Garvey v. USA

Filing 10

OPINION AND ORDER dismissing 1 Motion to Vacate Sentence per 28 USC 2255. A certificate of appealability is also DENIED. Signed by District Judge William M. Conley on 5/10/16. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ERIC EDWARD GARVEY
OPINION AND ORDER
v.
14-cv-85-wmc
10-cr-133-wmc

UNITED STATES OF AMERICA

Eric Edward Garvey has filed a motion under 28 U.S.C. § 2255 to vacate, set aside or
correct the sentence that he received in United States v. Garvey, Case No. 10-cr-133. The
respondent filed a brief in opposition. After considering all of the pleadings, the record and
the court’s own recollection of the underlying proceedings, the motion must be denied for
reasons set forth below.
BACKGROUND
A grand jury returned a four-count indictment charging Garvey with knowingly and
intentionally distributing a mixture or substance containing methamphetamine, a Schedule II
controlled substance on April 21, April 30, May 8 and May 27, 2008, all in violation of 21
U.S.C. § 841(a)(1). After a trial in early February of 2011, a jury found Garvey guilty as to
all four counts.1
To establish that the substance was in fact methamphetamine, the government
notified Garvey’s trial counsel that it planned to offer the expert testimony of John Nied, a
controlled substance analyst and technical unit leader at the Wisconsin State Crime
Laboratory in Wausau, Wisconsin. Nied did not personally analyze the substances. Rather,
In addition to the sentence that he received in this case, Garvey was found guilty in a multi-count
indictment stemming from a conspiracy to transport and sell property, Case No. 10-cr-134 (W.D. Wis.
July 15, 2011). Garvey filed a separate motion under 28 U.S.C. § 2255 to challenge that conviction,
which was denied as untimely. See Garvey v. United States, Case No. 14-cv-85 (W.D. Wis.).
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Andrew Schleis, who no longer worked for the department, conducted the analysis.
As Nied testified at trial, he analyzed the test data and notes Schleis created
consistent with lab protocol, which included charts generated by instruments in the lab.
After reviewing the data, Nied concluded that the substances were methamphetamine.
Rather than objecting to the admission of Nied’s expert testimony, Garvey’s counsel crossexamined him extensively about the charts that he relied upon in reaching his conclusions.
(Dkt. #92, pp. 150-57.) In addition to Nied’s expert testimony, the government submitted
other evidence that the substances were methamphetamine, including taped conversations of
Garvey commenting on the quality, price and amount of methamphetamine sold during each
controlled buy. (See Ex. List, dkt. #101.)
Following the jury’s guilty verdict, Garvey asked for and received new counsel for
sentencing. (Dkt. #10.) A presentence investigation report (“PSR”) was filed on April 15,
2011, that calculated a guideline range of 46 to 57 months based on an offense level of 16
and a Criminal History Category VI. (Dkt. # 65, at 20.)
Garvey’s sentencing counsel filed objections to seventeen paragraphs of the PSR.
Three of those objections -- to paragraphs 39, 41 and 42 -- relate to the release date for a
prior crime that added points to his criminal history calculation and Garvey seeks to raise
them again here. Paragraph 39 described a conviction on December 27, 1990, for stealing a
car and damaging a squad car in the process of evading arrest. Garvey was paroled on that
offense on March 1, 1996, which he completed on October 22, 1999.

In his original

objection, Garvey’s sentencing counsel asserted that the actual parole date was June 12,
1994, although the same counsel acknowledged that the difference “does not affect the three
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criminal history points applied to him . . . because 6/12/94 is approximately 14 years from
the date of the offense for which he is being sentence[d] and therefore within the 15 year
window for sentences of this type to be considered.” (Dkt. #66, at 2.)
Paragraph 41 described a Minnesota conviction on March 13, 1992, for motor vehicle
theft, on which Garvey was released from custody on February 17, 1994. (PSR Addendum,
dkt. #68, p. 4.)

At sentencing, Garvey objected to the release date, believing that his

September 25, 1991, arrest date -- not the date of his conviction -- should have been the
starting point to determine the relevance of this conviction to his criminal history calculation.
Finally, paragraph 42 described a Wisconsin conviction for escape. The PSR stated
that he was released from custody in that case on March 1, 1996. The objection stated, in
part, that Garvey’s mandatory release day was 16 months from his arrest on September 12,
1991, which would have been January 12, 1993. The Addendum to the PSR restated that
the Wisconsin Department of Corrections computer records provided a release date of March
1, 1996, but that the actual prison file was destroyed and there was no further available
documentation. (Dkt. #68, at 4.)
Before arriving at a sentence, this court considered the PSR, objections, the
Addendum to the PSR and the parties’ arguments. The court agreed with Garvey that the
applicable guidelines range was 41 to 51 months and sentenced him to concurrent terms on
all counts of 42 months.

(Dkts. #79, #89.)

In its statement of reasons, this court

specifically addressed the criminal history items, concluding that only the objection to
Paragraph 42 of the PSR had merit. (Dkt. #78, at 4.) This ruling was in recognition of the
fact that “because the original conviction record could not be located,” leaving “no reliable
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information” about the actual length of the sentence for escape and held, therefore, that the
conviction should not be included in Garvey’s criminal history score.

(Id.)

The court,

therefore, reduced his Criminal History score from a Category VI to a Category V, which
contributed in part to a sentence of 42 months, near the low end of the revised 41 to 51
month guideline calculation.
On direct appeal, Garvey’s appellate counsel argued that the admission of Nied’s
testimony amounted to plain error, but the Court of Appeals for the Seventh Circuit
disagreed. See Garvey v. United States, 688 F.3d 881, 884-85 (7th Cir. 2012). In its ruling,
the Seventh Circuit harkened back to its opinion in United States v. Turner, 591 F.3d 928.
931 (7th Cir. 2010), upon which the government relied. In Turner, the court held that the
admission of testimony by an expert witness based in part on an analyst’s report to reach his
opinion did not result in a Confrontation Clause violation, reasoning that the report itself
was not introduced into evidence. Id. Following oral argument, however, the Seventh Circuit
acknowledged that the Supreme Court vacated the Turner decision in Williams v. Illinois, __
U.S. __, 132 S. Ct. 2221 (2012), holding that there was no Confrontation Clause violation
where a forensic specialist testified about a DNA profile produced by an outside laboratory.
In reviewing the Williams decision, the Seventh Circuit noted that the Supreme Court
did not clarify the Confrontation Clause issue at hand. Accordingly, the Seventh Circuit held
that Nied’s expert testimony did not amount to plain error because the jury considered an
“abundance of other evidence establishing both that Garvey sold methamphetamine during
the four controlled buys and the quantity sold in each transaction.” Garvey, 688 F.3d at 885-

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86. The Supreme Court subsequently denied cert, Garvey v. United States, 133 S. Ct. 1305
(Feb. 19, 2013), and this motion followed.

OPINION
A motion for relief under 28 U.S.C. § 2255 seeks “an extraordinary remedy because it
asks the district court essentially to reopen the criminal process to a person who already has
had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 520 (7th Cir.
2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). Accordingly, a
prisoner must show that the district court sentenced him “in violation of the Constitution or
laws of the United States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or that it is otherwise
subject to collateral attack.” Relief under § 2255 is appropriate only for “an error of law that
is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results
in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir.
2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)).
Here, Garvey contends that he is entitled to relief pursuant to § 2255 because he was
denied effective assistance of counsel in two respects: (1) his trial counsel failed to object
that the testimony of the government’s expert witness violated his right to confront all
witnesses against him; and (2) his sentencing counsel failed to object to the inclusion of
certain prior convictions in his criminal history score. Claims for ineffective assistance of
counsel are analyzed under the well-established standard set forth in Strickland v. Washington,
466 U.S. 668 (1984).

To prevail under the Strickland standard, a defendant must
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demonstrate both constitutionally deficient performance by counsel and actual prejudice as a
result of that deficiency. See Williams v. Taylor, 529 U.S. 390, 390-91 (2000). In other
words, “a defendant must show both that his attorney performed below minimal professional
standards and that the substandard performance prejudiced him.” Northern v. Boatwright, 594
F.3d 555, 560 (7th Cir. 2010). For the reasons explained below, Garvey fails to make either
showing with respect to each of his two, separate claims for ineffective assistance of counsel.
I.

