BRANDEN L. KING, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MICHAEL P. McCUSKEY, District Judge.
This case is before the court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (#1). This court has reviewed Petitioner's Motion (#1), the Government's Response, (#6), Petitioner's Reply (#8), as well as the relevant briefs and transcripts from the underlying trial (09-CR-20040). Petitioner appears to assert that trial counsel provided ineffective assistance by failing to argue during trial that Petitioner was the victim of a conspiracy wherein Decatur police officers framed him by planting a shotgun in the back seat of his car. Because Petitioner does not provide persuasive evidence sufficient to surpass the high bar set by Strickland, Petitioner's Motion (#1) is DENIED.
Before Petitioner was convicted in this case, he had three prior convictions for violent felonies: Burglary (Macon County Case #01-CF-1554), Armed Robbery (Macon County Case #02-CF-1467), and Conspiracy to commit Armed Robbery (Sangamon County Case #02-CF-1080), thereby affording him a status enhancement as an Armed Career Criminal, pursuant to U.S.S.G. § 4B1.4(a) and U.S.S.G. § 4B1.4(b)(3)(B). (09-CR-20040 #35, Presentence Investigation Report ¶ 23) (hereinafter "PSR").
At the trial for the underlying offense in this case, Officer Sheets with the Decatur Police Department testified that on May 10, 2009, he was on patrol with Officer Tool. Sheets testified that he observed Petitioner operate a white 1990 Chevy without wearing a seatbelt and make a turn without using a turn signal. (PSR ¶ 4); (09-CR-20040 #49, Trial Transcript 34:6-8) (hereinafter "Tr."). Sheets then testified that, after initiating a traffic stop, he learned that the vehicle was registered to Petitioner and Petitioner's Illinois driver's license had been previously suspended. (Tr. 34:21-24). Due to this violation, Petitioner was ordered to exit the vehicle and was taken into custody. (Tr. 35:1-2). Petitioner was the only person in the car. (Tr. 35:3-4). Sheets testified that following standard police procedure, he then called for a tow truck. (Tr. 35:6-8). Next, also pursuant to standard procedure, Sheets told Tool to search the vehicle prior to it being towed, a routine process referred to as an inventory search. (Tr. 35:9-14; Tr. 40:13-18; Tr: 42:5-17). Tool testified that the inventory search of the vehicle revealed a Remington Model 870 20-gauge shotgun rolled up in a coat, lying on the back seat in plain view. (Tr. 43:7-44:23). During an interview, Petitioner told officers that: he did not know anything about the shotgun in the backseat, he had just bought the car, and it was probably the previous owner's gun. (PSR ¶ 7). Petitioner did not possess a valid Illinois Firearm Owner's Identification Card. (PSR ¶ 8).
On June 2, 2009, Petitioner was charged by indictment with being a felon in the possession of a firearm. (09-CR-20040 #1). A jury trial was held on March 8 and 9, 2010. (09-CR-20040 #25). In addition to testimony by the two officers that had stopped Petitioner, the government presented the testimony of: Sharon "Kay" Harvey, the previous owner of the vehicle; Shamion McWilliams, an individual who had driven Petitioner to Rupert's Gun Shop to get the shotgun repaired; and Richard Vaughn, the owner of Rupert's Gun Shop. (Tr. 2).
Harvey, who had known Petitioner his entire life, testified that she sold the car to Petitioner in April of 2009 (less than a month prior to his arrest) and that, prior to selling the car, she removed everything from it. (Tr. 52). She specifically testified that she did not own a shotgun and had not left a shotgun in the car. (Tr. 53).
McWilliams testified that she had known Petitioner for about two to three years. (Tr. 54:22-23). She testified that on April 22, 2009, eighteen days prior to Petitioner's arrest, she had driven him to Rupert's Gun Shop to get his shotgun repaired. (Tr. 55-57). According to McWilliams, Petitioner carried the shotgun into the store in a black guitar case. (Tr. 57:18-22). Once the two entered the gun shop, Petitioner presented the shotgun to a repairman. (Tr. 58:4-6). When McWilliams was asked to describe the shotgun, she called it a "little bitty gun". (Tr. 58:17-19). However, when McWilliams was shown the shotgun that had been found in Petitioner's car, McWilliams stated that she was "100 percent sure" that the shotgun was the same shotgun she had seen previously in Petitioner's possession. (Tr. 58-61). McWilliams testified that prior to April 22, 2009, she had seen Petitioner with the shotgun one or two times at Petitioner's house. (Tr. 59).
