United States District Court, Southern District of Indiana, Indianapolis Division
ENTRY DISCUSSING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. ' 2255 AND DENYING CERTIFICATE OF APPEALABILITY
Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana
For the reasons explained in this Entry, Lorenzo Tavarez’s request for relief pursuant to 28 U.S.C. § 2255 is denied. A certificate of appealability is also denied.
Following a jury trial, on May 14, 2009, Tavarez was found guilty of two counts of distributing 50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii). Tavarez appealed his conviction to the Seventh Circuit. See United States v. Tavarez, 626 F.3d 902 (7th Cir. 2010). In that appeal, Tavarez challenged the district court’s failure to give a “missing witness” instruction based on the disappearance of the confidential informant who participated in two controlled drug buys from Tavarez. Id. Tavarez additionally argued that the evidence was insufficient to allow a jury to convict him. Id. The Seventh Circuit rejected both of Tavarez’s challenges and affirmed his conviction. Id. The Supreme Court denied Tavarez’s petition for certiorari on March 21, 2011. See Tavarez v. United States, 131 S.Ct. 1713 (2011).
Now before the court is Tavarez’s motion for post-conviction relief in which he challenges the lawfulness of his conviction. Counsel was appointed to represent Tavarez and the Court conducted an evidentiary hearing on December 12, 2014. In reaching the conclusions of fact set forth below, this Court relied on the evidence of record in this case, the testimony presented at the December 12, 2014, hearing and Attorney Juval Scott’s deposition testimony (dkt. 48).
The Court must grant a § 2255 motion when a petitioner’s “sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. However, “[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations.” Prewitt v. U.S., 83 F.3d 812, 816 (7th Cir. 1996). Relief under § 2255 is available only if an error is “constitutional, jurisdictional, or is a fundamental defect which inherently results in a complete miscarriage of justice.” Barnickel v. U.S., 113 F.3d 704, 705 (7th Cir. 1997) (quotations omitted).
Tavarez claims that he is entitled to relief under § 2255 because his counsel failed to provide effective assistance as guaranteed by the Sixth Amendment. The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009).
A party claiming ineffective assistance of counsel bears the burden of showing (1) that his trial counsel’s performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F .3d 909, 915 (7th Cir. 2011). To satisfy the first prong of the Strickland test, the petitioner must direct the Court to specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The Court must then consider whether in light of all of the circumstances counsel’s performance was outside the wide range of professionally competent assistance. Id.
For the reasons explained below each of Tavarez’s specifications of ineffective assistance of counsel is without merit and his petition must be denied.
A. Confidential Informant
First, Tavarez asserts that his counsel failed to object to the evidence related to the confidential informant at trial and on appeal. At trial Officer Jeffrey Krider of the Indianapolis Metropolitan Police Department testified regarding controlled drug buys from Tavarez he conducted with a confidential informant. Krider also testified that the confidential informant had no pending criminal charges against her.
Tavarez argues that Officer Krider was allowed to present inadmissible hearsay on the part of the confidential informant and that his counsel was ineffective for failing to object to the admission of this evidence. But most of Krider’s testimony regarding the confidential informant was not hearsay at all. Hearsay is an out of court statement presented to prove the truth of the matter asserted. See Fed.R.Evid. 801(b). The evidence related to the confidential informant centered around actions directly observed by law enforcement officers monitoring the informant. In other words, Officer Krider testified about actions of the confidential informant, not statements made by the confidential informant. For example, the officer testified that he observed the informant enter Mr. Tavarez’s apartment and come out with methamphetamine. [Tr. 13-14]. Because this testimony was not hearsay, it was not ineffective for Tavarez’s counsel not to object to it as hearsay. Tavarez does identify one statement by Officer Krider that included hearsay on the part of the confidential informant. Specifically, Officer Krider testified that the informant provided him with “information . . . that Mr. Tavarez was involved in the sale of methamphetamine.” But even if inadmissible hearsay was admitted and counsel should have objected to its admission, Tavarez has not shown that he was prejudiced by counsel’s failure to object. The Seventh Circuit described the evidence against Tavarez as follows:
The informant was seen going into Tavarez’s apartment building for each controlled buy. A surveillance video introduced at trial showed the informant entering the building with Tavarez before the second controlled buy. Although it is undisputed that Tavarez shared his apartment with his girlfriend, nothing in the transcript indicates whether his girlfriend was or was not present in the apartment during either of the controlled buys. When law enforcement searched Tavarez’s apartment, they discovered most of the buy money ($4, 200) inside some men's suit jackets hanging in the master bedroom closet. Most important, Tavarez's fingerprint was found on one of the bags of drugs the confidential informant provided to law enforcement. From this evidence, it was reasonable to find beyond a reasonable doubt that the informant purchased ...