The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
E-FILED Monday, 12 December, 2011 12:56:41 PM Clerk, U.S. District Court, ILCD
Petitioner, Jabari A. Veals, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1) on May 9, 2011.*fn1 On June 13, 2011, the government filed its Response (#3) to the Petitioner's Motion Pursuant to 28 U.S.C. § 2255. On July 22, 2011, the Petitioner filed two separate documents, specifically: (1) he filed his Reply (#6) to the government's Response; and (2) he filed a Motion for Leave of Court to Conduct Discovery and to Expand the Record (#5). On August 8, 2011, the government filed its Response (#8) to the Petitioner's Motion for Leave of Court to Conduct Discovery and to Expand the Record. For the following reasons the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (#1) is DENIED.
Decatur police obtained a warrant to search a second-floor apartment at 837 East Johns Street in Decatur, Illinois, which was executed by police officers on January 9, 2007. When officers entered the apartment, an officer who was stationed outside of the apartment watched a man, Petitioner Jabari A. Veals, jump from the second-floor apartment's window. Despite police orders to stop, Petitioner attempted to escape on foot, however he was captured following a brief but heated chase. Inside the apartment, officers found 56 grams of crack cocaine inside a jar of hair gel, which was found on a shelf alongside Veal's other personal items. On January 16, 2007, Petitioner was charged by complaint in federal court with possessing 50 or more grams of a substance containing cocaine base (crack) with the intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). On that same day, Assistant Public Defender John C. Taylor ("Taylor") was appointed to represent the Petitioner.
On January 18, 2007, the Government sent Taylor a proposed cooperation agreement. After the Petitioner discussed the proposed cooperation agreement with Taylor, Petitioner agreed to cooperate and signed the agreement along with Taylor. The agreement obligated Petitioner to provide the government with complete and truthful information and required him to testify before any grand jury that he was called to by the government. In return, Petitioner was promised that statements made under the agreement would not be used directly at trial or his sentencing, however they could be used to impeach his credibility or to rebut contrary statements at trial. Additionally, the government agreed to consider moving for a sentence below the statutory minimum if Petitioner provided substantial assistance to the government. These promises by the government, however, were dependent on Petitioner's complete compliance with his reciprocal promises.
On February 2, 2007, Petitioner, who was detained at the Ford County Jail pending trial, was interviewed at the jail by Decatur Detective Ed Root ("Detective Root") and FBI Special Agent Jeff Warren ("Special Agent Warren"). Although Taylor was aware of this cooperation interview, he did not attend the interview. During the interview, Petitioner admitted that he was dealing crack cocaine from the apartment where the drugs were found and identified his supplier, a local dealer nicknamed Magic. On August 24, 2007, Petitioner was served through Taylor with a subpoena that directed the Petitioner to testify before a federal grand jury on September 11, 2007. Petitioner refused to comply, and the government thereafter requested an evidentiary hearing to determine whether Petitioner had breached his cooperation agreement with the government. On September 24, 2007, this court held an evidentiary hearing and held that the Petitioner had in fact breached the unambiguous terms of the written agreement and had therefore given up his immunity. As a result, Petitioner was put on notice that his statements during the cooperation interview were no longer protected by immunity.
At trial, the government called the following primary witnesses: (1) a police officer who participated in the search of the residence; (2) a police officer who testified that he saw Petitioner jump of the apartment's window; (3) David Parker, who testified that he allowed the Petitioner to live in his apartment in exchange for crack cocaine, and that Petitioner had lived there for months and slept on the air-mattress and kept his belongings on the shelf where the jar was found; (4) Detective Root, who testified about his search of the apartment and described the items on the shelf where the jar was found, as well as about Petitioner's admissions at the cooperation interview on February 2, 2007; (5) Special Agent Warren, who testified about Petitioner's admissions and fully corroborated Detective Root's testimony about the cooperation interview. Additionally, the government called a fingerprint expert who testified that there were no fingerprints on the jar, a forensic chemist who analyzed the crack cocaine, and a woman who also lived in the apartment with the Petitioner. For the defense, the sole witness was the Petitioner. Petitioner testified that he did not live at Parker's apartment, but was only there for a few hours before the search was executed in order to give one of his friends a haircut. He also testified that he had first met Magic that night, and Magic had left moments before the police arrived. Although he acknowledged that some of the items on the shelf were his, including a Bible and two bags of marijuana, he denied ever seeing the jar of hair gel. Further, he testified that he never knew police were entering the apartment when he jumped out the window, but rather he jumped in response to a female guest's scream when someone knocked at the door. Finally, Petitioner testified that both Detective Root and Special Agent Warren were lying regarding the incriminating statements he made at the meeting on February 2, 2007. After hearing all testimony, the jury found the Petitioner guilty as charged on October 3, 2007.
On November 21, 2007, Mr. Taylor filed a motion to withdraw which was granted by the court on December 3, 2007 and new counsel was appointed. On May 15, 2008, this court sentenced Petitioner to a mandatory term of life imprisonment. On May 19, 2008, Petitioner filed a timely notice of appeal. On appeal, Petitioner advanced the following arguments: (1) that he had been deprived of his Sixth Amendment right to counsel when he was interviewed by the government pursuant to the cooperation agreement; and (2) he had been deprived of his Fifth Amendment right against self-incrimination because the government did not provide him with Miranda warnings at the cooperation interview. On January 15, 2010, the Seventh Circuit rejected both arguments and affirmed the judgment and sentence of the Petitioner in United States v. Veal, 360 Fed. App'x 679, 685 (7th Cir. 2010). On February 16, 2010, the Seventh Circuit denied the Petitioner's request for rehearing.
On May 9, 2011, Petitioner filed a pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). The government filed its Response (#3) on June 13, 2011, arguing Petitioner's claims of ineffective counsel are meritless.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
The United States Supreme Court has explained that the benchmark for judging a claim of ineffective assistance of counsel is whether "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). For a claim of ineffective assistance of counsel to justify reversal of a conviction, the petitioner must "prove both (1) that his counsel's performance was objectively unreasonable and (2) that he suffered prejudice as a result." Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009) (citing Strickland, 466 U.S. at 687). To demonstrate that counsel's performance was objectively unreasonable, the movant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. First, the movant must establish specific acts or omissions giving rise to a claim of ineffective assistance, then the court must determine whether such acts or omissions are in fact "outside the wide range of professionally competent assistance." Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). To satisfy the prejudice "prong," the 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Petitioner argues that Taylor, his trial counsel, rendered ineffective assistance by a variety of acts and omissions-which can be grouped into the following five claims: (1) failing to conduct a reasonable pretrial investigation; (2) failing to file a motion to suppress evidence obtained pursuant to the search of the apartment; (3) failing to file a motion to suppress statements made by the Petitioner during the cooperation interview; (4) improperly advising Petitioner to cooperate with ...