Vaughn v. USA
Filing
9
ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255 by Petitioner Maurice D. Vaughn. Signed by District Judge William M. Conley on 1/6/2017. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MAURICE D. VAUGHN
OPINION AND ORDER
v.
14-cv-317-wmc
11-cr-90-wmc
UNITED STATES OF AMERICA
Maurice D. Vaughn (“Vaughn”) has filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct the conviction and sentence that he received in United States
v. Vaughn, Case No. 11-cr-90-wmc. Vaughn was convicted of conspiracy to distribute
more than 100 grams of heroin in that case and sentenced to 240 months’ imprisonment.
Vaughn contends that he is entitled to relief because he was denied effective assistance of
counsel at his trial and sentencing proceeding. The government has filed a response and
Vaughn has submitted a reply. After considering all of the parties’ submissions, and
based on this court’s clear recollection of the relevant proceedings, Vaughn’s motion is
denied for reasons set forth below.
BACKGROUND1
I.
Offense Conduct
Vaughn’s involvement with drug trafficking offenses began at a young age. At 17
years old, he was involved in a drug transaction that resulted in the shooting death of a
customer in Kalamazoo, Michigan. Vaughn was convicted and sentenced to prison as an
The facts underlying the offense are outlined in the Presentence Report prepared by the
probation office and in the Seventh Circuit’s published decision, affirming Vaughn’s conviction
and sentence. See United States v. Vaughn, 722 F.3d 918, 921-25 (7th Cir. 2013). To the extent
that it is relevant to Vaughn’s ineffective-assistance claims, the factual and procedural background
is summarized here.
1
accessory after the fact in connection with that offense. After serving his sentence and
parole for that crime, Vaughn was convicted of cocaine possession in Knox County,
Illinois. Soon after, Vaughn was charged in the Western District of Wisconsin with
possession with intent to distribute crack cocaine, stemming from drug trafficking
activities in Beloit. See United States v. Vaughn, 98-cr-81-bbc. In that case, Vaughn was
convicted and sentenced to 135 months’ imprisonment, later reduced on the
government’s motion to 108 months, followed by a five-year term of supervised release
that terminated in 2008.
Back on the street in 2007, police began investigating Vaughn for his role in the
distribution of heroin in the Beloit area.
In June 2007, a confidential informant
attempted to purchase two grams of heroin from Vaughn. As part of the controlled buy,
the informant wore a wire, got into Vaughn’s car and gave Vaughn $250 for a
prearranged purchase. Before Vaughn tendered the drugs, however, he checked the
informant for a wire. Discovering the wire, Vaughn ripped it off the informant and then
kicked the informant out of his car. Vaughn then drove away, tossing the money from
the informant out of his car window.
During this same time period, Vaughn distributed heroin to an individual named
Jesse Green. Green told investigators that from January to September 2007, he bought
approximately three to five grams of heroin from Vaughn daily.
Another individual named Patrick Riley told police that he began using heroin
purchased from Vaughn beginning in late 2007 or early 2008. Riley told investigators
that from 2008 through mid-2010, he received gram quantities of uncut heroin from
2
Vaughn. According to Riley, he first purchased heroin directly from Vaughn. In 2010,
however, Vaughn began using Carlos Ford as a distributor. From then on, Vaughn would
deliver heroin to Riley through Ford.
Ford worked as a distributor for Vaughn from December 2009 through March
2010. Vaughn supplied Ford with heroin on a daily basis to sell in exchange for personaluse quantities or cash. In the spring of 2010, Vaughn and Ford had a falling out due to
customer complaints about the product’s purity. Later, Ford and Vaughn resumed their
supplier/distributor relationship under a slightly different arrangement.
Rather than
customers ordering directly from Ford, as they had in the past, the customers were
required to contact Vaughn and then Vaughn would direct them on where and when to
meet Ford. Following a customer request, Vaughn would also contact Ford by cell phone,
telling him when and where to meet the customer.
