The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner Lee Floyd Kibler's ("Kibler") motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The government has responded to the motion (Doc. 11), and Kibler replied to that response (Doc. 28). In the wake of Blakely v. Washington, 542 U.S. 296 (2004), the Court allowed Kibler to amend his petition (Docs. 31 & 33). The government responded to the amendment (Doc. 34). The Court also ordered further briefing on several issues, and Court considers the government's and Kibler's supplemental briefs (Docs. 39, 47 & 48). The Court also considers numerous other motions filed by Kibler in this proceeding (Docs. 2, 18-24, 26 & 41).
In January 1998, Kibler was indicted on one count of conspiring to distribute crack cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) (count 1) and two counts of possessing with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) (counts 2 & 3). The indictment charged no specific drug amounts. In addition, the government filed an information pursuant to 21 U.S.C. § 851 based on Kibler's two prior felony drug sentences. Kibler was represented at the trial level by attorney John D. Stobbs III ("Stobbs").
Before Kibler's trial, Stobbs filed several motions to suppress. The first was denied by the Court because it was too vague, but the second contained more details. It related to a February 1997 search of Kibler's house, authorized by a warrant, in which two scales, a police scanner, sandwich bags and approximately $1500 in cash, but no drugs, were found. The warrant was issued based in part on Mount Vernon Police Detective Jim Hawkins's ("Hawkins") affidavit relating statements made by Elizabeth Goosby ("Goosby") regarding drug activities in Kibler's home. After the search, officers arrested Kibler and brought him to the police station, where he initialed but did not sign a form setting forth the warnings called for by Miranda v. Arizona, 384 U.S. 436 (1966), and thenallegedly made self-incriminating statements to then-Mount Vernon Police Detective Sergeant Chris Mendenall ("Mendenall"). The motion to suppress alleged that the warrant lacked the requisite specificity, the Miranda warnings were not adequate, Kibler's statements were obtained by coercion and the warrant was not supported by probable cause. The Court held a hearing on the motion at which only Mendenall testified; Kibler called no witnesses. The Court ultimately determined that the motion was without merit.*fn1
In June 1999, a jury found Kibler guilty on all three counts. The verdict forms contained no specific drug amounts.
On April 20, 2000, the Court held a sentencing hearing at which Kibler was represented by new counsel Terry Green ("Green").*fn2 At sentencing, the Court found by a preponderance of the evidence that Kibler's relevant conduct was at least 500 grams but less than 1.5 kilograms of crack cocaine, which under United States Sentencing Guideline*fn3 ("U.S.S.G.") § 2D1.1 yielded a base offense level of 36. The Court further found that Kibler was a career offender under U.S.S.G. § 4B1.1 based on his two prior drug felony convictions, which raised his offense level to 37 and established his criminal history category as VI. In view of the § 851 enhancement for Kibler's two prior drug felony convictions, the Court found that Kibler was subject to a mandatory life sentence for count 1. See 21 U.S.C. § 841(b)(1)(A). Considering the statutory maximum sentences set forth in § 841(b)(1)(B) and (C), the Court found that the guidelines established a sentence of 360 months for count 2 and a sentencing range of 360 to life for count 3. The Court sentenced Kibler to serve a life sentence on count 1 and 360 months on counts 2 and 3, all sentences to be served concurrently.
Kibler appealed to the Seventh Circuit Court of Appeals, still represented by Green. On appeal, Green argued that the Court erred in allowing admission of evidence of Kibler's prior convictions, of uncharged criminal conduct, and of Kibler's immoral conduct that could have been tinged with race issues. He also argued that Kibler's sentence violated the principles announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), because his sentence exceeded the sentence established under 21 U.S.C. § 841(b)(1)(C) for unspecified amounts of crack cocaine by a defendant with prior felony convictions. The Court of Appeals found no reversible error, affirmed Kibler's conviction and sentence on February 1, 2002, and entered its mandate on February 25, 2002. United States v. Kibler,279 F.3d 511 (7th Cir. 2002). Kibler petitioned the United States Supreme Court for a writ of certiorari, which it denied on October 7, 2002. Kibler v. United States, 537 U.S. 849 (2002) (Table).
Kibler filed this timely § 2255 motion on September 4, 2003. In it, Kibler asks the Court to vacate his conviction and sentence because his trial and appellate counsel were constitutionally ineffective in violation of his Sixth Amendment rights. In his August 4, 2004, amendment, Kibler advances a direct challenge to his sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).
In response, the government argues that neither Kibler's trial counsel nor his appellate counsel were constitutionally ineffective and that Blakely is not retroactively applicable to cases on collateral review.
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Relief under § 2255 is available only if an error is "constitutional, jurisdictional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255.
