The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
PATRICK B. WALLACE, )
)
Petitioner, )
)
v. ) Case No. 15-3356
)
UNITED STATES OF AMERICA, )
)
Respondent. )
OPINION
RICHARD MILLS, United States District Judge:
We have, before the Court, Petitioner Patrick B. Wallace’s motion to vacate,
set aside or correct sentence under 28 U.S.C. § 2255.
I. INTRODUCTION
The Petitioner1 filed a motion under 28 U.S.C. § 2255 that raised twelve
separate grounds for relief. His memorandum in support of the motion is 103 pages,
in addition to a number of attachments including affidavits. The Government filed
an initial response and suggested that the Court appoint counsel and conduct an
evidentiary hearing to allow the Petitioner to present any evidence in support of the
motion.
1 In the interest of consistency, the Court will refer to Patrick B. Wallace as “Petitioner” whether
discussing this case or the underlying criminal case.
The Petitioner retained private counsel. At the evidentiary hearing, he
declined to present any testimony from any of the persons who allegedly completed
affidavits that were attached to his motion and presented only the testimony of his
trial counsel, R. John Alvarez, and his own testimony.
Following the evidentiary hearing, the Petitioner fired his retained counsel
and was granted leave by the Court to proceed pro se. He then filed a 30-page
supplemental memorandum.
The twelve grounds asserted by the Petitioner in his initial motion include: (1)
the denial of his motion for new trial mandates reversal and entitlement to a new
trial; (2) counsel was ineffective for failing to hold the Government to its burden to
make a reasonable effort to locate the confidential informant, thereby violating the
Petitioner’s right to present a complete defense; (3) counsel was ineffective for
failing to request a material witness warrant to compel the confidential informant’s
attendance and testimony at trial; (4) counsel was ineffective for failing to present
the testimony of three more witnesses in support of the Petitioner’s theory of
defense; (5) counsel was ineffective for failing to investigate and effectively cross
examine and question witnesses presented by both the Government and the
Petitioner in support of Petitioner’s theory of defense; (6) counsel was ineffective
for failing to raise Petitioner’s claim under Brady v. Maryland on direct appeal; (7)
counsel was ineffective for failing to file a motion under the Jencks Act at the
conclusion of the Government witness testimony; (8) counsel was ineffective for
presenting inculpatory evidence against Petitioner without simultaneously
presenting the exculpatory evidence in support of his theory of defense; (9) counsel
was ineffective for failing to object to Government counsel’s reference to facts not
supported by the evidence in the record during closing arguments; (10) counsel on
direct appeal was ineffective for failing to challenge the sufficiency of the evidence;
(11) counsel was ineffective for failing to challenge the Government’s constructive
amendment of the Petitioner’s indictment; and (12) counsel was ineffective for
failing to submit evidence favorable to the Petitioner’s theory of defense.
II. PROCEDURAL HISTORY AND BACKGROUND
A. Motion to suppress
On January 10, 2012, the Petitioner was charged with possession with intent
to distribute 280 grams of crack cocaine after police officers conducted two
controlled buys from him (using a confidential source) and executed a search warrant
at his house.
In a motion to suppress filed prior to trial, the Petitioner claimed that the
Government’s confidential source, Andrew Wallace, had sworn out an affidavit and
recorded a video saying he had lied about receiving drugs from the Petitioner during
the controlled buys prior to his arrest.
United States Magistrate Judge Byron G. Cudmore conducted a Franks
hearing. The lead DEA agent, Springfield Detective Tom Bonnett, testified the DEA
had been paying Andrew Wallace for his services as a confidential informant.
Bonnett testified that, after the Petitioner was indicted, Andrew Wallace became
concerned for his safety because he had been receiving threats. Judge Cudmore
overruled the Petitioner’s hearsay objection and allowed counsel for the Government
to continue questioning Detective Bonnett about Andrew Wallace’s concerns for his
safety.
Detective Bonnett further testified that, because of Andrew Wallace’s safety
concerns, the DEA provided him with $5,000 to leave Springfield. Upon learning
he was in St. Louis, Bonnett advised Wallace by phone that he intended to serve him
with a subpoena to appear at the suppression hearing. Andrew Wallace hung up the
phone when Bonnet mentioned the subpoena. Bonnett attempted to call back several
times but Wallace did not answer.
On June 18, 2012, the magistrate judge issued a Report and Recommendation.
In discussing Andrew Wallace’s absence from the hearing, the Court noted:
The CS did not appear at the hearing, although both parties attempted
to secure the CS’s voluntary attendance. The Court held a status
conference on June 11, 2012, during which the Court discussed the
possibility of either party requesting a material witness warrant, but
neither party requested such a warrant.
Case No. 12-cr-30003, Doc. No. 30, at 2. In the Report and Recommendation, Judge
Cudmore determined that the “evidence introduced at the hearing actually negated
[Andrew Wallace’s] retraction” and found that Wallace’s affidavit lacked
credibility.
The magistrate judge recommended that the motion to suppress be denied. On
August 28, 2012, this Court adopted the Report and Recommendation and denied
the motion to suppress.
B. Motions in limine
Prior to trial, both parties filed several motions in limine regarding the use of
evidence generated by Andrew Wallace. On September 17, 2012, the Petitioner filed
a motion in limine regarding the admissibility of the videotape of Andrew Wallace,
wherein he recanted statements he made to the Government during its initial
investigation and claimed the Petitioner did not sell drugs to him on December 15,
2011.
At a pretrial hearing three days later, Mr. Alvarez—in the context of providing
this Court background about a disagreement he was having with the Petitioner—told
the Court that Andrew Wallace was under the control of the defense and not being
truthful:
I never indicated that . . . we wouldn’t address the issues in the videotape
during trial, only that to ask to have the videotape introduced without
offering the witness, who is under our control, despite being the confidential
source in this matter, doesn’t make sense.
The confidential source, if he indicated what Mr. Wallace has indicated to
him, is misrepresenting the facts to Mr. Wallace. I’ve had one conversation
with Andrew Wallace, who is the individual we’re talking about. He was
suppose to come to my office. He never did.
