Daniels v. U.S.

• Decision Date: 09 June 1994
• Docket Number: 93-2159 and 93-2160,Nos. 93-2152,s. 93-2152
• Citation: 26 F.3d 706
• Parties: Roosevelt DANIELS, Edward Fitzgerald and Lawrence Lee, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 706

26 F.3d 706

Roosevelt DANIELS, Edward Fitzgerald and Lawrence Lee Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.

Nos. 93-2152, 93-2159 and 93-2160.

United States Court of Appeals Seventh Circuit.

Argued Jan. 19, 1994.

Decided June 9, 1994.

Michael H. King (argued), Ross & Hardies, Allan A. Ackerman, Chicago, IL, and Thomas A. Durkin, Michigan City, IN, for petitioners-appellants.

Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Cr. Receiving, Appellate Div., Robert Christopher Cook (argued) and James B. Burns, Office of the U.S. Atty., Chicago, IL, for respondent-appellee.

Before CUMMINGS, COFFEY and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

Edward Fitzgerald, Lawrence Lee, and Roosevelt Daniels appeal the denial of their motions to vacate or correct their sentences pursuant to 28 U.S.C. Sec. 2255, contending they were denied the effective assistance of counsel (Sixth Amendment). ¹ They assert that they were unable to receive effective assistance of counsel because the government refused to allow them to participate in the development of the record dealing with the question of whether the extension (time limitation) of the special grand jury was valid. We affirm.

BACKGROUND

We summarize the procedural history to place the defendants' ineffective assistance of counsel claim in context and demonstrate that this court has previously addressed and resolved the issue underlying the appellants' claim. ²

On September 10, 1984, acting Chief District Judge Marshall convened a special grand jury as of October 1984. On August 26, 1986, under the supervision of then-Chief Judge McGarr, ³ the special grand jury returned a second superseding indictment charging Daniels, Fitzgerald, and Lee with conspiring to possess cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 846, distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1), using a telephone to conduct their drug business, in violation of 21 U.S.C. Sec. 843, and engaging in a pattern of racketeering activity in violation of 18 U.S.C. Sec. 1962(c). ⁴ On or about September 11, 1986, the defendants changed their previously-entered not guilty pleas to conditional pleas of guilty, reserving the right to appeal specified issues.

In February of 1987, before the defendants were sentenced, it was discovered that although the second superseding indictment had been issued in August of 1986, the court record contained no entry of an order extending the special grand jury of October 1984 beyond April of 1986. ⁵ Thereafter Daniels, Fitzgerald, and Lee filed with Judge Holderman, before whom the case was then pending, a motion for writ of habeas corpus, claiming that the second superseding indictment was invalid because it had been issued after the term of the grand jury had expired. On February 27, 1987, Judge Holderman denied the motion, noting that he had "nothing before me to indicate that this grand jury was invalidly constituted at the time that it returned this indictment." The defendants subsequently petitioned this court for a writ of mandamus, claiming that Judge Holderman's denial of their motion for writ of habeas corpus was erroneous because there was no evidence that the special grand jury's term had been extended. In an unpublished decision, this court denied the defendants' petition for a writ of mandamus as "premature" because "[t]he district court has not yet had an opportunity to evaluate all of the evidence with regard to petitioners' claim. Judge Holderman will be hearing evidence within the week that will allow him to do so." Daniels v. Hon. James F. Holderman, No. 87-1322 (Mar. 5, 1987).

After confirming that the record did not contain a written order extending the special grand jury's term beyond April of 1986, the United States Attorney's Office prepared a corrective order and presented it to Judge McGarr, who issued the order nunc pro tunc and signed the same. Judge McGarr, when signing the order, recited on the record his specific recollection that in March of 1986 the special grand jury had voted unanimously to extend its term and that he had determined at that time that the grand jury had unfinished business. Further, that based upon this information, he, acting for and on behalf of the court, had extended the grand jury's term until September of 1986, and "[i]t now appears that, through inadvertence or mistake, a written extension order was not presented to, or executed by the Court, or that such an order was executed and since been lost." ⁶ Judge McGarr's order concluded that since the special grand jury's term of service had been extended, the indictments issued against Daniels, Fitzgerald, and Lee were valid.

