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Robey v. United States

United States District Court, S.D. Indiana, Indianapolis Division

September 25, 2019

GEORGE E. ROBEY, Petitioner,



         For the reasons explained in this Entry, George Robey’s motion for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         I. The § 2255 Motion

         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). “Relief under this statute is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citing Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997)).

         II. Factual Background

         On December 5, 2011, a criminal complaint was filed against Mr. Robey. United States v. Robey, No. 1:12-cr-00027-SEB-TAB-1 (hereinafter, “Crim. Dkt.”), dkt. 1. After the Court granted two extensions of time in which to file an indictment, Crim. Dkt. 16; Crim. Dkt. 18, Mr. Robey was charged by indictment with one count of conspiracy in violation of 18 U.S.C. § 371; fifteen counts of trafficking in vehicles with altered vehicle identification numbers in violation of 18 U.S.C. § 2321; five counts of making, uttering, or possessing counterfeit state securities in violation of 18 U.S.C. § 513(a); and four counts of identification document fraud in violation of 18 U.S.C. § 1028. Crim. Dkt. 19.

         On the government’s motion, the Court dismissed several of the counts against Mr. Robey. Crim. Dkt. 147. Thereafter, Mr. Robey proceeded to trial on four counts of trafficking in vehicles with altered vehicle identification numbers in violation of 18 U.S.C. § 2321 (Counts 1-4) and two counts of making, uttering, or possessing counterfeit state securities in violation of 18 U.S.C. § 513(a) (Counts 5-6). Crim. Dkt. 174. A jury convicted Mr. Robey on all counts. Crim. Dkt. 171. Mr. Robey was sentenced to an aggregate term of 110 months’ imprisonment to be followed by three years’ supervised release. Crim. Dkt. 194.

         Mr. Robey appealed his conviction and sentence on three grounds. United States v. Robey, 831 F.3d 857, 859-60 (7th Cir. 2016). He argued that he did not receive a speedy trial in violation of the Speedy Trial Act and the Sixth Amendment, that the district court erred in allowing the government to amend the indictment by dismissing nineteen of the original twenty-five charges, and that the district court’s relevant conduct determination at sentencing was erroneous. Id. The Seventh Circuit affirmed Mr. Robey’s conviction and sentence. Id. at 867.

         The Seventh Circuit denied Mr. Robey’s petition for rehearing and rehearing en banc on September 26, 2016. Id. at 857. The Supreme Court denied his petition for a writ of certiorari on June 5, 2017. Robey v. United States, 137 S.Ct. 2214 (2017). Mr. Robey filed this motion for relief pursuant to 28 U.S.C. § 2255 on June 5, 2018. Dkt. 1; Crim. Dkt. 244.

         III. Discussion

         Mr. Robey presents five arguments in support of his § 2255 motion. First, he asserts that he received ineffective assistance of counsel from all three attorneys who represented him in the criminal proceeding. Second, he claims he is eligible for re-sentencing based on the Sentencing Guidelines that went into effect in November 2015 because his case was on appeal when those Sentencing Guidelines went into effect. Third, he argues that his Fifth and Fourteenth Amendment rights were violated because a federal agent presented perjured testimony to the grand jury. Fourth, he contends the prosecutor engaged in misconduct by allegedly back-dating the plea agreement Mr. Robey executed and then rescinded. Finally, Mr. Robey maintains that his right to a speedy trial was violated and the Court committed judicial misconduct when it allegedly asked the parties to file motions to continue to accommodate its “non-judicial schedule.” Dkt. 1 at 10. Each of these arguments will be addressed in turn.

         A. Ineffective Assistance of Counsel

         A petitioner claiming ineffective assistance of counsel bears the burden of showing (1) that 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). If a petitioner cannot establish one of the Strickland prongs, the Court need not consider the other. Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014). To satisfy the first prong of the Strickland test, a 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. To satisfy the prejudice component, a petitioner must establish that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

         1. Extension of Time to File Indictment

         Mr. Robey first asserts that he received ineffective assistance of counsel because his attorney agreed to two motions for extension of time to file an indictment allegedly without consulting him. Dkt. 1-1 at 1; see also Crim. Dkt. 14; Crim. Dkt. 17. The motions state that extensions were necessary because Mr. Robey’s attorney and government counsel were discussing various resolutions of the matter. Crim. Dkt. 14 at ¶ 2; Crim. Dkt. 17 at ¶ 2. Thus, the record demonstrates that Mr. Robey’s attorney agreed to the requested extensions in an effort to resolve the underlying criminal matter prior to indictment. The Court defers to counsel’s reasonable tactical decision and concludes that counsel’s decision to agree to the extensions was not deficient. See Johnson v. Thurmer, 624 F.3d 786, 792 (7th Cir. 2010) (“It is well established that our scrutiny of counsel’s trial strategy is to be deferential and that we do not second guess the reasonable tactical decisions of counsel in assessing whether his performance was deficient.”).

         Additionally, Mr. Robey has not satisfied the prejudice component of the ineffective assistance of counsel analysis. He has not identified any negative consequences of the extensions, nor has he explained how an objection to the requested extensions would have changed the outcome of the proceeding.

         2. Franks/Suppression Hearing

         Mr. Robey next contends that he received ineffective assistance with respect to the motion to suppress filed by his counsel because counsel filed the motion without consulting with him “to learn the true facts of the case” and failed to bring recordings to the hearing. Dkt. 1-1 at 1. This claim fails, however, because Mr. Robey has not explained what information he would have provided to counsel or what the recordings would have shown and how this information would have impacted the outcome of the proceeding.

         Here, Mr. Robey’s counsel filed a motion to suppress challenging the reliability of the probable cause affidavit executed by the investigating agent. Crim. Dkt. 38. Counsel challenged the lack of corroboration of information provided by the confidential informant used during the investigation and highlighted alleged misrepresentations and omissions about the two controlled purchases. Id. These omissions were the main focus of the suppression hearing. See Crim. Dkt. 210 at p. 4.

         In light of the thoughtful, thorough motion filed by counsel and the lack of explanation from Mr. Robey about what consultation with him and presentation of the recordings would have disclosed, the Court cannot conclude that counsel preformed deficiently with respect to the hearing on the motion to suppress. See Stephenson v. Wilson, 619 F.3d 664, 671 (7th Cir. 2010) (“The burden of proving prejudice is on [the petitioner] because to prevail on a claim of ineffective assistance a [petitioner] must show not only that counsel’s performance fell below minimum professional standards but also that the subpar performance harmed the client.”).

         3. ...

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