Conley v. Werlich

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TRACY L. CONLEY, )

)

Petitioner, ) Case No. 18 C 7122

)

v. ) Judge Sharon Johnson Coleman

)

UNITED STATES OF AMERICA,1 )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

On April 15, 2019, petitioner Tracy L. Conley, by counsel, filed this amended motion to

vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated below,

the Court denies Conley’s § 2255 motion. The Court, however, certifies the following issues for

appeal under 28 U.S.C. § 2253(c): (1) whether the ATF’s practice of recruiting individuals into

conspiring to rob false drug stash houses amounted to outrageous conduct violating Conley’s fifth

amendment due process rights; and (2) whether the ATF’s conduct in targeting racial minorities for

false stash house stings amounted to selective enforcement in violation of Conley’s fifth amendment

equal protection rights.

Background

On January 24, 2014, a jury convicted Conley of the following counts in the April 2012

indictment: (1) conspiracy to possess with intent to distribute five kilograms or more of mixtures

containing cocaine in violation of 21 U.S.C. §§ 841(a), 846 (count 1); (2) attempt to possess with

intent to distribute five kilograms or more of mixtures containing cocaine in violation 21 U.S.C. §§

841(a), 846 (count 2); (3) possession of a firearm in furtherance of a drug trafficking crime in

1 The proper Respondent in a 28 U.S.C. § 2255 action is the United States, not the warden of federal

correctional center where the petitioner is incarcerated. The Court therefore substitutes the United States as

the Respondent pursuant to Federal Rule of Civil Procedure 25(d).

violation of 18 U.S.C. § 924(c)(2) (count 3); and (4) unlawful possession of a firearm by a felon in

violation of 18 U.S.C. § 922(g)(1) (count 5). The Court sentenced Conley to 120 months in prison

for counts 1, 2, and 5 to run concurrently and 60 months for count 3 to run consecutively for a total

of 180 months in prison. The Court’s sentence was based, in part, on a “fictious” quantity of drugs

in this false stash house case, which resulted in mandatory minimum sentences under 21 U.S.C. §

841(b)(1)(A)(ii)(II).

To clarify, Conley’s prosecution and conviction were the result of a former practice used by

the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) of engaging in sting operations

where undercover agents provided individuals with the opportunity to rob fake drug stash houses

that did not exist. In short, the ATF’s practice involved enticing individuals, most of whom were

impoverished racial minorities, into “conspiring to rob fictitious stash houses of fictitious drugs or

money operated by fictitious drug dealers.” United States v. Paxton, No. 13 CR 0103, 2018 WL

4504160, at *1 (N.D. Ill. Sept. 20, 2018) (Gettleman, J.). On direct appeal, the Seventh Circuit

described the general background underlying Conley’s conviction:

Tracy Conley was ensnared in a now familiar government set up in which a

government actor, pretending to be a criminal, presents the defendant with an

opportunity to be part of a robbery of an illegal drug stash house. The stash house is

fictional, of course, and so the government decides which and what quantity of drugs

it will have (in this case, fifty kilograms of cocaine) and how high or low the barriers

to the crime will be (in this case it was allegedly protected only by two armed and

one unarmed guards).

United States v. Conley, 875 F.3d 391, 394 (7th Cir. 2017).

A brief summary of the evidence adduced at Conley’s trial begins with an undercover ATF

agent approaching Myreon Flowers with the opportunity to rob a stash house of an alleged drug

boss explaining the type and quantity of drugs and emphasizing the need for guns. Myreon then

recruited his brother David Flowers and cousins Anwar Trapp and Dwayne Jones into the scheme.

The cousins met on October 31, 2011 for the purpose of planning the robbery of the drug stash

house. At that meeting, the cousins discussed recruiting Anthony Adams for their scheme because

Adams had a gun. On November 1, 2011, Trapp, Myreon, and David met with Adams. Later that

same day, Trapp, David, and Adams picked up Conley and went back to Adams’ apartment to

discuss the robbery. At trial, Trapp testified that Myreon told them about the details of the robbery

and discussed that Adams, Conley, and another person would assist in the robbery. Unbeknownst

to Conley, the Flowers brothers, or the other participants, the robbery was targeting a false stash

house set up by the ATF.

