The opinion of the court was delivered by: Joan Humprey Lefkow United States District Judge
Following a jury trialbefore this court in late 2004, petitioner Albert Span was found guilty of several charges involving a conspiracy to distribute cocaine, cocaine base, and heroin within one thousand feet of a public housing facility, using a telephone in furtherance of that conspiracy, possessing heroin with intent to distribute, and witness tampering. Span was sentenced to life imprisonment on the conspiracy count, along with various shorter sentences on the other counts to run concurrently with his life sentence. On July 14, 2006, the Seventh Circuit affirmed Span's conviction. See United States v. Span, 188 F. App'x 487 (7th Cir. 2006). On May 7, 2007, Span filed a pro se petition in this court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that he was denied the effective assistance of counsel in violation of the Sixth Amendment. After counsel was appointed, an amended petition was filed. For the reasons stated below, Span's petition is denied. Span's related motions for production of documents and discovery [#38] and for an evidentiary hearing [#40] are denied.
In 2000, a team of agents with the United States Department of Housing and Urban Development ("HUD") began investigating drug trafficking around Rockwell Gardens, a public housing complex on the west side of Chicago. Span became a subject of that investigation after the authorities secured a Title III wiretap on the phone of Richard Epps, an assistant governor in the Gangster Disciples in charge of running drugs out of the 340 Building in the Rockwell Gardens public housing complex. After a falling out with his gang, Epps was barred from selling drugs at the 340 Building and sought to sell drugs across the street at the St. Stephens Terrace Apartments ("St. Stephens"). Epps recruited Span, a leader in the Black Disciples gang, to be a heroin supplier and LaShon Stuckey*fn1 and Donnie Allison*fn2 to assist him in selling drugs at St. Stephens. From November 7, 2001 to December 6, 2001, the government recorded numerous and frequent calls between Span, Stuckey, Allison, and Epps pursuant to the Title III wiretap. Epps was indicted on December 19, 2002 for a conspiracy to distribute drugs at the 340 Building to which he pled guilty in March 2003. See United States v. Epps, No. 02 CR 895. As part of his plea agreement, Epps agreed to cooperate with the government in that and other cases. Span, Stuckey, and Allison were later indicted in a separate case involving drug activity at St. Stephens. See United States v. Span, No. 03 CR 71.*fn3 Allison eventually pled guilty and testified for the government at Span's and Stuckey's trials. Epps was not charged in this case.
Span was initially indicted on January 30, 2003. After investigating allegations that Span had threatened Epps and Allison in attempts to prevent them from testifying at his trial, the government added charges of witness tampering against Span. In the third superseding indictment, Count I charged Span with conspiring with Allison and Stuckey to distribute mixtures containing cocaine, cocaine base, and heroin from November 2001 to December 2001 within one thousand feet of St. Stephens, part of a housing facility owned by the Chicago Housing Authority, in violation of 21 U.S.C. §§ 841(a)(1), 860(a) and 18 U.S.C. § 2. Counts III, VII, VIII, and X charged that Span used a telephone on four different occasions in furtherance of the conspiracy, in violation of 21 U.S.C. § 843(b). Count IX charged that Span possessed with intent to distribute mixtures containing heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Counts XI and XII charged that Span attempted to intimidate, threaten, and corruptly persuade witnesses in an official proceeding not to testify, in violation of 18 U.S.C. § 1512(b)(1). Span was not charged in counts II, IV, V, or VI.
Span was represented by a series of lawyers during the pendency of his case. One of these lawyers, Frank Cece, Jr., withdrew in April 2004 in response to a perceived conflict of interest stemming from his having spoken to Stuckey about representing him in February 2003 before entering an appearance on Span's behalf. In May 2004, Anthony Carullo entered his appearance as Span's counsel and represented him at trial.
