the case for further
proceedings. Id. at 282.
Tucker’s case is distinguishable from Lawler. He did not plead guilty. Rather,
the jury returned a verdict finding beyond a reasonable doubt that he was guilty of
conspiring to distribute one kilogram or more of a substance containing heroin, with a
resulting death. Lawler does not provide support for Tucker’s ineffective assistance of
counsel claim.
Failure to Investigate-1304 Motion
Tucker contends that trial counsel were ineffective in failing to familiarize
themselves with the facts and circumstances of his case; in failing to properly review the
government’s discovery; and in failing to recognize inconsistencies in the government’s
case that Tucker brought to their attention. He states that this extends to the failure to
properly challenge government investigators, witnesses, confidential informants, and
the testimony of his co-defendants who had plead guilty and testified against him at trial;
the failure to investigate the criminal histories of the government witnesses to find
impeachment material; and the failure to obtain and use post-arrest statements of codefendants. (1304 action, ECF No. 2, 4-5.)

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Tucker notes that the government did not respond to the claims raised in the
1304 motion and seeks summary judgment on those claims in his favor. (ECF No. 13.)
An attorney generally has a duty to adequately investigate the material facts in a
case, and can render ineffective assistance by not conducting a reasonable
investigation viewed from the attorney’s perspective at the time. See Rompilla v. Beard,
545 U.S. 374, 380-81 (2005). A petitioner who claims that his Sixth Amendment rights
were violated by his attorney’s failure to adequately investigate, must provide “the court
sufficiently precise information, that is, a comprehensive showing as to what the
investigation would have produced.” Richardson v. United States, 379 F.3d 485, 488
(7th Cir. 2004).
The bulk of Tucker’s contention is based on speculation that there were
exculpatory witnesses or other admissible evidence that counsel’s investigation would
have revealed. Tucker fails to show that his attorneys did not conduct a thorough
investigation, and even if he had made such a showing, he has not shown that the
outcome would have been different. See United States v. Ashimi, 932 F.2d 643, 649-50
(7th Cir. 1991) (holding that to succeed on a failure to investigate or failure to introduce
favorable evidence claim, “[the court] must know what the attorney would have
discovered after ‘adequate’ investigation,” and what the purportedly favorable evidence
would have been at trial); United States ex rel. Partee v. Lane, 926 F.2d 694 (7th Cir.
1991) (“[A] habeas court cannot even begin to apply Strickland's standards to [a failure
to investigate or elicit testimony] claim unless and until the petitioner makes a ‘specific,
affirmative showing as to what the missing evidence or testimony would have been’”).

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Tucker has not established he is entitled to summary judgment on this portion of his
ineffective assistance of counsel claim.
Failure to Mount a Credible Defense and
to Object to Prosecutor’s Statements-1304 Motion
Tucker also maintains that his attorney failed to mount a credible defense,
asserting that he failed to (1) interview or call as rebuttal witnesses individuals who
might support his theory of defense, (2) object to hearsay statements of government
witnesses, (3) offer meaningful cross-examination of government witnesses, (4) object
to Baranek’s dual capacity testimony, (5) object to the government’s reference at trial
and in opening and closing arguments to facts not in evidence, (6) properly impeach
Silas and McCormick’s testimony. (1304 action, ECF No. 2, 6-10.)
In large part these contentions are a recapitulation of the grounds raised and
rejected on direct appeal. Daniels, 26 F.3d at 711. Furthermore, although Price was
not called as a rebuttal witness, an offer of proof was made regarding his testimony.
Thus, the latter two grounds raised by Tucker’s 1304 action do not establish that
counsel was ineffective and his motion for summary judgment is denied.
Cumulative Effect of Errors
In his pro se motion, Tucker also asserts that the cumulative effect of the errors
attributable to trial counsel deprived him of his right to a fair trial.

After carefully

reviewing the record, and in light of the overwhelming evidence against Tucker, the
Court finds that there is no reasonable probability that, but for the alleged errors of
counsel in this case, considered in combination, the result of the proceedings would
have been different.