He had delivered a handwritten statement. He then asked me to meet him at
some location in either East St. Louis or St. Louis and discuss the case with
him. I said I wasn’t going to do that. I asked him to come to my office. And
I said at that point in time I would take a taped statement that I did have to
disclose to the prosecution.
That’s not what he represented to Mr. Wallace. He represented to Mr.
Wallace that . . . I was refusing to take a video statement from him or
a taped statement and refusing to see him. [T]hat’s not true.
As to hiring an investigator to go down there and talk to him; neither does
that make sense since we have a witness that Mr. Patrick Wallace has been
in contact with, and other members of his family. And obviously by providing
to the defense, and his sworn statement, written statement in the past, is
cooperating with us. . . .
I’ve asked that he contact me. He never has. One time I did attempt to
contact him, he was in a restaurant, he was eating. When I identified myself,
he started to mumble, then he hung up. And that’s the last direct contact
I’ve attempted to have with that gentleman.
Doc. 130, 13-15.2
On September 26, 2012, this Court ruled that the videotape was inadmissible
as hearsay and did not fall under any of the hearsay exceptions listed in Federal Rule
of Evidence 803.
2 Unless otherwise indicated, any quoted portions from transcripts will be from United States v. Patrick B.
Wallace, Case No. 12-cr-30003.
The parties filed motions in limine which pertained to calling Andrew Wallace
as a witness and whether the Government would be permitted to play and reference
the video and audio recording made by Wallace during the controlled buys. The
Court (1) ruled that Petitioner was prohibited from referring during opening
statements to any anticipated testimony from Andrew Wallace; (2) reserved ruling
(until the close of the Government’s case) on the Government’s motion to preclude
the Petitioner from calling Andrew Wallace as a witness; (3) denied as moot the
Petitioner’s motion to exclude the audio and video recordings of the drug buys made
by Andrew Wallace as well as Petitioner’s motion to preclude the Government’s
witnesses from testifying about out-of-court statements made by Andrew Wallace,
after the Government stated it would not admit any of Andrew Wallace’s out-of-
court statements, but would merely play a portion of the video recording without the
accompanying audio.
In an Order entered on October 10, 2012, the Court specifically found that
Andrew Wallace was not under the control of either party.
C. Trial
On October 16, 2012, after a four-day trial, the jury found the Petitioner guilty.
The Government’s evidence at trial consisted of law enforcement witnesses who
testified about the controlled dug purchases and the execution of the search warrant,
in addition to various exhibits which included a portion of the silent video.
The evidence showed that on December 15, 2011, police investigators used
Andrew Wallace to make a controlled purchase of crack cocaine from his uncle,
Petitioner Patrick Wallace, out of a residence located at 700 North 14th Street in
Springfield, Illinois.
Officers met with Andrew Wallace that morning and provided him with
$1,250 of pre-recorded Official Advance Funds. The officers searched Andrew
Wallace and placed an audio/video recorder on his body.
Officers searched Andrew Wallace’s car and maintained surveillance of it as
he drove directly to the Petitioner’s residence, where officers had set up perimeter
surveillance around the house. Officers including Detective Bonnett also positioned
themselves outside of the house in order to monitor the audio portion of the
recording.
Officers observed Andrew Wallace enter the house and exit about 20 minutes
later. They followed him back to their office where they searched him again.
Andrew Wallace turned over the 22 grams of crack cocaine he had just purchased.
He no longer possessed the pre-recorded funds. Officers sought and obtained a
search warrant for the residence at 700 North 14th Street.
Prior to executing the search warrant, the officers arranged for Andrew
Wallace to conduct another controlled purchase of crack cocaine to ensure that there
were still drugs in the house.
At around 8:30 p.m. on December 15, officers met with Andrew Wallace at
the DEA Office. They searched his car, placed the same audio/video recording
device on his body and provided him with $1,250 of pre-recorded Official Advance
Funds.
Officers used the same protocol they used earlier in setting up surveillance of
the residence.
Detective Bonnett monitored the audio recording from outside of the house.
He recognized Andrew Wallace’s voice and the Petitioner’s voice as they were
speaking. Bonnett had spoken with the Petitioner in the past.
Andrew Wallace again exited the residence about 20 minutes after arriving.
Officers followed him back to the DEA office, searched him, found crack cocaine
and found none of the pre-recorded funds.
Upon reviewing the recording, Detective Bonnett was able to identify by sight
Andrew Wallace and the Petitioner, in addition to Jerome Wallace, whom he
believed to be the Petitioner’s nephew.
At trial, over the Defendant’s objection, the Government played part of the
video recording of the second controlled buy. Mr. Alvarez stated the Defense had
no objection as long as only the video portion played.
Detective Bonnett identified the three men shown in the video and stated the
video does not show anyone else entering the home. Jerome Wallace and the
Petitioner were standing close to the microwave in the kitchen. He also testified the
video showed the Petitioner just prior to what appears to be Andrew Wallace
receiving crack cocaine.
The Government introduced several still photos taken from the video.
Bonnett testified the photos depict the Petitioner standing in the kitchen next to a
microwave containing a measuring cup with an off-white substance in it, a food
sealer, and what appears to be cocaine in bags. Bonnett testified one of the
photographs depicts Wallace looking at the microwave while it is lit up with a green
light.
The officers executed the search warrant approximately an hour after the
second controlled buy was completed. When the Springfield SWAT team entered
the house, they found the Petitioner in the only bathroom shaving his head. Upon
seeing the officers, the Petitioner ran in to an adjacent room. The officers
apprehended the Petitioner and secured him in the front room, along with two other
individuals: Jerome Wallace and Sandy Johnson. Officers searched every room in
the house.
The officers discovered an active security surveillance system in and outside
of the house. In the southwest bedroom, officers found a 20-inch surveillance
monitor displaying the outside of the house, a surveillance clock with a mini camera
inside and an activated DVR recorder in a closet, which was recording the security
camera footage. In the kitchen, officers found cabling, a monitor and a remote
control. In the living room, a 73-inch television was showing the surveillance of the
outside of the house.
On the front door of the southwest bedroom, officers observed a sign that said
“No matter what, always knock before you enter this room. Wait on a come in.
Thanks, P.J.” Doc. No. 133, at 268.