Ford testified that each morning during the summer of 2010, he picked up
approximately fifty to seventy small bags containing pre-weighed heroin (also referred to
as bindles or “dime bags”) from Vaughn, along with a cell phone that enabled Vaughn to
contact him and provide directions for prearranged purchases of heroin. Each day after
Ford’s shift, Vaughn instructed Ford to drop off the money and any remaining heroin
from that day to either Vaughn or Maurice C. Lockhart.
During that summer, Lockhart served in the same role as Ford and distributed
heroin in front of his home in Beloit. Generally, if customers wanted heroin during the
day, Vaughn directed them to meet with Ford for the delivery; and if customers wanted
heroin in the afternoon or evening, Vaughn directed them to meet with Lockhart. Before
3
his dealings with Vaughn, Ford did not know Lockhart. Further, while Ford obtained
heroin from Vaughn and sold it as early as December 2009, Lockhart did not become
involved with Vaughn until the spring of 2010, which was when Vaughn began exercising
more control over the distribution of heroin.
After observing Ford driving erratically in Beloit on August 11, 2010, an officer
conducted a traffic stop. During that stop, officers searched Ford’s person and located a
key chain containing two bags of heroin. After Ford was arrested, officers also observed
him moving around in the back seat of the squad car as if he was attempting to conceal
something behind him. A strip search at the jail revealed seventy bindles containing a
total of 11.621 grams of heroin between Ford’s buttocks. After weighing the contents of
the bags, Detective Andre Sayles estimated that each bindle contained 0.13 gram of
heroin. Ford later testified that the seventy bags of heroin in his possession at the time
of the arrest was his daily supply from Vaughn.
II.
Indictment in Case No. 11-cr-90
On August 17, 2011, a grand jury in the Western District of Wisconsin returned a
one-count indictment charging that in or about May 2010 and continuing until on or
about August 2010, Maurice D. Vaughn and Maurice C. Lockhart knowingly and
intentionally conspired and agreed with each other, with Carlos Ford, who was named as
an uncharged co-conspirator, and with other persons known and unknown to the grand
jury to distribute 100 grams or more of a mixture or substance containing heroin, a
Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C.
§ 846. Before trial, Lockhart moved to dismiss the indictment as impermissibly vague
4
and requested a bill of particulars.
This court denied both motions and the case
proceeded to trial.
III.
Trial Testimony
During the trial, several witnesses testified about their interactions with Vaughn
and Lockhart, which corroborated Ford’s description of their heroin distribution
arrangement.
The defendants’ customers also testified to the amount of heroin they
purchased from Lockhart and Ford.
In addition, Ford’s girlfriend, Casie Kast, testified that during the summer of
2010, she would drive Ford to a house in Beloit, where Ford would pick up the day’s
supply of heroin from Vaughn. Kast not only saw the daily supply of heroin, but used
some of that heroin each day. Kast also confirmed that Ford received cell phone calls
from Vaughn, instructing Ford on when and where to meet customers for a prearranged
purchase. At the end of Ford’s shift on approximately fifteen to twenty occasions, Kast
explained that she drove Ford to Lockhart’s house so that he could drop off the money
from the heroin sales and pass the cell phone along to either Vaughn or Lockhart.
Witnesses Ashley Titus and Darrell Jackson also testified that they used heroin
supplied by Ford and Lockhart in the summer of 2010.
Specifically, they described
contacting an intermediary, Andre Simms, for the purchase of heroin. In their presence,
Simms would then make a phone call, and Titus and Jackson would then drive Simms to
one of two typical locations as directed. At the designated location, Titus and Jackson
would watch as Simms met with one of two distributors, who both identified as Ford and
Lockhart.
5
Simms further confirmed Titus’s and Jackson’s testimony about the heroin deals
for which he acted as an intermediary, including his heroin purchases from Ford and
Lockhart. Simms similarly corroborated Ford’s account of the manner in which heroin
purchases from Ford changed during the summer of 2010, thereafter requiring Simms to
call Vaughn to set up a purchase. Finally, Simms testified that when he called Vaughn to
purchase heroin, Vaughn would then instruct Simms to meet with either Ford or
Lockhart at a specified location to complete the transaction.
Lawrence McShan testified that he also served as an intermediary for heroin users
in order to support his own heroin habit. In the summer of 2010, McShan would pick
up heroin from Ford or Lockhart after calling a designated number to arrange a purchase.
The person McShan called would direct him to meet with Ford during the morning hours
and to meet with Lockhart during the evening hours. On one occasion, when McShan
met with Ford, McShan did not have enough money to cover his purchase. McShan
recalled that Ford told him, “You can’t be short man. You gonna have to talk to Reese
about this.” McShan testified that he knew “Reese” to be Maurice Vaughn.
Another witness, Crystal Freeman, used McShan as an intermediary for heroin
deals, was also able to identify both Lockhart and Ford as heroin distributors. Freeman
testified that she watched McShan meet with Lockhart in front of his home on numerous
occasions, and although she did not know his name, she recognized Lockhart from prior
contact she had with him at her former place of employment in Beloit.
On other
occasions, McShan would call someone on his cell phone before going to meet Ford.
Freeman estimated that McShan met with Ford to purchase heroin for her approximately
6
thirty to forty times during the summer of 2010, and she observed McShan meet with
Lockhart to get heroin “every day” that summer.
Finally, Freeman confirmed the
different shifts during which Ford and Lockhart sold drugs: Ford during the morning,
and Lockhart sold in the afternoon and evening.
During trial, the government also showed each of the customers who testified the
bags of heroin seized from Ford at the time of his arrest in August 2010. Kast, Jackson,
Simms, and Freeman all identified those bags as representative of the packaging they had
seen used when purchasing heroin through either Ford or Lockhart.
Customers who
bought multiple times in a single day (and who therefore ended up buying from both
Ford and Lockhart) testified that the packaging in which they received the heroin was the
same, whether purchased from Ford in the morning or Lockhart in the evening.
Customers also testified to the number of bags and the frequency with which they
purchased heroin from Ford and Lockhart during the summer of 2010. The government
used the samples seized from Ford as a reference for the average weight of each bag.
Detective Sayles, who had seized seventy bags of heroin from Ford after his arrest,
testified to his estimate that each small package contained an average of 0.13 gram of
heroin.
After the government rested its case at trial, both defendants moved to dismiss,
alleging a failure to prove their involvement in the charged conspiracy beyond a
reasonable doubt. This court denied the motions to dismiss.
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IV.
Jury Verdict and Sentencing
On January 25, 2012, a jury found both Vaughn and Lockhart guilty of conspiracy
as charged in the one-count indictment, and they returned a special verdict that the
conspiracy involved 100 grams or more of heroin. Neither defendant made a post-verdict
motion for judgment of acquittal or a request for a new trial.
At this court’s request, the probation office prepared a presentence report (“PSR”)
to assist in determining Vaughn’s punishment. The PSR noted that the heroin actually
seized from Ford actually weighed a total of 11.621 grams, resulting in an average weight
per bag of 0.166 gram. Vaughn did not object to this calculation.
The PSR also outlined with relative specificity the frequency and bag number
estimates attributed to each witness who admitted purchasing heroin from Ford and
Lockhart. The probation officer multiplied the estimated number of bags obtained by
each witness by the 0.13 weight estimate testified to by Detective Sayles at trial, unless a
witness’s description of the bag differed from what was typical. The Probation Office’s
calculation was then based on relevant conduct attributable to Vaughn, which resulted in
a total drug weight of 1,568.65 grams of heroin. Based on that weight, the probation
office determined that Vaughn’s base offense level was 32. With a two-level increase for
his role as an organizer, leader, manager or supervisor of the conspiracy, the probation
office calculated his total offense level as 34. Vaughn had at least 10 criminal history
points, placing him in Criminal History Category V. As a result, Vaughn faced a range of
235-293 months’ imprisonment.
8
For reasons set forth in detail on the record during the sentencing hearing, as well
as in the March 29, 2012, Judgment, the court ultimately sentenced Vaughn at the lower
end of the advisory guideline range, to 240 months of imprisonment. This period of
incarceration is to be followed by an eight-year term of supervised release.
V.
