TAYLOR v. United States of America

Filing 9

ORDER denying 1 MOTION to Vacate Sentence per 28 USC 2255. Signed by Chief Judge Barbara B. Crabb on 12/1/2009. (arw)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, O PIN IO N AND ORDER Plaintiff, 0 9 - cv -5 0 8 - b b c 0 6 - cr -1 0 5 - b b c v. T Y R EES E R. TAYLOR, D efendan t. --------------------------------------------D efen dan t Tyreese R. Taylor has moved for post conviction relief under 28 U.S.C. § 2255, contending that he was denied the effective assistance of counsel at his trial when his attorney failed to object to audio recordings played at trial and played again at the jury's requ est during its deliberations. The government denies that counsel was ineffective in this respect or any other. T h e government filed a response to defendant's motion to which defendant did not reply, although he was given an opportunity to do so. His failure to file a brief leaves him w ith only the conclusory allegations of his motion set out above. After considering those allegatio n s, the government's response and the record of the case, I conclude that defendant

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has failed to show that his counsel gave him ineffective representation.

BACKGROUND In an indictment returned on May 11, 2006, defendant and two codefendants were ch arged with distribution of cocaine base or crack cocaine. Defendant was the only one of the three that went to trial. At trial, a confidential informant, Terry Reed, testified about controlled buys of crack cocain e he had made from defendant. At one, which took place on January 26, 2006, Reed w ore a body wire that recorded his conversation with defendant. That recording was played at trial, after he had identified it and testified that he had reviewed both the recording and a transcript made from the recording. Defendant's counsel took the opportunity to conduct a voir dire examination of Reed about the recording before stating he had no objection to th e recording. Trial transcript, dkt. #111, at 66-68. A second confidential informant, Dra'main Dumas, testified that he had met d efen dan t on a number of occasions and had known him for three years. Trial tr., dkt. #112, at 2-A-21. Dumas testified that he himself had sold crack cocaine in the past, that he had talk ed with defendant about prices for controlled substances and had bought crack cocaine from defendant at various times. Id. at 2-A-23. Dumas testified about his participation in tw o controlled buys of crack cocaine from defendant, both of which were recorded and

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con ducted under surveillance by law enforcement. Id. at 2-A-26-38. At trial, he identified th e recordings, which were then played for the jury. Id at 2-A-33-34, 2-A-37-38. A Rock County sheriff's deputy testified about her surveillance of controlled buys by R e ed on January 26, 2006 and by Dumas on March 23, 2006 and her identification of defendant as the driver of the black Lexus that showed up at both of the controlled buys w i th Dumas. She testified that she had seen photographs of defendant and had had prior perso na l contact with him that helped her identify him. One of defendant's codefendants was his younger brother, George Taylor. George testified at trial that he accompanied his brother to the March 23 transaction with Dumas and that his brother had driven a black Lexus. George would not testify about observing the d ru g transaction, saying that he had been dozing off, did not recall the car stopping and w o k e up only when Dumas got out of the car. Id. at 2-A-84-87. O fficer Roel Benavides testified to stopping a black Lexus on May 1, 2006, after ob serving that it had illegal window tinting and an illegal plastic tint covering the rear license plate. He admitted having information that the car was usually driven by defendant. When he stopped the car, he approached it and made a positive identification of the driver as defendan t. Id. at 2-A-98-101. During jury deliberations, the jury asked to hear the audio recordings of the transaction s that had been played at trial. The recordings were played again for the jury in

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the courtroom with the parties present. The jury found defendant guilty of four of the five cou nts of the indictment against him. Defendant was sentenced on November 15, 2006 to four concurrent terms at the statutory minimum of 240 months. He appealed his conviction and sentence to the court of appeals, which denied the appeal, and he petitioned for a writ of certiorari from the U nited States Supreme Court, which denied the petition on October 6, 2008. He filed his § 2255 motion on August 17, 2009. (In addition, he moved on May 12, 2009, for a reduction of his sentence under 18 U.S.C. § 3582; this motion was denied because d efen dan t's sentence was determined by statute, and not by application of the Sentencing G uidelines governing crimes involving crack cocaine.)

OPINION T o show that he was denied the effective assistance of counsel, defendant must estab lish both that his attorney's representation of him fell below the minimum standard of perfor m an ce and that the inadequate representation was prejudicial, that is, that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the p ro ceed in g would have been different." Strickland v. Washington, 466 U.S. 668, 694 (19 84 ). Defendant's only ground for vacation of his conviction and sentence is his claim that

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his trial counsel did not object to the playing of the tapes from alleged drug transactions with co n fid en tia l informants, Reed and Dumas. He is correct about the lack of any objection fr o m his counsel, but he does not identify any grounds for a successful objection and I can n o t find any in the record. When the government put into evidence the first tape, of R eed's transaction with defendant, it laid a thorough foundation for doing so. Defendant's co un sel conducted a voir dire of Reed, during which he probed for possible grounds for objection, but found none. The government laid an equally strong foundation for the intro duction of Dumas's tapes. D efendan t cannot blame his counsel for not raising an objection that had no merit. M u ch as defendant may have wished that the recordings had not been played, he had no legal basis for keeping them from the jury. In the absence of any showing that defendant was denied the effective assistance of counsel at his trial, his motion for post conviction relief must be denied. Because I am d en yin g his motion, I must determine whether defendant is entitled to a certificate of ap pealab ility under the newly effective amendments to Rule 11 of the Rules Governing S ection 2255 Cases in the United States District Courts. A certificate of appealability shall issue "only if the applicant has made a substantial show ing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to make th is showing, a defendant must "sho[w] that reasonable jurists could debate whether (or, for

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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.'" Slack v. M cD an iel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (19 83 )). Although Rule 11 allows the court to direct the parties to submit arguments on the qu estion of issuing a certificate of appealability, it is unnecessary to do so in this instance. It is evident that no reasonable jurist would believe that defendant's motion has any merit.

OR DER IT IS ORDERED that defendant Tyreese Taylor's motion for post conviction relief un der 28 U.S.C. § 2255 is DENIED. No certificate of appealability will issue. E n tered this 1s t day of December, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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