A § 2255 motion does not substitute for a direct appeal. A defendant cannot raise in a § 2255 motion constitutional issues that he could have but did not raise in a direct appeal unless he shows good cause for and actual prejudice from his failure to raise them on appeal or unless failure to consider the claim would result in a fundamental miscarriage of justice. Massaro v. United States, 538 U.S. 500, 504 (2003); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. A defendant cannot raise in a § 2255 motion non-constitutional issues that he failed to raise on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000).
Neither is a § 2255 motion necessarily a second chance at a successful appeal. The Court may refuse to consider issues in a § 2255 motion that a defendant raised on direct appeal where there are no changed circumstances of fact or law. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995); Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992).
The failure to hear a claim for ineffective assistance of counsel in a § 2255 motion is generally considered to work a fundamental miscarriage of justice because often such claims can be heard in no other forum. They are rarely appropriate for direct review since they often turn on events not contained in the record of a criminal proceeding. Massaro, 538 U.S. at 504-05; Fountain, 211 F.3d 433-34. In addition, the district court before which the original criminal trial occurred is in the best position to initially make the determination about the effectiveness of counsel in a particular trial and the potential prejudice that stemmed from that performance. Massaro, 538 U.S. at 504-05. For these reasons, the Court finds that Kibler has not procedurally defaulted his ineffective assistance of counsel claims.
The Court finds that Kibler has not presented any evidence or argument meriting either a hearing or relief under § 2255. As noted earlier in this order, Kibler asks the Court to vacate his conviction on the basis of several alleged instances of ineffective assistance of his trial and appellate counsel. A party claiming ineffective assistance of counsel bears the burden of showing (1) that his counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000). The plaintiff's burden is heavy because the Strickland test is "highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices." United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotations omitted).
To satisfy the first prong of the Strickland test, the plaintiff must direct the Court to specific acts or omissions of his counsel. Fountain, 211 F.3d at 434 (citing United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995)). The Court must then consider whether in light of all of the circumstances counsel's performance was outside the range of professionally competent assistance. Id. Counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Id. The Court cannot become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990). To satisfy the second prong of the Strickland test, the plaintiff must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Fountain, 211 F.3d at 434.
The Court will first address the performance of Kibler's trial counsel, then the performance of his appellate counsel.
A. Trial Counsel's Effectiveness
For the following reasons, the Court finds that Stobbs was not constitutionally ineffective in relation to Kibler's pretrial and trial proceedings. The Court will address each alleged instance of ineffectiveness in turn.
1. Failure to Obtain Suppression of Evidence a. Statements
Kibler argues that Stobbs was ineffective because he failed to conduct an investigation to show that Kibler's post-arrest statements were inadmissible at trial. He believes that there was no probable cause for his arrest and that the self-incriminating statements he gave to law enforcement during his detention were therefore inadmissible. The government argues that Stobbs filed an appropriate suppression motion seeking to suppress both the items found in the search and Kibler's post-arrest statements.
The Court finds that Kibler has not alleged anything that amounts to constitutionally ineffective assistance of counsel. When a petitioner alleges that his counsel failed to conduct an adequate investigation, he must "provide the court sufficiently precise information, that is, a comprehensive showing as to what the investigation would have produced." Richardson v. United States, 379 F.3d 485, 488 (7th Cir. 2004) (internal quotations omitted); Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003). Without such information, the petitioner cannot show that constitutionally adequate counsel would have taken any different approach or given any different advice than his actual counsel did. See Richardson, 379 F.3d at 488. Similarly, when a petitioner alleges that his counsel was deficient for failing to present evidence, he must demonstrate what evidence the attorney should have presented and that the presentation of such evidence had a reasonable probability of changing the result. Fuller v. United States, 398 F.3d 644, 652 (7th Cir.), cert. denied, 126 S.Ct. 238 (2005); Berkey v. United States, 318 F.3d 768, 774 (7th Cir. 2003), cert. denied, 541 U.S. 1055 (2004).
In this case, Kibler has utterly failed to make the required showings. He has not given any information about what Stobbs could have found had he conducted a more thorough investigation of the circumstances surrounding the search of Kibler's house and his subsequent questioning that would have caused him to pursue suppression of evidence in way different than he actually did. Furthermore, Kibler has not pointed to any evidence that Stobbs could have but did not present in the suppression proceedings that actually occurred.
To the extent Kibler may be faulting Stobbs for not calling him as a witness in his own suppression hearing to testify about events relating to his questioning by Mendenall, the Court finds that Stobbs's decision was within the realm of competent counsel. At the time of the suppression hearing, the government had not yet filed the § 851 enhancement alleging Kibler's prior felony drug convictions. As a consequence, at the time of the hearing, it appeared that the charged offense did not carry a mandatory life sentence and that an obstruction of justice enhancement under U.S.S.G. § 3C1.1 could have increased Kibler's sentencing range under the guidelines. Had Stobbs called Kibler to testify, had a jury ultimately convicted him, and had the Court determined that Kibler lied at the suppression hearing, Kibler would have faced the possibility of a two-point offense level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. It was a reasonable decision not to risk this sentencing enhancement.
