Summary
affirming appellant's conviction despite claim of sleeping jurors where appellant showed no affect on outcome of trial
Summary of this case from Commonwealth v. LawsonOpinion
No. 00 CV 0423 (95 CR 443-2)
February 8, 2000
MEMORANDUM OPINION AND ORDER
Following a jury trial, defendant Philip Fiore ("Fiore") was found guilty of racketeering, conspiracy, and extortion pursuant to 18 U.S.C. § 894, 1962(d). Defendant was sentenced by this court to a term of 120 months on each count to run concurrently, followed by three years supervised release on each count to also run concurrently. Defendant's conviction and sentence was affirmed on direct appeal. See United States v. Fiore, 178 F.3d 917 (7th Cir. 1999). Defendant did not petition for writ of certiorari to the United States Supreme Court. Defendant was represented on direct appeal by the same counsel who represented him at trial. Defendant has now filed his present motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. For the following reasons, defendant's § 2255 motion to vacate, set aside, or correct his sentence is hereby DENIED.
DISCUSSION
Defendant's § 2255 motion raises only one claim for relief, ineffective assistance of counsel. Defendant claims his counsel was ineffective for the following reasons: (1) failed to quiz the prospective jurors about bias regarding the gang affiliation, the "Crew," of the defendant; (2) disregarded the court's instruction not to present the affirmative defense of coercion; (3) incorrectly advised defendant to take the stand and provide testimony he knew or should have know would be perjury; (4) failed to object when two of the jurors were sleeping during trial; (5) failed to object to the prosecution's blown-up picture of defendant when it was much larger than other so-called members of the "Crew;" (6) made inflammatory closing remarks by calling government witnesses "stool pigeons;" (7) refused to poll the jurors regarding their guilty findings in light of fact one juror was crying and upset; (8) failed to timely move for separation from co-defendant during appellate review; (9) failed to properly present case on appeal regarding the threat, as perceived from the defendant, when he was allegedly confronted by an armed co-defendant; and (10) cited case law that was previously decided in the prosecution's favor. Defendant claims that the cumulative effect of these errors and omissions caused an unfair trial.
Defendant has requested an evidentiary hearing, but the right to an evidentiary hearing does not follow automatically when a defendant files a motion pursuant to § 2255. Patel v. United States, 19 F.3d 1231, 1234 (7th Cir. 1994). Rather, a district court must grant a hearing unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . ." Id. at 1235. Thus, this court will examine the record and the ineffective assistance of counsel issue raised by defendant's motion to determine if an evidentiary hearing is necessary in this case.
When issues raised in a § 2255 motion have not been raised on direct appeal, the defendant must establish (1) cause for the failure and (2) that prejudice would result. Precin v. United States, 23 F.3d 1215, 1217 (7th Cir. 1994) (citing Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). Ineffective assistance of counsel may, however, serve as cause for a procedural default. Precin, 23 F.3d at 1218. Defendant's claim for relief is based on alleged ineffective assistance of counsel at trial and on appeal. Therefore, cause for failure exists. Thus, the claims of ineffective assistance of counsel at each level in defendant's underlying criminal case will be discussed separately below.
I. Alleged Ineffective Assistance of Counsel at Trial
To succeed on an ineffective assistance of counsel claim, it must be shown both that counsel's performance was deficient and that the deficient performance prejudiced the defendant.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Buggs v. United States, 153 F.3d 439, 442 (7th Cir. 1998); Melvin v. United States, 78 F.3d 327, 329 (7th Cir. 1996). A defendant bears a heavy burden in establishing an ineffective assistance of counsel claim, Dugan v. United States, 18 F.3d 460, 463 (7th Cir. 1994), because "counsel is presumed effective."Arrango-Alverez v. United States, 134 F.3d 888, 892 (7th Cir. 1998). To show that a counsel's performance was deficient, a defendant must identify to the court the specific acts or omissions forming the basis for his claim. Id. A court must then determine "whether, under all the circumstances, these alleged acts or omissions were made outside the wide range of professionally competent assistance." Id. As to the prejudice prong, a defendant must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Thus, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. at 2067.
This court will address the prejudice component first, since it disposes of defendant's claims as to alleged ineffective assistance of counsel at trial. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 ("[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant. . . ."); United States v. Depoister, 116 F.3d 292, 294 (7th Cir. 1997). Although defendant makes many claims regarding the inadequacy of his counsel's performance at trial, he completely fails to establish that there is a reasonable probability that, but for his counsel's alleged ineffectiveness, he would have bee found not guilty of the crimes charged. Defendant accuses his trial counsel of failing to quiz the prospective jurors about bias regarding the gang affiliation, the "Crew," of the defendant, disregarding the court's instruction not to present the affirmative defense of coercion, incorrectly advising defendant to take the stand and provide testimony he knew or should have know would be perjury, failing to object when two of the jurors were sleeping during trial, failing to object to the prosecution's blown-up picture of defendant when it was much larger than other so-called members of the "Crew," making inflammatory closing remarks by calling government witnesses "stool pigeons," and refusing to poll the jurors regarding their guilty findings in light of fact one juror was crying and upset. Defendant, however, provides no indication of how these alleged errors or omissions affected the outcome of the trial. More importantly, defendant has not demonstrated that, but for these alleged errors, he would not have been found guilty of the crimes charged. In fact, defendant's petition is devoid of even an assertion or conclusory allegation that he suffered prejudiced by his trial counsel's alleged deficient performance.