Nied’s Expert Testimony
First, Garvey contends that his attorney’s failure to object to the introduction of

Nied’s testimony amounts to ineffective assistance of counsel, but he has not established that
his attorney’s failure to object was actually deficient for multiple reasons, nor that it caused
him any actual prejudice.
Where the law is unsettled, an attorney cannot be faulted for failing to anticipate
future changes. Groves v. United States, 755 F.3d 588, 593 (7th Cir. 2014). At the time of,
and even after, Garvey’s conviction, the law related to the admissibility of expert testimony
substantiated in part by the work of another expert not subject to cross-examination, such as
Nied’s, was unclear at best and clearly against Garvey at worst.

In rejecting Garvey’s

arguments on appeal -- as well as in subsequent decisions -- the Seventh Circuit’s discussion
of Williams highlights and bemoans the current uncertainty under the law. Garvey, 688 F.3d
at 884-85; United States v. Turner (Turner II), 709 F.3d 1187, 1189 (7th Cir. 2013) (“the
divergent analyses and conclusions of the plurality and dissent … sow confusion as to
precisely what limitations the Confrontation Clause may impose when an expert witness
testifies about the results of testing performed by another analyst, who herself is not called to
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testify.”). Given the Seventh Circuit’s ruling in Garvey’s direct appeal, testimony such as
Nied’s would, if anything, appear not to violate the Confrontation Clause. See also United
States v. Maxwell, 724 F.3d 724, 727 (7th Cir. 2013) (no plain error where witness reviewed
the data generated by another analyst and reached an independent conclusion, but noting
that Garvey was a closer analysis because Nied testified directly from inadmissible notes and
charts).
Garvey asks the court to adopt the Supreme Court’s analysis in Melendez v.
Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011),
but both cases are factually distinguishable.

In each case, a report was submitted into

evidence, despite its author being unavailable as a witness, and in each decision, the Court
held that admission into evidence of the report itself implicated the right to confront the
author of the report. Bullcoming, 131 S. Ct. at 2710; Melendez, 557 U.S. at 309.
Here, no expert report was ever admitted into evidence; instead, Nied testified based
on his own expert opinions, albeit informed by Schleis’s data and notes. Accordingly, Nied’s
testimony was independent of the documents Schleis created.

As Justice Sotomayor

emphasized in her concurrence in Bullcoming, the Court had not spoken on the
“constitutionality of allowing an expert witness to discuss others’ testimonial statements if
the testimonial statements were not themselves admitted as evidence.” 131 S. Ct. at 2722.
Because there was no direct evidence from Schleis that would require his cross-examination
under the Confrontation Clause, the decisions in Bullcoming and Melendez have no direct
bearing on the admissibility of Nied’s testimony here.
Moreover, to determine ineffective assistance, the performance of Garvey’s counsel
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must be reviewed as a whole. Groves, 755 F.3d at 593. Garvey’s counsel may not have
objected to Nied’s testimony, but he did cross-examine him in a way that attempted to call
his expertise into question. (Dkt. #92, at 144-57) In particular, counsel questioned Nied
about (1) how the substances were weighed, (2) how to analyze the mass spectrometry charts
properly to identify the substance, and (3) whether Nied would be able to identify different
samples from the same batch of drugs.
Moreover, Garvey has not suggested (much less proven) that his trial counsel’s
decision not to object to Neid testifying, his cross-examination, or any other claimed failure
was somehow deficient, much less prejudicial. For example, there is no evidence that his
counsel’s failure to object to Nied’s testimony prejudiced the outcome. Not only has the
government submitted additional evidence beyond Nied’s testimony that indicated that the
product was actually methamphetamine, but as noted on his direct appeal, the court
admitted into evidence “taped conversations of Garvey commenting on the quality, price, and
amount of methamphetamine sold.” 688 F.3d at 885-86. Garvey does not call into question
this uncontroverted evidence. Having established neither that his trial counsel committed
plain error, nor that he would not have been convicted of the four charges of selling
methamphetamine without Nied’s testimony, Garvey has not established entitlement to
extraordinary relief.
II.