For these reasons, Kibler cannot show that Stobbs was deficient in his approach to seeking suppression of evidence or that he suffered any prejudice from that approach. Relief under § 2255 is not warranted on this basis.
b. Fruits of Search Generally
To the extent that Kibler believes Stobbs should have discovered materials attached to his § 2255 motion and asked for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), the Court rejects that argument. Kibler has attached to his § 2255 motion (1) information regarding the disposition of several criminal charges against Goosby, (2) the investigative report of Goosby's conversation with Hawkins and of Goosby's follow-up surveilled attempt to purchase drugs from Kibler, (3) a report of an investigator retained by Stobbs indicating his opinion that Goosby was not truthful in her statement to Hawkins and that law enforcement did not follow proper procedure in relation to the search of Kibler's house and the questioning of Kibler, and (4) sworn statements from Kibler himself, Kibler's wife and her granddaughter that Goosby was not in Kibler's house at the time she claims to have observed drugs there.
Even if Stobbs had discovered the materials attached to Kibler's motion, he was not deficient for failing to request a Franks hearing to challenge the propriety of the search warrant. There is probable cause for a search warrant where there is a substantial basis for concluding that a search would uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 236 (1983). The totality of the circumstances must be considered, including "the veracity and basis of knowledge of persons supplying hearsay information." Id. at 239-40 (internal quotations omitted). The Court generally defers to the judgment of the judge issuing the warrant about whether probable cause exists unless the affidavit was knowingly or intentionally false or revealed a reckless disregard for the truth. Forman v. Richmond Police Dep't, 104 F.3d 950, 957 (7th Cir. 1997) (citing Franks, 438 U.S. at 155-56).
If a defendant believes that an affidavit in support of a facially-valid search warrant contains materially false statements or omits material statements, he may attempt to challenge the validity of the search warrant and the fruits of a search pursuant to that warrant. Franks, 438 U.S. at 164. However, affidavits in support of search warrants are presumed valid, and the "substantial preliminary showing" that Franks requires even to obtain a hearing must focus on the affiant's state of mind. Franks, 438 U.S. at 171; United States v. Jones, 208 F.3d 603, 607 (7th Cir. 2000); United States v. Amerson, 185 F.3d 676, 688 (7th Cir. 1999). "The defendant must offer evidence showing either that the warrant affiant lied or that the warrant affiant recklessly disregarded the truth because he in fact entertained serious doubts as to the truth of his allegations or had obvious reasons to doubt the veracity of the allegations." Jones, 208 F.3d at 607 (internal quotations omitted). "[T]he fact that a third party lied to the affiant, who in turn included the lies in a warrant affidavit, does not constitute a Franks violation. A Franks violation occurs only if the affiant knew the third party was lying, or if the affiant proceeded in reckless disregard of the truth." United States v. McAllister, 18 F.3d 1412, 1417 (7th Cir. 1994); accord United States v. Roth, 201 F.3d 888, 892 (7th Cir. 2000). Because the showing that Franks requires even to obtain a hearing is difficult to make, Franks hearings are rare. United States v. Swanson, 210 F.3d 788, 790 (7th Cir. 2000).
Even assuming that Goosby was lying to Hawkins that she was in Kibler's residence or what she saw there, the exhibits Kibler presented with his motion do not support the inference that Hawkins knowingly, intentionally or recklessly made a false affidavit or omitted material facts in that affidavit, or that he knew or recklessly disregarded the fact that Goosby was lying. On the contrary, the evidence shows that after talking to Goosby, Hawkins considered her basis for making her statements, sought corroborating information and evaluated her history of providing reliable information before making his affidavit. A Franks argument would have had no chance of success based on Kibler's exhibits.
Furthermore, Kibler cannot demonstrate a reasonable probability that the results of the proceedings would have been any different had Stobbs somehow succeeded on a Franks argument and had the Court suppressed the evidence at issue. Even without the evidence seized in the search and Kibler's statements, there was overwhelming evidence against Kibler on all counts.
For all of the foregoing reason, the Court finds that Kibler has not established the Stobbs was constitutionally deficient for failing to discover and present evidence that had a reasonable probability of changing the results of the proceedings.
2. Failure to Object to Hearsay Statements of Steven Davis
Kibler argues that Stobbs was constitutionally deficient for failing to object on hearsay grounds to the admission of out-of-court statements about which Steven Davis ("Davis") testified. Specifically, Kibler believes Stobbs should have objected to Davis's testimony relating a conversation he had with Sandra Davis, one of Kibler's girlfriends, in which Sandra Davis told him the crack she sold him belonged to her and Kibler. The government responds that Stobbs was not deficient because the ...