Post-Conviction Proceedings
On direct appeal, Vaughn argued that the evidence was insufficient to support the
jury’s verdict. Vaughn also disputed the guideline calculation for sentencing, arguing that
the court erred in calculating the relevant drug quantity, calculating his criminal history
score, and applying a two-level enhancement for his role as a leader or organizer of the
conspiracy.
Vaughn argued further that the sentence imposed was substantively
unreasonable. The Seventh Circuit rejected all of Vaughn’s arguments and affirmed the
conviction. See United States v. Vaughn, 722 F.3d 918 (7th Cir. 2013). Thereafter, the
United States Supreme Court denied his petition for certiorari review. Vaughn v. United
States, 134 S. Ct. 541 (Nov. 4, 2013).
Vaughn now seeks relief from his conviction under 28 U.S.C. § 2255, arguing that
he was denied effective assistance of counsel at his trial and sentencing proceedings. The
government argues that Vaughn’s claims are without merit.2
The government also argues that Vaughn’s ineffective-assistance claims are barred by the
doctrine of procedural default, because they could have been raised on direct appeal. The court
does not address this argument because it appears contrary to precedent. See Massaro v. United
States, 538 U.S. 500, 509 (2003) (holding that failure to raise an ineffective-assistance-of-counsel
claim on direct appeal does not bar the claim from being brought in a later, appropriate
proceeding under 28 U.S.C. § 2255).
2
9
OPINION
A motion for relief under 28 U.S.C. ' 2255 invokes “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, relief under § 2255 is generally appropriate 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)).3
In this case, Vaughn contends that he is entitled to relief under § 2255 because he
was denied his Sixth Amendment right to receive effective assistance of counsel in
connection with his trial and sentencing. The Sixth Amendment to the United States
Constitution guarantees criminal defendants the right to have the assistance of counsel at
trial. See U.S. Const. amend. VI; Yarborough v. Gentry, 540 U.S. 1, 5 (2003). The right to
counsel guaranteed by the Sixth Amendment includes “the right to the effective assistance
of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (emphasis added).
Claims for ineffective assistance of counsel are analyzed under a standard first articulated
by the Supreme Court in Strickland v. Washington, 466 U.S. 688 (1984). To prevail under
this standard, a defendant must demonstrate (1) a constitutionally deficient performance
A motion under § 2255 cannot be used to relitigate matters that were raised on direct appeal.
Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007). Even claims omitted on direct appeal
may only be considered on collateral review if the petitioner can show good cause for failing to
raise the issue previously and actual prejudice based on the alleged error. See, e.g., Fuller v. United
States, 398 F.3d 644, 648 (7th Cir. 2005).
3
10
by counsel and (2) actual prejudice as a result of that deficiency. See Williams v. Taylor,
529 U.S. 390, 390-91 (2000). “Unless a defendant makes both showings, it cannot be
said that the conviction…resulted from a breakdown in the adversary process that
renders that result unreliable.” Strickland, 466 U.S. at 687.
To demonstrate deficient performance, the petitioner must show “that counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at
688. “This means identifying acts or omissions of counsel that could not be the result of
professional judgment. 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.” Sussman v. Jenkins, 636 F.3d 329, 349 (7th Cir.
2011) (internal quotation marks and citations omitted). “Our review of the attorney’s
performance is ‘highly deferential’ and reflects ‘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.’” Davis v. Lambert, 388 F.3d 1052, 1059
(7th Cir. 2004) (quoting Strickland, 466 U.S. at 689); see also Harrington v. Richter, 562
U.S. 86, 131 S. Ct. 770, 787 (2011) (“A court considering a claim of ineffective
assistance must apply a strong presumption that counsel’s representation was within the
wide range of reasonable professional assistance. The challenger’s burden is to show that
counsel made errors so serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment.” (internal quotation marks and
citation omitted)).