In June 2003, an order was entered requiring Span to be separated from Epps, Allison, Stuckey, and a list of other named individuals in federal custody. Span was therefore moved from the Metropolitan Correctional Center ("the MCC"), where Epps, Allison, and Stuckey were housed, to the DuPage Correctional Facility ("DuPage"). Special Administrative Measures ("the SAMs") were put in place regulating Span's detention. The SAMs were not intended, however, to restrict Span's access to his lawyer and instead provided that, among other things, Span had the right to privileged communications with counsel. Despite these protections, Carullo complained about Span's conditions of confinement to the court in July 2004, arguing that the limitations on his visits with Span were hindering trial preparation, and asked that Span be transferred back to the MCC. The court denied the request for a transfer but agreed to issue an order to facilitate Carullo's visits with Span. In September 2004, Carullo again requested that Span be transferred to the MCC to facilitate preparation for Span's trial as the trial date neared. The court entered an order to this end. It also ordered that, while Span remained at DuPage, Carullo be allowed direct contact with Span, that their visits not be interrupted as long as they did not interfere with DuPage's normal operations, and that Span be provided audio and visual equipment to review the government's evidence.
In September 2004, Span and Stuckey each filed a motion to sever, claiming mutually antagonistic defenses and, in Span's case, that he believed a co-defendant, presumably Stuckey, would have exculpatory testimony if called to testify. The court granted Stuckey's motion and Stuckey proceeded to trial first.
At Stuckey's trial, the government argued that Stuckey sold crack cocaine and heroin at St. Stephens as part of the conspiracy. Stuckey testified in his own defense, admitting that he sold drugs at St. Stephens but denying that he ever received drugs from Epps or Span for resale. Stuckey maintained that there was no one individual or group that controlled drug sales at St. Stephens, testifying that it was every man for himself, and that while Epps offered to supply him with cocaine, Epps never actually did. Stuckey also testified that he knew Span because Span was a coordinator at a local gym and denied having any interactions with Span related to drugs. Although the government had a recording of a telephone call between Span and Stuckey, Stuckey explained that he was not asking Span about drugs but rather about whether Span was opening the gym at which Span worked.
The government confronted Stuckey with his July 2003 proffer, in which he admitted that Span provided heroin to Epps, Allison, and others selling drugs at St. Stephens, that he and Epps had picked up 25 grams of heroin from one of Span's workers, and that Span would come by St. Stephens to pick up money from Allison. Stuckey also told the government in his proffer that he feared cooperating against Span and that Span asked Stuckey to sign an affidavit saying Span was not involved in the charged conspiracy, similar to ones he had been told Epps and Allison had already signed. He also stated that Span had arranged for Cece, his prior counsel, to meet with Stuckey about representing him and that when Stuckey asked about what such representation would cost, Cece responded that Span's nephew and another individual would pay the legal fees. Cece also allegedly asked Stuckey whether he had talked to the government about the case. In both his direct testimony and on cross-examination, Stuckey claimed that everything in his proffer was a lie, done at Allison's urging as an attempt to receive a sentence reduction. He maintained that the only times he communicated with Span while in prison were when the two were brought to court and, that on these occasions, he never heard Span threaten Allison or his parents. The jury found Stuckey guilty on one count of using a telephone to commit or facilitate the committing of a drug conspiracy. He was found not guilty on the remaining counts, including the drug conspiracy.
Carullo attended portions of Stuckey's trial to prepare for Span's case. In his affidavit, Carullo represents he attended portions of Epps's testimony. He also states that he received copies of the tape transcripts used at Stuckey's trial and an excerpt of Allison's testimony. Shortly before Span's trial began, Carullo met with Span at DuPage where they reviewed some of the transcripts together. While Carullo was allowed to be in the same room as Span for this visit, Span claims his review of the transcripts was hampered by the fact that one hand remained handcuffed to a table and the short duration of the visit. He also states that he did not have the opportunity to hear the recordings before trial.
