Ivy T. Tucker, Petitioner-Appellant,
United States of America, Respondent-Appellee.
April 11, 2018
from the United States District Court for the Eastern
District of Wisconsin Nos. 2:14-cv-01303-LA and
2:14-cv-01304-LA - Lynn Adelman, Judge.
Bauer, Sykes, and Barrett, Circuit Judges.
2010, a jury convicted Petitioner Ivy Tucker of conspiring to
distribute more than one gram of heroin in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A). He was sentenced
to 40 years' imprisonment after the district court found
that his drug distribution resulted in a death. After his
conviction was affirmed on direct appeal, Tucker filed a
petition pursuant to 28 U.S.C. § 2255, alleging that he
received ineffective assistance of counsel. The district
court denied his petition, and this appeal followed.
23, 2009, a superseding indictment charged Tucker and nine
co-defendants with conspiracy to distribute more than one
gram of heroin. Paragraph Three of the indictment included
the additional allegation that "[o]n January 9, 2009,
death resulted from the use of heroin distributed by the
conspiracy." All of Tucker's co-defendants pleaded
guilty; Tucker proceeded to trial.
to trial, Tucker and the government entered into a
stipulation to omit all evidence of the causation of the
death referenced in Paragraph Three and request that the
district court decline to instruct the jury on that portion
of the indictment. On the first day of trial, the government
orally presented the district court with the following
description of the parties' agreement:
The government believes that [the causation of death issue
is] a sentencing factor and addresses the mandatory minimum
sentence in this case, which would be 20 years … . The
mandatory minimum of 20 years is still in play, and the
government believes it's even more of a sentencing factor
than an element of the offense, and the government and
defense believe that it might be somewhat prejudicial to Mr.
Tucker. Based upon the fact that we have a young female who
died because of the distribution of this controlled
substance-that it may be appropriate for the case to be tried
on the conspiracy, and to leave the issue of causation of the
overdose death … or remove the causing death aspect.
Include that as part of any sentencing factor if the-or the
sentencing phase of this case. (sic)
court asked defense counsel if that was a correct recitation
of the parties' discussion and counsel stated that it
the government did not present any evidence regarding a
death, and the court omitted Paragraph Three's charge of
a resulting death when it read the indictment to the jury. On
October 14, 2010, the jury convicted Tucker of conspiracy
and, in response to the only additional special verdict
question, found that the offense involved more than one
kilogram of heroin.
to sentencing, the United States Probation Office filed a
Presentence Investigation Report ("PSR"), which
explained that Tucker's base offense level under the
Sentencing Guidelines was 32 based on his conviction under 21
U.S.C. § 841(a)(1). However, the PSR recommended that,
pursuant to U.S.S.G. § 2D1.1(a)(2), the base level
should increase to 38 because his offense involved more than
one kilogram of cocaine and "the offense of conviction
establishe[d] that death or serious bodily injury resulted
from the use of the substance."
sentencing hearing occurred on February 3, 2012. At the
hearing, the government presented evidence and called several
witnesses to establish that the heroin Tucker distrib- uted
was sold to Amanda Ward, who overdosed and died. The district
court found that, although other drugs were involved, the
heroin distributed by the members of the conspiracy was the
proximate cause of Ward's death. Therefore, the court
adopted the findings of the PSR, which established a
Guidelines range of 360 months' to life imprisonment, and
sentenced Tucker to 40 years in prison with five years of
supervised release. Tucker's counsel did not object to
the court's specific finding as to Ward's death, nor
its adoption of the other findings in the PSR. Tucker's
conviction was affirmed on direct appeal. See United
States v. Tucker, 714 F.3d 1006 (7th Cir. 2013).
then filed a petition under 28 U.S.C. § 2255, raising a
number of claims of ineffective assistance of counsel. Those
included claims that his trial counsel failed to object to
certain improper testimony and evidence, as well as general
claims that his appellate ...