Sullivan v. United States

• Decision Date: 08 December 2017
• Docket Number: No. 15-2023,15-2023
• Citation: 877 F.3d 337
• Parties: Daniel SULLIVAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

877 F.3d 337

Daniel SULLIVAN, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 15-2023

United States Court of Appeals, Seventh Circuit.

Argued November 14, 2017

Decided December 8, 2017

Nicole C. Henning, Attorney, Jones Day, Chicago, IL, James Matthew Gross, Attorney, Jones Day, New York, NY, for Petitioner-Appellant.

Tiffany Ardam, Attorney, Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before Bauer, Easterbrook, and Sykes, Circuit Judges.

Per Curiam.

A jury found Daniel Sullivan and his brother John guilty of two counts of committing wire fraud in connection with a home-remodeling scheme they operated for several years. The district judge sentenced both brothers to 168 months' imprisonment, and on direct appeal we affirmed their sentences. See United States v. Sullivan , 765 F.3d 712 (7th Cir. 2014). They then filed separate pro se collateral challenges under 28 U.S.C. § 2255, each contending that their attorneys were constitutionally ineffective. The district judge denied both § 2255 motions without holding an evidentiary hearing. The present appeal concerns the denial of Daniel’s motion.

We granted Daniel a certificate of appealability on his claims that his attorneys rendered constitutionally ineffective assistance by failing to (1) raise an objection under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the exclusion of potential jurors based on race; and (2) hire an expert witness to testify about the amount of loss attributable to Daniel for purposes of the Guidelines. We affirm.

I. BACKGROUND

Our opinion from the Sullivans' direct appeal details the case’s background. The brothers operated various companies that offered remodeling services in Chicago. Through subcontractors they performed legitimate work for clients who paid in cash, but they padded their profits by duping dozens of elderly, unsophisticated homeowners into refinancing their homes to pay substantial sums for work they never intended to finish. At one point the Circuit Court of Cook County permanently enjoined both John and a company the brothers co-owned from engaging in the home-repair business in the city of Chicago; the brothers, however, circumvented the injunction by creating a new company and installing an employee as its nominal president. They also falsified contracts to hide their fraudulent activity.

In September 2010 a grand jury charged the Sullivans with wire fraud, and a year later they were tried together in front of Judge Blanche Manning. The jury heard testimony from victimized homeowners, the brothers' employees, a subcontractor they used for some projects, and various bankers and investigators. The jury found the defendants guilty of two counts of wire fraud each.

After Judge Manning retired, the case was transferred to Judge Rubén Castillo, who found both brothers responsible for causing about $750,000 in losses to their victims and sentenced them to 168 months' imprisonment each.

The Sullivans each appealed, arguing that the district judge erred in calculating the amount of loss for purposes of the Guidelines and in imposing various upward adjustments based on the judge’s findings that the scheme involved vulnerable victims ( U.S.S.G. § 3A1.1(b)(1) ), the violation of a prior judicial injunction (id . § 2B1.1(b)(9)(C)), sophisticated means (id. § 2B1.1(b)(10)(C)), and mass marketing (id . § 2B1.1(b)(2)(A)). John also challenged an adjustment he received for being an organizer or leader of the scheme ( U.S.S.G. § 3B1.1(a) ). We rejected all these contentions and affirmed both brothers' sentences.

John and Daniel then filed pro se motions for collateral relief under 28 U.S.C. § 2255, and for the first time their cases diverged. Daniel argued that his attorney rendered constitutionally ineffective assistance by failing to (1) object to the exclusion of jurors on a potentially discriminatory basis, (2) hire an expert witness to testify about the loss amount.

Judge Castillo summarily dismissed Daniel’s motion in a one-paragraph order that reads in its entirety as follows:

After a careful review of this recently filed petition under 28 U.S.C. § 2255, in light of the trial record and appeal in this case, this Court easily concludes that Petitioner has not established any non-waived constitutional error in these proceedings. For these reasons, this petition is denied with prejudice. Petitioner has not established the need for a hearing. Finally, the Court denies a certificate of appealability for this order.

We granted Daniel a certificate of appealability on both issues raised in his motion. See 28 U.S.C. § 2253(c)(2).

