United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on petitioner Franchie Farmer's motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255 (Docs. 1, 2 & 4). The Government has responded to the motion (Doc. 14), and Farmer has replied to that response (Doc. 15).
On June 14, 2012, a jury found Farmer guilty of one count of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and one count of brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The robbery had occurred on November 6, 2008, at the Capaha Bank in Tamms, Illinois. The Government presented evidence that Farmer had participated in the planning of the robbery with accomplices Holli Wrice and Richard Anderson and that Farmer had driven Wrice and Anderson to the bank in her SUV and had waited outside while Wrice and Anderson entered the bank, brandished firearms and removed money. The Government also presented evidence that Farmer had written a note used in the bank robbery before arriving at the bank, although fingerprints on the note were never identified as Farmer's. A substantial part of the Government's evidence was data from cell phone towers that identified the general locations of Farmer's and Wrice's cell phones around the time of the robbery. Farmer testified in her own defense and denied that she had any connection to the bank robbery. She claimed she had loaned Wrice her SUV and her cell phone on the day in question without knowing they were going to rob a bank. The jury rejected Farmer's defense and convicted her on both counts under an aiding and abetting or coconspirator theory.
On September 13, 2012, the Court sentenced the petitioner to serve 141 months in prison. The petitioner appealed her conviction to the United States Court of Appeals for the Seventh Circuit, which on May 30, 2013, affirmed the Court's judgment. See United States v. Farmer, 717 F.3d 559 (7th Cir. 2013). The petitioner did not seek a writ of certiorari from the Supreme Court.
I. § 2255 Motion
In her § 2255 motion and its first supplement, the petitioner argues her counsel, Rodney Holmes, was constitutionally ineffective in violation of her Sixth Amendment rights because he failed to:
1. investigate and call to testify Sharon Bauers, Lana Neal and Entwain Johnson;
2. adequately review the Government's evidence with the petitioner in preparation for trial;
3. investigate juror misconduct through premature deliberations, request alternate jurors be used and request a hearing on the matter;
4. request a change of venue in light of the gallows near the courthouse and the reputation of racism in the community in which the Court sits;
5. object to FBI Special Agent Ron Bratcher's testifying based on his unprofessional conduct;
6. maintain attorney-client confidentiolity when he discussed the case with others;
7. object to prosecutorial misconduct;
8. object to sentencing guideline offense level enhancements not supported by a jury finding, see Alleyne v. United States, 133 S.Ct. 2151 (2013);
9. object to a jury instruction that did not require the jury to find the petitioner knew in time to withdraw from the conspiracy that her coconspirator would be using a gun, see Rosemond v. United States, 134 S.Ct. 1240 (2014); and
10. object to a jury instruction allowing a conviction for aiding and abetting when the indictment did not include that theory of liability.
The petitioner also makes reference to numerous other alleged errors in a way that is too vague or confusing to understand or respond to.
In a second supplement, Farmer clarified that Ground 8 was intended to be a direct challenge to her sentence based on Alleyne, not an alleged instance of ineffective assistance of counsel. She also added two new claims of ineffective assistance of counsel based on counsel's failure to:
11. convey a plea offer in violation of Missouri v. Frye, 132 S.Ct. 1399 (2012); and
12. include a claim on appeal based on the lack of Farmer's fingerprints on the demand note used in the bank robbery.
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court rejected Grounds 3, 4, 8 and 10 as a basis for relief under § 2255 and directed the Government to respond to the remaining counts. In its response, the Government asks the Court to deny Farmer's § 2255 petition because it is not adequately supported by affidavits and to deny it on the merits of her arguments. The Court now considers the remaining counts.
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[r]elief under § 2255 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.'" United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013), cert. denied, 134 S.Ct. 2830 (2014)). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
Farmer's remaining challenges to her sentence rest on alleged instances of ineffective assistance of counsel. 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. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Groves v. United States, 755 F.3d 588, 591 (7th Cir.), cert. denied, 135 S.Ct. 501 (2014); 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 prong of the Strickland test, the petitioner must direct the Court to specific acts or omissions of his counsel. Wyatt, 574 F.3d at 458. The Court must then consider whether in light of all of the circumstances counsel's performance was outside the wide range of professionally competent assistance. Id. The Court's review of counsel's performance must be "highly deferential[, ]... indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; accord Groves, 755 F.3d at 591; Wyatt, 574 F.3d at 458. Counsel's performance must be evaluated keeping in mind that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Strickland, 466 U.S. at 689. The Court cannot become a "Monday morning quarterback." Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
To satisfy the second prong of the Strickland test, the plaintiff must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different, such that the proceedings were fundamentally unfair or unreliable. Groves, 755 F.3d at 591; Jones, 635 F.3d at 915; 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).
A. Ground 1: Failure to Investigate and Call Witnesses
Farmer claims her counsel was deficient because he failed to investigate three witnesses - Sharon Bauers, Lana Neal and Entwain Johnson - and call them to testify in her trial. The Government argues that Holmes' decision not to call these witnesses was a trial strategy Farmer must accept and that Farmer suffered no prejudice from that strategy.
A defense attorney has "a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v. Washington, 466 U.S. 668, 691 (1984); accord Wiggins v. Smith, 539 U.S. 510, 521 (2003); Koons v. United States, 639 F.3d 348, 353-54 (7th Cir. 2011); Adams v. Bertrand, 453 F.3d 428, 436 (7th Cir. 2006). An attorney does not have to investigate every conceivable line of mitigating evidence as long as his decision not to investigate a particular line was reasonable from his perspective at the time he made the decision to forego the investigation. Wiggins, 539 U.S. at 521-22; Adams, 453 F.3d at 436. Strategic choices to limit an investigation are reasonable if "reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91; accord Wiggins, 539 U.S. at 521.
