United States of America v. George, No. 1:2012cv07287 - Document 10 (N.D. Ill. 2015)
Court Description: MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 5/28/2015. Mailed notice (mmy, )
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United States of America v. George Doc. 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ROBERT GEORGE, Petitioner, Case No. 12 C 7287 v. Judge Harry D. Leinenweber UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER For the (“George”) reasons Motion to stated Vacate, herein, Set Petitioner Aside, or Robert Correct George’s Sentence [ECF No. 1] is denied. I. The facts Spagnola, opinions. Tobacco, of 632 this F.3d 981, Briefly, Firearms & the case 985 case BACKGROUND are summarized (7th Cir. arises Explosives 2011), from (“ATF”) in a United and other Bureau operation, States of in v. related Alcohol, which a confidential informant (“CI”) approached George about helping a drug courier — in reality, an ATF agent — steal cocaine from a stash house. George recruited his half-brother and co-Defendant Michael Spagnola (“Spagnola”) into the plan, which was ultimately modified from robbing the stash house to robbing the courier. George did not participate in the robbery itself, because, he claimed, he could not secure childcare that day. Dockets.Justia.com On December 11, 2008, George was charged in a superseding indictment with conspiracy to possess with intent to distribute more than five kilograms of cocaine (Count I), and attempting to possess with intent to distribute more than five kilograms of cocaine (Count II). (No. 7 CR 441, ECF No. 84.) A jury found George guilty on both counts, and, on February 2, 2010, the Court sentenced George to a total term of 216 months imprisonment, followed by five years of supervised release. George July 21, (No. 7 CR 441, ECF No. 193.) subsequently 2010, George’s appealed his appellate conviction counsel, and after sentence. consulting On with George, filed an Anders brief concluding that “any appeal would be wholly frivolous No. 17-1, at 19.) and without arguable merit.” (No. 10-1657, ECF On November 3, 2010, the Seventh Circuit entered an order indicating that “most of the issues George might raise on appeal would be frivolous.” one issue — the sufficiency (No. 10-1657, ECF No. 34, at 2.) of the evidence on George’s Only attempt conviction — had potential merit. The court directed counsel to brief this issue, and, on September 9, 2011, affirmed George’s conviction. United States v. George, 658 F.3d 706 (7th Cir. 2011). II. LEGAL STANDARD Under 28 U.S.C. § 2255(a), a federal prisoner “may move the court which imposed the sentence to vacate, set aside, or correct the sentence” on the basis that the sentence was imposed in violation of the Constitution or laws of the United States. To receive relief - 2 - under § 2255, a prisoner must show a “fundamental defect inherently results in a complete miscarriage of justice.” which United States v. Addonizio, 442 U.S. 178, 185 (1979) (citation and internal quotations omitted). Alternatively, relief may be granted if a prisoner can show the trial court made “an omission inconsistent with the rudimentary demands of fair procedure.” 368 U.S. 424, 428 (1962). Hill v. United States, Relief under § 2255 is an “extraordinary remedy” because the petitioner “already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). A hearing is not required in a § 2255 case if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief,” 28 U.S.C. § 2255(b), or if the petitioner makes allegations that are vague and conclusory, rather than detailed and specific, Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001) (citations and internal quotations omitted). III. ANALYSIS George raises eight claims of error in his § 2255 petition, which can (Claims I, ineffective be divided II, III, assistance into VI, of three and categories VIII trial — (incorrectly counsel (Claims trial numbered IV ineffective assistance of appellate counsel (Claim V). - 3 - court and error “IX”)), VII), and A. Trial Court Error George claims that the Court committed five errors at trial. In Claim I, George argues that the court wrongfully excluded evidence of entrapment, an issue that appellate counsel previously raised in its Anders brief. Before trial, the Court granted the Government’s unopposed motion in limine to bar George from suggesting a theory of entrapment without first making a prima facie showing. In ruling on the Anders brief, the Seventh Circuit held that George had no viable challenge to the Court’s exclusion of entrapment evidence because “trial counsel made no response to the government’s pre-trial motion, which dooms any complaint on appeal.” (No. 10-1657, ECF No. 34, at 6.) In Claim III, George argues that the Court erred in not allowing him to call the CI at trial. Anders brief. Before trial, This issue was also raised in the the Court granted the Government’s motion in limine to prevent George from calling certain witnesses, including the CI, solely for purposes of impeachment. The Seventh Circuit held that this Court did not abuse its discretion in refusing to allow George to call the CI “simply to impeach him.” (Id.) Moreover, the court noted that defense counsel had not preserved the issue for appeal because he failed to provide an offer of proof regarding the CI’s testimony. (Id.) Where, as here, claims have been presented in a direct appeal via an Anders brief, and the appellate court dismisses the appeal as - 4 - frivolous, “that is a binding adjudication that the claims presented in it had no merit at all, rather than an invitation to refile.” White v. Because the regarding appeal, United States, exclusion the CI George is have 371 of F.3d 900, entrapment already precluded been from 902–03 evidence addressed (7th and on relitigating Cir. the decision George’s these 2004). direct issues again here. In Claim VI, George argues that the Court made false statements in its order denying judgment of acquittal, or, in the alternative, new trial, (No. 7 CR 441, ECF No. 159), which the appellate court then “latched onto” in