On the bed in the southwest bedroom, officers found a pair of jeans containing
a wallet. The wallet contained identification for the Petitioner and his mother. In
one of the jeans’ pockets, the officers found marijuana and crack cocaine.
The jeans also contained $160 of the pre-recorded funds—one bill from the
first controlled buy and six bills from the second buy.
In the same bedroom, officers found a second wallet in a plastic filing cabinet.
That wallet also contained identification documents for the Petitioner: one with the
North 14th Street address and one with an address of 150 South Durkin Drive in
Springfield. The officers also located mail addressed to the Petitioner.
In the filing cabinet, officers found $980 of their pre-recorded funds from the
second buy. The filing cabinet also contained more than a pound of crack and
powder cocaine as well as marijuana. Throughout the house, the officers found a
total of 697 grams of cocaine and crack cocaine, worth approximately $70,000.
Officers also located watches and DVDs in the cabinet.
Inside the closet of the bedroom, officers found more than 20 pairs of shoes
and several items of men’s clothing sized to fit a large man. In the same bedroom,
officers also located two cell phones, four laptop computers, an empty Smith and
Wesson gun case, handgun holsters hanging on the back of the bathroom door, and
a total of $5,430 in cash.
In the kitchen area, officers observed and photographed a note on the
refrigerator door which said, “To people that don’t buy food or soda, don’t touch
anything without asking. P.J.” There was a photograph on the refrigerator door
which depicted the Petitioner and two women.
In the back bedroom, officers found Jerome Wallace’s prescription
medications and driver’s license and a lanyard with cards containing his name.
Officers also found a digital scale, a loaded .380 handgun inside of a clothes hamper,
a box containing .380 caliber ammunition, an additional magazine for the handgun
and a .45 caliber round for a different type of handgun.
The Petitioner made admissions to the officer at the scene. When Detective
Bonnett began testifying about the statements, Mr. Alvarez for the first time moved
to suppress the statements. The Court permitted Government counsel to voir dire
Bonnett, who testified that Officer Mazrim, the officer who secured the suspects,
advised him at the scene that he overheard Petitioner say to Sandy Johnson “not to
worry about it” because everything in the bedroom was his. In response, Detective
Bonnett approached the Petitioner and asked him to come and talk with him.
Wallace said, “I don’t want to waste your time; everything in there’s mine.” Doc.
No. 133, at 364.
Following Bonnett’s testimony outside the jury’s presence, Mr. Alvarez stated
“That was my understanding as to how the evidence was going to come out, Your
Honor. But I still, for the record, have made the same objection.” Id. at 367. When
the Court noted that objection was “a little late,” Mr. Alvarez responded that he
attempted to raise the issue prior to trial, but the Petitioner did not cooperate in the
filing of the motion.
The prosecutor clarified by stating that although Mr. Alvarez wanted to file a
motion to suppress, the Petitioner directed him against it because he took the position
that he never made the statements. Mr. Alvarez verified that counsel’s statements
were accurate.
The district court asked that the prosecutor have the other two officers who
witnessed the statements testify first thing in the morning.
The Parties and Court agreed that the Court would receive evidence (outside
the presence of the jury) in the form of the testimony of the officers who observed
the Petitioner make the statements at the scene and to rule on the Petitioner’s
objection outside the presence of the jury.
The next morning, Officer Mazrim testified that, while guarding the three
individuals at the scene, the Petitioner twice told Sandy Johnson that everything in
the bedroom was his. Officer Mazrim and Officer John Weiss, who was also
guarding the three occupants in the living room, heard Bonnett ask the Petitioner to
step out of the room and talk to him. Officers Mazrim and Weiss stated that Wallace
responded, “I don’t want to waste your time, everything in that room is mine.” Doc.
No. 134, at 398, 410. Detective Bonnett asked the Petitioner no further questions.
The Court denied the motion, finding that Petitioner’s statements were non-
custodial and voluntary. Detective Bonnett testified before the jury in a manner
consistent with his previous testimony outside their presence. Officers Mazrim and
Weiss also testified consistently with their earlier testimony.
At the conclusion of the Government’s case, the Court again raised the issue
of whether the Government should be required to call Andrew Wallace:
I note that in a lengthy footnote in my previous order I found that the
confidential source is not under the control of either party. In light of
the way the Government has presented its case, and as indicated by the
written order, I conclude that the Defendant, Mr. Wallace, does not have
a right under the confrontation clause of the 6th Amendment to have the
Government call the confidential source to testify.
Now, we’ve thoroughly reviewed the case law cited by both parties. And
I conclude that the defendant has the right to call the CS, the confidential
source, as a witness. However, if the Defendant Wallace does call the
confidential source, I will grant the Government’s request to conduct voir
dire outside the presence of the jury before he be allowed to testify before
the jury.
Doc. No. 126, at 757.
Mr. Alvarez informed the Court that Petitioner’s family members had been in
contact with Andrew Wallace and that he intended to show up at the trial the next
day. The Petitioner wanted to call him as a witness. Counsel stated he had no idea
what Andrew Wallace might say and strongly disagreed with the decision to call
him:
[D]uring the recess . . . I was confronted by . . . Andrew Wallace’s sister,
who advised that Mr. Andrew Wallace desires to testify. He’s in the state
of Minnesota at this point in time, but . . . has advised her that he has
consulted counsel in Minnesota, understands what ramifications he may
suffer as a result of his testimony, but he desires to testify and would be
willing to be here in the morning.
I have not spoken to him to be able to confirm that, or what he would
testify to. I have discussed it with my client and as we have on other
occasions, we have a differing opinion as to whether he should be
called.
I’ve advised him that I do not believe that based upon my interpretation
of matters and the evidence as I view it, that it would be in my client’s
best interest to call Andrew Wallace as a witness. And we had a vigorous
discussion regarding the same in the cell before we readjourned. And he
has insisted that . . . he wants Mr. Andrew Wallace to testify.
I understand I make decisions about how to proceed. I have done so
throughout the trial thus far. He’s disagreed on some of things that I’ve
allowed in or . . . inquiries I’ve made. But it’s his . . . cab ride, so to speak,
Judge. And he’s insisting that Mr. Andrew Wallace be called as a witness.
