Larry v. USA
Filing
25
OPINION AND ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255 by Petitioner Orlando Larry. No certificate of appealability will issue. Signed by District Judge Barbara B. Crabb on 10/23/2018. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORLANDO LARRY,
OPINION AND ORDER
Petitioner,
18-cv-278-bbc
13-cr-130-bbc
v.
UNITED STATES OF AMERICA,
Respondent.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Orlando Larry was convicted by a jury of nine counts of knowingly and
intentionally distributing drugs, in violation of 21 U.S.C. § 841(a)(1). The court of appeals
denied his appeal as it related to his conviction. However, it directed this court to reconsider
the conditions of supervision imposed upon him at the time of his sentencing, which it did
on January 4, 2016. Now petitioner moves pursuant to 28 U.S.C. § 2255 to vacate the
sentence itself, contending that if it were not for the ineffectiveness of the various counsel
who represented him, he would not have been convicted. Because the record shows that
petitioner received effective assistance of counsel at all stages of his trial, his motion will be
denied and his sentence will stand.
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BACKGROUND
A. Petitioner’s Arrest
Petitioner was returning to Madison from a trip to Illinois, when he was arrested on
August 23, 2013, by Drug Enforcement Agents and members of the Dane County Task
Force.
Unbeknownst to petitioner, law enforcement had tracked his travels with a GPS
unit installed on his car. Officers who observed him as he approached Madison asked
petitioner’s parole agent to swear out a parole violation warrant for his arrest, which he did.
(The government refers to this warrant as an “apprehension request.”)
Once petitioner arrived in Madison, he was stopped, arrested and searched by law
enforcement officers. No controlled substances were discovered, but the officers seized
$2,512.00 in United States currency. Petitioner was then taken to the DEA office in
Madison and questioned briefly by a DEA agent, who terminated the interview when
petitioner asked for counsel. He was then booked into the Dane County jail under the
apprehension request. On August 31, 2013, his parole officer instituted proceedings against
petitioner to have his extended supervision revoked.
On October 12, 2013, a federal grand jury returned an indictment against petitioner,
charging him with nine counts of distributing controlled substances. On October 15, 2013,
a federal defender entered an appearance on petitioner’s behalf. The next day, petitioner
entered a plea of not guilty.
A month later, petitioner sought the appointment of new
counsel, dkt. #13. The request was denied, but two days later, counsel moved for and was
granted leave to withdraw as counsel for petitioner, after the court found that petitioner had
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intentionally destroyed the attorney-client relationship. Dkt. #19. Petitioner sought and
received permission to retain counsel on his own, but when he failed to do so by December
17, 2013, the United States Magistrate Judge directed the federal defender to recruit a
lawyer to represent petitioner. Paul F. X. Schwartz accepted the appointment on December
18, 2013.
Petitioner’s trial went forward on June 9, 2014. Dkt. #71. On June 10, he was found
guilty of all nine counts charged against him. At the trial, members of the task force assigned
to observe petitioner during drug deals testified to their surveillance, noting that the officer
making the hand-to-hand buys had been outfitted with body wire transmitting devices.
Subsequently, petitioner filed three unsuccessful motions to arrest judgment, for
acquittal and to set aside the judgment, dkts. ##75, 77, 78. On September 29, 2014,
defendant was sentenced to a term of 240 months. Dkt. #106. He filed a prompt appeal,
represented by new counsel, Daniel Hillis, who was appointed for the purpose of the appeal.
Dkt. #73. Hillis sought summary reversal on the sole issue of allegedly improper conditions
of supervised release, asserting correctly that these conditions had been found improper by
the court of appeals in United States v. Thompson, 777 F.3d 368 (7th Cir. 2015), after
defendant had been sentenced. The government joined in the motion for summary reversal.
Dkt. #125.
A new federal defender, Joseph Bugni, was appointed to represent petitioner for
resentencing on the conditions of his release, dkt. #126, but he later moved for leave to
withdraw from the representation, dkt. #129, on the ground that petitioner might object to
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the representation, given petitioner’s objection to Bugni’s predecessor as federal defender.
The motion was granted, dkt. #131, and Reed Cornia was appointed to represent petitioner.
Dkt. #132. At the resentencing on January 4, 2016, the original sentence was reimposed
but the conditions of supervised release were amended to conform to the opinion in
Thompson. Dkt. #148.
Petitioner appealed from the resentencing, dkt. #151, but his appeal was dismissed
by the court of appeals on February 9, 2017. Dkt. #166. He filed this timely motion for
post-conviction relief on April 18, 2018. Dkt. #173.
