Opinion
Case No. 14-CV-1092-JPS
01-27-2016
LADMARALD CATES, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER
In a July 10, 2015 Order, the Court resolved the majority of claims in Ladmarald Cates' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket #9). One claim, however, remained open for review: whether trial counsel was ineffective in failing to review grand jury materials she received. (See, e.g., Docket #9 at 35-36, 64-65). The court requested that the Government submit documents relevant to that claim, and then provided Mr. Cates ample opportunity to further brief that claim (in fact, the Court provided him with multiple extensions to file a brief). (See, e.g., Docket #9 at 64-65; Docket #11, #12, #14, #16). Mr. Cates never filed a brief, though, so the Court found that he had waived his opportunity to brief the claim further and requested that the Government submit its final brief addressing the claim. (Docket #16 at 1-2). The Government has now submitted its brief, and the matter is ready for resolution. (Docket #17).
The Court is obliged to dismiss Mr. Cates' remaining claim for relief. With this claim, Mr. Cates argued that his trial counsel, Bridget Boyle, improperly "failed to review the grand jury materials consisting of transcripts and minutes that would reveal in any violations, including but not limited to false testimony, was presented to the grand jury in order to indict the Movant. Counsel could have reviewed the Indictment to examine if it was duplicitous.... Counsel could have examined to see if the government had committed any violations or abuses in indicting the Movant." (Docket #1 at 5). "Under the familiar two-pronged test of Strickland, [Mr. Cates] must show both that his attorney's performance was deficient and that he was prejudiced as a result." Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015) (citing Strickland v. Washington, 466 U.S. 668, 684-86 (1984); Harrington v. Richter, 562 U.S. 86, 104 (2011); Carter v. Douma, 796 F.3d 726, 735 (7th Cir. 2015)). Mr. Cates cannot establish either prong. To begin, there is no evidence that Ms. Boyle's performance was deficient. She has stated that she reviewed the grand jury materials she received and found no evidence of abuse. (Docket #7 ¶ 7(b)). Mr. Cates, meanwhile, has not cast any doubt on that representation. Additionally, the indictment of Mr. Cates was not duplicitous, as the Court established more fully in earlier orders. (Docket #9 at 36). There is also evidence in the record that Ms. Boyle did review the grand jury materials in her possession: she referred to testimony given therein during her examination of a witness. (Case No. 11-CR-200, Docket #65 at 408:25-409:13). Especially in light of the "'strong presumption that counsel's conduct falls within the wide range of professional assistance,'" Vinyard, 804 F.3d at 1225 (quoting Strickland, 466 U.S. at 688), the Court cannot find any deficient performance on Ms. Boyle's behalf with regard to her review of the grand jury materials. Moreover, given that there is no basis in the transcripts for finding errors in the grand jury process, Mr. Cates also could not possibly establish the prejudice prong of Strickland. Therefore, the Court is obliged to dismiss Mr. Cates' final claim for relief.
Having addressed and found without merit each of Mr. Cates' claims for relief, the Court will deny in full his § 2255 motion; and, in doing so, the Court must also issue or deny a certificate of appealability ("COA"). See Rule 11 of the Rules Governing § 2255 Cases in the United States District Courts. The Court can grant Mr. Cates a COA only if it finds that Mr. Cates "has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), such that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further," Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations omitted). If the Court determines that it should issue a COA, it must "indicate which specific issue or issues" the COA covers. 28 U.S.C. § 2253(c)(3). The Court will, therefore, consider each of Mr. Cates' claims separately to determine whether it should issue a COA as to those claims. In doing so, it will use the same framework as in its earlier order addressing the majority of Mr. Cates' claims. (See Docket #9 at 29-64).
