The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On February 26, 2007, Petitioner Thomas Cannon, through his counsel, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (#1) with an accompanying affidavit. On July 6, 2007, the United States of America filed its Response (#6). Following a March 13, 2008, evidentiary hearing, Petitioner filed his Closing Argument (#14). The United States filed its Response (#16) on August 15, 2008. For the reasons that follow, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (#1) is DENIED.
On October 23, 2003, Petitioner was charged by indictment with possession of 50 or more grams of cocaine base (crack) with the intent to distribute it in violation of 21 U.S.C. §§ 841 (a)(1) and (b)(A)(1).*fn1 Bruce Cowan was retained to represent Petitioner. On November 14, 2003, Petitioner filed a motion to suppress, challenging the validity of the traffic stop which led to his arrest. Petitioner withdrew the motion to suppress at a hearing held on November 18, 2003. On December 4, 2003, a final pretrial conference was held. Attorney Cowan informed the court that he was attempting to secure the appearance of Petitioner's brother, Clarence Cannon, from Kuwait where he was stationed on military duty and that his testimony was "absolutely crucial to the defense." The court informed Cowan that it would delay the trial if necessary to allow Clarence to be present.
Petitioner's trial began on December 8, 2003. Prior to jury selection, Cowan indicated he wished to renew his motion to suppress because Clarence was present. An evidentiary hearing on the motion was then conducted. The evidence introduced at the hearing indicated that Clarence was driving a Chevy Trailblazer in which Petitioner was a passenger on September 3, 2003. Petitioner's two-year old son was also in the back seat of the car. Clarence had rented the vehicle from Enterprise Leasing in Rantoul, Illinois on August 18, 2003. During the execution of a stop of the vehicle, officers found marijuana, cocaine, and crack in the vehicle. Petitioner sought to suppress the drugs and an alleged subsequent confession of Petitioner, arguing that the traffic stop was invalid. The court heard the testimony of Petitioner, Clarence, and Kankakee County Sheriff's Deputies Dustin Brown and Edward Zopf. Deputies Brown and Zopf testified they stopped the vehicle because Clarence failed to yield when he was exiting the driveway of a private residence. Petitioner and Clarence testified that they properly stopped before entering the roadway. At the conclusion of the hearing, Judge Baker found the testimony of Deputies Brown and Zopf to be credible and found Petitioner and Clarence not to be credible. Accordingly, the motion to suppress was denied.
At trial, the Government first presented the testimony of Deputies Brown and Zopf . Their testimony indicated as follows. Brown and Zopf were on patrol on September 3, 2003, when they observed the Trailblazer driven by Clarence and in which Petitioner was a passenger fail to yield while departing from a residence in Hopkins Park, Illinois. The officers approached the vehicle and asked the occupants for identification. Petitioner initially identified himself as Lawrence Jones. The officers checked both Clarence and Petitioner to see if they had warrants out for their arrests and to insure Clarence had a valid driver's license. When the officers did a check on the name Lawrence Jones with the date of birth provided by Petitioner, the results indicated there was no record on file. The officers informed Petitioner that providing a false name was against the law. Petitioner then accurately provided his identification and indicated there was an outstanding warrant for his arrest. Petitioner was then arrested. When Petitioner was searched incident to this arrest, the officers found a wallet on his person containing $2,312 in cash. Deputy Brown then returned to the vehicle and asked Clarence if there were any drugs in the vehicle. Clarence did not respond. Brown then asked if he could search the vehicle and if there were any personal use amounts of drugs located in it. Clarence then reached into the center console and handed Brown two baggies containing marijuana. Clarence was then removed from the vehicle and placed in the back of the officers' squad car while the vehicle was searched.
The officers found $2,000 in cash after conducting a search of Clarence's person. When the officers conduced a search of the vehicle, they found two additional baggies containing marijuana in the center console, one large baggie containing marijuana under the driver's seat, one large baggie containing 64 grams of cocaine in the glove compartment, and another large baggie containing 59.5 grams of crack cocaine in the glove compartment. The officers then advised Petitioner of his Miranda rights. Petitioner indicated to Brown and Zopf that the drugs in the vehicle belonged to him and not his brother. Petitioner further offered Brown and Zopf all the money he and Clarence had on them if the officers would dispose of the cocaine.
