US v. Jackson, 95 C 4376.

• Decision Date: 15 April 1996
• Docket Number: No. 95 C 4376.,95 C 4376.
• Citation: 930 F. Supp. 1228
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES of America v. Ronald JACKSON.

930 F. Supp. 1228

UNITED STATES of America v. Ronald JACKSON.

No. 95 C 4376.

United States District Court, N.D. Illinois, Eastern Division.

April 15, 1996.

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Z. Scott, Asst. U.S. Atty., Chicago, IL, for plaintiff.

Ronald E. Jackson, Memphis, TN, pro se.

MEMORANDUM OPINION AND ORDER

ASPEN, Chief Judge:

Pursuant to 28 U.S.C. § 2255, Defendant Ronald Jackson moves pro se to vacate the convictions, or alternatively to amend the sentences, arising from his cocaine distribution activities. Jackson maintains that his trial attorney rendered ineffective assistance of counsel in violation of the Sixth Amendment. For the reasons set forth below, we deny the motion.

I. Background

After a jury trial in 1990 on a multi-count, multi-defendant indictment, the defendant was found guilty of conspiring to distribute cocaine and to possess cocaine with the intent to distribute (Count 1), and for a separate count of possession of cocaine with the intent to distribute (Count 5). 21 U.S.C. §§ 841, 846. The evidence at Jackson's trial established that the defendant participated in a major cocaine distribution operation captained by Mario Lloyd. Lloyd's operation reaped revenues of $20-30 million by distributing several hundred kilograms of cocaine throughout the Chicago and Milwaukee areas.

According to the trial testimony, from September 1987 to mid-1988, Jackson worked directly for Lloyd distributing drugs and handling cash. During this period, Billy Cannon, a Milwaukee drug dealer, and two of Cannon's workers, Joseph Grandsberry and Anthony Turnage, regularly purchased cocaine from Lloyd's drug ring, traveling to Chicago on average several times per week and purchasing one or two-kilogram quantities of cocaine each time. Cannon testified that Jackson was present at two or three of his early purchases from Lloyd. Tr. at 128-30, 125-36.¹ Grandsberry and Turnage also testified that Jackson had personally delivered cocaine to them in Chicago on several occasions. In addition, Troy Shelton testified that in April 1988, Jackson had supplied cocaine to Gregory Hawkins, who was one of Shelton's cohorts. Finally, Shelton testified that Jackson eventually played a new role in the conspiracy: Jackson became a distributor himself, and purchased four to six kilograms total during Summer 1988 from Shelton and Hawkins, who had since filled Jackson's role in Lloyd's operation.

After trial, the defendant's attorney, Joseph Miller, submitted an objection to the portion of the presentence report (PSR) that held Jackson accountable for the distribution of fifty kilograms of cocaine. We rejected Miller's argument that Jackson could only reasonably foresee the distribution of the eight or fifteen kilograms that the defendant personally handled, and we refused to consider Jackson a minor participant in the conspiracy, U.S.S.G. § 3B1.2. Ultimately, we sentenced the defendant to 260 months imprisonment.

Soon after trial, Jackson joined codefendant Lloyd's pro se motion under Federal Rule of Criminal Procedure 33 for a new trial because of newly discovered evidence. Specifically, the defendant asserted that Shelton had approached Jackson in prison and admitted to falsifying his trial testimony. In support of their claim, the defendants submitted an affidavit by Jackson and a handwritten note that Jackson had allegedly acquired from Shelton. We denied the motion. United States v. Lloyd, No. 89 CR 427 (memorandum opinion of Apr. 5, 1992).

On direct appeal, the Seventh Circuit affirmed the conviction, sentence, and the denial of the Rule 33 motion. United States v. Walker, 25 F.3d 540 (7th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 531, 130 L.Ed.2d 434 (1994). However, prior to hearing the appeal on the merits, the appellate court discharged Miller as the defendant's attorney.²

In support of the instant motion, Jackson argues that Miller suffered from alcoholism and consequently committed a series of errors and omissions at trial, rendering Miller's representation constitutionally infirm. Jackson has submitted a report by the Illinois Attorney Registration and Disciplinary Commission (ARDC) disciplining Miller for several ethical violations, including the failure to properly perfect Jackson's notice of appeal. According to this report, Miller ascribed his conduct to alcoholism and severe stress arising from rehabilitation efforts. See Govt.Br., Ex. A, at 6-10. In addition, the report reveals that Miller testified to intermittent heavy drinking from 1987 through 1990. See id. at 6-9.

