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Cooper v. United States

November 8, 2010


The opinion of the court was delivered by: James F. Holderman, Chief Judge


Petitioner Raymond Cooper has filed a "Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" under 28 U.S.C. § 2255 (Dkt. No. 1). The government has responded and, for the reasons set forth below, petitioner Cooper's motion is denied.


On July 26, 2001, a federal grand jury charged Raymond Cooper ("Cooper") and his co-defendants, Kalonji McMillian ("McMillian") and Sedgwick Johnson ("Johnson"), with one count of conspiracy to possess with intent to distribute and to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846, one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). United States v. Cooper, 01 CR 543 (N.D. Ill.) (Dkt. No. 17). All three defendants pleaded not guilty and proceeded to trial before a jury.

The facts, as presented at trial, are as follows:

The government's case against the defendants stems from the June 5, 2001 arrest of an individual named Jason Rauner ("Rauner"), who was arrested when he attempted to sell approximately one kilogram of cocaine to a confidential source. While in custody, Rauner named Cooper as his supplier and agreed to cooperate with law enforcement officials by arranging a future delivery of cocaine from Cooper.

From June 6, 2001 through June 8, 2001, law enforcement officials recorded numerous telephone calls between Rauner and Cooper, and voicemail messages left by Cooper on Rauner's phone, as Rauner and Cooper negotiated the specifics of the upcoming drug sale.*fn1 Rauner and Cooper also met face-to-face at a Bennigan's on June 6, 2001, as part of these negotiations.*fn2 At trial, Rauner testified that he and Cooper had arranged for Cooper to supply Rauner with one kilogram of powder cocaine and one kilogram of crack cocaine. Cooper told Rauner that McMillian, known as "TuTu," would be the individual responsible for cooking the cocaine into crack.

On June 8, 2001, at approximately 12:30 p.m., law enforcement officials observed McMillian arrive at Cooper's residence, retrieve a white plastic bag with black markings from the trunk of his car, and then walk with Cooper into Cooper's house.

Later that day, at approximately 2:15 p.m., Cooper met with Rauner in the parking lot of a Sleep Inn.*fn3 Cooper invited Rauner to come to Cooper's residence to watch McMillian cook the cocaine, but Rauner declined. Cooper also confirmed that Rauner wanted one kilogram of powder cocaine and one kilogram of crack cocaine, and he informed Rauner that, according to McMillian, the cooking process would take about an hour.

At approximately 6:18 p.m. on June 8, 2001, Cooper returned to the parking lot of the Sleep Inn and again met with Rauner.*fn4 When Rauner asked Cooper how much he owed McMillian for cooking the cocaine into crack, Cooper told him the fee was $500. Cooper asked Rauner where he wanted the cocaine delivered, and Rauner told Cooper to put the bag carrying the drugs on the passenger seat of Rauner's vehicle. Cooper then relayed Rauner's instructions over the phone, and Johnson arrived in his vehicle, pulled up next to Rauner's vehicle, and placed a white plastic bag with black markings in Rauner's vehicle. Cooper and Johnson then left the parking lot of the Sleep Inn together.

Officer Todd Arthur of the Cook County Sheriff's Office ("Officer Arthur") testified that, after Rauner's meeting with Cooper on the evening of June 8, 2001, Officer Arthur retrieved a white plastic bag with black markings from the floor of the front passenger side of Rauner's vehicle containing a brick of suspected powder cocaine wrapped in clear cellophane, two clear ziplock bags containing suspected crack cocaine, and a third bag containing suspected crack cocaine. The defendants each stipulated that the substances found in the white plastic carrying bag were, in fact, approximately one kilogram of powder cocaine and slightly more than one kilogram of cocaine base. Government expert Mary Beth Thomas testified that Cooper's fingerprints were found on the white plastic carrying bag as well as on one of the ziplock bags containing cocaine base; that McMillian's fingerprint was found on the other ziplock bag containing cocaine base; and that Johnson's fingerprint was found on the white plastic carrying bag. The government also presented telephone records demonstrating that Cooper was in constant contact with Rauner, McMillian, and Johnson on June 8, 2001.

At trial, Rauner testified that he began purchasing powder cocaine from Cooper in 1996 and crack cocaine from Cooper in 1998. Rauner also testified that, when Rauner purchased crack from Cooper, McMillian was the individual who cooked the cocaine into crack. Rauner testified that he witnessed McMillian cooking the cocaine in person, and typically paid Cooper $500 per kilogram of crack cocaine as a fee for McMillian's cooking services. Rauner also testified that Cooper often "fronted" the cocaine to Rauner, selling the drugs to Rauner on consignment, and Rauner witnessed Cooper and McMillian using each other's contacts to buy and sell drugs. Rauner testified that he also bought powder cocaine and crack cocaine directly from McMillian in 1998 and, in 2000, Rauner sold cocaine to both Cooper and McMillian on several occasions.

