Conley v. United States
| Decision Date | 23 July 2020 |
| Docket Number | Case No. 18 C 7122 |
| Parties | TRACY L. CONLEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
On April 15, 2019, petitioner Tracy L. Conley, by counsel, filed this amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated below, the Court denies Conley's § 2255 motion. The Court, however, certifies the following issues for appeal under 28 U.S.C. § 2253(c): (1) whether the ATF's practice of recruiting individuals into conspiring to rob false drug stash houses amounted to outrageous conduct violating Conley's fifth amendment due process rights; and (2) whether the ATF's conduct in targeting racial minorities for false stash house stings amounted to selective enforcement in violation of Conley's fifth amendment equal protection rights.
On January 24, 2014, a jury convicted Conley of the following counts in the April 2012 indictment: (1) conspiracy to possess with intent to distribute five kilograms or more of mixtures containing cocaine in violation of 21 U.S.C. §§ 841(a), 846 (count 1); (2) attempt to possess with intent to distribute five kilograms or more of mixtures containing cocaine in violation 21 U.S.C. §§ 841(a), 846 (count 2); (3) possession of a firearm in furtherance of a drug trafficking crime inviolation of 18 U.S.C. § 924(c)(2) (count 3); and (4) unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (count 5). The Court sentenced Conley to 120 months in prison for counts 1, 2, and 5 to run concurrently and 60 months for count 3 to run consecutively for a total of 180 months in prison. The Court's sentence was based, in part, on a "fictious" quantity of drugs in this false stash house case, which resulted in mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A)(ii)(II).
To clarify, Conley's prosecution and conviction were the result of a former practice used by the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") of engaging in sting operations where undercover agents provided individuals with the opportunity to rob fake drug stash houses that did not exist. In short, the ATF's practice involved enticing individuals, most of whom were impoverished racial minorities, into "conspiring to rob fictitious stash houses of fictitious drugs or money operated by fictitious drug dealers." United States v. Paxton, No. 13 CR 0103, 2018 WL 4504160, at *1 (N.D. Ill. Sept. 20, 2018) (Gettleman, J.). On direct appeal, the Seventh Circuit described the general background underlying Conley's conviction:
Tracy Conley was ensnared in a now familiar government set up in which a government actor, pretending to be a criminal, presents the defendant with an opportunity to be part of a robbery of an illegal drug stash house. The stash house is fictional, of course, and so the government decides which and what quantity of drugs it will have (in this case, fifty kilograms of cocaine) and how high or low the barriers to the crime will be (in this case it was allegedly protected only by two armed and one unarmed guards).
United States v. Conley, 875 F.3d 391, 394 (7th Cir. 2017).
A brief summary of the evidence adduced at Conley's trial begins with an undercover ATF agent approaching Myreon Flowers with the opportunity to rob a stash house of an alleged drug boss explaining the type and quantity of drugs and emphasizing the need for guns. Myreon then recruited his brother David Flowers and cousins Anwar Trapp and Dwayne Jones into the scheme. The cousins met on October 31, 2011 for the purpose of planning the robbery of the drug stashhouse. At that meeting, the cousins discussed recruiting Anthony Adams for their scheme because Adams had a gun. On November 1, 2011, Trapp, Myreon, and David met with Adams. Later that same day, Trapp, David, and Adams picked up Conley and went back to Adams' apartment to discuss the robbery. At trial, Trapp testified that Myreon told them about the details of the robbery and discussed that Adams, Conley, and another person would assist in the robbery. Unbeknownst to Conley, the Flowers brothers, or the other participants, the robbery was targeting a false stash house set up by the ATF.
Upon his arrest, Conley provided a statement that he had gone to work on November 1, but was sent home early. He did not have enough money to purchase gas for his car to go home, so he agreed to help his friend Adams clean his apartment. Adams then took Conley to his apartment where they met with others. At Myreon's direction, two vans were driven in furtherance of the robbery. Later that day, Conley, Adams, and another individual arrived at David's home and got into one of the vans. Both vans were driven to a forest preserve where federal agents stopped and arrested the occupants of both vans that contained a total of three firearms.
On direct appeal, Conley asserted that the government failed to meet its burden in establishing sufficient evidence to support his conspiracy and firearm convictions and that the government entrapped him into committing these crimes. The Seventh Circuit affirmed, but concluded with the following discussion:
We conclude with a word about the district court's articulated dismay with the prosecution of this stash house case. In its order, the district court questioned "the wisdom and purpose of expending the level of law enforcement resources and judicial time and effort in this prosecution." At sentencing the court stated that Conley's sentence was "devoid of [ ] true fairness ... and will serve no real purpose other than to destroy any vestiges of respect in our legal system and law enforcement that this defendant and his community may have had." Specifically, the district court was dismayed that it was forced into a minimum sentence based on the government's ability to control the sentence by manipulating the amount and type of drugs that were "in" the fictitious stash house.
Conley, 875 F.3d at 402 (internal citations omitted).
Turning to Conley's § 2255 motion, he brings the following claims: (1) ATF officers engaged in outrageous conduct in violation of his fifth amendment due process rights; (2) ATF officers selectively targeted racial minorities for false stash house stings in violation of the equal protection clause; (3) trial and appellate counsel provided constitutionally ineffective assistance of counsel; and (4) his conspiracy conviction cannot serve as a "drug trafficking crime" under 18 U.S.C. § 924(c)(2).
Section 2255(a) of title 28 provides that "a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." Simply put, relief under § 2255 is available in extraordinary situations, such as when an error of constitutional or jurisdictional magnitude has occurred. See Hanson v. United States, 941 F.3d 874, 876 (7th Cir. 2019).
If a § 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, or that enforcing the procedural default would lead to a fundamental miscarriage of justice. Lund v. United States, 913 F.3d 665, 667 (7th Cir. 2019); Farmer v. United States, 867 F.3d 837, 842 (7th Cir. 2017). Because Sixth Amendment ineffective assistance of counsel claims often involve evidence outside of the trial record, such claims may be brought for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020).
In his § 2255 motion, Conley argues that federal law enforcement engaged in outrageous conduct in violation of his fifth amendment due process rights by recruiting participants and manufacturing a crime that forced the Court to give him mandatory minimum sentences based on manipulated and imaginary quantities of drugs.
Conley's first hurdle in establishing this claim is to overcome his procedural default. Conley acknowledges that he did not present this claim on direct appeal, but that his procedural default is excepted based on cause and actual prejudice. See United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Farmer, 867 F.3d at 842. In particular, Conley argues the cause for his failure to raise this claim on direct appeal was that its legal basis was not available because he is seeking to extend Seventh Circuit law to include a fifth amendment due process outrageous conduct claim under the circumstances. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (). The Court agrees. The Court also concludes that Conley has established actual prejudice, namely, that either his indictment would have been dismissed if he had established this outrageous conduct claim or that his sentence would have been lower without the imaginary drug amount resulting in statutory minimum sentences for his drug offenses.
Moving to the merits of Conley's due process claim, he acknowledges that the Seventh Circuit has yet to determine under what circumstances an outrageous government conduct defense would be available. Conley asserts that based on the egregious conduct in this...
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