United States District Court, N.D. Illinois, Eastern Division
August 10, 2004.
TIRENZY WILSON, Petitioner,
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Tirenzy Wilson (hereinafter, "Wilson"), pro se,
requests the Court to Vacate, Set Aside, or Correct his sentence,
pursuant to 28 U.S.C. § 2255. For the following reasons, the
Court declines to do so.
In 1998, a jury sitting in the United States District Court for
the Northern District of Illinois convicted Wilson, a "governor"
in the Gangster Disciples street gang, of, inter alia,
participation in a continuing criminal enterprise ("CCE")
pursuant to 21 U.S.C. § 848. This enterprise included the
distribution of large quantities of narcotics. After the court
imposed a sentence of life in prison, Wilson and his
co-defendants appealed the decision. However, a panel of the
Seventh Circuit unanimously affirmed the District Court. See
United States v. Hoover, 246 F.3d 1054 (7th Cir. 2001). Wilson filed his § 2255 petition on August 14, 2003. In it,
Wilson advances seven arguments supporting his claim for relief:
(1) the Circuit panel violated Wilson's right to due process
under the Fifth and Fourteenth Amendments by affirming the
admission of statutorily-inadmissible wiretap evidence on grounds
not adversely tested during the initial trial; (2) appellate
counsel was ineffective by failing to contest the Seventh Circuit
panel's jurisdiction over new facts, as evidenced by the panel's
use of a new theory to justify the admission of the wiretap
evidence; (3) trial counsel was ineffective by not challenging
the federal government's authority to intercept oral
communications within a state correctional facility; (4) trial
and appellate counsels were ineffective because they declined to
call a witness who would have provided exculpatory testimony; (5)
they failed to argue that the testimony of a rebuttal witness was
improperly admitted; (6) Wilson's conviction is invalidated by
changed circumstances, specifically the government's post-trial
acknowledgment of the falsity of its witness' testimony; and (7)
the government relied on a theory that it later acknowledged to
II. STATEMENT OF FACTS
Petitioner Wilson, along with a number of co-defendants, was
convicted in 1998 of numerous offenses arising from their
involvement in the Gangster Disciples, a street gang that
conducted extensive drug trafficking operations in Chicago.
Wilson, a "governor" in the Gangster Disciples, was sentenced to life
imprisonment as a result of his conviction on multiple charges.
This conviction and sentence were affirmed on appeal. For a
fuller recitation of the facts, see United States v. Jackson,
207 F.3d 910, 913-914 (7th Cir. 2000).
A federal court may grant a writ of habeas corpus if a
petitioner demonstrates "that the sentence was imposed 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 is otherwise subject to collateral attack."
28 U.S.C. § 2255 (2000). In filing a § 2255 motion, a defendant is barred
from raising three classes of complaints. First, absent changed
circumstances, issues already raised on direct appeal cannot
support the motion. Second, any appealable nonconstitutional
issues that were not raised on direct appeal are barred. Finally,
constitutional issues not raised on direct appeal may only be
raised in the § 2255 context if the petitioner shows both cause
for this failure and prejudice resulting therefrom. See Belford
v. United States, 975 F.2d 310, 313 (7th Cir. 1992). As noted
above, Wilson here alleges seven grounds for reversal, none of
which justifies the relief that he seeks. A. Admission of Evidence
Wilson first argues that the admission into evidence of tapes
the government made of conversations between several gang members
violated his right to due process under the Fifth and Fourteenth
Amendments. The tapes were initially admitted, over the
defendant's objection, during an earlier trial of another member
of the Gangster Disciples' "board," and their admission was
subsequently upheld. See United States v. Jackson, 2004 WL 868263
(N.D. Ill. 2004). As Wilson observes, the Seventh Circuit panel
that affirmed that defendant's conviction admitted the contested
tapes on different grounds than those accepted by the trial court
in that case. Moreover, although the panel claimed that the
justification for the evidence derived from the government's
brief, the argument was not briefed, but rather appeared in a
government attorney's affidavit. See Hoover,
246 F.3d at 1063-1064 (Rovner, J., concurring). Wilson therefore argues that
he should be granted a hearing to contest the admission of the
tapes in his own case.
