Sands v. United States, Case No. 16 C 8080

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtAMY J. ST. EVE, District Court Judge
PartiesOTTRIEZ SANDS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Docket NumberCase No. 16 C 8080
Decision Date17 March 2017

OTTRIEZ SANDS, Petitioner,

Case No. 16 C 8080


March 17, 2017


AMY J. ST. EVE, District Court Judge:

On August 12, 2016, pro se Petitioner Ottriez Sands filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 bringing nine separate claims supporting his motion. After Respondent filed its response brief, Sands moved for an extension of time to file his reply brief and also filed a motion to withdraw claims six, eight, and nine that the Court granted on February 9, 2017. Sands' § 2255 motion is now fully briefed. For the following reasons, the Court denies Sands' motion and declines to certify any issues for appeal. 28 U.S.C. §§ 2253(c)(2), 2255.


On April 10, 2013, a grand jury returned an indictment charging Sands with one count of being a felon in possession of a firearm in or affecting commerce in violation of 18 U.S.C. § 922(g)(1). On October 17 and November 6, 2013, the Court held a suppression hearing on Sands' motion to suppress evidence recovered from the search of his vehicle and to quash his arrest, and on November 18, 2013, the Court denied Sands' motion to suppress. On April 28, 2014, Sands proceeded to a jury trial, and, on April 29, 2014, the jury returned a guilty verdict.

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Sands then filed a motion for acquittal or, in the alternative, for a new trial that the Court denied on June 18, 2014. On October 22, 2014, the Court sentenced Sands to 189 months in prison under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). On November 29, 2014, Sands filed a notice of appeal. On appeal, Sands challenged the Court's suppression ruling and asserted that the Court improperly restricted defense counsel's closing argument. On November 4, 2015, the Seventh Circuit affirmed Sands' conviction. See United States v. Sands, 815 F.3d 1057 (7th Cir. 2015).


Chicago Police Officer Perry Williams received information from a registered confidential informant that an individual whom the informant knew personally was selling narcotics out of a gold-toned Toyota Camry in the South Shore neighborhood of Chicago. Based on this tip, Officer Williams drove to the area of 71st Street and Paxton Avenue and saw Sands seated in the driver's seat of a gold-toned Toyota Camry on February 3, 2012. Thereafter, Officer Williams parked his car on 71st Street to conduct surveillance. While Officer Williams was conducting surveillance, Chicago Police Officers Kevin Kilroy, Matthew Darling, and Nathan Gadzik were nearby in a second vehicle that was out of sight of Sands' gold-toned Camry.

About fifteen minutes after arriving at 71st and Paxton, Officer Williams saw Sands engage in a hand-to-hand transaction through the driver's side window of the Camry with another individual, later identified by the Chicago Police as Katon Hunter. Based on his experience and training, Officer Williams believed that he had witnessed a narcotics transaction; informed Officers Kilroy, Darling, and Gadzik that a narcotics transaction had occurred; and

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then directed the officers to arrest Sands. After receiving this information, Officers Kilroy, Darling, and Gadzik drove to 71st and Paxton, at which time Officer Kilroy saw Sands sitting in the driver's seat of the Camry. Officers Darling and Kilroy saw Hunter get out of the Camry from the front passenger seat and run into a nearby Family Dollar store. Thereafter, Office Gadzik pursued Hunter into the Family Dollar store and Officer Kilroy approached the Camry.

Officer Kilroy saw Sands through the Camry's windshield. At that time, Sands was holding a firearm in his right hand and then moved the firearm to the car's open center console. Officer Kilroy then drew his service weapon and ordered Sands to get out of the Camry. Sands did not immediately comply, and thus Officer Kilroy opened the car door and removed Sands from the Camry. Next, Officer Kilroy patted Sands down to ensure that he had no weapons. While another officer detained Sands, Officer Kilroy entered the Camry to locate Sands' firearm. When he opened the center console it appeared empty, but there was a false floor in the console where Officer Kilroy found Sands' firearm, which contained live ammunition, and approximately 10-15 bags of marijuana.


"Relief under [§ 2255] is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). In other words, to obtain relief under § 2255, a petitioner must show that his "sentence was imposed in violation of the Constitution or laws of the United States, the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack." Swanson v. United States, 692 F.3d 708, 714 (7th Cir.

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2012) (citation omitted). Accordingly, a § 2255 motion is not a substitute for a direct appeal nor is it a means by which a defendant may appeal the same claims a second time. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (relief under § 2255 "will not be allowed to do service for an appeal"). 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. See Brown v. Brown, 847 F.3d 502, 518 (7th Cir. 2017). Because Sixth Amendment claims of ineffective assistance of counsel often involve evidence outside of the trial record, such claims may be brought for the first time in a § 2255 motion. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Gaylord v. United States, 829 F.3d 500, 506 (7th Cir. 2016).


I. Ineffective Assistance of Trial Counsel Claims

Construing his pro se § 2255 motion and filings liberally, see Beal v. Beller, 847 F.3d 897, 902 (7th Cir. 2017), Sands argues that his trial counsel provided constitutionally ineffective assistance of counsel. To establish constitutionally ineffective assistance of trial counsel in violation of the Sixth Amendment, Sands must show that (1) his trial attorney's performance "fell below an objective standard of reasonableness," informed by "prevailing professional norms" and (2) "but for counsel's unprofessional errors the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "To reflect the wide range of competent legal strategies and to avoid the pitfalls of

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review in hindsight, [the Court's] review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014) (citation omitted); see also Delatorre, v. United States, 847 F.3d 837, 845 (7th Cir. 2017) (courts apply a "'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance.") (citation omitted). To establish prejudice, it is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding," instead Sands must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Carter v. Butts, 760 F.3d 631, 635 (7th Cir. 2014) (citation omitted).

A. Failure to Object to Hearsay Testimony at Suppression Hearing

Examining his pro se filings liberally, Sands first argues that his trial counsel's failure to object to Officer Williams' suppression hearing hearsay testimony about the confidential informant's tip amounted to ineffective assistance of counsel. In particular, Sands maintains that counsel's failure to object based on hearsay fell below an objective standard of reasonableness and that had counsel objected to this hearsay testimony, the result of suppression hearing would have been different. Sands cannot establish that his trial attorney's performance "fell below an objective standard of reasonableness," informed by "prevailing professional norms" nor can he establish prejudice because it is well-established that hearsay is admissible at suppression hearings. See United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ("At a suppression hearing the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial."). Because hearsay is admissible at suppression

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hearings, Sands' first argument is without merit. See Warren v. Baenen, 712 F.3d 1090, 1104 (7th Cir. 2013) ("Counsel is not ineffective for failing to raise meritless claims.").

B. Failure to Raise Confrontation Clause Rights

Next, Sands asserts that his trial counsel was constitutionally ineffective for failing to raise his Sixth Amendment right to confront the confidential informant at his 2013 suppression hearing or his 2014 trial and that his counsel erred by failing to request a disclosure of the confidential informant's identity. First, the Sixth Amendment right to confrontation is a trial right that does not apply to the same extent at a pretrial suppression hearing. See Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (plurality opinion) ("The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.")...

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