11
Here, Vaughn contends that his trial counsel, Amber Lucsey, was deficient in
failing to: (1) oppose the admission of hearsay statements by Carlos Ford; (2) object to
photographic evidence; (3) file an adequate memorandum of law to oppose the
admissibility of “other bad acts” evidence under Fed. R. Evid. 404(b); (4) file a postverdict motion for judgment of acquittal; (5) file a motion for a mistrial; (6) move to
dismiss the indictment on the grounds of vindictive prosecution; and (7) object to the
drug calculation in the PSR. These claims are addressed separately below.
I.
Failure to Oppose Co-Conspirator Hearsay
Vaughn first contends that his attorney was deficient for failing to oppose the
admissibility of hearsay statements by Carlos Ford. Vaughn appears to take issue with
testimony by an investigator (Investigator McMahon) regarding Carlos Ford’s post-arrest
statements, which were offered before the grand jury. As the government correctly notes,
the rules of evidence (other than those regarding privilege) do not apply during grand
jury proceedings. See Fed. R. Evid. 1101(d)(2); United States v. Calandra, 414 U.S. 339,
343 (1974) (technical procedural and evidentiary rules governing criminal trials generally
do not restrain grand jury proceedings); Costello v. United States, 350 U.S. 359 (1956) (a
conviction can be sustained even if indictment is based exclusively on hearsay).
Therefore, Vaughn cannot show that his defense attorney was deficient for failing to
challenge hearsay evidence presented to the grand jury.
The government notes further that Carlos Ford’s post-arrest statements were not
offered at trial as co-conspirator hearsay. At trial, any evidence of Carlos Ford’s post-
12
arrest statements or interviews was admitted when Ford took the stand, both to
corroborate and impeach. (Trial Trans., dkt. # 140 [11-cr-90] at 29-80.)
Finally, the evidence that Vaughn was engaged in a larger, ongoing conspiracy to
distribute heroin in which he orchestrated Ford’s morning sales and Lockhart’s afternoon
sales was overwhelming. As a result, any objection to Ford’s statements made during the
course and in furtherance of their joint conspiracy was admissible under Fed. R. Evid.
801(d) in any event.
Under these circumstances, Vaughn fails to show that co-
conspirator hearsay evidence was improperly admitted or that his attorney was deficient
for failing to subject Ford’s testimony to additional adversarial testing.4 Accordingly,
Vaughn fails to establish an ineffective-assistance claim with respect to Ford’s statements.
II.
Failure to Object to Photographic Evidence
Vaughn also contends that his attorney was deficient for failing to object to the
admission of three photographs depicting the bindles of heroin seized from Ford after his
arrest. Neither defense counsel for Vaughn or Lockhart objected to the photographs,
which were admitted during Carlos Ford’s testimony. (Trial Trans., dkt. # 140 [11-cr90] at 34.) However, Vaughn does not articulate, nor is this court able to discern, a valid
objection that Vaughn’s counsel might have made to this evidence. “[O]bviously, an
attorney is not constitutionally deficient for failing to lodge a meritless objection.”
As part of his argument regarding Ford’s statements, Vaughn also attempts to attack the
credibility of other witnesses, arguing that there was insufficient evidence of a conspiracy.
However, Vaughn challenged the credibility of witnesses and the sufficiency of the evidence on
direct appeal to the Seventh Circuit, which rejected Vaughn’s arguments. Because Vaughn’s
argument regarding the sufficiency of the evidence was resolved against him on direct appeal, he
may not relitigate that issue on collateral review. Varela, 481 F.3d at 935. Therefore, the court
does not address this argument further.
4
13
Northern v. Boatwright, 594 F.3d 555, 561 (7th Cir. 2010). Since any objection would
have been overruled as meritless, Vaughn’s attorney was not constitutionally deficient for
failing to object to the admission of these photographs. See Lambert v. McBride, 365 F.3d
557, 564 (7th Cir. 2004) (finding no deficient performance where the proposed
objection would have been overruled if made).
III.
Failure to Keep Out Other Acts Evidence
Vaughn next argues that his attorney was deficient for failing to keep out evidence
of his prior heroin transactions with Ford between 2009 and 2010. Vaughn argues that
because these prior transactions were evidence of a separate conspiracy, the evidence
should have been excluded at trial under Fed. R. Evid. 404(b) as evidence of other bad
acts.