As best as we can discern, Jackson's motion comprises the following claims:

1. Miller's alcoholism so impaired the defense as to constitute no representation at all.

2. Miller inadequately prepared for trial by failing to obtain statements from, and grand jury testimony transcripts of, the government's witnesses.

3. Miller inadequately cross-examined government witnesses by failing to sufficiently impeach their testimony regarding Jackson's participation in Lloyd's drug operation. Specifically,

a. Miller failed to investigate and obtain documentation relating to Jackson's address in order to impeach testimony that several drug purchases took place at Jackson's residence.

b. Miller did not cross-examine three government witnesses on alleged contradictions between their trial testimony and their grand jury testimony.

c. Miller did not adequately cross-examine Shelton on an alleged contradiction between his testimony and the indictment's allegations.

4. Miller inadequately supported the objection to the PSR.

5. Miller failed to investigate Shelton's alleged jailhouse recantation or assist Jackson with the Rule 33 motion.

6. Miller's discharge from representing Jackson on appeal undermined the defendant's effort to overturn the denial of the Rule 33 motion.

We address the claims after examining whether Jackson has procedurally defaulted them.

II. Discussion

A. Procedural Default

Generally, a § 2255 movant may not raise a claim that the defendant failed to raise on direct appeal unless he can show "both good cause for his failure ... and actual prejudice from the newly-asserted errors." Bond v. United States, 1 F.3d 631, 634 (7th Cir.1993). Consistent with this general rule, a movant may raise a claim of ineffective assistance of counsel for the first time in § 2255 proceedings if the defendant either (1) was represented by the same attorney at trial and on direct appeal, or (2) supports his claim with evidence extrinsic to the trial record. Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993). In Jackson's case, it is undisputed that the defendant failed to raise an ineffectiveness of counsel claim on direct appeal, and that Miller did not represent the defendant on appeal. Consequently, Jackson's claims are barred unless based on extrinsic evidence.

Claims of ineffectiveness of counsel often rely on extrinsic evidence, United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991); see United States v. Fish, 34 F.3d 488, 491 n. 1 (7th Cir.1994) (noting appellate court's reluctance to decide ineffective counsel claims on direct review because claims generally involve extrinsic evidence), and thus a defendant may properly postpone raising an ineffectiveness claim until a § 2255 motion so long as he reasonably presumes that the claim calls for the development of facts outside the trial record, see Guinan, 6 F.3d at 472. In the instant case, Jackson contends that he never raised ineffectiveness of counsel on direct appeal because he relies upon one piece of extrinsic evidence: the ARDC report disciplining Miller for several ethical violations due to alcoholism. Although the government does not contest that this report constitutes extrinsic evidence, see Bond, 1 F.3d at 636 (finding ARDC report extrinsic evidence), the government responds that this report is only relevant to Jackson's failure to perfect the appeal. The defendant's remaining claims, the government argues, merely ask us to assess Miller's performance from the trial record.

Although in some sense accurate, the government's position takes too narrow a view of Jackson's pro se motion. Jackson attempts to link Miller's alcoholism to several alleged instances of ineffective assistance. By assessing the record in light of Miller's drinking problem, Jackson hopes to rebut the strong presumption of attorney competence and convince the Court that Miller's alleged errors were uninformed blunders rather than strategic mistakes. See Taglia, 922 F.2d at 417-18 (admonishing that apparent errors normally should be interpreted as failed tactical moves). Consequently, the ARDC report is relevant to Jackson's more specific allegations of ineffective representation.³ In fact, prior to Jackson's appeal, the government successfully resisted the defendant's efforts to enter the report into the record by arguing that claims alleging ineffectiveness of counsel are more appropriately dealt with in collateral proceedings. Invoking a procedural bar at this stage would trap the defendant in a Catch-22. See Guinan, 6 F.3d at 471-72.⁴

B. Ineffectiveness of Counsel

In order to establish ineffective assistance at trial, a defendant must demonstrate both that (1) his attorney's performance fell "below an objective standard of reasonableness" that is "outside the wide range of professionally competent assistance," and (2) "but for counsel's unprofessional efforts, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 690, 104 S.Ct. 2052, 2064-65, 2066, 80 L.Ed.2d 674 (1984). In assessing counsel's performance, "every indulgence will be given to the possibility that a seeming lapse or error by defense counsel was in fact a tactical move, flawed only in hindsight." Taglia, 922 F.2d at 417-18. In addressing prejudice, "it is not enough for the defendant to show that...