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Appellate Counsel
In his pro se motion, Tucker asserts that he was denied effective assistance of
appellate counsel, relying on his current contentions that he had ineffective assistance
of trial counsel. I infer that Tucker asserts appellate counsel should have raised such
contentions on direct appeal. Tucker also contends that appellate counsel should have
challenged the U.S.S.G sentencing enhancements imposed by Judge Randa and raised
the failure of trial counsel to preserve objections.
The Strickland test is employed to evaluate the effectiveness of appellate
counsel. Suggs v. United States, 513 F.3d 675, 678 (7th Cir. 2008). To satisfy the
deficiency prong on appeal, Tucker would need to establish that his attorney ignored a
significant and obvious issue, and that the issue counsel ignored was clearly stronger
than an issue raised by counsel on appeal. Id. (citing Strickland, 466 U.S. at 694).
Tucker has not identified any sentencing enhancements that appellate counsel
should have challenged or any basis for such challenge. Additionally, the Supreme
Court and the Seventh Circuit Court of Appeals have stated that claims of trial counsel
are best brought in a collateral proceeding. See Massaro, 538 U.S. 500, 504 (2003),
United States v. Stoller, 827 F.3d 591, 598 (7th Cir. 2016).

Tucker has not

demonstrated that appellate counsel’s performance was deficient.
Other Motions
Tucker has filed a number of related motions. The motion for recusal (ECF No.
17) is moot because Judge Randa is not presiding over this case.

The motion to

enlarge the record (ECF No. 20) is granted to the extent that I have considered Lawler,

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818 F.3d at 281, and denied as moot in all other respects because the proffered
documents are already part of the criminal record on file.
Also pending are motions for an evidentiary hearing (ECF No. 16), for discovery
(ECF No. 19) and two motions for appointment of counsel (ECF Nos. 12, 18).

“A

habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Instead, under Rule 6 of the Rules Governing § 2255 Proceedings, a court may
authorize discovery if “good cause” is shown.

Good cause exists “where specific

allegations before the court show reason to believe that the petitioner may, if the facts
are fully developed, be able to demonstrate that he is . . . entitled to relief.” Id. at 90809 (citation omitted). “Good cause cannot exist where the facts alleged do not provide a
basis for relief.” Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir. 1990). For
the reasons discussed above, Tucker’s allegations provide no basis for relief, nor any
reason to believe that discovery would change that fact.
Tucker’s allegations also create no factual dispute that requires an evidentiary
hearing. Cooper v. United States, 378 F.3d 638, 641-42 (7th Cir. 2004) (district court
did not abuse its discretion in denying petitioner an evidentiary hearing where petitioner
did not provide additional facts or assertions that would warrant a hearing)
Furthermore, he has not established a need for appointment of counsel. Accordingly,
his motion for discovery, a hearing, and appointment of counsel are denied.
For the reasons stated above, I deny Tucker’s § 2255 motion.

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Certificate of Appealability
When a court enters a final judgment against a movant, it must also issue or
deny a certificate of appealability. Rule11(a), Rules Governing § 2255 Proceedings for
the United States District Courts. A movant is entitled to a certificate of appealability
only if he can make a substantial showing of the denial of a constitutional right. Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003); 28 U.S.C. § 2253(c)(2). Under this standard, the
movant must demonstrate that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that
the issues presented were ‘adequate to deserve encouragement to proceed further.’”
Miller-El, 537 U.S. at 336 (citation omitted). I find that reasonable jurists would not
debate that Tucker’s motion does not present a valid claim of denial of a constitutional
right, or that the petition should have been resolved in a different manner. Therefore, I
decline to certify any issues for review pursuant to 28 U.S.C. § 2253(c).
THEREFORE IT IS ORDERED that Tucker’s § 2255 motion (ECF No. 1) is
DENIED;
Tucker’s motion for summary judgment (ECF No. 13) is DENIED;
Tucker’s motion for recusal (ECF No. 17) is DENIED as moot;
Tucker’s motion to enlarge the record (ECF No. 20) is GRANTED with respect to
consideration of Lawler and DENIED as moot in all other respects;
Tucker’s motion for an evidentiary hearing (ECF No. 16) is DENIED;
Tucker’s motion for discovery (ECF No. 19) is DENIED;
Tucker’s motions for appointment of counsel (ECF Nos. 12, 18) are DENIED;
A certificate of appealability is also DENIED;

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This action is DISMISSED; and
The Clerk of Court is DIRECTED TO ENTER JUDGMENT accordingly.
Dated at Milwaukee, Wisconsin, this 9th day of November, 2016.

s/ Lynn Adelman
______________________
LYNN ADELMAN
District Judge

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