United States District Court, C.D. Illinois, Urbana Division
Karen D Dooley, Petitioner, Pro se, Greenville, IL.
For United States of America, Respondent: Ronda H Coleman, LEAD ATTORNEY, U.S. ATTY, Urbana, IL.
MICHAEL P. McCUSKEY, U.S. DISTRICT JUDGE.
On October 3, 2013, Petitioner, Karen Dooley, filed this Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (#1). Respondent, United States of America (the government), filed its Response (#5) on April 4, 2014. For the following reasons, Petitioner's Motion (#1) is DENIED.
On February 18, 2011, Petitioner was charged via information with nine counts, specifically: (1) conspiracy to commit access device fraud; (2) aggravated identity theft; (3) access device fraud; (4) aggravated identity theft; (5) mail fraud; (6) aggravated identity theft; (7) food stamp fraud; (8) social security fraud; and (9) theft of government funds. That same day Petitioner appeared in front of Magistrate Judge David G. Bernthal with her attorney, Assistant Federal Defender John C. Taylor. Assistant U.S. Attorney Ronda Coleman was present for the government. A written Waiver of Indictment (#4) was signed by Petitioner and filed with the court. The court accepted the waiver as knowing and voluntary. Petitioner then requested a change of plea hearing to be
held that day. Petitioner signed and filed a Notice and Consent Form (#6) to plead guilty before Magistrate Judge Bernthal. Petitioner entered into an open plea to each count and no written plea agreement was filed. On February 22, 2011, Judge Bernthal filed a Report and Recommendation (#11) on the guilty plea which found that the plea was knowing and voluntary as to each count and that the offenses charged were supported by an independent factual basis containing each of the essential elements of the offense. This court entered an Order (#12) adopting the Report and Recommendation on March 30, 2011. On May 27, 2011, this court sentenced Petitioner to 96 months in the Federal Bureau of Prisons (BOP), consisting of 24 months each on counts 1, 3, 5, 7, 8, and 9, to run concurrent to each other, and 24 months each on counts 2, 4, and 6 to run consecutive to each other and to counts 1, 3, 5, 7, 8, and 9.
On July 27, 2012, the Seventh Circuit vacated Petitioner's sentence and remanded to this court for resentencing for the court to consider Application Note 2(B) to § 5G1.2 of the United States Sentencing Guidelines (U.S.S.G.) and the factors of 18 U.S.C. § 3553(a). United States v. Dooley, 688 F.3d 318, 321 (7th Cir. 2012). On January 8, 2013, Petitioner was resentenced to the same sentence. The Seventh Circuit affirmed the sentence on August 9, 2013. Petitioner filed this motion (#1) on October 3, 2013, raising four grounds for relief: (1) her attorney was ineffective for not filing a motion to suppress statements she made to law enforcement without an attorney present; (2) her attorney was ineffective for failing to " perform, advise, or" explore plea possibilities and never explained to her the benefits, risk, or significance of a plea agreement at any time; (3) her guilty plea was not knowing or voluntary; and (4) her attorney was ineffective on appeal. The government's response was filed April 4, 2014.
Petitioner's § 2255 claims are based on the Sixth Amendment to the United States Constitution. The Seventh Circuit recently addressed the general legal standards governing habeas claims under the Sixth Amendment for ineffective assistance:
" Relief under this statute is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice. Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997). The Sixth Amendment to the Constitution provides that '[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence.' U.S. CONST. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009) (citations omitted).
A party asserting ineffective assistance of counsel bears the burden of establishing two elements: (1) that his trial counsel's performance fell below objective standards for reasonably effective representation, and (2) that counsel's deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009).
To satisfy the first element of the Strickland test, [the petitioner] must direct the court to specific acts or omissions by his counsel. Wyatt, 574 F.3d at 458 (citation omitted). In that context,
the court considers whether in light of all the circumstances counsel's performance was outside the wide range of professionally competent assistance. Id. The court's assessment of counsel's performance is 'highly deferential [,]... indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...' See Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052; accord Wyatt, 574 F.3d at 458. Further, counsel's performance is to be evaluated in light of the discretion properly accorded an attorney to develop appropriate trial strategies according to the attorney's independent judgment, given the facts of the case, at least some of which may not be reflected in the trial record. See Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052. Courts are admonished not to become 'Monday morning quarterback[s]' in evaluating counsel's performance. Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second Strickland element, [the petitioner] must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different, such that the proceedings were fundamentally unfair or unreliable. Jones, 635 F.3d at 915 (citations omitted); Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir. 2006). 'A reasonable probability is defined as one that is sufficient to undermine confidence in an outcome.' Adams, 453 F.3d at 435 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013).
Ground One: Counsel Was Ineffective for Failure to File a Motion to Suppress Her Statements to Law Enforcement Without an Attorney Present
Petitioner argues in her motion that her conviction was obtained by a " violation of the privilege against self-incrimination" because she did not know that the Fifth Amendment to the United States Constitution barred the government from " compelling criminal defendants to testify against themselves." Specifically, Petitioner states that she had no attorney present when she sat down with police and AUSA Ronda Coleman and Champaign detective Johnson stated it would be in Petitioner's best interest and favor to admit her crimes " so she would not get much time." Petitioner states that she complied and admitted to her crimes " even though I told them I wanted an attorney present." Petitioner had not been indicted at this time and did not know it would be charged as a federal offense. Petitioner states she was deceived. Petitioner claims she told attorney Taylor about the interview and he did nothing, even though she asked him to file a motion to suppress. The government construes Petitioner's claim as one for ineffective assistance of counsel for failure to file the motion to suppress.
The government argues that Petitioner has provided a grossly inaccurate description of her interview with law enforcement. The government contends that, based on the actual facts of what occurred during the interview, any move to suppress the statements would be a losing argument, and thus it would not be ineffective for counsel to fail to file a motion to suppress. The government states that, prior to the interview, Special Agent Matt McWilliams spoke to Ed Pirano, an attorney who indicated he had spoken with Petitioner and her co-defendant and that he (Pirano) had advised them to be cooperative with agents. Petitioner and her co-defendant met with law enforcement and AUSA Coleman at the federal courthouse and neither party was in handcuffs. Further, the door to the conference room was not
locked and Petitioner had not been placed under arrest. Both parties were advised of their rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), per Secret Service Form (SSP) 1737B, which was attached to the government's Response as Exhibit 1. On the signed form, Petitioner acknowledged that she had read the warning of Miranda rights, that the rights had been read to ...