PSR Calculations
Garvey separately argues that his counsel was ineffective in failing to object to the

inclusion of paragraphs 39 and 41 of the PSR in the calculation of his Criminal History
category. Specifically, Garvey claims that he told his attorney that the release dates for his
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convictions in paragraphs 39 and 41 of the PSR was actually November 12, 1993, but that
his attorney did not properly object. This claim is flawed on a variety of levels.
As an initial matter, the government correctly notes that this claim is barred by the
doctrine of procedural default, because Garvey could have, but did not, pursue it on direct
appeal. When a defendant has procedurally defaulted a challenge by failing to raise error
properly on direct appeal, the claim may be raised in a § 2255 motion only if the defendant
can demonstrate (1) cause and prejudice, or (2) that he is “actually innocent” of the crime for
which he was convicted. See Bousley v. United States, 523 U.S. 614, 622 (1998). Garvey has
not attempted to demonstrate his actual innocence, nor could he on this record. Similarly,
Garvey has identified no recognized exception to the procedural bar. Therefore, his claims
are procedurally barred from review. See Belford v. United States, 975 F.2d 310, 313 (7th Cir.
1992).
Additionally, Garvey has not established deficient performance by his sentencing
counsel because Garvey’s attorney did object on the basis that the release dates in paragraphs
39 and 41 were wrong, although those objections were unsuccessful. Under the guidelines,
the Criminal History score counts: (1) “[a]ny prior sentence of imprisonment exceeding one
year and one month that was imposed within fifteen years of the defendant’s commencement
of the instance offense”; and (2) “any prior sentence of imprisonment exceeding one year and
one month, whenever imposed, that resulted in the defendant being incarcerated during any
part of such fifteen year period.”

USSG § 4A1.2(e)(1).

The measuring date for the

commencement of Garvey’s offenses was April 21, 2008, the earliest date of Garvey’s four

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controlled buys. (Dkt. #2, at 54, 56.) For a conviction not to be included in the criminal
history score, the release date, therefore, had to have been before April 21, 1993.
As to paragraph 39, sentencing counsel objected, citing Garvey’s belief that the release
date was supposed to be June 12, 1994, but acknowledged that this was still after the April
21, 1993, cut-off date. Similarly, his counsel objected to paragraph 41, stating that Garvey
believed his September 25, 1991, arrest date should be the starting point.
Now, Garvey claims that his release date for both convictions was actually November
12, 1993, but he continues to submit nothing in support. Instead, his story is even more
attenuated, based on the claims that he told his sentencing counsel about “a phone call,
where the person told [Garvey] the records had been purged but gave speculation of the date
of release.” (Dkt. #1, at 5.) This unsupported allegation neither establishes that his attorney
knew the release dates for these convictions were wrong, nor that he was deficient in failing
to include that dubious information in his objection.

Finally, even if Garvey had been

released on November 12, 1993 -- and his attorney knew as much -- there is no prejudice: a
November 12, 1993, release date still falls after the 15-year threshold of April 21, 1993.2
Accordingly, Garvey established neither prong of the Strickland analysis, and his
argument fails.
III.

Certificate of Appealability
Under Rule 11 of the Rules Governing Section 2255 Cases, the court must issue or

deny a certificate of appealability when entering a final order adverse to petitioner.

To

Although in his reply brief, Garvey offers various other release dates for these convictions, he provides
no factual support for those possible dates either. Regardless, none of his suggested release dates fell
before April 21, 1993.
2

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obtain a certificate of appealability, the applicant typically must make a “substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S.
274, 282 (2004). Where denial of relief is based on procedural grounds, the petitioner must
also show that “jurists of reason . . . would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Generally, this
means that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (internal quotations and citations omitted).
Although the rule allows a court to ask the parties to submit arguments on whether a
certificate is warranted, it is not necessary to do so here because the record was adequate to
resolve the claims for relief this case. Because reasonable jurists would not debate whether a
different result was required, no certificate of appealability will issue.
ORDER
IT IS ORDERED that:
1. The motion to vacate, set aside or correct sentence filed by defendant Eric
Edward Garvey is DISMISSED.
2. A certificate of appealability is also DENIED. If defendant wishes he may seek
a certificate from the court of appeals under Fed. R. App. P. 22.
Entered this 10th day of May, 2016.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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