OPINION
In a wide-ranging motion for relief under 28 U.S.C. § 2255, dkt. #173, petitioner
contends that his trial counsel provided unconstitutionally ineffective representation in a
number of respects, as set out below. To succeed on any of the claims raised in his initial
motion, petitioner must meet a higher standard than the one applicable to direct appeals:
he must show not just that an error occurred but that the error is jurisdictional,
constitutional or “constitutes a ‘fundamental defect that inherently results in a complete
miscarriage of justice.’” Reed v. Farley, 512 U.S. 339, 353-54 (1994).
A. Allegedly Inadequate Investigation of Petitioner’s Case
Petitioner contends that the lawyers who represented him during the trial of his case
and his appeal denied him an adequate investigation, but he has not identified any relevant
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fact or issue that either counsel failed to pursue. The fact is that the government had a strong
case against petitioner. At trial, it introduced extensive evidence of petitioner’s drug dealing,
beginning with the testimony of undercover officers who had either bought drugs directly from
petitioner or had observed the drug purchases. It also introduced photographs of petitioner
at the scene of drug deals. With the extensive evidence inculpating petitioner, it is not
surprising that neither of the two lawyers who represented him was able to mount an effective
defense to the charges against him or to identify errors in the government’s case. The only
exception involved the conditions of supervised release imposed on petitioner at his sentencing
and thereafter found to be imprecise.
Petitioner also contends that his trial counsel was constitutionally ineffective for failing
to file pretrial motions to dismiss, but he has not identified any issue that would have
warranted such a motion. He continues to maintain that he was arrested illegally, but he has
adduced no evidence to support this claim. To the contrary, the facts show that he was
arrested on a state-issued apprehension request that had been issued before he was stopped
by the DEA and Dane County officers. His booking into the Dane County jail later that same
day was based on this apprehension request.
Petitioner believes that his counsel should have challenged his incarceration in Dane
County as unconstitutional because he was not taken before the federal court immediately
after he was stopped by law enforcement in Madison. In support, he cites cases such as
County of Riverside v. McLaughlin, 500 U.S.44 (1991), and Gerstein v. Pugh, 420 U.S. 103
(1975), in which the Supreme Court held that authorities are required to provide a prompt
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probable cause determination to anyone arrested without a warrant. However, these cases
have no application to him because he was not arrested without a warrant. At the time
petitioner was arrested, a state probation officer had obtained an apprehension request,
authorizing petitioner’s arrest and detention, and the state authorities gave him a prompt
probable cause hearing. It is true that petitioner was not charged in federal court until the
following month, but the federal court was not required to offer him a prompt hearing until
it took custody of him. Once this happened, petitioner had a prompt hearing in the federal
court.
Although petitioner contends that the state’s apprehension of him was nothing more
than a “stalking horse” used by the state authorities to help federal authorities circumvent the
applicable federal rules, he has not cited anything to support that contention. The state had
full authority to apprehend him after he violated the terms of his supervision by leaving
Wisconsin without the authorization of his parole officer.
I conclude, therefore, that
petitioner has no basis on which to contend that his counsel was ineffective in representing
him on this claim.
As part of this same claim, petitioner contends that his trial counsel was ineffective in
not arguing that the government had failed to comply with the administrative process when
it seized funds from him when he was arrested. I will take up this argument in a later section
of this opinion.
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B. Counsel’s Failure to Move for Dismissal as a Sanction for Violation of Speedy Trial Act
In an order entered shortly after petitioner’s conviction, I denied his counsel’s motion
to arrest the judgment of conviction entered on June 10, 2014 on the ground that the Speedy
Trial Act, 18 U.S.C. § 3161, had been violated by the government’s failure to bring an
indictment against him within 30 days of his arrest. Op. & Order, dkt. #91. Petitioner has
still not shown why that order should be reconsidered. He simply argues, erroneously, that
the government was required to file an indictment against him within 30 days of his arrest,
whether the arrest was by state or federal authorities.
However, it is well established that
“[t]he speedy trial protections of [18 U.S.C. § 2641] apply only to arrests made for federal
charges– an arrest by a state officer on a state charge does not start the statutory clock.”
United States v. Clark, 754 F.3d 401, 405 (2014).
C. Counsel’s Failure to Object to Prosecution’s Closing Argument
Petitioner alleges that his trial counsel failed to object when the prosecutor vouched
improperly for the credibility of the prosecution witnesses during his closing argument. If
petitioner were correct, the prosecutor’s actions would have been improper and may have
justified a mistrial. However, petitioner has not identified any such vouching in the transcript
and my own reading of it discloses none, so I am disregarding this allegation. I will add that
it is not “improper vouching” for the United States Attorney to review the surveillance officers’
proximity to the deals and their ability to observe petitioner’s actions, or to point out to the
jury the reasons why the undercover officer making the deals was able to identify petitioner.