However, I’ve cautioned him that I may - - depending on my ability to
communicate with him this evening, I may, again, strongly disagree with
him.
So it’s my understanding that he will be here tomorrow. . . I have not had
a chance to voir dire him. I don’t know what mental state or what . . . he’s
ultimately going to testify to. And that’s what I’ve cautioned my client about.
Id. at 758-59.
The next morning, Mr. Alvarez updated the Court regarding his
communication with Andrew Wallace:
Yesterday evening I also spoke three times . . . with Andrew Wallace.
He advised me that he was prepared to testify. He indicated that he was
in Minneapolis . . . and that he was going to be here today. . . [T]o be
frank, he kept asking me questions about legal implications of his
testifying. . . . I said look, you indicated to me earlier you had spoken
to an attorney. I believe you need to discuss that issue with him, because
your testimony could have some persuasion upon the government to take
certain action against you.
But in either event, the last word I had from him, which was close to 9:00
yesterday evening . . . he was going to be here this morning.
But I don’t have anything further than that. He’s not here that I’ve seen out
in the hallway at all, Judge.
Doc. No. 132, at 808-09.
Counsel called three witnesses to testify for the Defense and informed the
Court, “I haven’t made a decision on Andrew Wallace, but nor have I seen him. So
unless he is lurking around the courthouse someplace, I don’t know if we’ll be
calling him.” Id. at 880. The Defense called one more witness and then rested.
The Petitioner was convicted on October 16, 2012. On January 3, 2013, the
Petitioner filed a motion for a new trial, which was denied the same day.
D. Relationship between Petitioner and Counsel
(1)
On two occasions before trial and once after it, the Petitioner sought to replace
Mr. Alvarez.
On May 2, 2012, the Petitioner wrote a letter to the Clerk wherein he stated
he wanted a new lawyer because Mr. Alvarez had not yet met with him to discuss
the case. At a hearing twelve days later, the Petitioner withdrew his request.
On September 14, 2012, the Petitioner filed a motion asking the Court to
remove Mr. Alvarez. In the motion, the Petitioner claimed that he and Mr. Alvarez
had disagreements and counsel was not ethically and actively defending him. At the
final pretrial conference on September 20, 2012, the Court asked the Petitioner to
elaborate on his request. The Petitioner responded:
[M]e and my attorney haven’t agreed on a lot of issues that I see in the
case that I asked him to file for me and things that I point out to him. We
have a difference of agreement on those issues. And I asked him to - - these
issues goes towards my innocence. And he refused to do those things. And
it kind of upsets me, the fact that my attorney will not proceed in looking at
issues that I would like for him to do.
Doc. No. 130, at 4. Mr. Alvarez responded that he did not know which issues the
Petitioner was referencing except that Petitioner had asked him to file a motion
asking the Court to allow Andrew Wallace’s videotaped statement. Counsel
explained that he filed the motion as requested, even though he noted that Andrew
Wallace’s videotaped statement would constitute hearsay. Mr. Alvarez stated that
he also wanted to file a motion to suppress the Petitioner’s statements at the scene.
The Petitioner instructed him not to file the motion.
Mr. Alvarez stated that he had discussed with the Petitioner the nature of the
attorney-client relationship:
I also advised Mr. Wallace that the training and experience has taught
me that I’m not gonna sit and just simply nod my head up and down at
everything he says. I’m going to assert my positions and opinions
regarding this case and what I feel is in his best interest. It’s his case
and ultimately . . . with some tweaks here and there, we’re going to
proceed . . . the way he wants to proceed as far as a defense in this
matter.
Doc. No. 130, at 6-7. The Petitioner then listed a number of specific complaints
about Mr. Alvarez’s representation, including: (1) counsel had failed to obtain an
investigator to travel to interview the confidential source; (2) his attorney failed to
ask the district court to provide an independent fingerprint expert and chemist; and
(3) his attorney failed to provide him with the police records in the case but instead
showed him the documents on an I-Pad.
Mr. Alvarez responded that he had downloaded the discovery documents onto
an I-Pad, which he brought to all meetings with the Petitioner so that he could show
the documents to him. He also stated he was in the process of preparing the motions
asking for an independent fingerprint expert and chemist. Counsel explained:
[M]y position . . . is that . . . the duties I’m sworn to uphold indicate to me
that I have to advise him as to what is appropriate defense and what may or
may not work in this case, He may not like it, but as I’ve told him repeatedly
I’m going to assert those defenses, or I’m going to make my point with him,
I’m not simply going to agree to everything he says because . . . some of the
ways he’s asking me to proceed, don’t make sense. Particularly on the motion
to suppress on the videotape.
Doc. No. 130, at 13. Mr. Alvarez also explained that it made no sense to have an
investigator go to St. Louis to interview Andrew Wallace when Wallace had been in
contact with the Petitioner and members of his family.
The Court denied the Petitioner’s motion, stating as follows:
I have two observations.
Number one, Mr. Wallace, I have known Mr. Alvarez for a good many
years. I’ve been on this bench for 26 and I knew him back when I was
on the state court. And he’s appeared before me many, many times. And
he’s always done a superlative job. And I’ve always been impressed with
his preparation and his abilities in the courtroom.
So from that standpoint, I want you to know that you’ve got very good
counsel at your table with you.
Number two, it seems to me that he’s already filed a motion that you wanted
to bring up regarding the video. And so, this would seem to me to take much
of the teeth out of your motion.
But the bottom line is that some things have to give way to the shortness of
life. And this is one of them. Your motion is denied.
(2)
The Petitioner filed a third motion following the trial requesting new counsel
for his sentencing hearing. In addition to reiterating his previous complaints, the
Petitioner stated that counsel: (1) failed to introduce evidence of tape-recorded
telephone calls between the Petitioner and Andrew Wallace; (2) failed to make
numerous objections at trial; (3) failed to investigate the case, present any defense
or make strategic decisions on behalf of the Petitioner; (4) deliberately withheld
evidence from Petitioner; (5) provided the Petitioner with an illegible and
incomplete copy of one of the Government’s motions in limine; (6) failed to review
all of the discovery with the Petitioner; and (7) failed to confront the witnesses
against the Petitioner.
