The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on Petitioner John L. Tolliver's Motion Pursuant to Title 28 U.S.C. § 2255, seeking collateral relief from his conviction for conspiracy to distribute and possess with intent to distribute crack cocaine (Doc. 1). The Government has responded and Tolliver has replied. For the following reasons, the Court DENIES the Motion.
On March 2, 2004, Tolliver and three co-defendants were indicted by a federal grand jury. The indictment alleged that Tolliver, Archie Dunklin, Jr., Houston O. Spiller and Jabrae D. Thomas conspired with each other and with persons known and unknown to the grand jury to knowingly distribute and possess with intent to distribute 50 grams or more of a mixture and substance containing cocaine base (crack cocaine). On December 7, 2004, after Spiller and Thomas pled guilty, a federal grand jury returned a superseding indictment against Tolliver and Dunklin. Reginald "Ray" Walls was an uncharged but named co-conspirator of Tolliver and Dunklin in the superseding indictment. On March 3, 2005, the government filed an "Information Pursuant to Title 21, United States Code, Section 851 to Establish Prior Conviction" with respect to Tolliver. That pleading established that Tolliver had a prior drug felony offense under 21 U.S.C. §851.
Tolliver and Dunklin were tried jointly. On March 23, 2005, after a three-day trial, a jury found both Tolliver and Dunklin guilty on Count 1 of the superseding indictment. With respect to each defendant, the jury made a special finding, beyond a reasonable doubt, that the amount of drugs attributable to each defendant was fifty (50) grams or more of crack cocaine. The United States Probation Office prepared a Presentence Report ("PSR") with respect to Tolliver. Tolliver filed objections to the PSR and the government responded.
On June 23, 2005, the district court sentenced Tolliver to 240 months' imprisonment, ten years' supervised release, a $250 fine, and a $100 special assessment. On June 28, 2005, Tolliver filed a notice of appeal. His appeal raised two issues: 1) whether the Court properly allowed the government's inquiry into Tolliver's 1991 sale of drugs to undercover police officers and related matters, and 2) whether the interplay between the jury instructions given at the trial and the indictment with respect to drug quantity caused confusion that resulted in an unfair trial.
The Seventh Circuit affirmed the conviction, finding that Tolliver's own testimony at trial that he had never dealt drugs opened the door for the prosecution to inquire into the 1991 transaction, notwithstanding that it would otherwise have been barred. The Seventh Circuit also found that the jury instructions as given were not confusing. The Court of Appeals issued its mandate on August 10, 2006.Tolliver did not file a petition for writ of certiorari to the United States Supreme Court, and his conviction became final on November 8, 2006. At trial and on appeal Tolliver was represented by attorney Daniel F. Goggin. Tolliver has filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, claiming that his counsel, Mr. Goggin, was constitutionally deficient and that the government committed acts of prosecutorial misconduct.
Reginald Walls, the named co-conspirator in the superseding indictment, testified that he had known Tolliver for ten to fifteen years. Between June 2002 and June 2003, Walls saw Tolliver on a daily basis. Walls testified that he and Tolliver went alone to St. Louis three or four times to purchase crack cocaine. Walls testified that when he and Tolliver traveled alone, they obtained between 6-12 grams on each occasion, but on one occasion they received an ounce of crack cocaine. Walls also testified that he, Tolliver, and other people (including Dunklin) went to St. Louis to get crack cocaine on 10 to 12 separate occasions. Walls said that they received a minimum of 6 grams on each occasion. Walls further stated that Tolliver also went to St. Louis without Walls being present. Walls indicated that Tolliver would go to St. Louis with Greg Woods, Kenny Tyner, and Dunklin for the purpose of obtaining crack cocaine. During these trips, the individuals would put their money together to obtain the crack cocaine. When they returned from St. Louis with the crack cocaine, Walls and Tolliver would repackage the crack cocaine into smaller quantities for resale. Tolliver and Walls would then sell some of the crack cocaine to regular customers.
Walls also described a time he and Tolliver stole crack cocaine from another drug dealer named Sedric Anderson. Walls then testified that he and Dunklin went alone to St. Louis 10-15 times to purchase crack cocaine. Walls testified that when he and Dunklin traveled alone, they obtained between one-half ounce and one ounce of crack cocaine on each occasion. Walls also stated that Mindy Smith, Tolliver, and Dunklin's girlfriend also accompanied them to St. Louis at various times.
Kenny Tyner testified that he went to St. Louis with Walls and Tolliver on two occasions for the purpose of obtaining crack cocaine. Tyner also purchased crack cocaine from Tolliver on one occasion, and smoked crack cocaine with Tolliver on other occasions. Greg Woods testified that he and Tolliver went alone to St. Louis six times to purchase crack cocaine. Woods testified that when he and Tolliver traveled alone, they obtained a quarter ounce of crack cocaine on each occasion. Woods also testified that he, Tolliver, and other people (Walls, Tyner, and John Melvin) went to St. Louis to get crack cocaine on three to five separate occasions. Woods saw Tolliver repackaging the crack cocaine for resale and saw Tolliver sell crack cocaine to others. Woods saw Tolliver sell crack cocaine to Kenny Tyner, John Melvin, Rita McGuire, Angie Harlan, Wyatt Scruggs and Stacy Quinn. Woods also indicated that he would get crack cocaine from Dunklin two to three times per week.
Sedric Anderson testified that from April to June 2003, he knew Dunklin and Tolliver. Anderson sold crack cocaine to Tolliver during this time frame, with the largest amount being one-half ounce. Anderson also stated that Walls and Tolliver stole 37-40 grams of crack cocaine belonging to Anderson. Anderson testified that between April and June 2003, he sold Dunklin one-half ounces of crack cocaine on several occasions. Anderson and Dunklin also went to Memphis, Tennessee, where they purchased six ounces of powder cocaine which they brought back to DuQuoin, Illinois. Anderson and Dunklin then processed the six ounces of powder cocaine into six ounces of crack cocaine.
Jeanne Fisher testified that back in 2000 and 2001, she went to St. Louis with Tolliver and Walls when they went to purchase crack cocaine. Fisher also testified that on May 1, 2003, she made a controlled purchase of crack cocaine from a person named Lorenzo Bolling. Tolliver aided Fisher in obtaining the crack ...