As Vaughn concedes, his attorney did challenge the admissibility of the
transactions involving Ford.
(Def.’s Mem. in Opposition to Admissibility of Rule 404(b)
Evidence, dkt. # 69 [11-cr-90], at pp. 1-5.) In particular, Vaughn’s attorney argued that:
(1) introducing evidence of these prior drug transactions “would unduly prejudice the
jury against Vaughn”; and (2) this evidence “is precisely the definition of ‘propensity’
evidence that 404(b) is drafted to exclude.” (Id.) Based on existing case law, however,
the court ultimately allowed the evidence to be admitted as proof of the formation of the
conspiracy, and not as proof of Vaughn’s propensity to commit drug crimes. (Order, dkt.
#152 [11-cr-90], at 17-20.)
Having made the very objection that he would now fault counsel for not making,
Vaughn obviously demonstrates neither deficient performance nor actual prejudice. Nor
14
does Vaughn show that the evidence was improperly admitted. Regardless, any attack on
the court’s ruling itself was lost on Vaughn’s direct appeal. See discussion, supra, fn. 3.
Accordingly, his allegations are insufficient to establish ineffective assistance of counsel.
IV.
Failure to Move for Acquittal
Vaughn also faults his trial counsel for failing to renew his motion for acquittal at
the close of trial. Notably, both defendants moved for a directed verdict at the close of
the government’s case, but neither renewed their motions nor made a motion for
judgment of acquittal after the jury returned a guilty verdict. Vaughn contends that he
was prejudiced as a result of his attorney’s failure to seek a judgment of acquittal because
it caused the court of appeals to apply a more stringent standard of review during his
direct appeal.
First, Vaughn does not demonstrate that his attorney was deficient for failing to
file a post-verdict motion for judgment of acquittal. According to Vaughn’s attorney, she
did not move for acquittal for two reasons: (1) the strength and volume of the
government’s evidence made such a motion meritless; and (2) she wanted to preserve
Vaughn’s opportunity to accept responsibility for his convictions during the sentencing
phase of trial. (Dkt. #1, Exh. 5 [14-cv-317], at 1.) To the extent that Vaughn argues
that his attorney should nevertheless have filed a motion for judgment of acquittal, the
court cannot find based on the overwhelming evidence against him, that his trial
attorney’s strategy was unreasonable or deficient under these circumstances.
Cf.
Galowski v. Murphy, 891 F.2d 629, 639 (7th Cir. 1989) (decision whether to move for a
15
mistrial or instead to proceed to verdict with the expectation that the client will be
acquitted is one of trial strategy).
Second, Vaughn fails to show that he was prejudiced as a result of his counsel’s
failure to move for a judgment of acquittal. Even though the Seventh Circuit noted on
direct appeal that the defendants did not renew their motions for acquittal following the
jury’s guilty verdict, see Vaughn, 722 F.3d at 928, the appellate court went on to apply a
lesser standard of review reserved for cases in which such motions had been renewed, and
the court still found that there was sufficient evidence to support the conviction on the
conspiracy charge. Vaughn, 722 F.3d at 928-29. Accordingly, Vaughn fails to show that
he was prejudiced as the result of his attorney’s decision not to move for a judgment of
acquittal following the jury’s verdict. Absent a showing of deficient performance and
actual prejudice, Vaughn again fails to establish a valid ineffective-assistance claim.
V.
Failure to Move for Mistrial
During a pre-trial hearing, the court excluded evidence of or reference to: (1)
heroin transactions that Vaughn had with Jesse Green; and (2) the attempt by a
confidential informant to purchase heroin from Vaughn in 2007. (Dkt. #79 [11-cr-90],
at 1-2.) The government followed this directive during trial. During cross examination
of Investigator McMahon, however, counsel for Vaughn’s co-defendant asked the
investigator if he had been “familiar with a man named Maurice Vaughn” before the
2009 investigation that resulted in the criminal charge that was the subject of the trial.