After hearing from the Petitioner and Mr. Alvarez, the Court denied the
motion. The Court stated:
Well, after carefully considering the written materials and the statements
that are made here today, the Court does deny the defendant’s pro se
motion to appoint a new attorney.
Mr. Wallace, the Court concludes that Mr. Alvarez has performed his duties
in a most effective manner; especially considering the hand he was dealt.
You confessed to law enforcement . . . that all of the contraband in the
bedroom was yours. And there was video evidence of the second controlled
purchase that corroborated the allegations.
Quite frankly, Mr. Alvarez has done a very good job. And this is a personal
observation. I have known Mr. Alvarez for 35 years. He has practiced before
me on more than this court. And I know his career and I have seen him in
action upon numerous occasions over that period of time. And I think, quite
frankly, he did a very good job.
Many of the claims made by the defendant here relate to strategic decisions
that are the province of the attorney. . . . The Court sees no reason to make
a change at this point in the proceedings. The defendant’s arguments are
unpersuasive.
Indigent defendants have a right to effective assistance of counsel, of course,
but that does not mean that they get to choose who that counsel will be. Or
that they can dismiss the appointed attorney whenever they see fit.
Doc. No. 135, at 23-24.
E. Defendant’s other pro se post-trial motions and sentencing
On January 3, 2013, the Petitioner filed a pro se motion for a new trial.
Subsequently, he filed a motion for a Giglio hearing; motion for evidentiary hearing
due to prosecutorial misconduct; motion for an in camera hearing; and motion to
reopen the proof of the affidavit of Detective Tom Bonnett. In its response, the
Government contended that these motions should be construed as motions for new
trial and the motions were untimely under Federal Rule of Criminal Procedure 33.
The Court denied each of the motions.
In denying the Petitioner’s motion for evidentiary hearing due to alleged
prosecutorial misconduct for failing to disclose a published opinion in United States
v. Whitley, 249 F.3d 614 (7th Cir. 2001), the Court held that the Government did not
commit a Brady violation because the Whitley opinion was a published opinion that
was available to Wallace. Accordingly, the Government had no duty to disclose the
public document. The Court further noted that, because the evidence against the
Petitioner was “overwhelming,” there was no reasonable probability that the result
of the trial would have been different if the Whitley decision had been available to
the defense.
On May 24, 2013, the Court sentenced the Petitioner to a term of 288 months
imprisonment to be followed by ten years of supervised release. In the revocation
proceeding held the same day, the Court sentenced the Petitioner to a consecutive
60-month sentence for committing a crime while on supervised release.
F. Direct appeal
On direct appeal, the United States Court of Appeals for the Seventh Circuit
affirmed the Petitioner’s conviction and sentence, noting the “overwhelming
evidence of the defendant’s guilt.” United States v. Wallace, 753 F.3d 671, 675 (7th
Cir. 2014). The Seventh Circuit rejected the Petitioner’s claim that the Court erred
in denying his motion to appoint counsel absent a showing of ineffective assistance
of counsel. Id. at 675-76. The court declined to address any ineffective assistance
claim, allowing the Petitioner an opportunity to advance it in a § 2255 motion and
stating that perhaps “new counsel” might “present convincing evidence” in support
of an ineffective assistance claim. Id. at 676.
G. Evidentiary hearing on § 2255 motion
On June 21, 2017, the Court conducted an evidentiary hearing on the
Petitioner’s motion. The Petitioner was represented by retained counsel. The
Petitioner did not present any testimony from any of the persons who allegedly
completed affidavits that were attached to his motion and did not seek to present the
testimony of, or any material witness warrant for, Andrew Wallace. The Petitioner
presented only the testimony of his trial counsel, Mr. Alvarez, and his own
testimony.
Mr. Alvarez testified consistently with the statements he made to the Court
during the hearings throughout the underlying criminal case. The Petitioner denied
and disputed all of the evidence that the Government presented during trial. Upon
reviewing the entire record in this case, the Court finds that Mr. Alvarez’s testimony
was credible and that Patrick B. Wallace’s testimony was not credible.
III. DISCUSSION
A. Legal standard
A motion under § 2255 to vacate, set aside or correct a sentence may be
brought by a “prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. §
2255. A motion under § 2255 is not a substitute for a direct appeal. See United
States v. Barger, 178 F.3d 844, 848 (7th Cir. 1999). “For constitutional challenges
to a conviction to be properly brought under a § 2255 proceeding, a defendant must
make a showing of good cause for, and prejudice from, the failure to raise the issues
on direct appeal.” Id.
“[T]o prove ineffective assistance of counsel, [a petitioner] must show that his
attorney’s performance fell below an objective standard of reasonableness and that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Kirklin v. United States, 883
F.3d 993, 996 (7th Cir. 2018) (internal quotation marks omitted). The presumption
is that counsel advised his client effectively. See Hutchings v. United States, 618
F.3d 693, 696-97 (7th Cir. 2010). “Only if the petitioner comes forward with
specific acts or omissions of his counsel that constitute ineffective assistance will
we then consider whether these acts or omissions were made outside the wide range
of professionally competent assistance.” Id. at 697 (internal quotation marks
omitted).
To prove ineffective assistance of appellate counsel, a petitioner must show
that counsel failed “to argue an issue that is both obvious and clearly stronger than
the issues raised.” Martin v. Evans, 384 F.3d 848, 851 (7th Cir. 2004). However,
counsel need not “raise every non-frivolous issue on appeal.” Id. at 852. A
petitioner must show that prejudice resulted, meaning that “there is a reasonable
probability that the issue his appellate attorney failed to raise would have altered the
outcome of the appeal, had it been raised.” Brown v. Finnan, 598 F.3d 416, 425 (7th
Cir. 2010).
B. Analysis
The Petitioner’s § 2255 motion includes twelve grounds for relief. As noted,
an evidentiary hearing was held at which he presented the testimony of Mr. Alvarez,
in addition to his own testimony. Following the evidentiary hearing, the Petitioner
terminated his retained counsel, Dallas Craig Hughes. The Petitioner filed a post-
trial brief. The Government filed a response. The Petitioner filed a reply to the
response.
