United States District Court, N.D. Illinois, Eastern Division
November 9, 2004.
UNITED STATES OF AMERICA, Plaintiff,
HERMILYN STRONG, Defendant.
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court is the Petitioner Hermilyn Strong's ("Strong")
Petition to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255 the "Petition"). For the reasons stated below, the
Petition is denied.
The background facts of Strong's crime have been described
elsewhere and will not be repeated here. See United States v.
Strong, 2002 WL 1752232 (7th Cir. 2002) (unpublished order, not
cited for controlling law). In August 1999, Strong was indicted
on nineteen counts of various bank, HUD, and bankruptcy fraud
charges. Three days into her trial in January 2000, Strong pled
guilty to various counts of fraud. In October 2001, Strong was
sentenced to concurrent terms of imprisonment ranging up to 60
months in custody and a three-year term of supervised release.
In July 2003, Strong filed the present Petition. Although the
Petition is not a model of clarity, Strong appears to allege that her trial counsel was constitutionally-ineffective for the
1) Failure to conduct sufficient pre-trial
investigation and discovery;
2) Failure to investigate the circumstances of her
statute of limitations waiver;
3) Failure to develop a conducive attorney-client
4) Failure to share the Government's loss list with
A. Standards for Habeas Corpus
28 U.S.C. § 2255 provides that "a prisoner in custody under
sentence of a court established by Act of Congress claiming the
right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United
States . . . may move the court which imposed the sentence to
vacate, set aside, or correct the sentence." To receive relief
under 28 U.S.C. § 2255, Strong must show a "fundamental defect
which inherently results in a complete miscarriage of justice,"
United States v. Addonizio, 442 U.S. 178
, 185 (1979), or "an
omission inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S. 424
, 428 (1962).
Here, Strong alleges ineffective assistance of counsel. As an
initial matter, the Court "must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 687,
689 (1984). The Court will find ineffective assistance of counsel
only when a petitioner establishes both elements of the
Strickland two-prong test. The Petitioner must show that (1) her
counsel's performance was deficient to the extent that counsel
failed to function as the "counsel" guaranteed to the defendant
by the Sixth Amendment, and (2) this deficient performance
prejudiced her defense such that it deprived her of a fair trial
with a reliable result.
B. Strong's Attorney Was Not Constitutionally Deficient
1. Failure to Investigate
Strong first claims that her attorney was ineffective because
he should have consulted more extensively with Strong "to seek
discovery to investigate crime charged, or to interview witnesses
. . ." (Pet. at 4 (Ground One)). As an initial matter, the
Petition is virtually devoid of supporting facts: Strong provides
no supporting memorandum to flush out her allegations, and her
Petition consists entirely of conclusory statements without
sufficient factual support. This is fatal to Strong's claim
because to prevail she must provide sufficient detailed facts,
namely, what exculpatory information the investigation would have
revealed. See Haradamom v. United States, 319 F.3d 943, 951 (7th
Cir. 2003). Here, Strong specifies only that her attorney apparently failed
to conduct a title search or interview sufficient witnesses. In
response, the Government attaches an affidavit from Strong's
former attorney, in which he attests that Strong never asked for
a title search, and, moreover, that such a search could not have
reasonably been expected to rebut the Government's loss figures.
(Gov. Mem. at 11, Ex. A.) In this affidavit, Strong's former
attorney also attests that although he did interview certain
witnesses, he was impeded by Strong in interviewing other
witnesses. See id. Strong did not file a reply despite being
granted a significant extension of time and therefore these
facts are without rebuttal. In any event, Strong carries the
burden of showing how the absence of a title search or additional
witness interviews prejudiced her defense (or otherwise altered
her plea agreement). She has not done this.
2. Statute of Limitations Waiver
Strong also claims that her trial counsel failed to investigate
why a previous attorney "allowed" Strong to sign a statute of
limitations waiver. As an initial matter, Strong's trial counsel
did not represent Strong for purposes at the time she executed
the waiver. Furthermore, Strong does not show as she must
that there is any basis to challenge the validity of the waiver
nor how the purported failure to "investigate" was prejudicial. 3. Failure to Develop a Conducive Attorney-Client Relationship
Strong also accuses her attorney of failing to develop a
productive attorney-client relationship with her. Specifically,
Strong alleges that her attorney "talked down" to her, "harassed"
her, called her a "liar," and refused to help her "through the
law." (Pet. at 5). Strong also complains that certain unspecified
motions were filed without her review (or, apparently, consent).
See id. In his affidavit, Strong's attorney admits that he called
her a "liar" in a private attorney-client meeting, precisely
because he believed at that moment Strong was not being truthful.
(Gov. Resp., Ex A. (Diamond Aff.)). This, of course, does not
amount to ineffective assistance of counsel. There is nothing in
the record to indicate that Strong's former attorney, an
experienced and well-regarded attorney, allowed any personal
ill-feelings to affect his representation in a
4. Failure to Share Government Loss List and Other Allegations.
Finally, Strong alleges that her former attorney failed to
share the list of the government's loss until the day of
sentencing, and that Strong filed certain routine pre-trial
discovery motions without her review. Again, the Court need not
devote much time to these arguments because Strong provides absolutely no factual support indicating the requisite prejudice
to state a claim here.
For the reasons stated herein, Strong's Petition to Vacate, Set
Aside or Correct Sentence is DENIED.
IT IS SO ORDERED.
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