United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. SIMON JUDGE.
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.
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.
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,
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.
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.
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
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.
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.
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.
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.]
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.]
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
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.
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
Assistance of Counsel
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).
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)).
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
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
The Court: Mr. Smith, do you understand that
Mr. Staples will be representing both you and ...