The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Petitioner Seville Williams filed this Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (#1) on May 3, 2010. The government filed its Response (#5) on June 11, 2010, followed by Petitioner's Reply (#6) on July 13, 2010. For the reasons cited below, Petitioner's Motion (#1) is DENIED.
Petitioner, along with Brad Williams, Clinton Williams, Rory Tucker, and four others, was charged with committing a series of armed robberies over a four month period. According to the government's evidence at trial, Brad Williams committed a series of armed robberies from January 3, 2006, through April 24, 2006. He was accompanied and assisted by various people in these robberies, some of whom participated in more robberies than the others. Petitioner was charged with having participated in two robberies: the January 3, 2006 robbery of a Walgreens drug store and the January 11, 2006 robbery of the Commonwealth Credit Union. The January 3, 2006 robbery occurred when Petitioner, Brad Williams, and two other masked men entered a Walgreens, striking the attending pharmacist on the head and leaving with the money in a dark green bag. The robbery occurred around 2:30 am and at 2:45 am, Brad Williams, Petitioner, and two other men arrived at Nathein Franklin's apartment carrying a dark green bag and two revolvers. They changed in Franklin's bathroom and left the apartment. The January 11, 2006, robbery occurred at 5:40 pm when Petitioner and Brad Williams forced their way inside the Commonwealth Credit Union and held a gun to an employee's head while she unlocked the vault. They emptied the contents of the vault and fled in Clinton Williams's car.
Two other robberies occurred on March 28 and April 7, 2006, in which Petitioner did not take part. On March 27, 2006, an arrest warrant was issued for Petitioner in Case No. 06-CR-20026, relating to the January 11, 2006 Commonwealth Credit Union robbery. On May 5, 2006, Petitioner was indicted, along the other eight defendants, in Case No. 06-CR-20032. The indictment contained ten counts with various offenses arising from a series of armed robberies. Petitioner was charged in five of those counts: (1) conspiracy to commit robberies and to carry firearms during crimes of violence in violation of 18 U.S.C. § 371 (Count I); (2) one count of violation of the Hobbs Act (18 U.S.C. § 1951) concerning the armed robbery of the Walgreens store in Kankakee, Illinois (Count II); armed robbery of the Commonwealth Credit Union in Kankakee in violation of 18 U.S.C. § 2113(a) and (d) (Count IV); and two counts of carrying and using a firearm in connection with the armed robbery and armed bank robbery as charged in Counts II and IV, in violation of 18 U.S.C. § 924 (c) (Counts III & V).
At the jury trial, the government connected Petitioner to the January 3 Walgreens robbery through the testimony of Nathein Franklin. Franklin, who supplied Brad Williams with the code for the robbery of the Walgreens, testified that he saw Petitioner with Brad immediately after the robbery. Petitioner, Brad, and two others went to Franklin's house after the robbery and changed out of their dark clothing.
For the January 11 Commonwealth Credit Union robbery the government relied on the testimony of two inmates. Petitioner was arrested on January 19, 2006 and housed in the Winnebago County Jail in Rockford, Illinois. The inmates testified that Petitioner had described the robbery as involving a female employee, and one of the inmates testified that Petitioner told him the robbery occurred around closing time. Juamual De-Quin Pitt testified that Petitioner claimed to have robbed the place of around $300,000. These details matched up with the details of the January 11 robbery, which involved a female employee at a credit union who testified that one of the robbers held a gun to her head at closing time while she unlocked the vault and emptied it of $313,785 in cash. In addition to the trial testimony of inmate Derrick Grace, the government introduced a tape recorded conversation between Grace and Petitioner.
Petitioner was convicted on all counts and sentenced to a total of 546 months in the Federal Bureau of Prisons, which broke down thusly: 60 months on Count I (conspiracy), 162 months on each of Counts II and IV to be served concurrently (Walgreens robbery and the Commonwealth Credit Union robbery), followed by 84 months on Count III (use of firearm during Walgreens robbery) to be served consecutively to imprisonment on Counts I, II, and IV, and 300 months on Count V (use of firearm during Commonwealth Credit Union robbery) to be served consecutively to imprisonment on Count III and all other counts.
On direct appeal, Petitioner's appellate counsel filed an Anders brief under Anders v. California, 386 U.S. 738 (1967) because counsel discerned no non-frivolous basis for appeal. Williams, 553 F.3d at 1085. The Seventh Circuit noted that, unlike the other defendants, the government's evidence against Petitioner was largely circumstantial. Williams, 553 F.3d at 1085. Still, while the evidence against Petitioner was weaker than the evidence against the other co-conspirators, the court found there was sufficient circumstantial evidence by which a jury could convict Petitioner. Williams, 553 F.3d at 1086. The court agreed with appellate counsel that there was no non-frivolous argument that could be made regarding sufficiency of the evidence. Williams, 553 F.3d at 1086. The Seventh Circuit also noted that Petitioner "argues that the introduction of [the recording made by fellow inmate Derrick Grace where Petitioner admits to the Commonwealth Credit Union robbery] violated his constitutional rights", but concluded that "[t]his is a frivolous argument because Grace consented to wear a wire and record his conversation with [Petitioner]." Williams, 553 F.3d at 1086, n. 7. Finally, the Seventh Circuit also found that the 546 month sentence was reasonable, as this court properly calculated the sentencing guidelines range and considered the appropriate 18 U.S.C. § 3553(a) factors and violent nature of the two robberies. Williams, 553 F.3d at 1086.
Petitioner's § 2255 Motion to Vacate, Set Aside, or Correct Sentence Petitioner's § 2255 Motion (#1) contains four grounds: (1) his counsel was ineffective for failing to seek a severance of only Count IV (the Commonwealth Credit Union robbery) from the remaining counts involving the Walgreens armed robbery; (2) his counsel was ineffective in challenging the authenticity of recorded conversations between Petitioner and government witness Derrick Grace; (3) his counsel was ineffective in not seeking an in-court voice exemplar to prove it was Petitioner on Grace's recording; and (4) his counsel was ineffective for failing to challenge his consecutive sentences of 84 months and 300 months imprisonment under 18 U.S.C. § 924(c).
Ineffective Assistance Standard
To establish ineffective assistance of counsel, Petitioner must prove that his counsel performed in a deficient manner and that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Courts entertain a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and is sound trial strategy. Strickland, 466 U.S. at 689. To show prejudice, Petitioner must show that, but for ...