II. DISCUSSION

Daniel, now represented by newly recruited counsel, argues that the district court erred in denying his request for an evidentiary hearing on his claims that his trial attorneys rendered ineffective assistance—first by failing to object to the supposed exclusion of Hispanics and African Americans from the jury and, second, by failing to hire an expert to testify about the loss amount. A district court must conduct an evidentiary hearing before denying a motion for collateral relief unless the record "conclusively show[s] that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b) ; Anderson v. United States , 865 F.3d 914, 919 (7th Cir. 2017). This court reviews for abuse of discretion a district court’s decision to deny an evidentiary hearing. Mitchell v. United States , 846 F.3d 937, 941 (7th Cir. 2017).

A. Batson Issue

We first consider Daniel’s contention that his attorneys rendered ineffective assistance when they did not object under Batson that the government systematically excluded Hispanics and African Americans from the jury. The record contains no statistics about the racial composition of the venire, so Daniel focuses on the government’s use of a peremptory challenge against an African-American man who was a criminal-defense lawyer.

The potential juror came up at the start of the second day of jury selection, when the government’s attorney, Patrick Pope, disclosed to the judge that one of his colleagues had spoken briefly with a member of the venire outside the courtroom. Pope, who did not know the potential juror’s name, initially described him as a paralegal who worked for an attorney representing Rod Blagojevich during his criminal trial. Pope explained that his colleague had recognized the potential juror from Blagojevich’s trial and had briefly discussed Blagojevich’s sentencing with him. When asked to describe the potential juror, Pope said that he was a "large African-American male." The judge’s clerk then identified him as attorney Keenan Saulter.

Saulter’s responses during jury selection were unremarkable. He confirmed that he was an attorney employed at a law firm. He said that he was "very close to multiple criminal lawyers and some prosecutors" but denied that those relationships would prevent him from being impartial. He also affirmed that he "absolutely" would follow the judge’s instructions about the law. Daniel’s lawyers asked no follow-up questions of Saulter, and John’s lawyer asked him only to clarify the extent to which he had been a party to a lawsuit.

The government, without objection from the defense, used one of its peremptory strikes to remove Saulter from the jury pool. Later, at the end of jury selection, the district judge quipped that the parties "didn't get to the lawyer," to which Pope replied: "Certainly not a defense lawyer and certainly not with where his previous employment was."

Before he can show that his attorneys were ineffective in failing to object to Saulter’s removal, Daniel first needs to show that such an objection would have had potential merit. Batson establishes a three-step process for challenging a peremptory strike. Miller-El v. Cockrell ( "Miller-El I "), 537 U.S. 322, 328–29, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). First, the defendant must make out a prima facie case that a strike was exercised on the basis of race. Id. at 328, 123 S.Ct. 1029. This requires a defendant to point to evidence "raising a suspicion that discrimination occurred." United States v. Cruse , 805 F.3d 795, 807 (7th Cir. 2015) (quoting United States v. Stephens , 421 F.3d 503, 512 (7th Cir. 2005) ). If the defendant clears that hurdle, the burden of production then shifts to the government to articulate a reason for striking the juror that is nondiscriminatory. Miller-El I , 537 U.S. at 328, 123 S.Ct. 1029. This reason need not be "persuasive, or even plausible," as long as it’s race neutral. Purkett v. Elem , 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Third, the court must decide whether the government’s proffered basis is genuine or pretextual. See Miller–El v. Dretke , 545 U.S. 231, 239–40, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

Daniel has not plausibly explained how his attorneys could have cleared even the first step of the Batson inquiry. He urges us to infer discrimination from the fact that other jurors were not struck even though they too revealed that they knew practicing lawyers. But that argument glosses over the significant difference between knowing a lawyer and being one. See United States v. Alvarez-Ulloa , 784 F.3d 558, 566 (9th Cir. 2015) (noting "widespread" concern among lawyers and courts that "jurors with legal experience will bias or commandeer a jury"); United States v. Bolden , 545 F.3d 609, 613–14 (8th Cir. 2008) (affirming use of peremptory challenge to strike African-American woman who had "twelve years of legal training"); United States v. Johnson , 941 F.2d 1102, 1109 (10th Cir. 1991) (affirming use of peremptory challenge to strike African-American woman who worked as secretary for legal aid). Daniel cannot make out a prima facie case for discrimination by merely pointing out the race of the stricken juror, see United States v. McMath , 559 F.3d 657, 664 (7th Cir. 2009), but that essentially is all he has done here.

Because it is clear...