Gray-Bey v. U.S.

• Decision Date: 08 September 1998
• Docket Number: P,GRAY-BE,No. 95-3589,95-3589
• Citation: 156 F.3d 733
• Parties: Anthony J.etitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 733

156 F.3d 733

Anthony J. GRAY-BEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 95-3589.

United States Court of Appeals Seventh Circuit.

Argued Oct. 24, 1997.

Decided Sept. 8, 1998.

Allen E. Shoenberger, Jesse Boggs, Law Student (argued), Loyola University School of Law, Chicago, IL, for Petitioner-Appellant.

William J. Lipscomb (argued), Office of the United States Attorney, Milwaukee, WI, for Respondent-Appellee.

Before COFFEY, EASTERBROOK and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

On February 14, 1990, the defendant-appellant, Anthony Gray-Bey ("Gray-Bey"), was indicted on federal charges of conspiring to distribute cocaine in violation of 21 U.S.C. § 846, possessing cocaine with an intent to distribute in violation of 21 U.S.C. § 841(a)(1), using a telephone to facilitate drug trafficking in violation of 21 U.S.C. § 843(b), and using a firearm during drug trafficking in violation of 18 U.S.C. § 924(c). On August 27, 1990, Gray-Bey was convicted on each of the six counts and sentenced to 256 months incarceration. This Court affirmed the conviction and sentence of Gray-Bey in United States v. Goines, et al., 988 F.2d 750 (7th Cir.1993), on March 17, 1993.

On February 10, 1995, more than four years after the trial and sentencing proceedings in Goines, Goines co-defendant Gray-Bey filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 with the district court, seeking an order vacating his judgment of conviction and sentence. Gray-Bey asserts that his conviction violated his Sixth Amendment right to effective assistance of counsel because his attorney in the fifteen co-defendant trial matter entitled United States v. Goines labored under an actual conflict of interest that adversely affected her performance at trial. ¹ Gray-Bey also filed a supplemental section 2255 petition challenging the sentence imposed. Gray-Bey specifically contends that he was denied effective assistance of counsel because his attorney failed to object to the finding in his presentence report that Gray-Bey was responsible for the entire quantity of cocaine distributed during the course of the conspiracy. The trial judge denied Gray-Bey's petition and he appeals. We affirm.

BACKGROUND

In 1988, officers of the Milwaukee Police Department, together with agents from the Drug Enforcement Agency, began investigating the activities of a drug trafficking operation associated with a gang known as the Brothers of Struggle. The operation was led by Sterling Daniels ("Daniels"), along with his brother, Michael, the defendant-appellant Gray-Bey, and Bernard Goines ("Goines"). At approximately 3:00 a.m. on November 2, 1989, Daniels, Goines, and Daniels's girlfriend, Lexandria Spinks ("Spinks"), drove from Milwaukee to Kankakee, Illinois, to meet Gray-Bey. After arriving in Kankakee, Daniels, Goines and Spinks checked into a hotel. The next morning, the three drove to Gray-Bey's house in Kankakee. That evening, Spinks and Daniels prepared to return to Milwaukee. At that time, Gray-Bey told Spinks that he and his wife were planning to be in Milwaukee later the same week and offered to lend his automobile to Spinks so that she could drive to Milwaukee and use the vehicle until Gray-Bey arrived. Spinks accepted Gray-Bey's offer and drove the automobile to Milwaukee. Upon her arrival, Spinks received a telephone call from Daniels who informed her that someone would pick up the car and that a quantity of Daniels's cocaine was hidden in the trunk. Milwaukee police, who had been observing this drug trafficking operation for over a year, received an anonymous telephone tip the evening that Spinks returned to Milwaukee that a vehicle matching the description of Gray-Bey's automobile would be transporting cocaine in the city. After police located Gray-Bey's car, they requested and received Spinks's consent to search the vehicle and thereafter discovered more than one and one-half kilos of cocaine in the trunk. Spinks was arrested for possession of narcotics and Gray-Bey's car was seized. Spinks provided police with a statement detailing her activities in Kankakee and Milwaukee during the twenty-four hours prior to her arrest. Specifically, she told police that while at Gray-Bey's house, she had observed Daniels, Gray-Bey, and six other men cutting up a kilo of cocaine. After Spinks was released on bond, Milwaukee police officers, based on the information they had received from Spinks, applied for and received a court order for permission to place a wiretap on two telephone lines in Daniels's home. In the meantime, Gray-Bey retained the services of an attorney, Earl Washington ("Washington"), to recover his automobile, which the police had seized at the time of Spinks's arrest and were seeking to gain ownership of through a forfeiture action. Washington also represented Spinks in her drug possession suit.