| INEFFECTIVENESS OF TRIAL COUNSEL | |
|---|---|
| Ground | COA Determination |
| One | Because Mr. Cates was indicted, he was not entitled to apreliminary hearing. Fed. R. Cr. P. 5.1(a); 18 U.S.C. § 3060(e).Trial counsel was, therefore, not ineffective for failing torequest one. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| Two | (1) There was no basis for a motion to suppress and,therefore, trial counsel was not ineffective for failing to file asuppression motion. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| (2) Trial counsel reviewed the grand jury materials shereceived, and thus did not offer deficient performance in thatregard. Even if she had not reviewed those materials, there isno indication of prejudice. No reasonable jurist coulddisagree.The Court will deny a COA on this question. | |
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| (3) The indictment was not duplicitous, so failure tochallenge it as such was not deficient performance. Noreasonable jurist could disagree.The Court will deny a COA on this question. | |
| (4) There is no indication that any witness offered falsetestimony, so trial counsel could not be ineffective in failingto challenge false or manufactured evidence. No reasonablejurist could disagree.The Court will deny a COA on this question. | |
| (5-6) Trial counsel met with Mr. Cates on numerousoccasions, and so was not deficient in preparing him for trial.Even if she had not met with him often enough, though, thereis no indication that Mr. Cates was prejudiced. No reasonablejurist could disagree.The Court will deny a COA on this question. | |
| (7) Reasonable jurists might disagree over whether Ms.Boyle's lack of trial strategy discussions with Mr. Cates wasconstitutionally ineffective. She was not required to obtainMr. Cates' consent to "every tactical decision," see Taylor v.Illinois, 484 U.S. 400, 417-18 (1988), and so the Court does notbelieve that trial counsel acted deficiently in this regard.Additionally, Mr. Cates has not established prejudicestemming from any such deficient performance. Nonetheless,the duty of attorneys to discuss strategy with clients is notperfectly defined, see Florida v. Nixon, 543 U.S. 175, 187 (2004),so the Court can envision reasonable jurists disagreeing onthis point.The Court will issue a COA on this question. |
| (8) Trial counsel effectively prepared Mr. Cates to testify, andMr. Cates performed well in his testimony. Thus, neitherStrickland prong is satisfied on this claim. No reasonable juristcould disagree.The Court will deny a COA on this question. | |
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| (9) Trial counsel performed well during trial; any laterdisciplinary proceedings against her do not establishotherwise. The Court has not found any indication ofdeficient performance or prejudice in trial counsel's conductat trial. To the extent that Mr. Cates rested an argument onthis point, no reasonable jurist could disagree.The Court will deny a COA on this question. | |
| (10) Reasonable jurists might disagree over whether trialcounsel should have called Kandice Velez as a witness. Ms.Velez provided a version of events that differed slightly fromthe victim's version. The Court believes that any differencewould be so minor that Mr. Cates did not suffer prejudice asa result of trial counsel's failure to call Ms. Velez. Butreasonable jurists might disagree over that point.The Court will issue a COA on this question. | |
| On the other hand, it is not clear what other witnesses trialcounsel might have called on Mr. Cates' behalf. Thus, theCourt cannot find that she was deficient in failing to call thosewitnesses, nor that such failure prejudiced Mr. Cates. Noreasonable jurist could disagree.The Court will deny a COA on this question. | |
| (11) There is no evidence whatsoever that the FBI's reportswere fabricated. Accordingly, trial counsel was not ineffectivefor challenging those reports and Mr. Cates did not sufferprejudice as a result. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| Three | (1) Reasonable jurists might disagree over whether trialcounsel was ineffective in failing to challenge the jury's andvenire's racial makeup. The Court does not believe that anychallenge was likely to be successful and trial counsel statedthat her failure to make such a challenge was strategic.Accordingly, the Court found that there was neither deficientperformance nor prejudice in this regard. Nonetheless, giventhat there was only one African-American on the venire (avery low number), the Court can envision reasonable juristsdisagreeing on this point.The Court will issue a COA on this question. |
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| (2) There was no exculpatory evidence that trial counselfailed to use that might have helped Mr. Cates' case. Trialcounsel highlighted inconsistencies in the testimony of theGovernment's witnesses and allowed Mr. Cates to providehis version of events. That is all that the Court is aware thatshe could have introduced. Failure to do more was, therefore,not deficient and did not prejudice Mr. Cates. No reasonablejurist could disagree.The Court will deny a COA on this question. | |