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Tr. trans., dkt. #120, at 101-05.
D. Petitioner’s Counsel’s Failure to Show the Jury Impeaching Evidence
According to petitioner, the results of the trial might have been different if his counsel
had shown the jury the video footage of the August 8, 2013 drug transaction in which he
allegedly participated.
(Apparently petitioner believes that the footage would have
demonstrated how unlikely it was that anyone viewing it would have been able to identify the
person or persons in the vehicle.) As petitioner knows, the undercover officer testified at trial
that no surveillance photos were taken of a Lincoln on August 8, 2013. Dkt. #113, at p. 102.
Petitioner’s counsel noted the lack of photographs in his closing argument, suggesting that
those investigating the crime had done less than they could have to determine the actual driver
of the car. Dkt. #177, at 5-6. This is the only argument he could have made under the
circumstances.
E. Counsel’s Failure to Cross-Examine Officer Nale about His Testimony
Petitioner contends that his trial counsel should have questioned Officer Nale about
the testimony he gave regarding petitioner’s use of a TracFone, but he does not explain how
such questioning would have helped his defense. In the absence of any explanation, there is
no basis on which to find that counsel’s failure to ask more questions of Nale amounted to
ineffective assistance of counsel.
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F. Appellate Counsel’s Failure to Address Alleged Errors of Trial Counsel
Petitioner contends that his appellate counsel failed to provide him effective assistance
when he raised only one challenge to trial counsel’s representation of petitioner, dealing with
the conditions of his supervised release that would apply to him when he finished the service
of his sentence.
To prove ineffectiveness, petitioner must show both that his counsel’s
performance fell below an objective standard of reasonableness and that he suffered prejudice
as a result. Strickland v. Washington, 466 U.S. 668 (1984). Petitioner has not made the
necessary showing in this case.
It is not ineffective assistance to raise only one issue on appeal, unless the petitioner can
show that counsel overlooked other significant and obvious issues, Suggs v. United States, 513
F.3d 675 (7th Cir. 2008). If the petitioner identifies such issues, the court must first determine
whether the overlooked issue is “clearly stronger” than the arguments that were made. A yes
answer would require the court to assess the record to determine whether there is a reasonable
probability that had it not been for the deficient performance of counsel, the result of the
appeal would have been different. Id. at 678. In this case, petitioner has not identified any
specific issue that his appellate counsel overlooked, so it is not necessary to consider the issue
further. Gaylord v. United States, 892 F.3d 500, 506-07 (7th Cir. 2016) (court does not have
to address allegations of ineffective assistance of counsel if “petitioner makes allegations that
are vague, conclusory, or palpably incredible, rather than detailed or specific”).
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G. Counsel’s Conflict of Interest
After appellate counsel succeeded in challenging the conditions of release imposed on
petitioner at his sentencing, Reed Cornia was appointed to represent petitioner for the limited
purpose of resentencing on this issue. Petitioner’s initial pleasure with his new counsel did not
last long. He became dissatisfied with counsel’s failure to visit him or to respond to his letters
and telephone calls. He was particularly unhappy with counsel’s decision to move to be
relieved of petitioner’s representation, citing Anders v. California, 386 U.S. 738 (1967). Under
Anders, an appointed lawyer cannot be relieved of his obligation to continue to represent an
indigent client unless the lawyer explains to the court the issues he has considered on behalf
of his client and why he believes that none of these issues would have no reasonable chance of
success and the court agrees with counsel’s evaluation. In this case, counsel submitted an
Anders brief, which the Court of Appeals for the Seventh Circuit accepted before relieving
counsel of his obligation to continue to represent petitioner. United States v. Larry, No. 161088, 2014 WL 12683530. This court has no authority to reconsider the court of appeals’
determination.
H. Seizure of Currency from Petitioner
In a memorandum brief filed in support of his § 2255 motion, dkt #174, petitioner
complains that his counsel was ineffective because he failed to investigate and pursue claims
that the government did not comply with the administrative forfeiture process after he objected
to the seizure of $2,412.00 in currency that the government had seized from him without
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notice. In fact, the money was not forfeited through the administrative process. Instead, the
government asked the court to impose a fine of $2,512.00 on petitioner that would be satisfied
by the forfeiture of the seized funds, pursuant to 18 U.S.C. § 3572(d). Dkt. #101, at1.
Counsel asked the court not to impose a fine, dkt. #102, at 2, but did not contend that doing
so would be improper. In the absence of any objection from petitioner, the court granted the
government’s request. Petitioner has not shown any reason why doing so was improper.