(1) Ground 1
The Petitioner contends the Court erred in denying his motion for a new trial
because of its denial of his motions to appoint new counsel. On multiple occasions
when the Petitioner sought new counsel, the Court allowed the Petitioner and Mr.
Alvarez to address the Court regarding any problems with the attorney-client
relationship. This demonstrated that though at times they vigorously debated how
to present the case, the parties did not have a total breakdown in communication.
The Petitioner wanted Mr. Alvarez to introduce certain evidence that counsel did not
believe should be presented. However, “differences in strategy do not constitute
grounds for new counsel.” United States v. Van Waeyenberghe, 481 F.3d 951, 960
(7th Cir. 2007).
The Seventh Circuit previously rejected the Petitioner’s argument as a claim
separate from a claim of ineffective assistance of counsel, which it allowed the
Petitioner to preserve for advancement in this § 2255 proceeding. “[I]f a defendant
is still afforded adequate representation, an erroneous denial of a motion for
substitution is not prejudicial and is therefore harmless.” Wallace, 753 F.3d at 675.
For the reasons that follow, the Court concludes that the Petitioner has not
established that he received ineffective assistance of counsel. Accordingly, the
Petitioner’s complaints about the Court’s denial of his motions to substitute counsel
are meritless.
(2) Grounds 6 and 10
In Ground 6, the Petitioner alleges counsel was ineffective for failing to raise
his Brady claim on direct appeal. This claim is without merit. In ruling on the
Petitioner’s pro se post-trial motions, the Court determined that Petitioner’s motion
for new trial based on prosecutorial misconduct for failure to disclose was untimely.
The Court also concluded there was no Brady violation in failing to disclose a
published opinion, United States v. Whitley, 249 F.3d 614 (7th Cir. 2001), which
was already available to the defense. Because there is no Brady violation for failing
to disclose a matter of public record, the Petitioner’s sixth ground is without merit.
In Ground 10, the Petitioner claims counsel on direct appeal was ineffective
for failing to challenge the sufficiency of the evidence. This claim is preposterous.
This Court and the Seventh Circuit concluded that the evidence against the Petitioner
was “overwhelming.” Wallace, 753 F.3d at 675. The evidence included controlled
purchases of cocaine from the Petitioner, drugs and buy money in his bedroom and
the Petitioner’s multiple confessions that everything in the bedroom belonged to
him. Challenges to the sufficiency of the evidence rarely succeed. Such a challenge
by appellate counsel would have been pointless.
Appellate counsel was not ineffective in failing to challenge the denial of the
Petitioner’s untimely and meritless Brady claim. Moreover, there is no probability,
certainly not a reasonable one, that the outcome of the appeal would have been
different if counsel would have raised a sufficiency of the evidence claim.
Accordingly, in the ineffective assistance of appellate counsel claims in Grounds 6
and 10 are without merit.
(3) Ground 7
In Ground 7, the Petitioner alleges counsel was ineffective for failing to file a
motion under the Jencks Act, 18 U.S.C. § 3500, at the conclusion of the Government
witness’s testimony. The Jencks Act pertains to the production of statements and
reports of witnesses. The Petitioner claims that counsel was ineffective for failing
to request the notes of Detective Bonnett and other police officers or case agents. In
his supplemental memorandum, the Petitioner claims that he presented a photograph
at the evidentiary hearing which depicted a law enforcement agent “taking
handwritten notes” of items seized during the execution of a search warrant.
It is no surprise that agents documented their actions in executing the search
warrant. However, no evidence has been presented in support of the claim that the
Government failed to provide to Petitioner’s counsel required statements of a trial
witness, including any agent reports or inventory documents authored by that
witness, as required by the Act. Moreover, even if the Government failed to provide
such statements or reports, the Court concludes that would not support an ineffective
assistance of counsel claim, given that such failure would have had no impact on the
trial.
(4) Grounds 2 and 3
In Ground 2, the Petitioner alleges counsel was ineffective for failing to hold
the Government to its burden to make a reasonable effort to locate the confidential
informant, thereby violating his right to a complete defense. In Ground 3, the
Petitioner asserts counsel was ineffective for failing to request a material witness
warrant to compel the confidential informant’s attendance and testimony at trial.
As the Court noted earlier in reciting the factual and procedural background,
the record establishes that Mr. Alvarez asked Petitioner’s nephew Andrew Wallace
to contact him. Andrew Wallace did not do so. When Mr. Alvarez eventually
telephoned Andrew Wallace and identified himself as Petitioner’s attorney, Andrew
Wallace hung up. During the trial, the Petitioner’s family was in contact with
Andrew Wallace, who represented he would testify for the Petitioner. The morning
he was to be called as a witness, Mr. Alvarez represented to the Court that he had
spoken with Andrew Wallace three times the night before. Andrew Wallace told
Mr. Alvarez he was prepared to testify and would be present that morning. However,
Andrew Wallace asked a number of questions about the legal implications of
testifying and then did not show up.
While making significant efforts to locate Andrew Wallace, Mr. Alvarez
maintained he had serious concerns about calling him as a witness because it was
unclear what he would say. Counsel attempted to secure Andrew Wallace’s
appearance at trial while protecting his client’s interests by continuously evaluating
whether it would be prudent to call Andrew as a witness. The decision whether to
call Andrew Wallace or not was a matter of trial strategy that counsel was entitled
to make. “A lawyer’s decision to call or not to call a witness is a strategic decision
generally not subject to review.” United States v. Williams, 106 F.3d 1362, 1367
(7th Cir. 1997). As the Court stated following the jury trial, “Mr. Alvarez has
performed his duties in a most effective manner; especially considering the hand that
he was dealt.” Doc. No. 135, at 23.
Even if the Petitioner could show that counsel’s performance was deficient,
he could not establish prejudice. The Petitioner would be unable to show that, but
for counsel’s unprofessional errors, there is a reasonable probability that the result
of the proceeding would have been different. The Seventh Circuit stated:
Andrew, however, was such a loose cannon that the lawyer would have
been taking a grave risk in dragging him into court against his will.
Maybe in anger Andrew would have recanted his recantation. If not,
he might well have disintegrated under cross-examination. He probably
would not have been a credible witness.