Span's trial began on October 20, 2004. The government began its opening statement with the message Span allegedly passed on to Epps and Allison in early 2003: "My mother and father are dead. Somebody else's mother and father are going to be dead, too." Trial Tr. 9:15--16, Oct. 25, 2004.The government then proceeded to lay out the evidence it planned to present to the jury, including Epps's and Allison's anticipated testimony and the wiretap recordings, what it termed the "best evidence of Span's involvement in [the] conspiracy and the drug-dealing." Id. at 18:6--7. Following the government's presentation, Carullo acknowledged that "there is overwhelming evidence of a conspiracy to deal drugs, an overwhelming conspiracy between Epps and Allison, who were drug dealers." Id. at 29:1--3. He maintained, however, that Span was not involved and that the recorded conversations between Epps and Span were instead about matters aside from drugs.
Epps testified as a government witness. He admitted to having pled guilty to a drug conspiracy offense in a separate case in return for a twenty-three year sentence. While that case solely related to drug dealing at Rockwell Gardens, Epps testified that he pled guilty to drug dealing at Rockwell Gardens and St. Stephens. Epps testified in some detail about drug dealing at the 340 Building. After a falling out with the Gangster Disciples who controlled the 340 Building and being approached by Allison about supplying him with drugs in fall 2001, Epps testified that he decided to open an operation to sell crack cocaine and heroin at St. Stephens, where members of several different gangs had been selling drugs.*fn4 Epps introduced Allison to Span, whom Epps had known for approximately twenty years, intending for Span to provide Allison and others, including Stuckey, with heroin to sell at St. Stephens. Epps testified that Span agreed and proceeded to provide heroin to Allison at $100 per gram. Several tapes of conversations involving Span were played, which Epps identified as discussions about Span supplying Allison and Stuckey with heroin. Epps also spoke to both Allison and Span about increasing the amount of heroin Span provided to Allison.Other conversations involved Span exchanging heroin and money from drug sales with Allison and Stuckey directly and through a runner and the amount of money Span expected to receive from heroin sales. Some conversations also revolved around guns, a contemplated fraudulent credit card scheme, and obtaining illegally purchased cell phones. In one call, Epps related how he had given Span a cell phone purportedly for money he was owed from heroin sales that Allison had shorted him on. In subsequent calls, he instructed Span to stop providing heroin to Allison and others due to Allison's actions but then told Span to resume distribution the following day.
Epps also testified to the distribution of crack cocaine at St. Stephens and how, on one occasion, Epps had bought a kilogram of cocaine to cook into crack cocaine that was of poor quality and had to be returned. Tapes were played in which Epps discussed this issue with both Stuckey and Span. Epps himself visited St. Stephens to monitor the operation because, as he put it, his and Span's reputations were on the line. A recording was played in which Epps told Stuckey that they had to sell drugs at a faster pace to show Span that they wanted to continue receiving heroin from him. Epps testified that the operation at St. Stephens began to run into trouble in December 2001 because Allison was not properly monitoring the drug sales and there was an increased police presence in the area.In another call, Epps told Allison that Span understood that part of the reason drugs were not moving as fast at this time was because the police were watching the area.
Epps testified as to the witness intimidation charge as well. He said that he spoke with Allison through the vents at the MCC. During one of these conversations, Allisontold him that Span had asked Allison how Epps would feel if he did not have a mother or a father for getting them into their present predicament. Epps interpreted this as a threat to his family, told his mother, and asked his mother to call the U.S. Attorney's Office with the information.*fn5 Epps also related that while in segregation together, Span asked Epps to recant his previous statements regarding the case, sending him notes to the same effect. Epps testified that, in response, he signed affidavits that he had prepared with Span's input recanting his prior testimony as it related to Span only.*fn6 Epps stated that these affidavits contained lies. While he knew that the affidavits would put in jeopardy his plea agreement with the government, Epps stated that he did this because he would rather face longer jail time than have his family harmed. Epps also related that he kept notes of his interactions with Span while he was in jail. The notes and affidavits were entered into evidence.
