Williams v. U.S.
| Decision Date | 31 May 2011 |
| Docket Number | Arising out of 3:08-CR-72(01) RM,CAUSE NO. 3:10-CV-531 RM |
| Parties | JEROME WILLIAMS, Petitioner v. UNITED STATES OF AMERICA, Respondent |
| Court | U.S. District Court — Northern District of Indiana |
On November 5, 2008, a jury found Jerome Williams guilty of distribution of 50 grams or more of cocaine base (Count 1), in violation of 21 U.S.C. § 841(a)(1), and possessing a firearm in furtherance of a drug trafficking crime (Count 2), in violation of 18 U.S.C. § 924(c). On April 3, 2004, the court imposed a term of life imprisonment on Count 1 and a term of 60 months on Count 2, with those terms to be served consecutively, ten years of supervised release, and a $200 special assessment. The court of appeals affirmed Mr. Williams' conviction and sentence, United States v. Williams, 584 F.3d 714 (7th Cir. 2009), and the Supreme Court denied his petition for writ of certiorari on March 29, 2010. Mr. Williams filed a timely petition pursuant to 28 U.S.C. § 2255 asking that his sentence be vacated and the charges against him be dismissed. The government filed its response and Mr. Williams his reply. Mr. Williams has also filed a motion for appointment of counsel, a motion to proceed in forma pauperis, and a motion for summary judgment and immediate release.
For the reasons discussed in this opiniong, the court denies Mr. Williams' § 2255 petition in part, grants his motion for appointment of counsel, and denies his other two motions. Further proceedings will be scheduled under separate order.
Mr. Williams challenges his conviction and sentence based on his claims that Attorney F. Jay Stevens provided ineffective assistance before and during trial and Attorney David Jones provided ineffective assistance at sentencing and on appeal. "To prevail on his ineffective assistance of counsel claim, [Mr. Williams] must show that [his] counsel's performance was deficient and that the deficient performance prejudiced his defense." United States v. Lathrop, 634 F.3d 931, 937 (7th Cir. 2011). "In order to satisfy the prejudice prong, [Mr. Williams] must establish that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Taylor v. Bradley, 448 F.3d 942, 948 (7th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984)).
A court's "review of the attorney's performance is 'highly deferential' and reflects 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Koons v. United States,___ F.3d___ , 2011 WL 1584998, at *3 (7th Cir. Apr. 28, 2011) (quoting Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004)). "The important inquiry is 'whether counsel's conduct soundermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009) (quoting Strickland v. Washington, 466 U.S. at 686)).
The court addresses Mr. Williams' claims against his two attorneys separately.
Mr. Williams claims his trial counsel, F. Jay Stevens, was ineffective because Mr. Stevens didn't: (1) inform Mr. Williams that he'd be facing a mandatory life sentence if he went to trial; (2) object or move for dismissal based on the government's grouping (in Count 1) of multiple violations that amounted to 50 grams of cocaine base; (3) object to the lack of drug test results and a laboratory report at trial; (4) investigate and call Demetrius Williams, Anthony Martin, Kelli Liester, Tajuanna Norris, Regina Morrell, Charles Gilliam, or Peggy Elzey as defense witnesses; (5) move for dismissal on the grounds that (i) there was no probable cause for Mr. Williams' arrest that would give this court subject matter jurisdiction, (ii) the informants weren't taken before a magistrate for a reliability determination, and (iii) the agent didn't affirm "the dealing of any drugs to anyone at anytime;" (6) object to the government's failure to collect potentially exculpatory evidence or preserve evidence that was the basis for the prosecution; (7) move for dismissal of the indictment based on vindictive prosecution and retaliation by the government; (8) move to suppress the government's use of falseand perjured testimony at trial; and (9) make a verbal motion for judgment of acquittal at the close of the government's case-in-chief.
Mr. Williams first claims he received ineffective assistance when Mr. Stevens didn't review the presentence investigation report before trial and advise Mr. Williams that if he proceeded to trial and was convicted, he could receive a life sentence. Mr. Williams says that had counsel informed him that going to trial could result in a life sentence, he would have accepted the government's 15-year offer. In support, he submits a copy of an unfiled plea agreement (signed by Assistant United States Attorney Donald Schmid, but not by Mr. Williams or his counsel) that contains the following language: "The government and the defendant agree, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, to make a binding recommendation for a sentence of 15 years imprisonment." Petr. Memo., Exh. A, at ¶ 9(h). Mr. Williams summarily concludes, quoting from Strickland v. Washington, 466 U.S. at 694, that "there is a reasonable probably that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Petr. Memo., at 14. The court can't agree.
Even if the court assumed that counsel's calculation of Mr. Williams' potential sentence was not undertaken in good faith, but see United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999) (); United States v. Barnes, 83 F.3d 934, 940 (7th Cir. 1996) (), Mr. Williams still must establish prejudice by showing "through objective evidence that there is a reasonable probability that, but for counsel's inadequate performance, he would have accepted the government's offer." Paters v. United States, 159 F.3d 1043, 1047 (7th Cir. 1998). Mr. Williams hasn't provided that evidence. He hasn't alleged or argued that counsel advised him to reject the plea offer; he doesn't claim that counsel insisted on proceeding to trial; he hasn't alleged or provided support for a finding that the court would have accepted a plea agreement containing a binding recommendation. Most importantly, Mr. Williams hasn't stated in any of the three affidavits he submitted in support of his petition that he would have entered into a plea agreement but for his attorney's advice; instead, Mr. Williams' affidavits (like the remaining claims of his § 2255 petition) contain only his claims of innocence and allegations about various conspiracies against him. Mr. Williams hasn't established prejudice and so can't prevail on his claim of ineffective assistance of counsel relating to the prediction of his sentence.
Mr. Williams next claims Mr. Stevens was ineffective for not objecting to the government's failure to collect, test, and preserve exculpatory evidence. Mr. Williams contends the government "put on unreliable witnesses to testify that the movant sold them crack, powder, and fake cocaine, . . . the alleged substance that could undoubtedly proved the movant's innocents." Petr. Memo., at 52. Mr. Williams maintains that because the government didn't produce a laboratory report or drug analysis results, there was no probable cause to charge and convict him. Mr. Williams argues, too, that the court "lacked jurisdiction because without a proper foundation of a laboratory report being made by a chemist, the substance has not been found to have violated the laws of the United States." Petr. Memo., at 26. Mr. Williams concludes that "if it were not for counsel's unprofessional deficient performance the outcome of the trial would have been different." Petr. Memo., at 54.
The government responds that no tests were performed or reports issued because no physical evidence was gathered. The government represents that it didn't undertake any controlled buys or recover any guns, and no physical evidence, exculpatory or otherwise, was collected, and so, the government says, it had no obligation to obtain or produce laboratory or drug test reports. See Resp., at 16-18; 25-26. The government explains that it based its case on testimony from many people who had bought drugs from Mr. Williams and/or saw Mr. Williams with firearms during those drug transactions.
Mr. Williams has presented nothing to challenge the reasons offered by the government regarding the lack of physical evidence; he merely offers his opinion that the government didn't "act in normal practice when it did not gather potentially useful evidence" and claims that he "has a constitutional privilege to have the exculpatory evidence in his hand." Reply, at 13. Mr. Williams is mistaken. "[T]he government's duty to preserve evidence does not impose a duty to obtain evidence." Birdsong v. Cotton, No. 1:05-CV-283, 2009 WL 126709, at *3 (S.D. Ind. Jan. 20, 2009). "[T]he government has no duty to produce evidence outside of its control, and it is not responsible for the...
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