Nevertheless, the evidence against defendant at trial was overwhelming. In deciding whether defendant suffered any prejudice as a result of his counsel's performance, a court should also look to the strength of the evidence. Strickland, 466 U.S. at 696, 104 S.Ct. 2052. In this case, the evidence at trial proved that defendant was part of the conspiracy as early as 1983. As part of the conspiracy, defendant engaged in juice loan activity. The Government presented the testimony of co-conspirator and Government witness, Philip Tolomeo, who was a member of the conspiracy. Philip Tolomeo testified that he trained defendant and ultimately had to answer to the defendant regarding his own juice loan collection activity. In addition, during trial, the Government presented several victims of the conspiracy who identified defendant as the individuals the victims borrowed money under a juice loan. These victims further testified that they paid off their juice loans to the defendant. Thus, there was ample evidence which demonstrated that defendant was guilty of the crimes charged.
In conclusion, defendant has failed to show that there is a reasonable probability that, but for the alleged deficient performance of his counsel, he would not have been convicted of the crimes charged. In fact, defendant's petition is devoid of any evidence that he was prejudiced by his counsel's alleged deficient performance. Besides the Seventh Circuit has consistently held that conclusory allegations about how defendant was prejudice do not satisfy Strickland's prejudice component.See United States v. Boyles, 57 F.3d 535, 550 (7th Cir. 1995) (citation omitted). Finally, the strength of evidence at trial only further supports this court's conclusion that defendant suffered no prejudice at trial. The result of the trial was not "fundamentally unfair or unreliable" as a result of his counsel's performance. United States v. Gregory, 74 F.3d 819, 823 (7th Cir. 1996) (citing Lockhart v. Fretwell, 506 U.S. 364, 368-69, 113 S.Ct. 838, 842 (1993)).
Consequently, defendant has failed to demonstrate that his counsel's alleged deficient performance prejudiced the defendant at his trial. As such, defendant's ineffective assistance of trial counsel claim cannot succeed.
Even if defendant could establish that he was prejudiced, this court would have denied defendant's ineffective assistance of trial counsel claim based on his trial counsel's alleged deficient performance. Defendant's trial counsel was not ineffective as defendant asserts. Most importantly, this court never instructed defendant's counsel to not present the affirmative defense of coercion. This court merely denied defense counsel's request to give a jury instruction on a coercion defense because this court did not believe that defendant presented sufficient evidence to warrant such an instruction. This decision was upheld by the Seventh Circuit on defendant's direct appeal. See Fiore, 178 F.3d at 922-23. In addition, at the time of the reading of the verdict, the court observed no juror crying or obviously upset as defendant now asserts. That being said, even if the court were to address defendant's trial counsel's performance, this court would deny defendant's claim because this court does not find that, under all the circumstances, defendant's trial counsel alleged acts or omissions fell outside the wide range of professionally competent assistance.
II. Alleged Ineffective Assistance of Counsel on Appeal
When addressing whether an appellate counsel was deficient, this court must keep in mind that an appellate counsel need not advance every conceivable argument on appeal, and assistance of counsel is constitutionally ineffective only if counsel fails to raise issues that are "obvious" and "clearly stronger than the ones raised." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994). In other words, appellate counsel's performance may be constitutionally deficient if he declined to pursue "a dead-bang winner even while zealously pressing other strong but unsuccessful claims." Bond v. United States, 1 F.3d 631, 634 (7th Cir. 1993). At the same time, however, there is no requirement that appellate counsel raise every non-frivolous argument on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983); Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996).
Defendant argues that his counsel was ineffective on appeal for the following reasons: (1) failing to timely move for separation from co-defendant during appellate review; (2) failing to properly present case on appeal regarding the threat, as perceived from the defendant, when he was allegedly confronted by an armed co-defendant; and (3) citing case law that was previously decided in the prosecution's favor. Defendant's claim of ineffective assistance of counsel on appeal is meritless.
Once again, as noted above with respect to defendant's claim of ineffective assistance of trial counsel, defendant does not indicate how these alleged errors prejudiced the outcome of his appeal. Defendant merely asserts that these errors occurred without any basis that, but for these unprofessional errors or omissions, the result of his appeal would have been different. Nevertheless, defendant has failed to show how the alleged errors are even errors in the first place. First of all, with respect to appellate counsel's citation of case law favorable to the prosecution, all attorneys, including defendant's appellate counsel has an ethical obligation to cite all legal authority in the controlling jurisdiction that is directly adverse to the client's claims. Illinois Rule of Professional Conduct 3.3 (a)(3). Thus, it was not an error for appellate counsel to cite adverse case law. Moreover, defendant has failed to indicate how a failure to file a motions for severance on appeal is an error which deprived defendant of a fair and reliable appeal. Nevertheless, in reviewing the Seventh Circuit's opinion on defendant's direct appeal, this court finds no prejudice in having defendant's and co-defendant's appeals decided at the same time. The Seventh Circuit clearly differentiated between the two defendants and it is clear that no "spill-over" occurred. Finally, defendant makes a conclusory allegation that his appellate counsel failed to properly argue in his appeal brief the intensity of the perceived threat. In reviewing an appellate brief, the court would be merely second guessing appellate counsel's arguments in hind-sight. Courts are prevented from "illegitimate second-guessing of counsel's strategic decisions from the superior vantage point of hindsight." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Consequently, defendant has failed to demonstrate that his appellate counsel's performance was deficient or that this alleged deficient performance prejudiced the defendant on his direct appeal. Accordingly, defendant's motion on this ground is also denied. Finally, because this motion and the record in this case conclusively shows that defendant is not entitled to relief, an evidentiary hearing is not necessary. Patel, 19 F.3d at 1238.
CONCLUSION
For the reasons stated above, defendant Philip Fiore's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody is DENIED. This case is dismissed in its entirety. All other pending motions are MOOT.