its opinion. (George Mem., ECF No. 3, at 3.) Specifically, “the court wrote that defendant George set up a meeting between CI and co-defendant Spagnola . . . [and] that George told the CI that he and Spagnola discussed obtaining weapons for the robbery and George accompanied robbery. . . .” Spagnola to obtain a gun for the (Id.) This issue was not raised in George’s post-trial motion or on his direct appeal. To raise this issue now, George must show both “(1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 167–68 (1982). George has failed to argue the cause or prejudice. Indeed, although appellate court affirmed George’s attempt conviction in part because he recruited Spagnola, its opinion does not reference either of the challenged - 5 - statements. Accordingly, the Court cannot conclude that the statements resulted in prejudice. Claim II and Claim VIII challenge evidentiary rulings admitting an ATF agent’s testimony regarding (1) a post-arrest statement George made to the agent, and (2) a statement George made to the CI. challenges were not raised in George’s direct appeal. These Yet again, he has not argued cause or prejudice in his § 2255 petition. The Court therefore rejects these claims for the same reason it rejected Claim IV. Even if George had established cause and prejudice, the vagueness of his allegations prevents the Court from concluding that the inclusion of the above statements resulted in a “miscarriage of justice.” perjured In Claim II, George argues that the agent’s testimony was because his written reports contradict the audiovisual records presented at trial “in several ways” and because the agent incorrectly stated that a train ran through Marseilles, Illinois. (George Mem., ECF No. 3, at 2.) In Claim VIII, George refers to the admission of “improper hearsay,” but fails to identify any specific statements. (Id. at 4.) The Court finds these conclusory allegations insufficient to support a claim for relief under § 2255. See, Gray-Bey v. United States, 156 F.3d 733, 739 (7th Cir. 1998); United States v. Spadafora, 200 F.2d 140, 143 (7th Cir. 1952). - 6 - B. George Ineffective Assistance of Counsel contends that he received ineffective counsel at both the trial and appellate levels. assistance of To prevail on a claim of ineffective assistance of counsel, a petitioner must show that: “(1) below an counsel’s ‘objective ‘prevailing performance standard professional performance prejudiced ‘reasonable probability was of norms’ the deficient, reasonableness’ and petitioner, that, but meaning (2) for that counsel’s fell informed counsel’s meaning it by deficient there is a unprofessional errors, the result of the proceeding would have been different.’” Smith v. Brown, 764 F.3d 790, 795 (7th Cir. 2014) (quoting Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). 1. Trial Counsel George claims that his trial counsel was ineffective for two reasons. First, in Claim IV, George argues that trial counsel was ineffective for failing to present evidence of impeachment against the CI — specifically, the benefits the CI received from the ATF. Second, in Claim VII, George argues that trial counsel was ineffective for failing to file a motion to exclude recordings the CI made that were based on a lost tape or recorded on equipment that was not “authorized or required for such recordings.” No. 3, at 4.) (George Mem., ECF According to a letter dated January 23, 2008, one of George’s attorneys had promised to exclude “any tape for numerous reasons.” (Ex. 1 to George Mem, ECF No. 3.) - 7 - With respect to Claim IV, the Government argues that information regarding the benefits the CI received were never hidden from the jury – to the contrary, both the Government and defense counsel revealed to the jury that the CI was paid approximately $4,600 for his role Casting in this doubt case. on the (Tr. CI’s at 195:25–196:12; credibility, 494:20–495:4.) defense counsel also emphasized that a routine aspect of the CI’s duties involved lying to the public. (Tr. 325:11–326:5). The Court therefore rejects George’s argument that it kept the jury from considering the CI’s motivations to lie, resulting in prejudice to George. As to recordings Claim could VII, have George been fails excluded inclusion resulted in prejudice. to show from on what evidence, or basis how the their Nor does George show how including the recordings constituted a deficient performance by counsel. As the Government notes, at trial — approximately a year and a half after the letter promising to exclude recordings — defense counsel sought to include certain recorded conversations between George and the CI to disprove George’s intention of getting involved with the conspiracy. from that (Tr. 224:9–227:12.) described in the This strategy, though different letter, does not demonstrate attorney conduct falling below professional norms. 2. In Claim ineffective V, for George failing Appellate Counsel argues to that refute - 8 - his a appellate false counsel assertion in was the Government’s appellate response brief — specifically, that George took Spagnola to retrieve guns for use in the robbery. According to George, this contention became a deciding factor in affirming his attempt conviction. George’s position ignores the Seventh Circuit’s opinion. The appellate court affirmed on the grounds that a rational jury could have found that George aided and abetted Spagnola in his attempt to possess cocaine because he (1) recruited Spagnola into the conspiracy, (2) altered the original robbery plan to double-cross the drug courier, George, 658 and F.3d (3) at had 709. arranged Because to the dispose appellate of the court cocaine. makes no mention of George taking Spagnola to go get guns, the Court cannot conclude that appellate counsel’s failure to address the challenged statement resulted in prejudice. IV. CONCLUSION For the reasons stated herein, Petitioner Robert George’s Motion to Vacate, Set Aside, or Correct Sentence [ECF No. 1] is denied. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: 5/28/2015 - 9 -
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