Under extensive cross-examination, Epps testified that, at the time he recanted his prior testimony, he felt as if the government had not been living up to its end of his plea agreement. He also admitted to thinking that, at the time he entered the plea agreement, there was a chance that testifying against Span and others would put his family in harm's way.Carullo elicited that Epps had provided information to the government against over twenty-five people. He emphasized the fact that, if Epps stood by his recantations, he would lose his agreed upon term of twenty-five years and instead face a sentence of life in prison. With respect to the notes Epps claimed he kept contemporaneously with the threats he received from Span, Carullo challenged the order in which they were written, as events were not listed in chronological order, raising an inference that the notes were actually fabricated.Carullo also asked Epps why he did not initially report the threats to MCC personnel or the U.S. Attorney's Office. After Epps testified that Span was like a brother to him, Carullo inquired of Epps whether he had heard that Span was having an affair with Epps's wife in an attempt to establish a motive for Epps testifying against Span.
Carullo emphasized that Epps was constantly coming up with schemes and scams for his own benefit.He got Epps to admit that he lied in some of the taped conversations where it was to his advantage.Epps also admitted to his conversations with Span being about more than just drugs. Carullo then questioned whether Epps was being truthful in having identified some conversations as dealing with drugs when they could have been about guns, cell phones, or the credit card scheme. He elicited that Epps usually referred to individuals by their street names when discussing drugs but referred to Span by his first name. In Epps's conversations with other individuals which he testified were about Span's involvement in the drug conspiracy, Span's name was never explicitly mentioned. Carullo also challenged Epps's ability to remember the details of the taped conversations.
Prior to Span's trial, the government sought to introduce evidence under Rule 404(b) related to an incident in which Span allegedly threatened to kill Cornelius Jackson ("Li'l Ride") so that he would retract statements damaging to Span and other Black Disciple members. The court denied the motion. Cr. R. 160. After Epps's cross-examination, the government asked the court to reconsider its ruling on the Li'l Ride evidence, representing that it wished to use it to rehabilitate Epps's credibility so as to show that Epps had a reason to take Span's threats seriously and to not report them immediately. The court allowed this line of questioning for credibility purposes only and gave a limiting instruction to that effect.Epps testified that in June 2001, Span had come to the 340 Building wanting to kill Li'l Ride. In August 2001, Epps testified that Span told him of a failed attempt on Li'l Ride's life. After Li'l Ride had identified those involved in that shooting, Epps reported that Span told him that he had convinced Li'l Ride to retract that identification in November 2001, as captured by the wiretap on Epps's phone. Epps testified that this incident caused him to worry particularly about his safety when Span made the threat to Epps's family. Epps also testified that the government had taken steps to ensure his and his family's safety after he reported Span's threats. He stated that his wife had been put into a witness protection program for a period of time.
B. Donnie Allison's Testimony
Allison testified that shortly after being released from prison in October 2001, he was introduced to Span by Epps and began selling drugs with him. Allison admitted to having been charged in the same conspiracy as Span. He pled guilty under a cooperation agreement and stated that he was expecting to receive a ten-year sentence, below the forty-year maximum sentence he potentially faced. He also admitted to having been convicted of various other crimes.
Allison had grown up at St. Stephens. After being released from prison in October 2001, he met with Epps to discuss selling heroin supplied by Span. He first began by passing out the drugs for free to attract customers. Allison testified that once the operation became established at St. Stephens, no one else could sell heroin without going through him. Allison would receive between five and ten grams of heroin from Span about once or twice a week. To obtain the heroin, Allison testified that he would generally call Epps, although he sometimes called Span directly. The drugs were usually dropped off at or across the street from St. Stephens or Allison would pick them up at Victor Herbert Park, several blocks from St. Stephens. Allison testified that he would pay Span directly. He further testified that one recorded conversation concerned heroin he returned to Span as it was not of good quality. Another recording involved a conversation where Epps told Allison that Span, Stuckey, and Epps had been looking for Allison to which Allison responded that he had sold five grams of heroin provided to him by Span in one night.
Allison also testified about the threats Span had made. He related that, while in the lockup at the courthouse, Span told him "[t]hat [Span's] mother, father dead. Somebody else['s] mother, father going to be dead." Trial Tr. 451:22--23, Oct. 28, 2004. Allison testified that he understood this as a threat to anyone cooperating against him and their families, including Allison and Epps among others. He related this information to Epps through a vent at the MCC. As Epps did, Allison also was asked by ...