The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Petitioner Mack Garcia's motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 is before this court. For the following reasons, the motion is DENIED.
Garcia, along with 13 individuals loosely associated with the Gangster Disciples street gang, was charged in a 36-count indictment for offenses related to a cocaine-distribution ring operating from 1995 to July 1999. See United States v. Jackson et al., No. 99 CR 545 (N.D. Ill. 1999). At his trial, two of Garcia's coconspirators, Raphael Williams and Alex Kinsey, testified about Garcia's involvement in the drug ring, and the jury heard over twenty recordings of Garcia discussing drug deals on a wiretapped phone. Kinsey testified, among other things, that Garcia sold him one kilogram of cocaine in November 1998, and recorded phone calls corroborated his testimony. (Trial Tr. II at 119-21.) Williams, too, testified that he bought powder cocaine from Garcia in 1/8-kilogram quantities between September and December 1998. (Id. at 206-07.)
Before Williams testified, the court excused the jury to allow the parties to question Williams about his mental-health history, which included a 45-day hospitalization in 1997 following a diagnosis of paranoid schizophrenia. (Trial Tr. II at 156.) At the end of the hearing, the court denied Garcia's request for permission to impeach Williams's testimony based on his mental-health history, reasoning that Garcia did not offer any evidence that Williams's condition might impair his ability to recollect events or otherwise diminish the credibility of his testimony. (Id. at 158.)
The jury returned a guilty verdict against Garcia on one count of conspiring to possess and distribute cocaine, 21 U.S.C. §§ 846, 841(a)(1), two counts of possessing cocaine with intent to distribute, id. § 841(a)(1), and one count of using a telephone in the commission of a drug-trafficking offense, id. § 843(b).
After reviewing Garcia's criminal history, the probation officer recommended in his presentence investigation report (PSR) that Garcia be sentenced as a career offender under the guidelines. See U.S.S.G. § 4B1.1. The probation officer based his recommendation on Garcia's three convictions for possessing with intent to distribute cocaine following arrests dated March 4, 1993; May 3, 1993; and April 26, 1994; and a conviction for delivering cocaine following an arrest on March 25, 1996. (R. 399 at 6.) Garcia was convicted of the two 1993 offenses on July 19, 1993; he committed the 1994 offense while serving the probation portion of his combined sentence for those convictions. (Sent. Tr. 13.) Garcia was convicted of the 1994 and 1996 offenses on February 26, 1997. (Pet'r's Br. 3.)
Garcia (through his attorney, William Huyck) contested the career-offender recommendation in a written memorandum and at the sentencing hearing. He argued that the 1996 offense should not count because it occurred during the time of the charged conspiracy.
(R. 399 at 6, 10-11.) And, relying on United States v. Garecht, 183 F.3d 671, 674 (7th Cir. 1999), he argued that the 1993 and 1994 offenses also should not count because they involved the same course of conduct as the conspiracy charged in the indictment. (Id. at 7-8.) See U.S.S.G. § 1B1.3, cmt. n. 9. Garcia noted that Kinsey and Williams both testified that the same relationship among the charged conspirators was in effect in 1993 and 1994, and that the offenses all involved sales of small packets of cocaine from the same suppliers in and around 72nd Street and Western Avenue in Chicago. (Id. at 9-11.)
In ruling that Garcia qualified as a career offender, the court noted that Garcia's earlier offenses occurred before the dates of the charged conspiracy, involved crack rather than powder cocaine, involved small street-level sales, and did not involve communication devices. (Sent. Tr. 27-28.) But the court ultimately concluded that, even if the prior offenses could be considered part of the same course of conduct as the charged conspiracy, Garcia's intervening sentences, imposed in 1993 and 1997, compelled the court to consider each of the offenses as prior convictions for career-offender purposes. See §1B1.3 cmt. n.8. (Sent. Tr. 28-29.) The court sentenced Garcia to 262 months' imprisonment and five years' supervised release, along with a $3,000 fine.
Garcia filed a notice of appeal, but attorney Huyck sought leave to withdraw under Anders v. California, 386 U.S. 738 (1967), because he could not identify a non-frivolous basis for the appeal. United States v. Garcia, No. 02-4197, 86 Fed. App'x 990 (7th Cir. Feb. 5, 2004). Among other potential arguments, Huyck considered challenging this court's decision to bar cross-examination about Williams's mental-health history. The Seventh Circuit agreed with Huyck that the challenge would be frivolous because, "[e]ven assuming that fuller cross-examination would have caused the jury to completely disregard Williams' testimony," given coconspirator Kinsey's testimony, along with the more than twenty tape-recorded conversations of Garcia discussing drug deals, the purported error would not have affected the verdict. Id. at 992.
Garcia filed a response to attorney Huyck's Anders brief, arguing that Huyck had rendered ineffective assistance by failing to employ a psychiatric expert to explain why Williams's mental health should be a subject for cross-examination. The Seventh Circuit declined to rule on the issue, which it found more appropriate for consideration in a § 2255 motion. Id. at 992-93. According to the court, though,"the lack of prejudice would seem to answer the contention." Id. at 992.
Garcia's petition for rehearing was denied on April 22, 2004. He timely filed his pro se § ...