Unfortunately for Wilson, though, the Seventh Circuit's
decision upholding the admission of the tape evidence is binding
on this Court. See Hoover, 246 F.3d at 1057. Indeed, even though
one Circuit judge expressed concern regarding the admission of
this evidence, she nevertheless was compelled to concur in her
own panel's admission of the tapes on the grounds of stare
decisis. See id. at 1063-1065 (Rovner, J., concurring). The only
venue available to challenge that decision was the United States
Supreme Court, which declined petitioner's invitation for review.
This Court certainly cannot effectively overrule its own
appellate court, the Seventh Circuit, which is what Wilson asks.
Accordingly, Wilson is not entitled to a new evidentiary hearing
on the admission of the tapes.
B. Ineffective Assistance of Counsel
Next, Wilson asserts that his conviction was constitutionally
flawed because he was denied effective assistance of counsel,
which is guaranteed by the Sixth Amendment. See McMann v.
Richardson, 397 U.S. 759, 771 (1970). The Supreme Court
promulgated the standard for determining whether an individual
received ineffective assistance in Strickland v. Washington.
466 U.S. 668 (1984). There, the Court established a two-prong test
for finding that "counsel's assistance was so defective as to
require reversal of a conviction." Id. at 687. First, the
petitioner must demonstrate "that counsel made errors so serious
that counsel was not functioning as the `counsel' guaranteed the
defendant by the Sixth Amendment." Id. In addition, he must show
"that counsel's errors were so serious as to deprive the
defendant of a fair trial." Id. Thus, even if a counsel's
performance was substantially deficient, it will constitute
grounds for reversal if it resulted in a demonstrably unfair
trial. As noted above, a petitioner may not use the § 2255 motion as a
secondary appeal of issues decided earlier. See Belford,
975 F.2d at 313 ("a Section 2255 motion is neither a recapitulation of nor
a substitute for a direct appeal"). Petitioners are therefore
barred from recasting previously argued issues as instances of
ineffective assistance of counsel. See Daniels v. United States,
26 F.3d 706, 711-712 (7th Cir. 1994) (court rejected petitioner's
§ 2255 claim of ineffective assistance because it "simply
recapitulat[ed]" an argument already raised at trial). Finally,
because all § 2255 motions arise in the context of unsuccessful
defenses and are viewed through the distorting lens of hindsight,
"a court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689. Put another way, a
judge must recognize that an unsuccessful counsel may not have
been objectively ineffective in the legal sense; otherwise, a
valid habeas claim would always lie for the losing party in
Wilson raises four claims of allegedly ineffective counsel.
1. Jurisdiction Over New Facts
First, Wilson argues that his trial and appellate counsels were
fatally ineffective insofar as they failed to contest the
appellate panel's original jurisdiction over arguments raised for
the first time on appeal. But this claim simply repackages, as
ineffective assistance of counsel, the arguments made on initial appeal contesting the admission into evidence of recordings
obtained by a governmental wiretap (see above). Having been
raised and settled both in Hoover and in Jackson, this issue
merits no further discussion here. See Hoover, 246 F.3d at 1057;
Jackson, 207 F.3d at 915-918.
2. Governmental Wiretap Authority
Wilson further argues that his trial and appellate counsel were
ineffective because they failed to contest the federal
government's authority to employ a wiretap in a state
correctional facility. But as with his first claim of ineffective
assistance, Wilson here recapitulates an argument that was heard
and decided before both the trial and appellate courts. This
argument is therefore barred. See Hoover, 246 F.3d at 1057;
Jackson, 207 F.3d at 914-915.