I. Counsel’s Failure to Contest Violations of the Fourth and Fifth Amendments
This claim seems to relate to petitioner’s many assertions that his arrest and detention
were unconstitutional. However, he has not identified any Fourth or Fifth Amendment
violations that he believes counsel should have raised on is behalf. It may be that he is restating
his contention that his rights were violated by the state’s keeping him in custody until the
federal government could indict him. If so, those contentions have been addressed.
J. Failure to Challenge Composition of the Grand Jury
Petitioner raises two issues: (1) the delay in bringing him before the grand jury denied
him an adequate opportunity to investigate the grand jury records and (2) his trial counsel
failed to seek access to grand jury materials that would have supported his claim of
improprieties in the grand jury procedures. As to the first issue, he says that the delay
precluded him from challenging the composition of the grand jury, dkt. #174, at 10, but he
does not explain why. Under the governing statute, 28 U.S.C. § 1867, he had seven days in
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which to move to dismiss the indictment after he discovered or could have discovered, by the
exercise of diligence, a ground on which to do so. An earlier appearance before the grand jury
would not have provided him any more time for obtaining information he says he was seeking.
As to the second issue, petitioner has not adduced any evidence that there were
improprieties in the grand jury procedures; he merely says his counsel might have found some
had he conducted the necessary investigation. As the government points out, however, § 1987
does not authorize “fishing expeditions” to detect possible improprieties. United States v.
Bearden, 659 F.2. 590, 597 (5th Cir. 1981); United States v. Edelson, 581 F.2d 1290, 1291
(7th Cir. 1979). The kind of investigation petitioner seems to think he should have had is
permitted only in the unusual situation in which the petitioner can show that the information
he seeks is “compellingly necessary to the party seeking disclosure.” Matter of Grand Jury
Proceedings, Special Sept., 1986, 942 F.2d 1195, 1198 (7th Cir. 1979). Petitioner has not
shown that the information he would have sought is of that nature.
K. State’s Withholding of Copies of State’s Apprehension Request and Parole Violator
Warrant
Petitioner does not explain what kind of federal claim he might have as a result of his
inability to obtain copies of the state’s apprehension request and parole violator warrant. It may
be that he thinks these documents were purposefully withheld from him, but even if this were
true, he has not explained why the state’s withholding of the documents would be a ground for
dismissal of the federal government’s case against him.
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L. Untimely Submissions
After the government filed its brief in opposition to petitioner’s motion for post
conviction relief, petitioner filed a number of new documents: (1) a request for discovery, dkt.
#13 (case no. 18-cv-278); (2) a “proposed request for admissions,” pursuant to Rule 6 of the
Rules Governing Section 2255 Cases, that consisted of 38 questions, all having to do with the
legality of his August 2013 stop by law enforcement officers, dkt. #15 (18-cv-278); and (3)
“plaintiff’s declarations,” dkt. #14 (18-cv-278). I am giving these documents no consideration
because petitioner did not file them with his motion for post-conviction relief and, as a result,
the government has not had an opportunity to respond to them. As to petitioner’s request for
discovery, he waited too long to ask for this; both he and the government have filed their briefs
on the post-conviction motion, which means that petitioner’s response brief is limited to the
issues already argued.
As for petitioner’s request for admissions relating to the grand jury, it would have to be
denied even if he had not waited too long to ask for such discovery, because the majority of his
request seeks information the court is not permitted to divulge.
As for the few pieces of
information that may be disclosed, petitioner was given an opportunity before his sentencing in
2014 to have his counsel meet with the clerk of court to review the two pieces of information
the clerk is permitted to divulge: whether at least a quorum of the grand jury voted and whether
a majority of the quorum had voted to indict. Dkt. #100 (13-cr-130).
Finally, the “declarations” that petitioner wants to add to the record will not be
considered. They simply restate matters about petitioner’s arrest, his inability to challenge the
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grand jury selection process and the alleged violation of his right to a speedy trial.
M. Appealability
Petitioner is advised that Under Rule 11 of the Rules Governing Section 2255 Proceedings,
the court must issue or deny a certificate of appealability when entering a final order adverse to a
petitioner. To obtain a certificate of appealability, the applicant 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). 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). Petitioner has not made a substantial showing
of a denial of a constitutional right so no certificate will issue.
Petitioner is free to seek a certificate of appealability from the court of appeals under Fed.
R. App. P. 22, but that court will not consider his request unless he first files a notice of appeal
in this court and pays the filing fee for the appeal or obtains leave to proceed in forma pauperis.
ORDER
IT IS ORDERED that petitioner Orlando Larry’s motion for post conviction relief under
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28 U.S.C. § 2255 is DENIED. No certificate of appealability will issue.
Entered this 23d day of October, 2018.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge
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