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Cox v. United States

November 13, 2009

SETH A. COX, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

Before the Court is Petitioner Seth A. Cox's ("Cox") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Cox's Motion [#1] is DENIED.

BACKGROUND

On October 5, 2006, a jury in this Court convicted Cox of conspiracy to manufacture, distribute and possess with intent to distribute methamphetamine ("meth"), in violation of 21 U.S.C. § 846. Because of Cox's Criminal History Category of V and a three level increase in his offense level for endangering other people and the environment, his sentencing range was from 324 to 500 months. On April 13, 2007, the Court sentenced Cox to 300 months' imprisonment and 5 years of supervised release. On appeal to the Seventh Circuit, Cox argued: 1) that the indictment incorrectly stated the elements of the offense charged and failed to allege the elements of a conspiracy, 2) that the district court committed plain error by allowing witnesses to describe the method of the manufacture of meth as the "Nazi" method without a curative instruction, and 3) that the district court committed clear error in calculating the quantity of drugs for which Cox was responsible. On August 4, 2008, the Seventh Circuit affirmed the conviction and sentence. United States v. Cox, 536 F.3d 723, 730 (7th Cir. 2008). The Supreme Court denied Cox's petition for writ of certiorari on December 15, 2008.

On July 30, 2009, Cox timely filed the instant Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2255. Cox argues that he received ineffective assistance of trial counsel because his counsel failed to object to or otherwise clarify Government witnesses' testimony about the "Nazi" method of meth manufacture. He further argues that he received ineffective assistance of trial counsel because his counsel failed to fully and effectively conduct a pre-trial investigation of Government witnesses and failed to utilize impeachment evidence. Finally, Cox asks the Court to re-evaluate the quantity of meth fairly attributable to him. The Court ordered the Government to respond to Cox's § 2255 Motion, and Cox has filed a Traverse.

DISCUSSION

A petitioner may avail himself of § 2255 relief only if he can show that there are "flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result in a complete miscarriage of justice." Boyer v. United States, 55 F.3d 296, 298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995). Federal courts lack power under § 2255 to rectify errors that fall short of "vitiating the sentencing court's jurisdiction or are otherwise of constitutional magnitude." Broadway v. United States, 104 F.3d 901, 903 (7th Cir. 1997).

Specifically, with respect to a claim of ineffective assistance of counsel, a petitioner must establish: (1) his attorney's performance was deficient; and (2) this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). With respect to the first prong of the test, the petitioner must show that his attorney's performance fell below an objective standard of reasonableness, and the court's inquiry into the attorney's performance is "highly deferential."

Id. at 689. Counsel is presumed to have made reasonable strategic choices, and "there is a strong presumption that any decisions by counsel fall within a wide range of reasonable trial strategies." Valenzuela v. United States, 261 F.3d 694, 698-99 (7th Cir. 2001).

The second prong of the Strickland test requires the petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 669. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Here, Cox must satisfy both prongs of the test in order to meet his burden, and a finding against him on either prong ends the inquiry. Id. at 697 ("there is no reason for a court... to address both components of the inquiry if the defendant makes an insufficient showing on one").

Cox contends that his trial counsel was ineffective when counsel neither objected to nor requested a jury instruction to cure the misleading nature of the Government witnesses' testimony regarding the "Nazi method" of cooking meth.*fn1 Illinois State Police Sergeant Mark Thatcher testified about his involvement in the search of co-conspirator Audie Weir's residence and Cox's residence. Sergeant Thatcher was asked to describe the most common way to make meth and responded:

In Illinois, about 95 percent of the labs we seize are called anhydrous ammonia labs or Nazi labs.

Trial Transcript p. 127. DEA Special Agent Jon Johnson was called to testify regarding his training and experience in the investigation of meth cases and his knowledge of clandestine labs where meth was ...


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