(Trial Trans., dkt. # 140 [11-cr-90] at 58.) In response, Investigator McMahon indicated
that he was familiar with Vaughn, “Probably farther back than that.” (Id.) Although no
16
specific information was solicited or provided by Investigator McMahon, Vaughn argues
that his attorney was deficient for failing to move for a mistrial.
The record does not disclose a basis for a mistrial or any deficiency on defense
counsel’s part.
Vaughn’s attorney addressed the potentially prejudicial nature of
Investigator McMahon’s remark and ultimately decided not to request a curative
instruction to the jury. (Trial Trans., dkt. # 140 [11-cr-90] at 80-81.) As this court
noted, a curative instruction based on a passing reference to a possibly prejudicial issue
could draw unwanted attention by the jury. (Id. at 81.) The Seventh Circuit has also
recognized that “competent trial strategy frequently is to mitigate damaging evidence by
allowing it to come in without drawing attention to it.” Hardamon v. United States, 319
F.3d 943, 949 (7th Cir. 2003). Counsel’s strategy at the time of the investigator’s stray
comment was sound, and any subsequent motion for mistrial would have been denied if
made. It follows that Vaughn does not establish a valid ineffective-assistance claim in
this context.
VI.
Failure to Challenge Indictment for “Vindictive Prosecution”
Noting that Beloit police had been attempting to charge him with drug trafficking
offenses since 2007, Vaughn contends that his attorney was deficient in failing to
challenge his 2011 indictment on the grounds of “vindictive prosecution.” This claim is
essentially frivolous.
A claim of selective or vindictive prosecution “asks a court to exercise judicial
power over a ‘special province’ of the Executive,” which is particularly ill-suited to judicial
review.
United States v. Armstrong, 517 U.S. 456, 464 (1996).
17
In that respect, the
Attorney General and United States Attorneys retain “broad discretion” as to whom they
prosecute. Wayte v. United States, 470 U.S. 598, 607 (1985) (internal quotation and
citation omitted). “[S]o long as the prosecutor has probable cause to believe that the
accused committed an offense defined by statute, the decision whether or not to
prosecute, and what charge to file or bring before a grand jury, generally rests entirely in
his discretion.” Id. (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). As a
result, prosecutorial decision making is entitled to “[t]he presumption of regularity,”
meaning that “in the absence of clear evidence to the contrary, courts presume that they
have properly discharged their official duties.”
Armstrong, 517 U.S. at 464 (quoting
United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 (1926)). Under this “rigorous
standard,” Armstrong, 517 U.S. at 468, a claim of vindictive prosecution is “extremely
difficult to prove.” United States v. Jarrett, 447 F.3d 520, 526 (7th Cir. 2006).
A prosecution may be considered vindictive where it “was pursued in retaliation
for the exercise of a protected statutory or constitutional right.” United States v. Cooper,
461 F.3d 850, 856 (7th Cir. 2006) (citing United States v. Monsoor, 77 F.3d 1031, 1034
(7th Cir. 1996)); see also United States v. Pittman, 642 F.3d 583, 586 (7th Cir. 2011). For
example, where a defendant succeeds in obtaining a reversal on appeal and the
government brings more serious charges, there is a presumption of vindictiveness that the
government must rebut.
See id. (citing United States v. Goodwin, 457 U.S. 368, 376
(1982)). Otherwise, to succeed on a claim of prosecutorial vindictiveness, a defendant
“must affirmatively show through objective evidence that the prosecutorial conduct at
issue was motivated by some form of prosecutorial animus, such as a personal stake in
18
the outcome of the case or an attempt to seek self-vindication.” Jarrett, 447 F.3d 520,
525 (quoting United States v. Falcon, 347 F.3d 1000, 1004 (7th Cir. 2003) (citations
omitted)). A defendant may do this by showing the decision to pursue an indictment
was not based on the “usual determinative factors” that a responsible prosecutor would
consider before bringing charges. Id. To make this showing, a court must be persuaded
that the defendant would not have been prosecuted but for the government's animus or
desire to penalize him. Id.