Wallace, 753 F.3d 676. Andrew Wallace repeatedly changed his story, hung up on
Mr. Alvarez when he identified himself and failed to show up on the Petitioner’s
behalf as promised. It is highly unlikely that a jury would have believed that Andrew
Wallace lied to Detective Bonnett about purchasing cocaine from the Petitioner. The
Petitioner is unable to establish that counsel’s failure to secure Andrew Wallace’s
appearance at trial affected the outcome.
The jury would have seen the video evidence of the second controlled
purchase. Moreover, the circumstances of the controlled drug purchases between
Andrew Wallace and the Petitioner were a very small part of the Government’s
evidence. The officers caught the Petitioner with the drugs and buy money in his
bedroom—a bedroom he occupied when they entered his house to execute the search
warrant. The jury heard from multiple witnesses that the Petitioner confessed that
everything in the bedroom belonged to the Petitioner. It is highly likely that Andrew
Wallace’s testimony ultimately would have added to the already overwhelming
evidence against the Petitioner.
Additionally, the Petitioner’s failure (while represented by retained counsel)
to seek a material witness warrant for, or present the testimony of, Andrew Wallace
for the evidentiary hearing in this proceeding conclusively demonstrates that
Petitioner’s arguments relating to Andrew Wallace are completely without merit.
The Seventh Circuit stated that “maybe in a section 2255 proceeding new counsel
could present convincing evidence that the trial lawyer had made a grave mistake by
failing to seek such a warrant.” Wallace, 753 F.3d at 676. The Petitioner has made
no such showing.
(5) Other grounds
In Ground 4, the Petitioner alleges Mr. Alvarez was ineffective for failing to
present the testimony of three more witnesses in support of his theory of defense.
These witnesses include Jane Cooper and Patricia Wallace, who the Petitioner
suggests would have testified that another individual committed the offense. The
Petitioner also contends that Mr. Alvarez should have called Anthony Horton, who
would have testified that the drugs in the pocket of the Petitioner’s jeans were
planted by the confidential informant.
In Ground 5, the Petitioner claims Mr. Alvarez was ineffective for failing to
investigate and effectively cross examine and question various witnesses in support
of his theory of defense. Specifically, he takes issue with counsel’s questioning of
Detective Bonnett, Special Agent Ambrozick, Officers Oldham, Haas and Green,
Agent Mokhoff, Larry Wallace and Charissa Henderson.
As for Grounds 4 and 5, many of these claims are similar to claims that the
Court rejected in denying the Petitioner’s post-trial motions. The affidavits
submitted by the Petitioner in support of these claims are self-serving and not
credible, as demonstrated by the Petitioner’s failure to actually present the testimony
of any of these witnesses at the evidentiary hearing on the § 2255 motion.
The Petitioner claims Mr. Alvarez was ineffective for failing to effectively
cross-examine Special Agent Mokhoff in relation to the file cabinet, where the drugs
were discovered. At trial, Mokhoff testified on cross examination that he did not
recall the file cabinet being locked. However, it was not open and it took some
strength to open it. However the DEA Report, which is attached to the Petitioner’s
initial motion, describes the file cabinet as being “locked.” The Court concludes that
counsel’s failure to question Mokhoff on this minor discrepancy was not
unreasonable, nor could it have prejudiced the Petitioner. Regardless of whether the
file cabinet was locked or not, there is overwhelming evidence that Petitioner
exercised total control of the entire residence, particularly the bedroom where
Petitioner was found during the execution of the search warrant. It strains credulity
to suggest that the result of the trial would have been different if counsel had
impeached Mokhoff concerning this minor detail.
The Petitioner also claims Mr. Alvarez was ineffective for failing to cross-
examine Detective Bonnett about Sandy Johnson’s statement. He alleges counsel
should have elicited from Bonnett that Johnson admitted to him that she possessed
the drugs found in the residence. The Petitioner claims the statement could have
been admitted as a statement against interest under Federal Rule of Evidence
804(b)(3). Because the Petitioner has not presented anything to establish the
trustworthiness of Johnson’s statement as required under the rule, the Court
concludes it would not be admissible. Additionally, because of the overwhelming
evidence against the Petitioner, including multiple confessions that everything in the
bedroom was his, counsel’s failure to introduce the statement did not affect the
outcome of the trial.
Accordingly, there is no basis to conclude counsel acted unreasonably in not
presenting certain witnesses or with respect to cross examining Government
witnesses. The Court further finds that there is no reasonable probability that but for
counsel’s performance, the outcome of the trial would have been different.
In Ground 8, the Petitioner alleges counsel was ineffective for presenting
inculpatory evidence without simultaneously presenting exculpatory evidence in
support of his theory of the defense. The Petitioner claims the audio of the first
controlled buy would have been exculpatory. He says that audio would reflect his
statement “that he had no drugs.”
The Court concludes that the Petitioner’s claim is without merit. Mr. Alvarez
explained during his closing argument that the purpose of playing the silent video
was to show that Petitioner was not visible on the video, and that two other men
could have been the persons from whom Andrew Wallace purchased the cocaine.
This was a reasonable, tactical decision that an attorney is entitled to make.
Additionally, the recorded statements would have constituted inadmissible hearsay
if offered by the Petitioner. The Court further concludes that, even assuming Mr.
Alvarez should not have played the silent recording, the Government presented
overwhelming evidence against the Petitioner. Accordingly, there is not a
reasonable probability that the outcome of the trial would have been different.
In Ground 9, the Petitioner claims Mr. Alvarez was ineffective for failing to
object to the prosecutor’s reference to facts not supported by the evidence in the
record during closing arguments. The Petitioner contends the prosecutor
erroneously claimed that Petitioner’s fingerprints were on one of the plastic bags
containing drug residue that were found in the kitchen.
At one point in the Government’s closing argument, the prosecutor stated:
Proceed to the kitchen. . . . All the things you would expect to find not
from a family home, but a crack house . . . A baggie with – a plastic bag
inside with cocaine residue. And whose fingerprints are on it. The
defendant’s and Sandy Johnson’s.