3. Failure To Call Sympathetic Witness
By contrast, Wilson's third allegation of ineffective
assistance of counsel presents a new issue. Here, he argues that
his counsel provided deficient representation by failing to call,
or even interview, a witness who would have provided testimony
sympathetic to Wilson's case. Wilson asserts that his fellow
Gangster Disciple Vincent Martin ("Martin") served as a
government witness in a previous case. There, Martin stated that
Wilson was not involved in the selling of drugs. Wilson allegedly
informed counsel of Martin's earlier testimony in the hopes that
counsel would call Martin to testify on Wilson's behalf. Wilson's counsel
declined not only to call Martin as a witness, but even to
To represent effectively a client, "counsel does have a duty to
contact a potential witness unless counsel `can make a rational
decision that investigation is unnecessary.'" Montgomery v.
Petersen, 846 F.2d 407, 413 (7th Cir. 1988), quoting Crisp v.
Duckworth, 743 F.2d 580, 583 (7th Cir. 1984). Of course, even if
counsel's decision was objectively unreasonable, and, thus
satisfied the first prong of the Strickland test, that would not
constitute ineffective assistance of counsel absent a showing
that the error "deprive[d] the defendant of a fair trial."
Strickland, 466 U.S. at 687.
Here, assuming arguendo that Martin proposed to testify exactly
in the manner that Wilson claims, it is still far from clear that
a competent counsel would believe that Martin's proferred
testimony would have even a minimal impact on the result in the
case. Balanced against the abundant and overwhelming recorded
evidence presented at trial, it is unlikely that the testimony of
Gangster Disciple member would be dispositive. Furthermore,
Wilson was convicted for his participation in a conspiracy
responsible for, inter alia, the distribution of illegal drugs.
Therefore, his personal involvement in drug transactions is not
determinative of his conviction, provided that his general contribution to the overall criminal enterprise was established.
See Hoover, 246 F.3d at 1057-1058. For either of these reasons,
it cannot be said that the potential error here even approximates
the high threshold required to show ineffective assistance of
counsel. See Valenzuela v. United States, 261 F.3d 694, 699-700
(7th Cir. 2001).
4. Court Improperly Allowed Government Witness
Wilson's final claim of ineffective assistance relates to a
government witness, Naseena Soldana ("Soldana"), who testified to
Wilson's past drug-related activity. Wilson contends that,
because witnesses testifying to prior "bad acts" may not be
called in order to demonstrate a defendant's propensity to commit
future "bad acts," Soldana's testimony was improperly admitted.
See United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.
1984). However, Wilson's objection to Soldana's testimony fails
to justify the relief he requests. First, Wilson here, again,
simply recasts, under the guise of ineffective counsel, an issue
that was previously raised and decided on appeal. See Hoover,
246 F.3d at 1061-1062. Moreover, the relevant rule of evidence states
that testimony regarding prior "bad acts" may be allowable as
proof of a number of other facts, including "opportunity" to
commit the bad acts at issue in the proceedings. See
Fed.R.Evid. 404(b); United States v. Liefer, 778 F.2d 1236, 1241 (7th
Cir. 1985). Thus, because the government called Soldana to demonstrate Wilson's
access to drugs, there was nothing improper with her testimony.
C. Reliance on False Evidence
Wilson next argues that the government deprived him of a fair
trial by misrepresenting material facts. Specifically, he claims
that the government created the false impression that the
Gangster Disciples' city wide drug trafficking program was an
active and flourishing enterprise, when in fact the government
knew that it never really got off the ground. However, Wilson
does not allege any actual malfeasance on the government's part.
As the government notes, "all of the evidence [Wilson] claims was
withheld or mischaracterized during his trial, was actually
presented at [his] trial, in the manner he alleges it should have
been but was not." Reply brief, 10. Thus, Wilson ultimately
appears to be contesting the tone of the government's
presentation, arguing that the government should have framed the
issue neutrally. But this clearly fails to present a
constitutional issue. Moreover, even if it did, Wilson would have
waived it by failing to raise the question on direct appeal.
D. False Testimony
Wilson's last claim is that the government violated his right
to due process when it failed to correct the false testimony of a
witness. However, the alleged falsehood does not concern a
material issue, and at any rate, Wilson waived this claim by failing to
raise it on direct appeal.
For the reasons stated above, Petitioner's Petition to Vacate,
Set Aside or Correct his sentence pursuant to 28 U.S.C. 2255 is
IT IS SO ORDERED.
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