When a petitioner accuses her counsel of failing to investigate her case, in order to establish prejudice she must point to "sufficiently precise information, that is, a comprehensive showing as to what the investigation would have produced." Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003) (internal quotations and citation omitted); accord Richardson v. United States, 379 F.3d 485, 488 (7th Cir. 2004). She cannot rely on vague allegations that the investigation was insufficient or would have yielded favorable evidence. See Hardamon, 319 F.3d at 951. Similarly, when a § 2255 petitioner faults her attorney for failing to present evidence at trial, she bears the burden of demonstrating what evidence the attorney should have presented and that the presentation of such evidence would have had a reasonable probability of changing the result. Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005); Berkey v. United States, 318 F.3d 768, 774 (7th Cir. 2003). The Court will now examine each of the three witnesses Farmer says Holmes should have investigated and called as a witness in her trial.
1. Sharon Bauers
Farmer claims she told Holmes that Sharon Bauers was willing to testify that Farmer's accomplice Wrice had told Bauer that she and Anderson, Wrice's nephew, had "agreed to do what they had to, to get [Anderson] home." Pl. § 2255 Mot. at 4 (Doc. 1). Bauers was Wrice's cellmate at the White County Jail prior to Farmer's trial. Anderson was also housed at that facility. Farmer claims that at some point when Anderson was suffering some kind of "mental breakdown, " jail officials called on Wrice, his aunt, to help calm him down. Afterward, Wrice allegedly told Bauers that she and Anderson had agreed to do whatever they had to do to get Anderson home. Farmer infers that this included lying about Farmer's involvement in the armed bank robbery.
This piece of information from Bauers would not have had any reasonable probability of changing the outcome of the trial. As it was, Holmes aggressively cross-examined Wrice and Anderson with their prior convictions, inconsistencies in their statements before and during trial, and their self-interest in testifying against Farmer. Those substantial efforts did not succeed in convincing the jury to disbelieve Wrice or Anderson, and it is unreasonable to believe that a vague agreement to "do what they had to" in order to get Anderson home would have made a difference in the jury's credibility assessment. Nor is it reasonable to believe that this one piece of indirect evidence would have outweighed the substantial evidence of Farmer's guilt presented at trial and accepted by the jury. Farmer simply suffered no prejudice from Holmes' failure to investigate and call Bauers as a witness.
2. Lana Neal
Farmer claims Holmes should have called Lana Neal to testify that "Farmer has never rode around with [her], anywhere, " Pl. § 2255 Mot. at 5 (Doc. 1). At trial, Wrice testified that Neal was involved in the early planning of the bank robbery with Wrice and Farmer but that Farmer decided not to involve her further because she had "rode over" on her own son. Tr. at 51-52. The Court presumes this means Neal had at some point given information about her son's illegal activities to law enforcement. Wrice testified that Farmer said that since Neal had informed on her own son, she would also be likely to inform on them if they got caught. Farmer also later testified that she and Neal never cased out a bank together. Tr. at 355.
It is clear why Holmes would not want to put Neal on the stand: she had no helpful information, and in cross-examination - if Neal did not invoke her Fifth Amendment right not to testify - the Government would have been able to ask her about Farmer's involvement in the early stages of planning the bank robbery. It appears Holmes believed Neal could have refused to testify by exercising her Fifth Amendment right against self-incrimination. Had this happened, even without Neal's testimony, the jury could have drawn the inference that Neal was involved in criminal activity involving Farmer about which she did not want to testify. Furthermore, had Neal testified and denied any knowledge of such involvement, the questioning would have served to highlight Wrice's testimony that Farmer was involved. In contrast, any value she could offer to Farmer's defense by testifying that she was unaware Farmer was involved in planning the bank robbery or that Neal never "rode around" with Farmer was minimal compared with the risk she posed by taking the stand. Holmes' decision not to call her was a reasonable one, well within the bounds of competent performance. Additionally, Neal's testimony on such a minor issue would have had little chance of changing the result of the trial in light of the other evidence in the trial.
3. Entwain Johnson
Farmer claims Holmes should have called Entwain Johnson to testify "that Farmer had never called him, " Pl. § 2255 Mot. at 5 (Doc. 1), and that Farmer "had never talked to him by telephone, " Pl. Reply at 16 (Doc. 15). At trial, Special Agent Bratcher testified that very shortly after the bank robbery, Farmer's cell phone received an incoming call from a phone number registered to Johnson. There was no suggestion Johnson was involved in any way with the bank robbery. Holmes was not deficient for failing to call Johnson since the testimony Farmer claims he would have given was not inconsistent with Bratcher's testimony. Bratcher testified Farmer's cell phone received a call from Johnson's phone, but Johnson would have testified that Farmer never placed a call to Johnson's phone. Furthermore, testimony that Farmer's cell phone received a call from Johnson does not necessarily mean the call was answered and that Farmer talked to Johnson. It was not deficient performance not to call a witness with irrelevant testimony, and Farmer suffered no prejudice from Holmes' decision in this regard. Furthermore, even if Johnson's testimony had been inconsistent with Bratcher's, it is on such a minor issue that there was no reasonable probability in light of the other evidence at trial that it would have convinced the jury not to convict Farmer.
Even taken all together, in light of the other evidence in the case, the presentation of these three witnesses' testimony on relatively minor issues would not have had a reasonable probability of changing the outcome of the trial. Farmer has not identified any other evidence from these witnesses that would have been uncovered in an investigation such that it could have been presented at trial. For these reasons, Farmer is ...