Nichols v. U.S., 92-3137

• Decision Date: 07 July 1994
• Docket Number: No. 92-3137,92-3137
• Parties: NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Sherman NICHOLS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1216

28 F.3d 1216

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Sherman NICHOLS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 92-3137.

United States Court of Appeals, Seventh Circuit.

Argued June 14, 1994.

Decided July 7, 1994.

Before ESCHBACH, COFFEY and FLAUM, Circuit Judges.

ORDER

Background

Petitioner Sherman Nichols appeals from the denial of his motion to set aside judgment pursuant to 28 U.S.C. Sec. 2255, alleging ineffective assistance of counsel for failure to interview an exculpatory witness.

A jury convicted Nichols of the offenses of a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1), and possession of cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and use of a firearm in drug trafficking in violation of 18 U.S.C. Sec. 924(c). United States v. Nichols, 740 F.Supp. 1332 (N.D.Ill.1990). The conviction was affirmed on appeal. United States v. Nichols, 937 F.2d 1257 (7th Cir.1991), cert. denied, 112 S.Ct. 989 (1992).

The Sec. 2255 petition ¹ stated that Nichols told his attorney "on several occasions both orally and in writing" about a witness named Israel Wallace, a/k/a Donald Thomas, who lived in the apartment where Nichols was arrested. The petition alleged that Wallace "had appeared in the courtroom on the day of trial in the event counsel wanted to call him." ² Nichols stated that Wallace would "provide exculpatory evidence" and provide "the names and possible locations of other occurrence witnesses."

The government filed an affidavit of trial counsel, who reported that he met with Nichols six times at the prison and spoke to him on the telephone once or twice a week. Counsel stated further that, while Nichols had provided him with the name of Wallace, Nichols did not know where Wallace currently lived. Nichols never mentioned any other people, and the police reports contained no information about those persons. Counsel stated further that he had hired a private investigator prior to trial, and he accompanied the investigator to the building where Nichols was arrested in order to find any witnesses. Two residences of the building said they did not know about the arrest. Another resident remembered the arrest; she was called as a defense witness at trial. She did not know, however, the names of any other occupants of the apartment where the arrest occurred, and did not know where those people were currently living. Finally, counsel added: "Nichols never told me, during either trial, that a witness was sitting in the courtroom, or had arrived at the courthouse."

In response, Nicholas filed an affidavit from Wallace, then an inmate at a different prison. Wallace stated that it was his apartment that the police raided at the time of Nichols' arrest and that while 12 people were present in the apartment, the police arrested only Nichols because Nichols had his parole papers on his person. Wallace further stated, that the police found the gun and drugs in his bedroom while Nichols was in the living room. He also recounted that "at the time of the incident I informed the police that the apartment was mine and the confiscated guns and drugs were my property." At the "time of Mr. Nichols' trial," Wallace stated that he went to the courthouse, but that Nichols' defense counsel "was not there" and that he later telephoned the defense counsel and "spoke with [him] briefly." Wallace stated that after the defense counsel learned that he had a criminal record, he informed Wallace that he "would not be any good to Mr. Nichols."

Nichols also filed his own affidavit, where he reiterated that, contrary to his attorney's claim, he did provide the attorney with a list of names of people who were present in the apartment at the time of the arrest and that the attorney never met with him in prison. Additionally, Nichols claimed that a man named Jeffrey Stirling brought Wallace to the courthouse to meet with defense counsel.

Discussion

Nichols contends that his trial counsel was constitutionally ineffective because he failed to interview Wallace. See Strickland v. Washington, 466 U.S. 668, 689 (1984). To prove that his Sixth Amendment right to counsel has been violated, a defendant must show that deficiencies in his attorney's conduct actually prejudiced him by casting doubt on the reliability of the trial's outcome. United States v. Berkowitz, 927 F.2d 1376, 1381 (7th Cir.1991) (citations omitted). A defendant's burden in raising a claim of ineffective assistance of counsel is a heavy one, Sullivan v. Fairman, 819 F.2d 1382, 1390 (7th Cir.1987), and a strong presumption exists that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689.

Effective assistance of counsel requires pretrial preparation and investigation. United States v. Weaver, 882 F.2d 1128, 1138 (7th Cir.), cert. denied, 493 U.S. 968 (1989). Nichols argues his...