Golden v. U.S., 2:97-CV-434-RL.
| Decision Date | 20 January 1999 |
| Docket Number | No. 2:97-CV-434-RL.,2:97-CV-434-RL. |
| Parties | Stephen A. GOLDEN, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Northern District of Indiana |
Stephen A. Golden, pro se.
Andrew B. Baker, Jr., U.S. Attorney's Office, Dyer, IN, for defendant.
This matter is before the Court on a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody, filed by Stephen Golden ("Golden") on December 23, 1997. For the reasons set forth below, the Court DENIES Golden's section 2255 motion. The Clerk is ORDERED to DISMISS this case with prejudice.
The Seventh Circuit summarized the facts of this case in United States v. Golden, 102 F.3d 936, 939-40 (7th Cir.1996).
From approximately November 1993 until August 3, 1994, Golden was the head of an operation which distributed crack in Hammond, Indiana and Calumet City, Illinois. Initially, Golden himself distributed the crack from his apartment at 5495 Hyslop Street in Hammond, where he lived with his wife Seniqueca, in October and November 1993. He then employed other tenants, twenty-four-year-old Joseph Rodriguez ("Rodriguez") and Rodriguez's girlfriend, seventeen-year-old Reva Nieto ("Reva"), to assist in distribution at the Hyslop Street building. In November 1993, Golden and Seniqueca moved to a house at 6039 Jackson Street in Hammond. Some distribution occurred at the Jackson Street house, but it mainly continued at the Hyslop Street building. Golden expanded the business. Among his new employees were Reva's sixteen-year-old brother, Walter Nieto ("Nieto"), sixteen-year-old Jimmy Flynn ("Flynn"), and fifteen-year-old Carlos Alfaro ("Alfaro").
Golden traveled to Chicago, Illinois, where he bought crack in golf-ball-sized chunks. He brought the chunks back to Hammond, broke them into small pieces approximately 0.1 grams or more each, and packaged the pieces in plastic bags where he or his workers sold for $10 apiece ("dime bags"). His workers received large packages containing many dime bags and, in return, delivered money to Golden either at the Hyslop Street building or at the Jackson Street house. Evidence adduced at trial showed that during its existence, the conspiracy distributed between ten and thirty grams of crack daily.
In December 1993, Rodriguez bought two Lorcin .380 semi-automatic pistols from East Chicago, Indiana for Golden. Rodriguez, Seniqueca, and Nieto picked up the guns while Golden waited in a second car. On January 20, 1994, an informant and an undercover Hammond police officer bought a total of three bags of crack from Flynn at the Hyslop Street building. In early February 1994, Golden moved the crack operation from the Hyslop Street building to the Jackson Street house, where police and agents from the Bureau of Alcohol, Tobacco and Firearms ("ATF") conducted surveillance. On February 1, 1994, Hammond police officers picked up the trash behind the Jackson Street house. The police found a record Seniqueca kept for Golden which tracked an average day's drug sales by the various workers. The record indicated who purchased drugs, how much they had paid, and the time of day of the purchases. The police also recovered an empty box for a Lorcin .380, an empty box for .380 ammunition, and two letters from Seniqueca to Golden which referred to the crack operation.
On February 5, 1994, Rodriguez gave the Hammond police a statement about Golden's crack business. The police subsequently obtained a warrant to search the Jackson Street house. Hammond police officers and ATF special agents executed the warrant on the evening of February 11, 1994. The officers arrested Alfaro, who was carrying two dime bags, $1,310, and a Lorcin .380 (with serial numbers matching the box found in the trash on February 1). In the house, the officers found boxes of .380 ammunition, a box for a Lorcin .380 (with different serial numbers than the gun Alfaro was carrying), a package with thirty-one dime bags containing 4.32 grams of crack, pagers, and plastic baggies.
Following the February 11 raid, Golden moved the operation to Calumet City, Illinois, for several weeks, but eventually moved it back to the Jackson Street house in March or April of 1994. On July 29, 1994, one of Golden's regular customers, Debra Darge, was arrested after buying crack at the Jackson Street house. Darge agreed to cooperate with the police. On August 1, 1994, Darge made a controlled purchase of four dime bags from Golden. After that purchase and after further surveillance of the Jackson Street house, a second search warrant was executed on August 3, 1994. The police recovered $900 and one dime bag, and Golden and Seniqueca were both arrested.