Chad Gessner, an officer with the Kankakee Area Metropolitan Enforcement Group (KAMEG) also testified at trial. Gessner testified he arrived at the scene of the stop and transported Petitioner to a county administration building. After he arrived at the administration building, Petitioner was again advised of his Miranda rights. Petitioner then informed Gessner that he obtained the drugs from a man called Scony. Gessner recognized the name Scony as being a nickname for Patrick Spain. Petitioner stated he was a middleman for Scony and was supposed to deliver the drugs to Joe Jones.
Officers William Backus and Deann Regas, also of KAMEG, provided the following testimony at trial. Backus interviewed Petitioner with Regas present. Petitioner stated to Backus that the drugs were his and did not belong to his brother, Clarence. Petitioner indicated he had been working for Scony for approximately one year and was acting as a runner in delivering cocaine, crack, and marijuana in the Hopkins Park area. Petitioner further stated that he made these deliveries approximately once per week, would deliver drugs to Scony for Joe Jones, and would also obtain drugs from Scony to distribute himself. With regard to the drugs seized during the traffic stop, Petitioner indicated he obtained two ounces of crack cocaine, two ounces of powder cocaine, and 12 ounces of marijuana from Scony which was to be delivered to Joe Jones. Petitioner indicated Jones did not have enough money to pay for the drugs, so Petitioner held them. At the conclusion of the interview, Petitioner made the following written statement: "I, Thomas, do state that Clarence Cannon had no knowledge of what was in the vehicle. He had no part in it. I have willingly made this statement of my own free will." Petitioner indicated he wished to cooperate with agents, and was therefore only arrested on his outstanding warrant at the time. Petitioner was released from custody to allow for cooperation, but Petitioner failed to do so. The Government further presented testimony from a representative of Enterprise Leasing and from those responsible for renting the Trailblazer prior to the time of rental by Clarence. These witnesses indicated there were no drugs in the vehicle prior to the rental by Clarence.
The defense called Clarence to testify at trial. Clarence indicated that he rented the Trailblazer in Rantoul after returning from Kuwait where he was serving in the military. Clarence testified Petitioner never drove the vehicle or had sole access to the vehicle. On the day of Petitioner's arrest, Clarence picked Petitioner up in Champaign and proceeded to their mother's house in Hopkins Park. After they left their mother's house, they went to the house of a friend and it was when they were leaving the driveway that they were stopped by police. Clarence denied that Petitioner confessed to possession of the drugs or offered the officers a bribe. Clarence further indicated that the officers stated they were trying to get Petitioner to make a statement that Clarence was not involved in anything and that the officers stated they were trying to get Petitioner to admit the drugs were his. Clarence further indicated he would suffer severe consequences if the military learned he was helping Petitioner transport drugs.
Petitioner also testified at trial and indicated he never had sole access to the car. Petitioner denied making any confession to any officer, denied offering the officers a bribe, and stated he only gave the officers a false name because he did not want to be arrested on his outstanding warrant in front of his two year old son. Petitioner also testified that he did not offer to cooperate with the officers, but officers forced him to agree to cooperate or else Clarence would be arrested and his son turned over to the Department of Children and Family Services. Petitioner also indicated the officers stated they would do the same thing unless he signed a written statement indicating Clarence was innocent.
On December10, 2003, Petitioner was found guilty of the offense charged. On December 16, 2003, Cowan filed a motion for new trial arguing the evidence was insufficient to support Petitioner's conviction and that the court erred in denying his motion to suppress evidence. On March 8, 2004, Petitioner filed a pro se motion seeking to overturn the jury's verdict and to dismiss Cowan as his attorney based upon ineffective assistance of counsel. Petitioner asserted that Cowan failed to present evidence that Petitioner wished to be presented at trial. Petitioner further asserted Cowan had a conflict of interest because Clarence admitted to Cowan that the drugs were his and that Clarence's fingerprints would be found on the drugs. On March 26, 2004, Cowan filed a motion to withdraw. On April 1, 2004, the court allowed Cowan's motion and appointed the Federal Public Defender's office to represent Petitioner.
On September 20, 2004, Petitioner's newly appointed counsel, Tiffani Johnson, filed a motion to compel production of discovery materials that were in Cowan's possession. On November 1, 2004, the court issued a rule to show cause order regarding Cowan's failure to turn over the discovery materials. Thereafter, the court conducted several evidentiary hearings on the rule to show cause. Cowan was called as a witness by Johnson regarding his failure to produce the discovery. Cowan indicated the file had been lost, providing what the court determined to be false testimony concerning what had happened to the file.