Because the government had drafted the order for Judge McGarr's approval without giving notice to the defendants or their attorneys, on March 23, 1987, Daniels, Fitzgerald, and Lee requested that Judge Holderman hold an evidentiary hearing to determine whether Judge McGarr's extension of the term of the special grand jury was valid. In addition, the defendants filed a joint motion to dismiss the second superseding indictment based on the theory that a grand jury's term of service may not be validly extended without the filing of a contemporaneous written extension. The district court denied the defendants' motion to dismiss because under the recently-decided case of United States v. Taylor, 841 F.2d 1300 (7th Cir.), cert. denied, 487 U.S. 1236, 108 S.Ct. 2904, 101 L.Ed.2d 937 (1988), which dealt with the same special October 1984 grand jury, "the entry of a formal order was not necessary" to extend a grand jury's term. Id. at 1308. The Taylor panel held that "[w]here a supervising judge has failed to enter a written extension order under Sec. 3331, other reliable and unequivocal evidence that he or she actually made the determination [to extend the grand jury's term] may suffice." Id. This court concluded that because Judge McGarr's order contained the requisite reliable and unequivocal evidence that he had timely extended the special grand jury of October 1984's term, the extension was determined to be valid and the indictments were not defective. Id. at 1308-09. Relying on the Taylor court's determination, Judge Holderman denied the defendants' request for an evidentiary hearing on the issue of whether the term of the grand jury was validly extended.

Following the district court's denial of their motion to dismiss the indictment, the defendants filed a second petition for a writ of mandamus with this court, seeking further consideration of the grand jury issue and claiming that the district court's refusal to hold an evidentiary hearing on the matter constituted error. We denied the defendants' second motion for writ of mandamus, noting that "[i]n United States v. Taylor, No. 87-1378, slip op. (7th Cir. February 17, 1988), this court made the legal determination that the special October 1984, grand jury was properly constituted when it turned in indictments beyond its initial 18-month term. That decision controls this case." In the Matter of Daniels, No. 88-1750 (April 25, 1988) (unpublished).

On May 5, 1989, after accepting the defendants' conditional guilty pleas to conspiring to possess cocaine with intent to distribute, distributing cocaine, and engaging in a pattern of racketeering activity, the district judge sentenced Daniels, Fitzgerald, and Lee to terms of incarceration totalling fifty-five, twenty, and fifteen years, respectively. The three defendants undertook a direct appeal in which "the principal issue [wa]s the validity of the indictment." United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir.), cert. denied, 498 U.S. 981, 111 S.Ct. 510, 112 L.Ed.2d 522 (1990). The defendants argued that Judge McGarr's nunc pro tunc order was not reliable evidence of his determination to extend the grand jury, because the order was drafted by government lawyers and was given to Judge McGarr to sign ex parte without notice to the defendants or their lawyers.

In response to the defendant's argument, we reasoned as follows. Initially, our court observed that "[i]t is a question of fact whether Judge McGarr was mistaken in his recollection of having made [a] ... determination that the life of the grand jury should be extended." Id. at 1242. We then noted that in Taylor, "we were given no reason to doubt the reliability of these recollections and intentions and [we] treated the 'order' as, in effect, an unrebutted affidavit." Id. at 1241. However, since Daniels, Fitzgerald, and Lee had presented evidence that the order was not reliable, because it was drafted by government attorneys for Judge McGarr to sign without notice to the defendants, we re-examined Judge McGarr's ruling that the special grand jury of October 1984 had been validly extended.

In reconsidering the issue of Judge McGarr's extension of the grand jury's term, we stated that "[f]or obvious reasons, disputes over judicial recollection are not customarily resolved by placing the judge on the witness stand." Id. at 1242. We stated that "[w]e assume that our judges are not only honest but are also not unduly suggestible, and therefore that Judge McGarr would not have signed an order stating that he recalled extending the grand jury unless he accurately recalled having done so." Id. We noted that Chief Judge Grady, who succeeded Judge McGarr as chief judge, "recalled not having extended a grand jury that handed down an indictment after the expiration of its eighteen-month term, and the result was the dismissal of the indictment." Id. (emphasis in original). The panel remarked that Judge McGarr's recollection did not concern an event that occurred in the "remote past," and also that "it was consistent with the fact that the grand jury had voted to extend its term." Id. Accordingly, we rejected the defendants' unsupported assertion that the nunc pro tunc order was not...