Robert Lewis was appointed to represent Golden. On August 18, 1994, a federal grand jury returned a twelve-count indictment against Golden and Seniqueca charging them with participating in a conspiracy to distribute cocaine base and with committing various other drug-related offenses.1 On September 14, 1994, Lewis was allowed to withdraw because he represented a potential government witness. R. Cordell Funk was appointed to replace Lewis. Golden's trial began on December 5, 1994. On the second day of trial, Golden complained to the district court about Funk and requested new counsel or, alternatively, asked for a thirty-day continuance in order to obtain new or "better" counsel. The district court denied this motion. On December 8, 1994, Golden was found guilty of Counts 1 and 4-11 in separate verdicts.2 Twenty days after Golden was found guilty, he filed a pro se motion for new trial, alleging ineffective assistance of counsel by Funk. Funk filed a motion to withdraw on January 6, 1995, and the court granted the motion on January 31, 1995. For the third time, the district court appointed new counsel, Jerry L. Peteet. On April 19, 1995, Peteet filed a second motion for a new trial on Golden's behalf, reiterating Golden's claims of ineffective assistance by Funk and alleging unspecified newly-discovered evidence. On May 1, 1995, the district court denied the motion. On February 1996, Golden, represented by Peteet, was sentenced to life imprisonment and a ten-year term of supervised release. The court also imposed a sixty-month consecutive term on the firearm charge.
Id. at 939-40. Soon after, Golden filed his appeal. The Seventh Circuit affirmed the judgment of conviction on Counts 1, 4, 5, and 7-11. Id. at 948. The Seventh Circuit reversed the judgment of conviction on Count 6, using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. section 924(c). Id. Almost one year later, Golden filed the instant section 2255 motion, claiming ineffective assistance of counsel.
Golden presents four ineffective assistance of counsel claims in his section 2255 motion. First, he asserts that his trial counsel, Funk, failed to properly advise him of the plea agreement terms offered by the Government. Second, Golden maintains that sentencing and appellate counsel, Peteet, failed to object to an upward adjustment for his role in the offenses charged. Third, he insists that Peteet failed to argue the Government's failure to meet its burden of proof regarding his involvement with narcotics. Finally, Golden claims that he was deprived of a reasonable opportunity to perfect and submit an effective appellate brief.
Claims of ineffective assistance of counsel are governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel's performance fell well below the standard of the Sixth Amendment. Id. at 687, 104 S.Ct. 2052. Specifically, the defendant must show that counsel's performance "`fell below the objective standard of reasonableness' and `outside the wide range of professionally competent assistance.'" Barker v. United States, 7 F.3d 629, 633 (7th Cir.1993) (quoting Strickland, 466 U.S. at 668, 690, 104 S.Ct. 2052). When considering the performance prong, a court's "scrutiny of counsel's performance must be highly deferential," and the court "must indulge a strong presumption that counsel's conduct" was constitutionally adequate. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Under the second prong, prejudice, a defendant must show Id. at 694, 104 S.Ct. 2052. A court can resolve an ineffective assistance claim by deciding either Strickland prong against the defendant, and the court need not consider performance before considering prejudice.
Golden argues that but for the ineffective assistance of his counsel, he would have accepted the plea agreement offered by the Government. Though the Seventh Circuit generally addressed trial counsel's assistance on appeal, Golden, 102 F.3d at 943 (), Golden raises specific errors in a letter by trial counsel that were not raised on appeal. As the Court considers Golden's argument, it should consider whether Golden establishes "(1) through objective evidence that (2) there is a reasonable probability that he would have accepted the alleged proposed plea agreement absent defense counsel's advice." Paters v. United States, 159 F.3d 1043, 1046 (7th Cir.1998) (citing Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir.1991)); Johnson v. Duckworth, 793 F.2d 898, 902 n. 3 (7th Cir.1986)(doubting defendant's ability to establish prejudice because he "does not argue or allege ... that there is a reasonable probability that, but for counsel's errors, he would have accepted the plea agreement").
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