The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
On December 16, 2008, Petitioner Gregory L. Marshall filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). On February 20, 2009, the Government filed its response (#5), and on March 19, 2009, Petitioner filed a Reply (#6). For the reasons that follow, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) is DENIED.
On October 5, 2005, in Case No. 05-CR-20047, Petitioner was indicted by a grand jury on three counts: (1) knowingly possessing more than five grams of crack with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); (2) knowingly possessing heroin with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (3) knowingly possessing cocaine with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). On July 31, 2006, the case proceeded to jury trial. On August 1, 2006, a jury found Petitioner guilty on all three counts charged in the indictment. On August 7, 2006, Petitioner filed a motion for a judgment of acquittal pursuant to Rule 29(d)(1) and for a new trial, arguing that the evidence concerning Petitioner's sale of crack cocaine to an informant three days before the drugs were found in his home should not have been admitted. On August 23, 2006, this Court denied Petitioner's motion, concluding "the evidence was admissible because it was relevant to the issue of [Petitioner's] knowledge and was not improper propensity evidence." On November 22, 2006, this Court sentenced Marshall to 260 months of imprisonment on each count, to be served concurrently; eight years of supervised release on Count 1, six years each on Count 2 & 3, to be served concurrently; and a $100 special assessment for each count.
Petitioner filed a direct appeal using the services of a different lawyer from the one who represented him at trial, claiming that: (1) this Court erred in declining to conduct a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978); (2) this Court erred in admitting evidence of a controlled buy under Rule 404(b); (3) certain testimony was inadmissible hearsay and violated his constitutional rights; and (4) Petitioner's below-guidelines sentence was unreasonable. On February 28, 2008, the Seventh Circuit Court of Appeals rejected all of the claims and affirmed the conviction and sentence. United States v. Marshall, 259 F. App'x 855 (7th Cir. 2008).
On December 16, 2008, Petitioner filed the instant motion under 28 U.S.C. § 2255, alleging the following claims: (1) that he received ineffective defense counsel in connection with his efforts to challenge the search warrant; (2) that he received ineffective counsel due to counsel's failure to obtain disclosure of the informant's identity; (2) that his conviction was obtained by use of evidence obtained pursuant to an unlawful arrest; and (3) the government improperly withheld evidence favorable to the Petitioner violating Brady v. Maryland, 373 U.S. 83 (1963).
At trial, the government presented evidence of a controlled buy between Petitioner and a confidential informant (informant) through the testimony of Officer Kenneth Mallindine (Mallindine). The informant did not testify at the trial. Mallindine's testimony established that in September 2005, he received information from the informant that Petitioner was selling drugs that the informant could purchase. Mallindine subsequently instructed the informant to purchase crack from the Petitioner. On, September 11, 2005, Mallindine and the informant met at the Kankakee police station, which was within walking distance of Petitioner's house. At the police station, Mallindine searched the informant for drugs or money and found none. Mallindine then gave the informant $50 to make the purchase of crack from the Petitioner.
The informant left the police station on foot, with Mallindine and another police officer following approximately sixty yards behind in a surveillance vehicle. Mallindine kept the informant within sight at all times and used binoculars to observe the events; however he did not videotape or make an audio recording of the controlled buy. The informant walked to the corner and stopped across the street from Petitioner's home at 477 E. Locust, where he made a cellular phone call and a few minutes later Petitioner walked from his house, crossed the street, and met the informant. After a few minutes, the Petitioner and informant separated and the informant walked back to the police station where he met Mallindine. The informant handed Mallindine a plastic bag containing crack. Mallindine again searched the informant for money and drugs and found none.
Based on the information from the controlled buy, Mallindine submitted an affidavit to a state court judge seeking authorization to search Petitioner's residence. The affidavit contained the same information concerning Mallindine's interactions with and observations of the informant that Mallindine testified to at trial, as summarized above. The affidavit also included additional information provided by the informant to Mallindine that was not presented to the jury at trial. Specifically, the affidavit: (1) stated that the call Mallindine observed the informant make was to the Petitioner, (2) included details of the informant's interaction with Petitioner, namely that according to the informant, Petitioner handed crack cocaine to him, and the Petitioner told him that he had more cocaine for sale; and (3) contained information concerning the informant's reliability and credibility.
On September 12, 2005, the judge issued the search warrant. On September 14, 2005, Mallindine and other officers executed the warrant. During the ensuing search, Mallindine searched the home's only bathroom and found a Desenex can in the medicine cabinet. The can contained a false compartment accessed by screwing off the bottom of the can. The false compartment contained almost twenty grams of crack, more than thirty grams of powder cocaine, and more than one gram of heroin. The evidence presented at trial also showed that much of the crack was packaged for sale.
Immediately prior to jury selection, Petitioner addressed this Court regarding a Franks hearing. Petitioner's counsel explained that he investigated whether to file a Franks motion and concluded that he could not file the motion because he found "absolutely no evidence to support the initial motion asking Your Honor for a preliminary hearing . . . [W]e can't ethically file frivolous motions." Petitioner continued to insist that counsel had promised to file a Franks motion and asked the court to question counsel, which was denied. This Court then asked Petitioner if he wanted to represent himself, which Petitioner declined; nevertheless the Petitioner continued to insist that the officers were lying because he did not participate in the controlled buy with the informant in the days before the search was executed.
To establish ineffective assistance of counsel, Petitioner must demonstrate: (1) that his counsel's representation fell below an objective standard of reasonableness; and (2) that counsel's performance prejudiced the Petitioner. Bednarski v. United States, 481 F.3d 530, 535 (7th Cir. 2007), citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In assessing reasonableness, this Court must start with a presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Yack, 139 F.3d 1172, 1176 (7th Cir. 1998), quoting Strickland, 466 U.S. at 689. Therefore, the defendant "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Yack, 139 F.3d at 1176, quoting Strickland, 466 U.S. at 689. In order to show prejudice, the ...