Doc. No. 132, at 962. The Petitioner contends that the Government improperly
argued that his fingerprint was on the plastic bag with the residue rather than on the
plastic bag that contained the plastic bag with the residue.
At trial, Officer Terry Day testified that during a search of the kitchen, he
seized a Ziploc plastic bag that contained other baggies, baggie corners and a paper
towel. DEA Forensic Examiner Ambrozich further testified that the outer Ziploc
bag contained a fingerprint belonging to the Petitioner. Moreover, DEA Forensic
Chemist Baer testified and the DEA report attached to the Petitioner’s supplemental
memorandum reflects that the baggies within the Ziploc bag contained cocaine
residue. The Government states that, when counsel made reference to Petitioner’s
fingerprint “on it” during closing argument, the Government did not suggest, or
intend to suggest, that “it” was the plastic bag containing cocaine residue that was
inside the Ziploc bag. The Government was referring to the outer Ziploc bag, as
testified by Ambrozich. When read in context, “it” could refer to either bag. The
prosecutor did not say that the Petitioner’s fingerprints were on both bags.
Consequently, there was nothing improper or inaccurate about the prosecutor’s
closing argument.
The Court further finds that even if there is a risk that the jury misunderstood
the Government’s argument, there is no basis to conclude that trial counsel acted
unreasonably in failing to object or that such failure prejudiced the Petitioner. Once
again, the evidence against him was overwhelming. The Court instructed the jury
that counsel’s arguments are not evidence and that if counsel’s arguments differ from
the jury’s recollection of the evidence, the jury should rely on its recollection and
not on counsel’s argument. Defense counsel’s failure to object to the statement did
not affect the outcome of the trial. If counsel had objected to the closing, at best for
the Petitioner the Court would have sustained the objection on the basis it was not
apparent to which Ziploc bag the statement referred and reminded the jury of its
cautionary instruction. Accordingly, the Petitioner’s claim referring to the
prosecutor’s closing argument is without merit.
The Petitioner also contends that the Government improperly argued that the
glass measuring cup that was introduced in evidence and depicted in a trial
photograph contained cocaine residue because there was no laboratory analysis of
the measuring cup. The Petitioner’s claim is without merit.
It is not always necessary to present expert analysis and testimony to establish
the identity of a controlled substance. See United States v. Turner, 709 F.3d 1187,
1195 (7th Cir. 2013). That may be proved by circumstantial evidence. See id.
Here, the Government presented ample evidence that the residue on the
measuring cup was indeed cocaine residue. The Petitioner’s testimony that he used
the microwave to make “Similac milk” for his infant son is simply not credible and
plainly false. The Government’s assertion that the glass measuring cup contained
cocaine residue was an entirely reasonable inference from the evidence it had
presented. Accordingly, the prosecutor was entitled to make that argument in
closing.
In Ground 11, the Petitioner alleges counsel was ineffective for failing to
challenge the Government’s constructive amendment of the Petitioner’s Indictment.
He contends that although the Indictment charged possession with intent to distribute
280 grams or more of crack cocaine, the Government sought to prove Petitioner
actually distributed an undisclosed amount.
The Petitioner’s claim is without merit. The evidence of the Petitioner’s
distribution of cocaine from the residence in which additional cocaine was seized
and where the Petitioner was located constitutes direct evidence of the crime
charged. The Court has no basis to conclude that such evidence was improper or
that counsel should have sought to exclude it. Additionally, the jury was properly
instructed on the law.
In Ground 12, the Petitioner claims counsel was ineffective for failing to
submit evidence favorable to his theory of defense. The Petitioner claims counsel
failed to submit a digital copy of the conversation the Petitioner had with the
confidential informant while Petitioner was incarcerated at the county jail, in which
the confidential informant can be heard admitting to the fact that he planted the drugs
in the pocket of the jeans discovered in the home. The Petitioner claims this digital
copy of the conversation is part of Exhibit 13. However, it appears that Exhibit 13
is a copy of the DVD of one of the controlled buys on December 15, 2011. In any
event, the evidence against the Petitioner was overwhelming and there is not a
reasonable probability the outcome of the trial would have been different if the
recording had been played.
Additionally, the Petitioner’s failure with retained counsel to seek a material
witness warrant for, or present the testimony of, Andrew Wallace for the evidentiary
hearing in this proceeding conclusively demonstrates that his claims have no merit.
Rather, the evidence demonstrated that the Petitioner had total dominion and control
over what Supervisory Special DEA Agent Glenn Haas described as a “typical drug
house.” Doc. No. 126, at 713.
IV. CONCLUSION
None of the Petitioner’s grounds under § 2255 has merit. The Court held a
hearing on the motion and found Mr. Alvarez’s testimony was credible while the
Petitioner’s testimony was not credible. The evidence showed that Petitioner had
dominion and control over a “typical drug house,” where 697 grams of cocaine and
crack cocaine were found. The Petitioner admitted it was all his. Given the
overwhelming evidence of the Petitioner’s guilt, there was only so much any
attorney could do. Mr. Alvarez made reasonable strategic decisions throughout the
trial. The Petitioner has not shown that trial counsel or appellate counsel was
ineffective. His motion will be denied.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceeding, the
Court must issue or deny a certificate of appealability. Upon reviewing the entire
record, the Court concludes that the Petitioner has not made a substantial showing
of the denial of a constitutional right as required under 28 U.S.C. § 2253(c)(2).
Accordingly, the Court will deny a certificate of appealability.
Ergo, the Motion of Petitioner Patrick B. Wallace to Vacate, Set Aside or
Correct Sentence under 28 U.S.C. § 2255 [d/e 1] is DENIED.
The Motion of Petitioner Patrick B. Wallace to Appeal In Forma Pauperis [d/e
54] is DISMISSED as premature, as the Court had not ruled on Petitioner’s Motion
under § 2255 when he sought leave to appeal in forma pauperis.
The Petitioner may now seek leave to appeal in forma pauperis.
Because the Petitioner has not made a substantial showing of the denial of a
constitutional right, the Court hereby denies Petitioner a certificate of appealability
under Rule 11(a).
The Petitioner may seek a certificate from the court of appeals under Federal
Rule of Appellate Procedure 22.
ENTER: August 20, 2019
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge