United States District Court, S.D. Indiana, Indianapolis Division
GEORGE E. ROBEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
EVANS BARKER, JUDGE
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.
The § 2255 Motion
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)).
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.
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.
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.
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.
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.
Ineffective Assistance of Counsel
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.
Extension of Time to File Indictment
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.”).
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.
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.
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.
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.”).