Upon his arrest, Conley provided a statement that he had gone to work on November 1, but

was sent home early. He did not have enough money to purchase gas for his car to go home, so he

agreed to help his friend Adams clean his apartment. Adams then took Conley to his apartment

where they met with others. At Myreon’s direction, two vans were driven in furtherance of the

robbery. Later that day, Conley, Adams, and another individual arrived at David’s home and got

into one of the vans. Both vans were driven to a forest preserve where federal agents stopped and

arrested the occupants of both vans that contained a total of three firearms.

On direct appeal, Conley asserted that the government failed to meet its burden in

establishing sufficient evidence to support his conspiracy and firearm convictions and that the

government entrapped him into committing these crimes. The Seventh Circuit affirmed, but

concluded with the following discussion:

We conclude with a word about the district court’s articulated dismay with the

prosecution of this stash house case. In its order, the district court questioned “the

wisdom and purpose of expending the level of law enforcement resources and

judicial time and effort in this prosecution.” At sentencing the court stated that

Conley’s sentence was “devoid of [ ] true fairness ... and will serve no real purpose

other than to destroy any vestiges of respect in our legal system and law enforcement

that this defendant and his community may have had.” Specifically, the district court

was dismayed that it was forced into a minimum sentence based on the

government’s ability to control the sentence by manipulating the amount and type of

drugs that were “in” the fictitious stash house.

Conley, 875 F.3d at 402 (internal citations omitted).

Turning to Conley’s § 2255 motion, he brings the following claims: (1) ATF officers

engaged in outrageous conduct in violation of his fifth amendment due process rights; (2) ATF

officers selectively targeted racial minorities for false stash house stings in violation of the equal

protection clause; (3) trial and appellate counsel provided constitutionally ineffective assistance of

counsel; and (4) his conspiracy conviction cannot serve as a “drug trafficking crime” under 18 U.S.C.

§ 924(c)(2).

Legal Standards

Section 2255(a) of title 28 provides that “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, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack, may move the court which imposed

the sentence to vacate, set aside or correct the sentence.” Simply put, relief under § 2255 is available

in extraordinary situations, such as when an error of constitutional or jurisdictional magnitude has

occurred. See Hanson v. United States, 941 F.3d 874, 876 (7th Cir. 2019).

If a § 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the

Court’s collateral review unless the petitioner can demonstrate cause for the procedural default and

actual prejudice from the failure to appeal, or that enforcing the procedural default would lead to a

fundamental miscarriage of justice. Lund v. United States, 913 F.3d 665, 667 (7th Cir. 2019); Farmer v.

United States, 867 F.3d 837, 842 (7th Cir. 2017). Because Sixth Amendment ineffective assistance of

counsel claims often involve evidence outside of the trial record, such claims may be brought for the

first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d

714 (2003); United States v. Cates, 950 F.3d 453, 457 (7th Cir. 2020).

Discussion

Due Process Outrageous Conduct Claim

In his § 2255 motion, Conley argues that federal law enforcement engaged in outrageous

conduct in violation of his fifth amendment due process rights by recruiting participants and

manufacturing a crime that forced the Court to give him mandatory minimum sentences based on

manipulated and imaginary quantities of drugs.

Conley’s first hurdle in establishing this claim is to overcome his procedural default. Conley

acknowledges that he did not present this claim on direct appeal, but that his procedural default is

excepted based on cause and actual prejudice. See United States v. Frady, 456 U.S. 152, 168, 102 S.Ct.

1584, 71 L.Ed.2d 816 (1982); Farmer, 867 F.3d at 842. In particular, Conley argues the cause for his

failure to raise this claim on direct appeal was that its legal basis was not available because he is

seeking to extend Seventh Circuit law to include a fifth amendment due process outrageous conduct

claim under the circumstances. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d

397 (1986) (“showing that the factual or legal basis for a claim was not reasonably available to

counsel” constitutes “cause under this standard.”). The Court agrees. The Court also concludes

that Conley has established actual prejudice, namely, that either his indictment would have been

dismissed if he had established this outrageous conduct claim or that his sentence would have been

lower without the imaginary drug amount resulting in statutory minimum sentences for his drug

offenses.

Moving to the merits of Conley’s due process claim, he acknowledges that the Seventh

Circuit has yet to determine under what circumstances an outrageous government conduct defense

would be available. Conley asserts that based on the egregious conduct in this case, the Seventh

Circuit should adopt this defense. Specifically, Conley contends the constitutionally outrageous

conduct in his case included that the ATF agents: (1) targeted racial minorities; (2) concocted fake

stash houses full of fake drugs and fake guns; (3) entreated their initial targets to recruit other targets

without regard for what the initial targets might say and without certainty that the additional targets

knew the scheme’s details; and (4) attempted to insulate themselves from an entrapment defense

because the original targets recruited the additional targets. See, e.g., Conley, 875 F.3d at 402

(“Conley’s co-conspirators, and not the government, recruited him.”). Also, the agents encouraged

the targets and any other participants to carry firearms to combat any violence expected at the fake

stash house.

The genesis of the outrageous conduct defense is the Supreme Court case, United States v.

Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), where the Court suggested that

there may be “a situation in which the conduct of law enforcement agents is so outrageous that due

process principles would absolutely bar the government from invoking judicial processes to obtain a

conviction.” Two years later, the Seventh Circuit recognized that “Russell did not rule out the

possibility that some governmental conduct might be so shocking that prosecution would be barred

as a matter of due process.” United States v. Quintana, 508 F.2d 867, 877 (7th Cir. 1975). The

Quintana decision highlighted the Russell Court’s statement that “such law enforcement conduct

would have to be violative of ‘fundamental fairness, shocking to the universal sense of justice,

mandated by the Due Process Clause of the Fifth Amendment.’” Id. (quoting Russell, 411 U.S. at

432); cf. Rochin v. California, 342 U.S. 165, 172,72 S.Ct. 205, 96 L.Ed. 183 (1952). In 2013, the

Seventh Circuit explained “Russell offers no real guidance to lower courts as to the type or level of

conduct by the government that might, standing alone, amount to a due process violation” and

“[w]ithout such guidance from the Supreme Court, our court has disallowed such a defense in this

circuit.” United States v. Westmoreland, 712 F.3d 1066, 1071 (7th Cir. 2013). Yet, the Seventh Circuit

has also recognized that “the Supreme Court did not foreclose the ‘outrageous conduct’ defense –

but it did not mandate its application either.” United States v. Kienast, 907 F.3d 522, 530 (7th Cir.

2018). Rather, the Seventh Circuit has acknowledged that “we have never taken what we see to be

an extreme step of dismissing criminal charges against a defendant because of government

misconduct.” United States v. Childs, 447 F.3d 541, 545 (7th Cir. 2006). And, when rejecting the

outrageous conduct defense, the Seventh Circuit has often considered the specific facts of the case

when concluding the alleged outrageous conduct was not conscience shocking. See, e.g., Kienast, 907

F.3d. at 530-31; United States v. Smith, 792 F.3d 760, 766 (7th Cir. 2015); Westmorland, 712 F.3d at

1072-73; see also United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir. 1983) (“government conduct

must be truly outrageous before due process will prevent conviction of the defendant.”). In circuits

that have considered the outrageous conduct defense, courts determine whether the government

conduct was so outrageous that it was violative of due process under the totality of circumstances.

See, e.g., United States v. Anzalone, 923 F.3d 1, 6 (1st Cir. 2019); United States v. Hare, 820 F.3d 93, 102

(4th Cir. 2016); United States v. Black, 733 F.3d 294, 303 (9th Cir. 2013).

Looking to the totality of the circumstances in this case, the ATF officers engineered a drug

conspiracy with the goal of achieving as many convictions as possible – as opposed to legitimate law

enforcement objectives – in the context of racial profiling. See United States v. Brown, 299 F.Supp.3d

976, 986 (N.D. Ill. 2018) (Castillo, J.) (“It is unclear to the Court why, with all the tactics available to

them, federal law enforcement agents would adopt a narrative tinged with racial overtones to

conduct sting operations involving serious federal charges.”). Based on this scheme, the Court was

forced to sentence Conley to mandatory minimum sentences based on imaginary drugs, which

underscores the ATF agents’ outrageous conduct. As the Ninth Circuit explained in the context of

fictional stash house operations:

[T]he government has virtually unfettered ability to inflate the amount of drugs

supposedly in the house and thereby obtain a greater sentence for the defendant. In

fact, not only is the government free to set the amount of drugs in a fictional stash

house at an arbitrarily high level, it can also minimize the obstacles that a defendant

must overcome to obtain the drugs.

United States v. Briggs, 623 F.3d 724, 729-30 (7th Cir. 2010). If there ever was a situation in which the

conduct of law enforcement agents was so outrageous that a criminal defendant’s due process rights

have been violated, this is it.

Although the Court cannot extend Seventh Circuit precedent to include a fifth amendment

due process right based on outrageous conduct that is conscience shocking, the Court concludes

that the Seventh Circuit should revisit this due process right under the facts of this case. The Court

reluctantly denies Conley’s outrageous conduct claim, but certifies this claim for appeal under 28

U.S.C. § 2253(c), as discussed below.

Equal Protection Selective Law Enforcement Claim

Conley also argues that the ATF violated his fifth amendment equal protection rights by

targeting racial minorities for false stash house stings. See Whren v. United States, 517 U.S. 806, 813,

116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996) (“the Constitution prohibits selective enforcement of

the law based on considerations such as race.”). Although Conley did not bring this claim on direct

appeal, the government does not challenge Conley’s assertions that his procedural default is

excepted by cause and prejudice; therefore, the Court proceeds directly to the merits of this claim.

Perrone v. United States, 889 F.3d 898, 904 (7th Cir. 2018) (“Procedural default is a waivable defense.”).

Conley is not asserting a selective prosecution claim under United States v. Armstrong, 517 U.S.

456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), an opinion that highlighted the “presumption of

regularity” that attaches to prosecutorial decisions. Instead, Conley brings a selective enforcement

claim where federal agents, unlike prosecutors, “are not protected by a powerful privilege or covered

by a presumption of constitutional behavior.” United States v. Davis, 793 F.3d 712, 720 (7th Cir.

2015) (en banc). As mentioned, underlying this claim is the selective enforcement tactic of racial

profiling. See United States v. Barlow, 310 F.3d 1007, 1010 (7th Cir. 2002).

In the context of false stash house cases that were ongoing after Conley’s prosecution,

former Chief Judge Castillo described the ATF’s practice as follows:

“[F]alse stash house cases,” have served to undermine legitimate law enforcement

efforts in this country. It is undisputed that between 2006 and 2013, the defendants

charged in this District in the ATF false stash house cases were 78.7 black, 9.6

percent Hispanic, and 11.7 percent white. During this same period, the District’s

adult population was approximately 18 percent black, 11 percent Hispanic, and 63

percent white. These numbers generate great disrespect for law enforcement efforts.

Disrespect for the law simply cannot be tolerated during these difficult times. It is

time for these false stash house cases to end and be relegated to the dark corridors of

our past. To put it simply, our criminal justice system should not tolerate false stash

house cases in 2018.

Brown, 299 F.Supp.3d at 983–84. Judge Castillo wrote the Brown opinion in the context of motions

to dismiss indictments in twelve separate cases. Prior to this written opinion, nine district judges,

who had false stash house cases, conducted an unprecedented evidentiary hearing. In Brown, Judge

Castillo denied the motions to dismiss, but encouraged the government to bring these cases to a

reasonable conclusion. As a result, the United States Attorney offered these defendants, whose

charges included mandatory minimum sentences, the opportunity to plead to a single count of

conspiracy to commit robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a), which does not

have a mandatory minimum sentence. Conley was not one of these defendants because he had

already been convicted and sentenced.2

To establish a selective enforcement claim, Conley must “demonstrate that the agents’

actions had a discriminatory effect and that the agents had a discriminatory purpose.” Barlow, 310

F.3d at 1010; see also Chavez v. Illinois State Police, 251 F.3d 612, 635 (7th Cir. 2001). “Law

2 From the time of his arraignment to the present, Conley has bemoaned his prosecution as patently

unfair based on the government controlling the entire stash house scenario. After the Brown decision, Conley

was further frustrated by the reduced sentences of others similarly situated, who had been more directly

involved in the stash house robbery schemes. Conley’s level of frustration concerning the outcome of his

case is exacerbated by COVID-19 and other uncertainties in our country. The Court also notes that there

may be ways to address his circumstances, including a motion for compassionate release under 18 U.S.C. §

3582(c)(1)(A).

enforcement has a racially discriminatory effect when members of a protected racial group …

receive less favorable treatment than nonmembers.” Barlow, 310 F.3d at 1010; see also Armstrong, 517

U.S. at 464-65. To demonstrate discriminatory intent, Conley has the burden of showing “the

existence of purposeful discrimination” in his case. McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct.

1756, 95 L.Ed.2d 262 (1987) (citation omitted).

Conley first argues that the applicable evidentiary standard for selective enforcement claims

is the preponderance of the evidence based on the Seventh Circuit’s distinction between selective

enforcement and selective prosecution claims highlighted in the en banc Davis decision. In Brown,

Judge Castillo recognized that Davis did not directly address what standard governs the resolution of

a substantive selective enforcement claim, as opposed to discovery on selective enforcement claims.

Nonetheless, Judge Castillo relied upon a Third Circuit holding: “A defendant challenging a

criminal prosecution at either the law enforcement or prosecution inflection points must provide

“clear evidence” of discriminatory effect and discriminatory intent (the latter is sometimes referred

to as “discriminatory purpose”).” United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017).

Under the clear evidence standard, Judge Castillo concluded that the defendants in Brown did not

establish discriminatory effect or intent.

Here, Conley relies on the same expert report as the Brown defendants did, namely, the

expert report and findings of Professor Jeffrey Fagan, who conducted a statistical analysis of stash

house cases in the Northern District of Illinois. Conley argues that under the preponderance of the

evidence standard, Professor Fagan’s report demonstrates that the ATF’s fake stash house practice

had a discriminatory effect and intent. Conley also supplies comments made by ATF agents in

various stash house cases arguing that these statements reveal the intent to target individuals based

on race.

Although Judge Castillo rejected these same arguments under the clear evidence standard,

the Court finds no reason to disturb his findings, especially in light of the Court’s inability to extend

Seventh Circuit law and adopt the preponderance of the evidence standard for substantive selective

enforcement claims. Indeed, it appears that the Seventh Circuit may be leaning in this direction

when it acknowledged that “the sort of considerations that led to the outcome in Armstrong do not

apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting

targets for sting operations, or when deciding which suspects to refer for prosecution.” Davis, 793

F.3d at 721. Nevertheless, under the hierarchy of legal authority, the Court is not in the position to

change Seventh Circuit law. Accordingly, the Court denies Conley’s substantive selective

enforcement claim, but certifies this claim for appeal because reasonable jurists could debate that his

claim should have been resolved in a different manner based on the uncertainty of the applicable

evidentiary standard. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542

(2000).

Ineffective Assistance of Counsel Claims

Conley brings two separate arguments concerning his trial counsel’s constitutionally

ineffective assistance. To establish ineffective assistance of counsel in violation of the Sixth

Amendment, Conley must show: (1) his trial attorney’s performance “fell below an objective

standard of reasonableness,” informed by “prevailing professional norms;” and (2) “but for

counsel’s unprofessional errors the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When analyzing the

Strickland performance prong, courts presume counsel’s conduct is within the “wide range of

reasonable professional assistance.” Laux v. Zatecky, 890 F.3d 666, 674 (7th Cir. 2018) (quoting

Strickland, 466 U.S. at 689). Under the Strickland prejudice prong, it is not enough “to show that the

errors had some conceivable effect on the outcome of the proceeding,” rather, Conley must

demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 693, 695. If Conley fails to make a proper showing

under one of the Strickland prongs, the Court need not consider the other. Id. at 697.

Conley first asserts that his trial counsel was constitutionally ineffective because he failed to

object to co-conspirator Anwar Trapp’s trial testimony. Conley explains that the government’s

Santiago proffer anticipated that David Flowers would be the cooperating witness at trial, not Trapp.

Accordingly, Conley argues that the Court did not have the opportunity to exercise its gatekeeping

function under Federal Rule of Evidence 801(d)(2)(E) in relation to Trapp’s statements. See United

States v. Santiago, 582 F.2d 1128, 1130 (7th Cir. 1978). The government responds that by the time of

the pretrial conference, it had second thoughts about calling David Flowers in light of certain

credibility issues and had contacted defense counsel about Trapp testifying at trial. The government

also asserts that it provided defense counsel with Giglio materials and witness statements under the

Jencks Act as to Trapp well before trial.

In his motion for a new trial – where Conley was represented by different counsel than his

trial counsel – he argued that the Court erred in allowing Trapp’s testimony. The Court rejected this

argument as follows:

The Santiago proffer set forth the expected testimony of co-conspirators, that it was

David Flowers instead of Anwar Trapp that the government expected to call is

harmless because the testimony offered through Anwar Trapp was not materially

different. There was evidence of the conspiracy and the statements were made in

furtherance of the conspiracy.

United States v. Conley, No. 11-CR-0779-6, 2015 WL 394012, at *5 (N.D. Ill. Jan. 25, 2015). Based on

this ruling, trial counsel’s failure to object to Trapp’s testimony is immaterial. This immaterial

difference does not support the conclusion that counsel’s performance “fell below an objective

standard of reasonableness.” In short, it was reasonable trial strategy not to object to Trapp’s

testimony under the circumstances. Conley’s argument that appellate counsel was ineffective for

failing to bring this issue on appeal fares no better. See Davila v. Davis, ___ U.S. ___137 S.Ct. 2058,

2067, 198 L.Ed.2d 603 (2017) (“Declining to raise a claim on appeal … is not deficient performance

unless that claim was plainly stronger than those actually presented to the appellate court.”).

Conley also argues that his trial counsel was constitutionally ineffective for failing to present

certain video evidence at trial. He specifically contends that trial counsel was aware of, yet failed to

present, a government video of his arrest at the forest preserve that would have contradicted key

testimony about whether he joined the drug conspiracy. Conley represents that his trial counsel

showed him this video. In response, and pursuant to the Court’s request, the government provided

an affidavit of completeness signed under penalty of perjury that it has turned over all of the video

discovery from this case to Conley’s present counsel averring that it appears the video evidence

Conley references does not exist.3 Even if this video evidence did exist, counsel’s failure to present

the video evidence at trial did not prejudice Conley because of the considerable amount of evidence

that Conley had joined the conspiracy, including Trapp’s trial testimony and significant surveillance

data. See, e.g., Conley, 875 F.3d at 398-99.

Next, Conley maintains that his appellate counsel was constitutionally ineffective for failing

to appeal the denial of his motion for discovery into the ATF’s racially selective profiling. In

analyzing this argument, the Court applies the familiar two-prong test set forth in Strickland. See

Kimbrough v. Neal, 941 F.3d 879, 881 (7th Cir. 2019). Under the Strickland performance prong, an

appellate counsel’s performance is constitutionally deficient if counsel fails to appeal an issue that is

plainly stronger than the claims counsel did raise on appeal. Davila, 137 S.Ct. at 2067. In this

context, “[e]ffective appellate counsel should not raise every nonfrivolous argument on appeal, but

3 Rule 6 of the Rules Governing Section 2255 Proceedings allows for discovery under the Federal

Rules of Civil Procedure. See Lafuente v. United States, 617 F.3d 944, 947 (7th Cir. 2010). Therefore, the

government’s assertion that it is unclear whether the Court had the authority to request the affidavit of

completeness is misplaced.

rather only those arguments most likely to succeed.” Id. To establish the Strickland prejudice prong,

Conley must show there is a reasonable probability that the issue appellate counsel did not raise

would have made a difference in the outcome of his appeal. See Strickland, 466 U.S. at 694; Ramirez v.

Tegels, ___ F.3d ___, 2020 WL 3428084, at *6 (7th Cir. June 23, 2020).

To give context, Conley’s co-defendant Myreon Flowers filed a motion for discovery

concerning racial profiling and selective prosecution that Conley adopted. The Court denied

Conley’s motion and rejected his subsequent post-trial argument. The Court notes that the parties’

district court arguments focused on selective prosecution, not selective enforcement, thus calling

into question whether this argument was properly preserved for appeal in the first instance. Also,

the Court recognizes that when challenging a discovery ruling on appeal, the Seventh Circuit defers

to this Court’s discretion, see Kienast, 907 F.3d at 530, whereas the Seventh Circuit reviews the denial

of a post-trial motion for acquittal challenging the sufficiency of the evidence de novo. See Conley,

875 F.3d at 397. In this context, the Court would be hard-pressed to conclude that challenging the

discovery ruling was a clearly stronger argument than Conley’s appellate arguments related to the

sufficiency of the evidence underlying his conviction. See Jones v. Barnes, 463 U.S. 745, 751–52, 103

S.Ct. 3308, 77 L.Ed.2d 987 (1983) (“Experienced advocates since time beyond memory have

emphasized the importance of winnowing out weaker arguments on appeal and focusing on one

central issue if possible, or at most on a few key issues.”). Put differently, appellate counsel was not

constitutionally ineffective for bringing the most promising issues on appeal, including the

sufficiency of the evidence and entrapment arguments, instead of challenging the ruling on a

discovery motion. The Court therefore denies this ineffective assistance claim.

Improper Predicate Offense Claim

Last, Conley argues that his conviction under 18 U.S.C. § 924(c)(2) is invalid because it is not

supported by a proper predicate offense, although he was convicted of a “drug trafficking crime” in

count 1 of the indictment. Conley first points to the jury instructions for count 1 and the § 924(c)(2)

count, explaining that the jury was not instructed to determine that the conspiracy’s objective was

drug trafficking. Viewing the jury instructions as a whole, see United States v. Kelerchian, 937 F.3d 895,

914 (7th Cir. 2019), the instructions properly informed the jury that the predicate offense was a

conspiracy in relation to possessing with the intent to distribute 5 kilograms or more of a mixture or

substance containing cocaine. Conley’s first argument is unavailing.

Conley also argues that his conviction under § 924(c)(2) is invalid because the underlying

drug trafficking conviction involved drugs that did not exist. Conley thus argues he was not given

fair notice of the punishable conduct in the first instance. See Johnson v. United States, 135 S.Ct. 2551,

2556, 192 L.Ed.2d 569 (2015) (criminal law is unconstitutionally vague if “it fails to give ordinary

people fair notice of the conduct it punishes”). Not only does Conley make this argument for the

first time in his reply brief, he fails to develop it. See United States v. Barr, 960 F.3d 906 (7th Cir.

2020) (“undeveloped, unsupported argument[s are] waived”); Wonsey v. City of Chicago, 940 F.3d 394,

398 (7th Cir. 2019) (“arguments raised for the first time in a reply brief are waived”). As such, this

argument is waived.

On a final note, Conley’s remaining arguments about the insufficiency of the evidence

underlying his § 924(c)(2) conviction were either brought on appeal or should have been brought on

appeal to the Seventh Circuit. The Court therefore denies Conley’s § 924(c)(2) claim.

Certificate of Appealability

Under § 2253(c), a petitioner does not have the absolute right to appeal a district court’s

denial of his § 2255 motion, instead, he must first request a certificate of appealability. Miller-El v.

Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Conley is entitled to a certificate

of appealability only if he can make a substantial showing of the denial of a constitutional right,

which requires him to show that “reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Id. at 336 (citation omitted).

As discussed, Conley has made a showing reasonable jurists would debate that his due

process outrageous conduct and selective enforcement claims should have been resolved in a

different manner. On the other hand, Conley has fatled to show that reasonable jurists would

debate his ineffective assistance claims based on Trapp testifying at trial nor his ineffective assistance

claims based on the video evidence and discovery motion. Last, reasonable jurists would not debate

the Court’s ruling on Conley’s 18 U.S.C. § 924(c)(2) argument.

Conclusion

For these reasons, the Court denies petitioner’s motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255. [1, 21] The Court certifies the following issues for appeal

under 28 U.S.C. § 2253(c): (1) whether the ATP’s practice of recruiting individuals into conspiring

to rob fake drug stash houses amounted to outrageous conduct violating Conley’s fifth amendment

due process rights; and (2) whether the ATF’s conduct in targeting racial minorities for false stash

house stings amounted to selective enforcement in violation of Conley’s fifth amendment equal

protection rights.

SO ORDERED

Le

Sharon Johnson Coleman

United States District Judge

DATED: 7/23/2020

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