United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN, District Judge.
This matter is before the Court on Defendant Jermaine Askia Cooper's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 165], filed on September 23, 2013, the Government's Response in Opposition [ECF No. 169], and the Defendant's Response to the Government's Response in Opposition [ECF No. 172]. The Defendant requests an evidentiary hearing [ECF No. 168] in connection with his motion for post conviction relief.
In May 2009, police in Fort Wayne applied for a warrant to search the Defendant's residence. Detective Marc Brown prepared the supporting affidavit, which detailed the methodology and results of several controlled purchases of cocaine that an informant made from the Defendant. One of the purchases took place at a gas station, two occurred at the Defendant's home, and one at a bar that the Defendant managed. Detective Brown concluded his affidavit with a statement that officers had maintained constant visual surveillance of the informant during all of the controlled buys, had monitored his conversations, and had kept the Defendant's home under constant visual surveillance while the informant was inside.
A state judge issued the search warrant. Police arrested the Defendant after they executed the warrant and found drugs and guns inside the Defendant's home. Federal authorities took over the investigation and charged the Defendant with multiple crimes. After he was indicted, the Defendant moved to suppress the evidence found in his home, arguing that Detective Brown's affidavit failed to establish probable cause because it lacked reliability about the informant and omitted significant information about each of the controlled buys. The district court denied the Defendant's motion to suppress the evidence from the search.
At trial, the Government called the informant, Detective Brown, and other local police officers and federal agents involved with the investigation. The Government also introduced recordings made from the audio transmitted by the informant for three of the four drug transactions (because of a technical problem, there was no recording of the second buy). The jury convicted the Defendant of possession of a firearm by a felon under 18 U.S.C. § 922(g)(1), possession and distribution of crack cocaine under 21 U.S.C.§ 841(a)(1) for the drug transactions for which there were audio recordings, and obstruction of justice under 18 U.S.C.§ 1512(c)(2). The jury acquitted the Defendant on the distribution count corresponding to the second controlled buy and on a charge of using a firearm during and in relation to the fourth buy. The Defendant moved for a judgment of acquittal on the counts of conviction, which the district court denied.
After sentencing, the Defendant appealed the adverse ruling on his motion to suppress. The Court of Appeals found that the affidavit supporting the warrant established probable cause, and affirmed the district court's pretrial ruling. See United States v. Cooper, 485 F.Appx. 826 (7th Cir. 2012).
The Defendant now seeks to vacate his conviction on grounds that his counsel was ineffective (1) in connection with his motion to suppress; (2) when he failed to adequately investigate the Defendant's case and speak to a witness who could have provided exculpatory evidence; and (3) when he did not preserve his due process rights by attempting to demonstrate that the controlled buys were improperly executed.
Section 2255 allows a person convicted of a federal crime to seek to vacate, set aside, or correct his sentence. This relief is available only in limited circumstances, such as where an error is of jurisdictional or constitutional magnitude, or where there has been an error of law that "constitutes a fundamental defect which results in a complete miscarriage of justice." See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). Motions to vacate a conviction or correct a sentence ask a court to grant an extraordinary remedy to a person who has already had an opportunity of full process. Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006). A motion under § 2255 "is neither a recapitulation of nor a substitute for a direct appeal." Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). A court may deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
In seeking to prove that his counsel rendered ineffective assistance, the Defendant "bears a heavy burden." Jones v. Page, 76 F.3d 831, 840 (7th Cir. 1996) (citation omitted). To establish ineffective assistance of counsel, a petitioner must show that: (1) his attorney's performance "fell below an objective standard of reasonableness, " Strickland v. Washington, 466 U.S. 668, 688 (1984); and (2) there is a reasonable probability that "but for counsel's unprofessional errors the result of the proceeding would have been different, " Id. at 694. "A failure to establish either prong results in a denial of the ineffective assistance of counsel claim." Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir. 2002) (citation omitted).
The performance prong requires the Defendant to specifically identify acts or omissions that form the basis of his claim of ineffective assistance. Strickland, 466 U.S. at 690. Based on the totality of the circumstances, the Court must then determine whether the identified acts and omissions fall outside the range of professionally competent assistance. Id. The prejudice prong requires the Defendant to show that his trial counsel's errors are so serious as to render his trial fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 368-69 (1993). "Failure to raise a losing argument, whether at trial or on appeal, does not constitute ineffective assistance of counsel." Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).
A. The Motion to Suppress
The Defendant argues that his counsel was "negligent in failing to challenge the search warrant affidavit on the grounds that material and relevant information was omitted from it, thus precluding the issuing judge from making an informed decision as to probable cause." (Motion, Ground One, ECF No. 165 at 4.) In a related ground for relief, the Defendant asserts that his counsel should have challenged the search warrant affidavit using the theory that the ...