On January 12, 1990, through the vehicle of the wiretap, police learned that Daniels had arranged to purchase six ounces of cocaine from his former girlfriend, Debra Henry ("Henry"). Daniels and Gray-Bey arrived at Henry's house in Milwaukee, where they were ultimately arrested and charged with conspiring to possess and distribute cocaine and using firearms in relation to a drug trafficking crime.

On February 14, 1990, Gray-Bey was charged with six counts of a thirty-six count indictment. Gray-Bey was represented by Washington during the indictment proceedings, as well as during the automobile forfeiture action. Prior to trial, however, Washington withdrew as Gray-Bey's counsel, and attorney Patricia Bender ("Bender") was substituted.

At trial, the Government revealed that Gray-Bey had implicated himself during the course of the conspiracy in wiretapped telephone conversations with Daniels. For example, Gray-Bey called Daniels on two separate occasions to discuss the status of the six-ounce cocaine sale. In addition, Spinks testified that while at Gray-Bey's house, she had observed Gray-Bey cutting a kilo of cocaine. The transcripts of the police wiretaps of Daniels's telephone lines, which were received in evidence, also revealed that after Gray-Bey learned that Spinks had given a statement to the officers following her arrest, he called Daniels, complaining that both of them had been implicated by Spinks in the Kankakee deal.

Some six months later, on August 27, 1990, Gray-Bey was convicted of conspiring to distribute cocaine, possessing cocaine with an intent to distribute, using a telephone to facilitate drug trafficking, and using a firearm during drug trafficking and sentenced to 256 months incarceration. In determining Gray-Bey's sentence, the trial court relied on a presentence report stating that Gray-Bey, in furtherance of the conspiracy, was responsible for distributing between fifteen and fifty kilos of cocaine.

On February 10, 1995, Gray-Bey filed a petition seeking an order vacating his judgment of conviction and sentence, pursuant to 28 U.S.C. § 2255. The denial of Gray-Bey's petition is the basis of his most recent appeal. In his petition, Gray-Bey asserted that his conviction violated his Sixth Amendment right to effective assistance, alleging that his counsel, Bender, labored under an actual conflict of interest that adversely affected her performance at trial. Gray-Bey contends that because his attorney was associated with or in partnership with his former attorney, Washington, his attorney's (Bender's) representation of him was orchestrated by Washington and thus Bender labored under a conflict of interest due to Washington's prior representation of Spinks. In an affidavit filed with the trial court, Bender affirmed that she was neither a partner of nor associated with Washington during the trial and that her representation of Gray-Bey was free of any conflict. Specifically, Bender alleged:

4. That at no time did affiant ever represent codefendants Lexandria Spinx [sic], or Sterling Daniels.

5. That affiant's representation of Gray was at his request and consent.

6. That affiant was not an associate or partner of attorney Earl Washington, during the course of the trial; that the affiant shared office space with attorney Washington during the appellate preparation; that Gray was so advised.

7. That affiant perceived no circumstances to suggest a conflict of interest which would render Gray ineffective assistance of counsel, on either the trial or appellate level.

8. That affiant was totally loyal to the representation of Anthony Gray, without interest as to any other co-defendant or unindicted coconspirator.

9. That affiant and defendant conferred extensively in regards to trial strategy and issues to be raised on appeal; that at no time did Gray ever express any dissatisfaction with affiant's representation; that affiant recently became aware of Gray's allegations of conflict and ineffective assistance.

On September 28, 1995, the trial court issued an order denying Gray-Bey's petition, finding that Gray-Bey had failed to adduce facts sufficient to support his contention that Bender labored under a conflict of interest. The court ruled that "[t]he record does not allow the court to assess either the relationship of Ms. Bender and Mr. Washington or the involvement of Mr. Washington in Mr. Gray-Bey's defense." The defendant also filed a motion to supplement his section 2255 petition, contending that Bender's failure to object to the Goines court's consideration of the presentence report caused the Goines court to overstate the quantity of cocaine that Gray-Bey was responsible for within the conspiracy. On September 28, 1995, the trial judge denied Gray-Bey's petition.

ISSUES

On appeal, the defendant contends that the trial court erred in finding that Gray-Bey failed to set forth facts sufficient to demonstrate a causal connection between an alleged deficiency in his trial counsel's performance and his counsel's alleged conflict of interest. The...