United States District Court, N.D. Illinois
August 5, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Harry DeWayne Lowe, a federal prisoner, filed a motion pursuant
to 28 U.S.C. § 2255, raising the following four claims: (1) the
government elicited false testimony when it asked a
witness(Rivas) if he had provided information to authorities in
"unrelated" cases for which he was paid $2,900 when there was a
serious question as to whether the cases were, in fact,
unrelated; (2) the government failed to supply all prior
statements the witness provided to authorities; (3) his trial
counsel was ineffective in relation to the prior claim for
failing to move for a mistrial, for failing to move for
disclosure of the witness's prior statements, or failing to move
to strike the witness's testimony; and (4) his trial counsel was
ineffective for failing to advocate a plea agreement offered by
the government that called for a five-year sentence and a
forfeiture of assets. Lowe has also moved, pursuant to Rule 6 of
the Rules Governing § 2255 Proceedings, for discovery of "all
statements of [the witness] given to agents and to date not
provided" and "all testimony and/or statements he provided" in
the "unrelated" cases for which he was paid. The government has
responded to both the § 2255 motion and the motion for discovery.
Subsequently, Lowe filed a motion to amend his § 2255 motion to
add a sentencing claim based on Blakely v. Washington,
124 S.Ct. 2531 (2004), which the government opposed. This court
allowed the filing of the amendment.
Lowe's claim that the government elicited false testimony from
Ravis when he responded "yes" to the question whether the payment
of $2,900 was for information provided in "unrelated" cases fails
for several reasons. While Lowe has attempted to carefully craft
the suggestion that Rivas must have been lying and that he in
fact did get paid for information provided in cases related to
his, the facts do not foreclose the possibility that Rivas
received the payments for cases unrelated to Lowe's. That
possibility is not precluded by the record as Rivas had other
involvement with drug dealings unrelated to Lowe. Further, even
if Rivas provided information related to individuals who were
also connected to Lowe's drug activities that does not
necessarily mean that the information had anything to do with
Lowe. The mere fact that other individuals bought from
or sold to Lowe drugs does not mean that they did
not have unrelated drug dealings with others. Lowe's suggestion
of what Rivas meant by "unrelated" cases is not compelled by the
facts of this case.
Even if such testimony was knowingly false, it does not result
in the denial of due process if it does not affect the jury's
judgment or is not capable of deceiving the jury into unjustly
convicting a defendant. United States v. Thomas, 987 F.2d 1298,
1300 (7th Cir. 1993). Here, whether Rivas was actually paid
for providing information in cases related to Lowe's would have
made little, if any, difference, as the jury was aware that Rivas
had been paid for providing information in other cases. Such
evidence would have impugned the credibility of Rivas to some
degree. Whether such benefit would have been significantly
increased had the jury known the cases he was paid for were
related to Lowe's is arguable at best. Further, considering the
substantial evidence implicating Lowe in the offenses charged,
such an incremental effect on impeachment would not have affected
the jury's judgment or deceived the jury into convicting Lowe.
The second claim, that the government failed to provide all
prior statements that Rivas made to authorities, is meritless
because there is simply no hint that such statements existed. The
mere fact that Rivas testified that the statements provided to
the defense did not contain everything he ever said to
authorities in no way suggests that other statements not produced
in fact existed. As for the question on cross-examination about
whether Rivas had assisted in the prosecution of other
individuals such as through "controlled buys, set-ups, [or]
testifying in court against them," the question was compound and
no conclusion can be reached that Rivas did in fact ever testify.
Aside from the ambiguous question and answer, there is no other
indication that Rivas testified in any other case. Even if
additional statements or testimony by Rivas existed which the
government failed to disclose, either prior to or after Rivas
testified, the lost opportunity for additional impeachment, if
any, would not have affected the outcome of the trial.
Lowe's third claim is that his trial counsel was ineffective
for failing to move for a mistrial, for failing to seek
disclosure of the purported materials, or for failing to move to
strike Rivas's testimony.
A successful claim of ineffective assistance of counsel
requires a defendant to show that counsel's performance fell
below an objective standard of reasonableness as determined by
prevailing professional norms and that the deficient performance
prejudiced his defense. Harris v. Cotton, 365 F.3d 552, 555
(2004). Prejudice will be found when there is a reasonable
probability that, but for the deficient performance of counsel,
the outcome of the proceeding would have been different.
Harris, 365 F.3d at 555. A reasonable probability is a
probability sufficient to undermine confidence in the outcome of
the proceedings. Harris, 365 F.3d at 555.
In this case, Lowe's trial counsel, a highly skilled criminal
defense attorney, was not deficient for failing to act in any of
the ways asserted by Lowe as to any of the statements or
materials allegedly not disclosed. As discussed above, the record
does not suggest that any such statements or materials existed.
Moreover, even if such failure by counsel was arguably deficient,
it cannot be said that it undermines confidence in the outcome of
the trial where Ravis was otherwise impeached and the evidence
against Lowe was substantial.
The last claim presented by Lowe is that he was denied the
effective assistance of counsel when his attorney, prior to
indictment, "failed to advocate a plea offered by the Government
that would have resulted in a five(5) year term and a forfeiture
of assets," and also failed to "inform [Lowe] of the various
guidelines provisions that might impact his sentence so that he
could make a reasoned and knowing decision whether to take the
plea offered." Lowe further asserts that his counsel was not
ineffective for failing to communicate a plea offer, but rather,
"for failing to provide adequate advice about the plea and
This claims fails because there is no support for Lowe's claim
that any such plea offer was made by the government. In fact,
Lowe's trial attorney, in an affidavit, states that no such plea
offer was ever made. While Lowe attempts to create an issue of
fact in this regard, his affidavit merely asserts that he and his
attorney had a discussion regarding the possibility of his
pleading guilty. Lowe offers no evidence whatsoever that an
actual offer of a plea agreement was made or that such an offer
contained the terms now suggested by Lowe. Additionally, the
assertion that counsel was ineffective for failing to discuss the
potential consequences under the sentencing guidelines
necessarily lacks merit absent some showing that an offer for a
plea agreement was in fact made. Lowe has not shown either
deficient performance or prejudice as to this final claim.
As for Lowe's Blakely claim, the court finds that Blakely
does not apply retroactively to motions under § 2255. Blakely
itself does not declare its retroactivity, and the Supreme Court
has indicated a strong likelihood it will not be given
retroactive effect in Schriro v. Summerlin, 124 S.Ct. 2519
(2004) (holding that Ring v. Arizona, 536 U.S. 584 (2002),
announced a new procedural rule not retroactively applicable to
cases already final on direct review). See United States v.
Traeger, No. 04 C 2685, 2004 WL 1609132, *3 (N.D. Ill. July 8,
2004) (ruling that Blakely is not retroactive for purposes of
paragraph 6 of § 2255).
For the foregoing reasons, the court denies Lowe's § 2255
motion in its entirety. There being no merit to any of Lowe's
claims, the court also denies the related motion for discovery.
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