United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE
Titus Finnell moves for relief under 28 U.S.C. § 2255.
This Court previously granted his accompanying motions for a
hearing and for appointment of counsel. For the reasons
below, this Court denies Defendant's motion for §
Overview of the Case
21, 2011, a grand jury indicted Defendant on four counts
related to his involvement in a conspiracy to rob a false
stash house. (DE 11.) As part of the plan, an agent of
the Bureau of Alcohol, Tobacco, Firearms and Explosives (the
“ATF”) posed as a disgruntled drug courier of a
fictional kingpin who dealt in cocaine. (DE 124 at 5.) The
agent discussed with an individual named Lee Gilyard a plan
to rob the kingpin's stash house, which would contain
“at least ten kilos of cocaine, ” but would be
defended by two armed guards. (Id.) Gilyard told the
agent that he could sell the cocaine and that he was willing
to participate. (Id.) Later, co-defendant Terence
Peterson and another individual were brought on board.
(Id.) Peterson likewise told the agent that he could
sell the cocaine and that “he was born and raised for
this [stuff].” (Id. at 6.) Throughout the
following week, Peterson assured the agent that he knew
people who would be willing to participate in the robbery.
(Id.) Eventually, Defendant entered the picture.
(Id. at 7.) He indicated that this was not his first
rodeo. (Id.) Another week later, the agent offered
Peterson a chance to back out, which he declined.
(Id.) He also mentioned that Defendant was
“ready” and that Defendant “ke[pt]
day of the robbery, Peterson, Defendant, and two youths
joined the agent for final preparations. (Id.)
Defendant “brought with him black bandanas, shirts that
were marked ‘Police,' and shotgun shells.”
(Id.) The agent then led the group to a takedown
location, where they were all taken into custody.
(Id.) A later search of Defendant's residence
uncovered two shotguns. (Id. at 8.) Guns were also
found in Peterson's house. (Id.)
Court held a hearing on Defendant's § 2255 motion.
(DE 230.) The parties did not present evidence, instead
electing to stand on the briefs they have submitted up to
this point. (Id.)
Standard of Review
waived the right to challenge his conviction and sentence
“on any ground . . . [other than] ineffective
assistance of counsel relat[ing] directly to this waiver or
its negotiation” in his plea agreement regarding count
(DE 96 at 4.) His decision to plead without a plea agreement
to counts three and four carries similar consequences.
See United States v. Nunez, 958 F.2d 196, 200 (7th
Cir. 1992) (“[The defendant's] plea of guilty
[without an agreement] waives any defense he might have
offered at trial.”) (holding that the defendant waived
the defense of entrapment).
Sixth Amendment grants to criminal defendants the right to
counsel. U.S. Const. amend. VI. The Supreme Court clarified
that a defendant can be denied this right when his counsel
renders ineffective assistance. Strickland v.
Washington, 466 U.S. 668, 686 (1984). To establish
ineffective assistance, the defendant must show
deficiency-“that counsel's representation fell
below an objective standard of reasonableness”-and
prejudice-“that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.” Id.
at 688, 694. In the context of guilty pleas, the
“difference” must be that the defendant
“would not have pleaded guilty and would have insisted
on going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985.) “[W]here the alleged error of counsel is
a failure to advise the defendant of a potential affirmative
defense to the crime charged, the resolution of the
‘prejudice' inquiry will depend largely on whether
the affirmative defense likely would have succeeded at
trial.” Id. Because hindsight is 20/20, the
defendant cannot simply nitpick and second-guess
counsel's performance. Strickland, 466 U.S. at
689 (“A fair assessment of attorney performance
requires that every effort be made to eliminate the
distorting effects of hindsight.”). To succeed, he must
show that foresight should have been 20/20 as well.
pro se § 2255 motion raised several challenges related
to the advice he received that led him to plead guilty. Mr.
Bosch, in the lead-up to the § 2255 hearing, focused
principally on Defendant's allegations that his attorneys
paid no attention to the possible defenses of entrapment,
racial profiling, and selective prosecution. However, as the
government correctly points out, Defendant's arguments
“must be viewed entirely through the lens of
ineffective assistance of counsel.” (DE 205 at 12.)
Thus, Defendant must show that (1) his defenses have merit,
(2) a reasonable investigation, at the time, would have
uncovered that merit, and (3) Defendant would have proceeded
to trial had he been informed of that merit. Hill,
474 U.S. at 59-60. Here, Defendant has failed to prove that
his defenses have merit.
starters, Defendant's entrapment defense suffers from a
fatal flaw: the evidence indicates that Peterson, not the
government, recruited Defendant to the plot. (See DE
124 at 6.) Thus, even if this Court were to presume that
Defendant was entrapped, he would need to show that Peterson
was also entrapped. See United States v.
Conley, 875 F.3d 391, 402. (“[T]he defense of
derivative entrapment can only be applied to a defendant who
was entrapped through a first entrapee.”). Because
Defendant has produced no evidence to show entrapment as to
Peterson, Defendant cannot show that he himself was
racial profiling and selective prosecution, Defendant, in his
pre-hearing briefs and status reports, relied heavily on an
expert report by Dr. Jeffrey Fagan, who conducted a
statistical study on whether defendants in a case in the
Northern District of Illinois were subject to selective
prosecution. (See DE 209.) Like here, the defendants
there conspired to rob a false stash house. United States
v. Brown, 299 F.Supp.3d 976, 986 (N.D. Ill. 2018). The
Honorable Rubén Castillo, in a thorough and
well-reasoned opinion, rejected the Fagan report and,
consequently, the defendants' selective prosecution
argument. Id. at 1013. This Court finds Judge
Castillo's logic persuasive and likewise rejects the
leaves Defendant with the notion that “the United
States Attorney's Office for the Northern District of
Indiana has prosecuted only 4 stash house sting cases . . .
[that] produced 18 defendants, all of whom were black.”
(DE 201 at 4.) However, Defendant must go further and show
that the United States Attorney's Office (regarding
selective prosecution) or the ATF (regarding racial
profiling) could have prosecuted or ensnared non-black
suspects but chose not to. See Jarrett v. United
States, 822 F.2d 1438, 1443 (7th Cir. 1987)
(“[T]he defendant must establish . . . that he was
singled out for prosecution while others similarly situated
were not prosecuted.”); United States v.
Barlow, 301 F.3d 1007, 1012 (7th Cir. 2002)