United States District Court, N.D. Illinois, Eastern Division
JOHN F. GRADY, District Judge.
Dhawndric McDowell was convicted in this court of conspiracy and attempted possession with intent to distribute more than 5 kilograms of cocaine. His conviction was affirmed on appeal. United States v. McDowell , 687 F.3d 904 (7th Cir. 2012). He has now filed a timely pro se petition to set aside his conviction pursuant to 28 U.S.C. § 2255 on the ground that the attorney who represented him at trial and on appeal was constitutionally ineffective under the rule of Strickland v. Washington , 466 U.S. 668 (1984).
At trial, the evidence showed that prior to December 2008, the petitioner had purchased large quantities of cocaine from a source he knew only as "Jose" on ten to fifteen occasions. The transactions were always arranged by telephone, and the two had never met. In addition to being a cocaine supplier, Jose was also a confidential informant for the Chicago Police Department. Federal Drug Enforcement Administration agents, working with the Chicago police, arranged to have Jose engage in a series of recorded telephone calls with the petitioner setting up a delivery of 10 kilograms of cocaine on December 2, 2008 at the parking lot of the Dollar Bazaar at Roosevelt Road and Kedzie Avenue in Chicago. At about the appointed time, the petitioner arrived at the lot in a Porsche Cayenne. Shortly thereafter, an undercover DEA agent drove into the lot carrying 10 kilograms of sham cocaine in his car. He asked the petitioner if he needed "10, " and the petitioner replied, "yeah." The agent then told the petitioner to open the back of the Cayenne, which the petitioner did, and the agent placed the bag containing the sham cocaine inside the Cayenne. What happened next is accurately described in the government's response to the petition:
The [undercover officer, or UC] then asked the petitioner whether he had "something for me, " meaning money. According to the UC, petitioner stated [that] "he was told he can get me on the next one."
After the UC placed the sham narcotics in petitioner's car, several officers approached petitioner. As the officers converged, petitioner backed up at a high rate of speed and struck a law enforcement vehicle parked behind [him]. Petitioner then drove the car over the curb and down a grassy, ice-covered hill, striking an iron fence. After striking the fence, petitioner continued to drive along the fence line until he struck a utility pole. At that point, petitioner's car came to rest and petitioner attempted to escape out [of] the driver's side window. Officers took petitioner into custody at approximately 6:30 p.m.
(Gov't's Resp. at 3 (citations omitted).) The events at the parking lot and the subsequent chase were audio and video recorded.
After the arrest, the petitioner told the agents that he was an informant for the Chicago Police Department. What happened after that is described in the Court of Appeals' opinion:
Because it was after hours and they needed to sort out this claim, the agents asked him if he would be willing to waive his right to prompt presentment before a magistrate judge. See FED. R. CRIM. P. 5(a). McDowell agreed, signed a written Rule 5(a) waiver, and spent the night in jail. The next morning he signed a Miranda waiver and confessed his involvement in cocaine trafficking. He was taken before a magistrate judge early that afternoon.
687 F.3d at 906.
Prior to trial, petitioner's attorney filed a motion to suppress his confession under the McNabb-Mallory rule because of the delay in his presentment before a magistrate judge. After two evidentiary hearings, we denied the motion, finding that petitioner had voluntarily waived presentment and that there was no unnecessary delay. We also found that the delay was not unreasonable.
The trial lasted two days. The defense rested without calling any witnesses. On the unsuccessful appeal, counsel alleged three errors: (1) failure to suppress petitioner's confession because of the late presentment; (2) failure to require the government to produce Jose at the trial; and (3) refusal to instruct the jury that a confession needed to be corroborated.
Alleged Ineffective Assistance of Trial Counsel
As the government points out at page 12 of its response to the petition, in order to make out a claim of ineffective assistance the petitioner must show both that "counsel's representation fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland ...