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Smith v. United States

United States District Court, N.D. Indiana, Hammond Division

September 21, 2018

JOHN SMITH, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON JUDGE.

         A jury convicted John Smith of a slew of crimes involving drugs and guns, and I sentenced him to the mandatory minimum - a term of imprisonment of 480 months. Smith now moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, arguing that he was denied effective assistance of counsel based on his first counsel's purported failure to address a conflict of interest and that his rights to a speedy trial were violated. For the reasons that follow, I will deny Smith's motion.

         Background

         The facts of the case are exhaustively set out in the opinion of the Seventh Circuit from the direct appeal. United States v. Smith, 792 F.3d 760, 761-63 (7th Cir. 2015). It is enough to say for present purposes, that after some initial investigation, Smith, a local law enforcement official, became the target of a sting operation conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives. A friend of Smith's, who was actually working as an informant for the ATF, introduced an ATF agent to Smith as “Danny, ” and Danny told Smith that he needed protection while conducting a drug transaction. Later, Smith met Danny at an Indianapolis gun show, where Smith purchased three firearms for Danny.

         Four days later, Smith and another police officer recruited by Smith, Terry Carlyle, met Danny at a restaurant. They discussed a trip involving the transfer of a large quantity of cocaine (or so Smith thought) where Smith would serve as protection. Smith indicated that he would bring two guns with him on the trip, and he also offered to sell Danny additional weapons. At the end of the meeting, Danny told Smith that the upcoming run would be between Indianapolis and Merrillville, Indiana.

         Smith accompanied Danny on two runs, picking up a total of 25 kilograms of what Smith believed was cocaine. During both trips, Smith drove Danny's car and carried firearms. A week after the second trip, Smith met a purported drug dealer, who was actually another undercover agent, and sold him 13 firearms for $8, 000.

         A grand jury indicted Smith for one count of conspiring to possess with intent to distribute more than five kilograms of cocaine; two counts of attempting to possess with intent to distribute more than five kilograms of cocaine; one count of transferring firearms knowing they would be used in a drug trafficking crime; and three counts of possessing a firearm in furtherance of a drug trafficking crime. The grand jury also indicted Carlyle.

         Smith and Carlyle were arrested on April 14, 2011, one week after the indictment. That same day, attorney Ralph Staples entered his appearance on behalf of both Smith and Carlyle. [DE 9.] On April 19, 2011, Magistrate Judge Rodovich presided over Smith and Carlyle's arraignment and detention hearing. [DE 10.] The Court became aware of Staples' dual representation and addressed the issue with both Smith and Carlyle. [Id.]

         In particular, the Court engaged in a colloquy with both Smith and Carlyle regarding this potential conflict of interest. Magistrate Judge Rodovich asked Smith if he understood that Staples would be representing both him and his co-defendant. [DE 217 at 2.] Magistrate Judge Rodovich informed Smith that he had the “right to be represented by your own attorney if you choose” and that there “are potential problems when one attorney represents two defendants.” [Id.] After listing several examples of the potential problems that may arise when one attorney represents two co-defendants, Magistrate Judge Rodovich asked Smith whether he had discussed this issue with Staples and whether he was satisfied with the fact that Staples was representing both him and his co-defendant. [Id. at 3-4.] Smith replied yes to both questions. [Id.]

         Staples continued to represent both defendants for some time, and he filed a total of four motions to continue the jury trial. In addition, Staples was suspended from the practice of law for one month during the pendency of the charges against Smith. As the prosecution against Smith and Carlyle proceeded, Carlyle, who was still represented by Staples, agreed to plead guilty, and he changed his plea on September 30, 2011.

         The sequence of the subsequent events is important so I will lay them out below in some detail. At the time Carlyle changed his plea, I accepted his plea of guilty but reserved my decision on whether or not to accept his plea agreement pending the completion of the presentence investigation report. [DE 24.] After the completion of the presentence investigation report, on January 18, 2012, Staples filed a motion to withdraw from his representation of Carlyle, explaining that the attorney-client relationship had broken down. [DE 34.] Carlyle was appointed new counsel the next day. [DE 35.] Shortly after, on March 2, 2012, Carlyle moved to withdraw his guilty plea, which I granted. [DE 41.] Five months later, on August 3, 2012, Carlyle entered into a second plea agreement with the government, and he agreed to cooperate against Smith. [DE 53.] As noted, by this point in time, Carlyle had a different attorney.

         Before Carlyle's second plea agreement, on May 24, 2012, Magistrate Judge Rodovich scheduled a status hearing to discuss the issue of Smith's representation by Staples. [DE 49.] Recall that Staples had already been withdrawn as counsel for Carlyle, and at this point was representing only Smith. At this conference, Magistrate Judge Rodovich addressed the issue of Staples' suspension from the practice of law, which had recently occurred, as well as other issues. [Id.]

         As previously explained, on August 3, 2012, the government filed a plea agreement with Carlyle. [DE 43.] I held a change of plea hearing on August 13, 2012. [DE 56.] One day after Carlyle entered into his second plea agreement (in which he agreed to cooperate), Magistrate Judge Rodovich held a status conference. At this conference, after the government indicated that Carlyle had pled guilty, the parties identified that there was a problem with the representation of Smith by Staples, as Smith expected to go to trial. Staples made an oral motion to withdraw from his representation of Smith. Smith, determined to be indigent at this point, was appointed new counsel, John Maksimovich. [DE 57.] The Court also found that due to Smith's new representation, and in the best interests of Smith, a new trial date would be set and Smith's speedy trial rights would be waived until the new date. [Id.]

         After Smith's second attorney filed one motion to continue, Smith proceeded to trial on June 3, 2013. He was convicted on all counts, though I later dismissed one count. I sentenced him to the mandatory minimum sentence of 480 months imprisonment.

         Standard of Review

         A federal prisoner “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 ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Relief under § 2255 is appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). A § 2255 motion is neither a “recapitulation of nor a substitute for a direct appeal.” Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (citation omitted). Such relief is extraordinary because it seeks to reopen the criminal process to a person who has already had an opportunity of full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)).

         Discussion

         Smith raises two arguments that he believes warrant habeas relief. First, he claims that he was denied his Sixth Amendment right to counsel because of a potential and actual conflict of interest. Second, he argues that his rights to a speedy trial - both under the Speedy Trial Act and the federal constitution - were violated. I will address each claim in turn.

         Ineffective Assistance of Counsel

         Smith claims that Staples' performance was objectively unreasonable because the representation presented a conflict of interest that prejudiced him. To prevail on a claim of ineffective assistance of counsel, a defendant must show that (1) his counsel's performance “fell below an objective standard of reasonableness, ” and (2) “that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.” Hinton v. Alabama, 571 U.S. 263, 272 (2014) (citing Strickland v. Washington, 466 U.S. 668, 688-94 (2009)). If the defendant cannot establish both of these factors, the claim fails. Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir. 2002). In applying this test, the court is “highly deferential to counsel, ” and there is a “strong presumption that counsel's decisions constitute reasonable litigation strategy.” United States v. Scanga, 225 F.3d 780, 783-784 (7th Cir. 2000) (internal quotation marks omitted).

         The Sixth Amendment entitles a defendant to conflict-free representation. Cuyler v. Sullivan, 446 U.S. 335, 345 (1980). A defendant, however, “may waive his right to conflict-free counsel, and, having made a knowing and intelligent waiver, may not later attack his conviction based on an asserted conflict.” United States v. Adkins, 274 F.3d 444, 453 (7th Cir. 2001). “A waiver is ‘knowing and intelligent' if it is ‘made with sufficient awareness of the relevant circumstances and likely consequences.'” Id. (quoting United States v. Lowry, 971 F.2d 55, 60 (7th Cir. 1992)).

         Smith argues that Staples' performance was unreasonable because he did not obtain a written waiver of the possible conflict or informed consent to the representation, in violation of the Indiana Rules of Professional Conduct. As Smith concedes, however, a violation of an ethical or professional rule of conduct does not necessarily make out a denial of the Sixth Amendment guarantee of counsel. Nix v. Whiteside, 475 U.S. 157, 165 (1986). Instead, the question is whether counsel's assistance was “constitutionally deficient in that ‘counsel made errors so serious that counsel was not functioning as counsel guaranteed the defendant by the Sixth Amendment.” Id. at 164-65 (quoting Strickland, 466 U.S. at 687). Failing to obtain a written waiver of a potential conflict of interest in these circumstances does not even come close to this standard.

         Smith's argument also disregards his own colloquy with the Magistrate Judge in this case. At the arraignment hearing on April 19, 2011, five days after Smith's initial appearance, the Magistrate Judge immediately raised the issue of Staples' representation of both Smith and Carlyle. The government indicated that there was a potential conflict but that it could be waived. So Magistrate Judge Rodovich engaged in the following exchange:

The Court: Mr. Smith, do you understand that Mr. Staples will be representing both you and ...

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