According to Vaughn, the prosecution in this case was motivated by the failed
controlled buy that occurred in June 2007. After this incident, Vaughn was arrested and
charged by the State of Wisconsin with robbery and criminal damage to property for
destroying a wire listening device. Those charges were eventually dismissed. According
to Vaughn, “this is what infuriated [Investigator] McMahon and motivated him to team
up with A.U.S.A. Robert A. Anderson to induce witnesses to fabricate a conspiracy that
the petitioner was not part of, and never existed.” (Dkt. #1 [14-cv-317] at 21.)
In this instance, Vaughn was not prosecuted for any of the events, facts or
conduct that gave rise to his state court prosecution in 2007.
Likewise, the federal
government had no involvement in the state prosecution that stemmed from Vaughn’s
attempted delivery of heroin to a confidential informant in 2007. Moreover, Vaughn
presents no objective, much less credible, evidence that the dismissed charges stemming
from the unsuccessful controlled buy in 2007 was a determining factor in the federal
government bringing the charges outlined in the 2011 indictment here.
19
In view of the substantial nature of the independent evidence against him in this
case, the court is also unpersuaded that Vaughn would not have been prosecuted but for
any improper prosecutorial animus. Regardless, having fallen far short of the showing
necessary to demonstrate vindictive prosecution, Vaughn has no basis to assert that his
attorney was deficient for failing to file a motion challenging the indictment on these
grounds.
VII.
Failure to Object at Sentencing
Finally, Vaughn contends that his trial attorney was deficient for failing to object
to the guideline calculations in the PSR for purposes of sentencing. Vaughn’s argument
focuses on the drug quantity that was used to determine his base offense level. According
to Vaughn, that calculation was based on insufficient and unreliable evidence of a
conspiracy. Therefore, according to Vaughn, his attorney should have objected to the
guideline determination in the PSR based on insufficiency of the evidence.
Again, however, Vaughn does not demonstrate that his attorney had, but failed to
make, a valid objection to the PSR. In fact, the government presented fairly compelling
evidence of defendant’s leadership in a conspiracy to distribute heroin in the Beloit area
during the summer of 2010.
Likewise, for reasons outlined by the Seventh Circuit, Vaughn cannot demonstrate
that he was prejudiced as the result of his attorney’s performance.
Importantly, the
Seventh Circuit ruled on direct appeal that there was ample evidence to support
Vaughn’s conviction for conspiracy.
The Seventh Circuit concluded further that
Vaughn’s sentence was properly calculated under the advisory guidelines. See Vaughn,
20
722 F.3d at 930-36. In doing so, the Seventh Circuit specifically took into account the
amount of drugs attributable to Vaughn based on relevant conduct.
Id. at 930-31.
Vaughn does not show that this relevant conduct was improperly considered in
calculating his sentence, nor that his attorney was deficient for failing to object to its
consideration.
VIII. Certificate of Appealability
Vaughn has neither shown that he was denied effective assistance of counsel, nor
that he is otherwise entitled to relief from his conviction and sentence under 28 U.S.C.
§ 2255. Absent any valid claim for relief, his § 2255 motion must be denied. Under
Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District
Courts, the court must nevertheless issue or deny a certificate of appealability when
entering a final order adverse to the applicant. A certificate of appealability will not issue
unless the applicant makes “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
This requires an applicant to demonstrate “that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)).5
Under this controlling standard, an applicant must show “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). Where denial of relief is based on
procedural grounds, the applicant must show not only that “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right,” but also
that they “would find it debatable whether the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484.
5
21
Although Rule 11 allows the court to direct the parties to submit arguments on
the possible issuance of a certificate of appealability, it is unnecessary to do so in this
instance. For the reasons stated above, the court concludes that no reasonable jurist
would debate whether a different result was required. For this reason, no certificate of
appealability will issue.
ORDER
IT IS ORDERED:
(1) Maurice D. Vaughn’s motion for relief from his conviction and sentence
under 28 U.S.C. § 2255 is DENIED.
(2) A certificate of appealability is DENIED. If Vaughn wishes he may seek a
certificate from the court of appeals under Fed. R. App. 22.
Entered this 6th day of January, 2017.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge
22
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