The owner of Rupert's Gun Shop, Richard Vaughn, testified that in April or May of 2009, a black man accompanied by a black woman entered the store with a 20 gauge shotgun in a black case in need of repair. (Tr. 66-68). Vaughn did not identify Petitioner in open court. Vaughn testified that the shotgun had a shell jammed in the action. (Tr. 67-68). When presented with the gun found in Petitioner's car, Vaughn testified that he was "99.9 percent sure" that it was the same gun he repaired. (Tr. 68, 79-80). Vaughn noted that the gun in court was marred by both facial rust and a large scratch, which he remembered were also present on the shotgun that he repaired. (Tr. 69). The jury deliberated for approximately 50 minutes between 2:25pm and 3:15pm, and returned with a verdict of guilty. (09-CR-20040 #25).
On July 8, 2010, Petitioner filed an appeal. (#40). On July 7, 2011, the Seventh Circuit affirmed this court's decision. (#54). On October 1, 2012, Petitioner filed the present Motion. (#1). On December 27, 2012, the Government filed its Response. (#6). On March 7, 2013, Petitioner filed a Reply, with accompanying affidavits. (#9).
Petitioner argues that "the weapon was not his" and that "he had no knowledge of the weapon in his vehicle". (#1 p. 6). Petitioner collaterally attacks his conviction on a variety of grounds. First, he asserts that trial counsel provided ineffective assistance by failing to: 1) file a motion for an evidentiary hearing; 2) file a motion of disclosure; 3) file a motion of discovery; 4) file a motion to suppress evidence; 5) file a motion of illegal search; 6) file a motion to suppress witness statements; 7) identify and call defense witnesses; and 8) obtain physical evidence in his favor. Second, he asserts that trial counsel provided ineffective assistance by failing to investigate and argue that Petitioner's prior burglary conviction did not qualify for the Armed Career Criminal enhancement. (#1 p. 7). In support, Petitioner asserts that: the testimonies of Sheets and Tool conflicted with that of the Government's witness Shamion McWilliams; there were witnesses "with [him] seconds before he was pulled over" that would testify that no weapon was present in the back seat of his vehicle; surveillance video of the traffic stop would show that no weapon was present in the back seat of his vehicle and that he had engaged in no act affording a traffic stop; surveillance video of a gun shop which he was alleged to have visited would show that he had never been there on the date in question; and that his mother would have testified that he "could not fit the coat" in which the shotgun had been wrapped and that he would have never worn that coat, because the coat had fur, and he considered fur to be too feminine.
To succeed on a claim for ineffective assistance of counsel, Petitioner must show both that his attorney's performance was objectively deficient by falling outside the wide range of competent representation and that he was prejudiced by the incompetent representation. United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011) (citing Strickland v. Washington, 466 U.S. 668, 687-96 (1984)). "[A] constitutionally deficient performance is one that falls below an objective standard of reasonableness under prevailing professional norms." Shell v. United States, 448 F.3d 951, 954 (7th Cir. 2006). "To reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, [a court's] review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Li v. United States, 648 F.3d 524, 527-28 (7th Cir. 2011) (citing Strickland, 466 U.S. at 689).
Second, to establish prejudice, the petitioner must show that there is a reasonable probability that, but for his counsel's mistakes, the result of the trial would have been different. Strickland, 466 U.S. at 694. "The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Koons v. United States, 639 F.3d 348, 351 (7th Cir.2011). If a strategic reason for a decision was sound at the time it was made, the decision generally cannot support a claim of ineffective assistance of counsel. Li, 648 F.3d at 528 (citing United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir.2005) and United States v. Lathrop, 634 F.3d 931, 937-38 (7th Cir. 2011) (noting that, provided counsel's reasons for his decision were not "so far off the wall that we can refuse the usual deference that we give tactical decisions by counsel, his performance will not qualify as deficient.")). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed." Strickland v. Washington, 466 U.S. 668, 670 (1984).
Claim 1: Failure to make pretrial motions
"When the claim of ineffective assistance is based on counsel's failure to present a motion to suppress, we have required that a defendant prove the motion was meritorious." United States ...