At the conclusion of the trial, the jury found each defendant guilty on all three counts charged in the indictment. (01 CR 543, Dkt. Nos. 82-84.) Cooper was sentenced on February 18, 2003, to a term of 360 months of imprisonment, followed by a five-year term of supervised release. Cooper timely appealed and argued that insufficient evidence existed to support his conviction, that the government engaged in sentencing entrapment by inducing Cooper to sell crack cocaine in addition to powder cocaine, that the district court erred in allowing Rauner to testify from transcripts of tape recordings and by allowing the jury to use those transcripts during its deliberations, and that Cooper's sentence violated the Sixth Amendment pursuant to United States v. Booker, 543 U.S. 220 (2005). See United States v. Johnson, No. 03-1477 (7th Cir. May 4, 2005) ("7th Cir. May 4, 2005 Order"). The Seventh Circuit rejected Cooper's arguments regarding the sufficiency of the evidence, sentencing entrapment, and the jury's use of transcripts, and found that Cooper waived his challenge to Rauner's use of the transcripts during trial when Cooper's counsel "stated he had no objection." Id. at 8. The Seventh Circuit also ordered a limited remand of the defendants' sentences pursuant to United States v. Paladino, 401 F.3d 471 (7th Cir. 2005). This court advised the Seventh Circuit that it would reimpose the same sentences, and on June 1, 2007, the Seventh Circuit affirmed the defendants' sentences. (01 CR 543, Dkt. No. 156); United States v. Johnson, 240 F. App'x 131 (7th Cir. 2007). Cooper filed a petition for certiorari with the Supreme Court of the United States, which was denied on October 9, 2007. Cooper v. United States, 552 U.S. 972 (2007). On October 9, 2008, Cooper timely filed the pending § 2255 motion.


Under § 2255, "[a] prisoner in custody under sentence of a [federal] court . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon." 28 U.S.C. § 2255(b).

Generally, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review under § 2255 in the absence of cause and prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003). However, a claim for ineffective assistance of trial counsel may be raised for the first time on collateral review. Id. at 509.


Cooper argues in his § 2255 motion that his conviction should be vacated, because (1) Cooper received ineffective assistance of counsel at both the trial and appellate levels; (2) the court erroneously allowed Cooper's counsel to withdraw a previously-filed motion to withdraw; and (3) the prosecution withheld exculpatory evidence from Cooper in violation of Brady v. Maryland, 373 U.S. 83 (1963). For the reasons stated below, the court finds that Cooper is not entitled to relief under § 2255, and his motion is therefore denied without a hearing.

I. Cooper's Claim for Ineffective Assistance of Counsel

To succeed on a claim for ineffective assistance of counsel, the movant must show that:

(1) the attorney's performance fell below an objective standard of reasonableness; and (2) this deficient performance resulted in prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). If the movant fails to establish either of the two prongs above, the court's analysis may end without considering the other prong. Id. at 697.

An attorney's performance will only be considered deficient for purposes of an ineffective assistance of counsel analysis if it falls "outside the wide range of professionally competent assistance." Id. at 690. Attorney performance is evaluated from a highly deferential point of view, and there is a "strong presumption" that attorney conduct was reasonable. Id. at 689. Care must be taken to avoid evaluating counsel's performance with the benefit of hindsight, and to instead consider the challenged conduct "from counsel's perspective at the time." Id. Attorneys are not obligated to "pursue every conceivable avenue; they are entitled to be selective." United States v. Davenport, 986 F.2d 1047, 1049 (7th Cir. 1993).

A petitioner alleging ineffective assistance of counsel must also demonstrate that his attorney's deficient performance prejudiced his defense. Strickland, 466 U.S. at 693. To establish prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome" of the proceeding. Id.

A. Ineffective Assistance of Trial Counsel

Cooper articulates at least seventeen reasons that he believes he received ineffective assistance of counsel at trial. (Dkt. No. 6 ("Cooper's Mem.") at 10-43.) For ease of discussion, the court has organized and consolidated Cooper's arguments into two separate groups: claims regarding specific acts or omissions by Cooper's trial counsel and claims regarding the overall performance of Cooper's trial counsel.

Cooper was initially represented by attorney Thomas Royce ("Royce") during the preliminary examination and detention hearing held in June 2001. When it became clear that Royce had a potential conflict of interest in representing both Cooper and McMillian, Royce withdrew his representation of Cooper and attorney Ralph Meczyk ("Meczyk") filed an appearance on Cooper's behalf. On June 25, 2002, the court*fn5 scheduled the defendants' jury trial to begin on September 9, 2002. Meczyk thereafter represented to both Cooper and the court that he would not be able to represent Cooper at the September 9, 2002 trial, due to an earlier scheduled trial in the Central District of California. (See 01 CR 543, Dkt. No. 53 ("Motion for Extension of Time").) The court denied Cooper's motion to re-set the trial date, and Meczyk withdrew his representation of Cooper. Attorney Santo Volpe ("Volpe") then filed an appearance on Cooper's behalf. On September 9, 2009, the court re-set the trial date for October 15, 2002, at which point trial proceeded as scheduled. Unless otherwise specified, all references to Cooper's trial counsel should be construed as references to Volpe.

1. Specific Acts or Omissions

a. Conspiracy to Deny Cooper the Right to Counsel of His Choice

In agreeing to Volpe's substitution, Cooper contends that he relied on Volpe's representations that Meczek had a trial in California and "that he, Volpe, had worked with attorney Meczek on the case." (Cooper's Mem. 13.) Cooper asserts that he subsequently learned "that attorney Meczek did not have any trial in California, during the time of his court proceedings and trial," and he contends that ...

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