Cowan further testified that he only interviewed Petitioner and Clarence in preparation for trial.
Johnson also called several of Petitioner's family members and his girlfriend to testify. Petitioner's girlfriend, Ebony Gowans, testified she was present at a meeting which took place between Cowan, Petitioner, Clarence, and other members of Petitioner's family at Maime Lascola's trailer in which Petitioner's family retained Cowan to represent Petitioner. Gowans indicated that Clarence told Cowan his prints would be found on the drugs and Petitioner told Cowan that his would not. Gowans further indicated that Clarence later sent the money to Petitioner's sister to pay Cowan for his representation. Annie Bradley, Petitioner's sister, testified that she was "under the impression [Cowan] always knew" that the money for his representation was coming from Clarence. Bradley also indicated that Cowan would call Petitioner's mother asking if Clarence had sent any more money to pay for the representation. Lascola testified that she "called [Cowan] for both of my brothers and asked him to meet with them." Lascola further indicated Cowan "told me that he needed $2,000 if they was going to retain him."
On January 19, 2005, the court denied Petitioner's motion for new trial and also denied the subsequent pro se motion for new trial as untimely. Petitioner filed a motion to reconsider the denial of his initial motion for new trial on February 21, 2005. The court denied that motion at the sentencing hearing held on February 25, 2005. The court determined at that sentencing that Petitioner's two prior drug convictions represented only one conviction and sentenced Petitioner to a term of 20 years' imprisonment. Both the Government and Petitioner appealed. The Seventh Circuit Court of Appeals affirmed Petitioner's conviction, but remanded the case with instructions to impose a mandatory life sentence. See United States v. Cannon, 429 F.3d 1158 (7th Cir. 2005). On August 19, 2005, the court found Cowan in contempt of court for giving false testimony concerning the file for Petitioner's criminal case. After remand from the Seventh Circuit, Judge Baker recused himself, and the case was reassigned to this court for resentencing. On March 6, 2006, this court sentenced Petitioner to a mandatory term of life imprisonment.
On February 26, 2007, Petitioner filed with this court a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). In this Motion, Petitioner argued that his conviction should be overturned because he received ineffective assistance of counsel in three instances: (1) Attorney Cowan labored under a conflict of interest in that he also represented Clarence, who rented and controlled the car in which the drugs were found and paid Cowan's attorneys' fees; (2) Attorney Cowan failed to investigate Petitioner's case in any meaningful fashion and failed to call certain witnesses who would back up Petitioner's trial testimony that he did not place the drugs in the car; and (3) trial counsel failed to object to the introduction at trial of evidence of other crimes allegedly committed by the Petitioner. The United States filed its Response on July 6, 2007 (#6). On March 13, 2008, this court conducted an evidentiary hearing into the ineffective assistance claims to determine if there was an actual conflict of interest on the part of Attorney Cowan which had an adverse effect on his representation of Petitioner.
Mamie Delores Lascola, of Urbana, was called to the stand at the hearing. Lascola is the older sister of Petitioner. She was involved in obtaining Attorney Cowan's services for her brothers. Both of her brothers, Clarence Cannon and Petitioner, wanted to talk to a lawyer, and she had had dealings with Cowan before, so she recommended him to them. She knew both of her brothers had been stopped in Kankakee, but did not know it was in connection with drugs. She knew Petitioner had been arrested over it. At the time she recommended his services to her brothers, Lascola believed Cowan to be a reputable and ethical attorney. After the recommendation, there was a meeting at her house between several family members and Cowan. She told Cowan that both her brothers were in need of an attorney and that they needed to talk to him about a matter.
The meeting was held at her home in Urbana. She introduced her brothers to Cowan. After the introductions were made, she left them to talk and did not listen in to the conversation.
At some point Cowan did speak to Lascola and asked her who was going to pay him. Lascola did not know how much Cowan was seeking for a fee.
On cross-examination, Lascola testified that she still believed Cowan to be a competent attorney. Lascola admitted to having no knowledge about the payment arrangements, but her mother did tell her that Clarence was paying Cowan's fee. Clarence was concerned about Petitioner and was the one who was employed and making money. She does not have personal ...