United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
This matter is before the Court on Petitioner Leroy Goree's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255  and his motion to amend his § 2255 petition . For the reasons stated below, Petitioner's motions are denied. The Court declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2), and directs the Clerk to enter judgment in favor of the United States.
Petitioner Leroy Goree is currently serving an 87-month sentence after being convicted by a jury of conspiracy to distribute 280 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). See United States v. Goree, Case No. 10-cr-778-2, Dkt. 167 (N.D. Ill.). The conviction relates to two instances in the spring of 2008 when Petitioner and his friend (and later co-defendant) Vanessa Woods drove from St. Louis to Chicago to purchase crack cocaine with the intent to distribute the drugs back in St. Louis. Following the second transaction, federal agents from the Department of Alcohol, Firearms, and Tobacco ("ATF") pursued Petitioner and Woods, resulting in a high-speed car chase. Petitioner and Woods were later indicted and charged with various drug-related violations stemming from these two drug transactions.
Petitioner was convicted on March 21, 2013 and sentenced on July 29, 2013. He appealed his conviction to the Seventh Circuit Court of Appeals on July 25, 2013, and the Seventh Circuit affirmed his conviction on July 17, 2014. Petitioner subsequently filed this motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 , arguing four grounds of ineffective assistance of trial and appellate counsel in violation of the Sixth Amendment.
A. The April 29, 2008 Drug Transaction
On April 29, 2008, Petitioner and Ms. Woods drove from St. Louis to Chicago in Petitioner's minivan to purchase crack cocaine, which they intended to distribute in St. Louis. The two met Christopher Gavin, a drug broker, in the parking lot at the Garfield Gyros on Chicago's south side. Gavin brokered a drug deal involving a large-scale supplier of crack cocaine, Isaiah Hicks, who was under investigation by the ATF. In short, with Gavin's brokering assistance, the two purchased four 63-gram bags (nine ounces total) of crack cocaine for $4, 900. The ATF recorded several phone conversations leading up to this drug transaction, and they had active surveillance on the Garfield Gyros parking lot during the exchange itself.
B. The May 6, 2008 Drug Transaction
One week later, Gavin brokered another deal whereby Petitioner and Ms. Woods purchased 18 ounces of crack cocaine (a half kilogram) for $9, 700. Again, the two drove up from St. Louis in Petitioner's minivan to the Garfield Gyros parking lot where the transaction took place. And again, ATF agents were monitoring the transaction as it occurred. As Petitioner and Ms. Woods were leaving the parking lot (Ms. Woods was driving), ATF agents attempted to stop the minivan to recover the drugs. But the two sped away, leading to a high-speed car chase through the streets of Chicago. The chase covered approximately five miles of mostly-residential streets, reaching speeds of 50-60 miles per hour. Petitioner later admitted to federal agents that during the chase he told Ms. Woods to speed up to try to create some distance between the van and the pursuing officers so that he could dispose of the crack cocaine. At one point during the chase, Petitioner further instructed Ms. Woods to swerve in front of a bus, creating a visual barrier between the minivan and the police, allowing Petitioner to throw the drugs out the window without the police seeing. Petitioner and Ms. Woods eventually pulled over. The agents were unable to locate the drugs, and they released Petitioner and Ms. Woods in order to preserve the ongoing wiretap investigation of Isaiah Hicks' drug-trafficking organization.
C. Vanessa Woods
Ms. Woods has spoken to federal agents on several occasions about what happened during those two drug transactions, including the role that Petitioner played. In a May 2009 interview, she said that she "had never really been in trouble before and didn't know what to do, " and that Petitioner "was like a brother to her and [she] didn't want to get him in any more trouble than he was already in." [7-2, at 2.] During that interview, she nonetheless confirmed that she and Petitioner bought "a lot-between 9 ounces and a half kilogram of crack cocaine" during the two drug transactions [7-2, at 2.] Similarly, in her May 17, 2012 plea agreement, Ms. Woods stated that Petitioner accompanied her to Chicago in his van "to assist with the anticipated drug transaction, " and that the drugs in question were given to both her and to Petitioner. [7-1, at 2.]
In a September 2009 interview with federal agents, Ms. Woods claimed that she was the one who threw the crack cocaine out of the van window [1, at 40], but in her plea agreement, she said that Petitioner was the one who threw the drugs out of the van window. [7-1, at 3.]
Ms. Woods was eventually indicted and charged along with Petitioner for various drug offenses related to their two drug purchases. Petitioner's trial counsel did not call Ms. Woods as a witness at Petitioner's trial to testify on his behalf, which Petitioner now alleges as a basis for one of his ineffective assistance of counsel claims.
D. Petitioner's Incriminating Statements
On July 9, 2009, approximately six months prior to Petitioner's arrest and approximately one year after the two drug transactions in question, several agents interviewed Petitioner at his home in St. Louis. The interview was conducted during the day on Petitioner's front porch. ATF Agent Labno testified that, despite the non-custodial nature of the interview, he nonetheless advised Petitioner of his Miranda rights by reviewing a printed ATF form listing those rights, and Petitioner acknowledged this by stating that he "understood his rights but that he didn't need a lawyer, he was willing to talk with [the agents]." [7, at 12.] Petitioner refused to sign the ATF form, writing the phrase "refused to sign" on the signature line. [1, at Ex. C.] Petitioner claims, contrary to Agent Labno's testimony, that he "advised [the agents] that he would rather speak to a lawyer." [1, at 20.]
Despite Petitioner's alleged request for an attorney, he nonetheless continued to speak with the agents. During the ensuing interview, Petitioner made several incriminating statements, including an admission that he and Ms. Woods drove to Chicago in late April and early May 2008 to purchase a half kilo of crack cocaine. Petitioner also described the high-speed car chase, explaining that he and Ms. Woods were attempting to create enough space between his van and the police vehicles so that he could throw the drugs out of the window without the agents seeing. He told the agents that he instructed Ms. Woods to swerve in front of a bus- which she did-allowing him to throw the drugs out of the window. Petitioner now contends that his trial counsel was constitutionally deficient for failing to move for the suppression of these incriminating statements at trial, arguing that the agents obtained these statements in violation of his Fifth Amendment right against self-incrimination.
E. Sentence Enhancement
At sentencing, Petitioner received a two-point sentence enhancement pursuant to Guideline § 3C1.2 based on his involvement in the high-speed car chase-in particular, by advising Ms. Woods in her efforts to evade the police. The Guidelines say that "[i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase [the base offense level] by 2 levels." U.S.S.G. § 3C1.2. And Application Note 5 to that provision says that "[u]nder this section, the defendant is accountable for * * * conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused." U.S.S.G. § 3C1.2 cmt. n.5.
Prior to sentencing, Petitioner's counsel objected to the enhancement, arguing that the incriminating conduct at issue "[wa]s based on the decisions and driving behavior of Vanessa Woods and was behavior beyond [Petitioner's] control and outside the parameters of any possible conspiratorial purpose." United States v. Goree, Case No. 10-cr-778-2, Dkt. 160, at 9 (N.D. Ill.). The Court acknowledged counsel's ...