| (3) Trial counsel's stipulation to entry of DNA evidence wasnot ineffective. Mr. Cates had admitted during an earlyinterrogation that he had sex with the victim and alsoadmitted that fact during trial. The DNA evidence establishedonly that fact, and thus made no difference to the outcome ofthe case. Trial counsel's stipulation, therefore, did notprejudice Mr. Cates. No reasonable jurist could disagree.The Court will deny a COA on this question. | |
| (4) Trial counsel was not ineffective for failing to raise theMilwaukee County District Attorney's decision not toprosecute the case. The Court would not have let thatevidence come before the jury, pursuant to Rules 401, 402,and 403 of the Federal Rules of Evidence. Trial counsel'sfailure in that regard, therefore, did not prejudice Mr. Cates.No reasonable jurist could disagree.The Court will deny a COA on this question. |
| (5) Trial counsel was not ineffective for failing to impeach thevictim with her prior criminal record. There is no indicationthat any such evidence would have been admissible underFed. R. Ev. 609(a)(1). The failure to impeach the victim on thatbasis, therefore, was not deficient and did not prejudice Mr.Cates. No reasonable jurist could disagree.The Court will deny a COA on this question. | |
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| (6) Trial counsel was not ineffective in addressing a questionsent to the Court by the jury. The Court adopted trialcounsel's position in addressing that question. It is not clearwhat more she could have asked for. Therefore, she did notact deficiently and the Court cannot identify any prejudice toMr. Cates. No reasonable jurist could disagree.The Court will deny a COA on this question. | |
| (7) The Court has already found that Mr. Cates is entitled toa COA regarding trial counsel's failure to call Ms. Velez. | |
| Four | There is no evidence whatsoever to support Mr. Cates' claimthat trial counsel colluded with the Government. Noreasonable jurist could disagree.The Court will deny a COA on this question. |
| Five | The Court applied 18 U.S.C. § 3143(a) and concluded that itwas required to detain Mr. Cates following the return of thejury's verdict. The Court believes that it was clearly requiredto do so under the terms of that statute. Trial counsel,therefore, did not act deficiently in failing to achieve Mr.Cates' release. Moreover, it is not clear how he wasprejudiced by his post-trial detention. No reasonable juristcould disagree.The Court will deny a COA on this question. |
| Six | (1) There is no evidence that the Government falsified oraltered any reports in this case. There also is not any evidence(aside from Mr. Cates' unsubstantiated beliefs) that there wasa rumor of such falsification. Trial counsel, therefore, couldnot have acted deficiently in failing to investigate such non-existent rumors. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| (2) There was no basis for trial counsel to request a newtrial and, therefore, her failure to do so was not deficientperformance and did not prejudice Mr. Cates. No reasonablejurist could disagree.The Court will deny a COA on this question. | |
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| (3) Trial counsel was not constitutionally ineffective in failingto visit Mr. Cates between the verdict and the completion ofthe presentence report. Mr. Cates would have had a right totrial counsel's presence at any meeting regarding thepreparation the presentence report. And, while trial counsel'slaw partner did make attempts to meet with Mr. Cates, itdoes not appear that trial counsel ever did so. This may havebeen deficient, but it is not clear that this prejudiced Mr. Catesin any way. Through replacement sentencing counsel, Mr.Cates was able to object to the presentence report. It is,therefore, unclear how trial counsel's visiting Mr. Cates couldhave impacted him. No reasonable jurist could disagree.The Court will deny a COA on this question. | |
| (4) Trial counsel's failure to inform Mr. Cates of thedisciplinary proceedings against her was not deficient anddid not prejudice Mr. Cates. It is not clear that trial counselhad any duty to inform Mr. Cates of the disciplinaryproceedings. Moreover, trial counsel made otherarrangements to ensure that Mr. Cates had counsel. TheCourt, therefore, cannot find deficiency or prejudice. Noreasonable jurist could disagree.The Court will deny a COA on this question. | |
| (5) Because Mr. Cates had an opportunity to object to hispresentence report via his replacement sentencing counsel,any failure by trial counsel to prepare Mr. Cates for hispresentence report had no effect on Mr. Cates. There was,accordingly, no prejudice. No reasonable jurist coulddisagree.The Court will deny a COA on this question. |
| Seven | It is unclear how the disciplinary proceedings against trialcounsel in an unrelated case could constitute deficientperformance or prejudice to Mr. Cates. No reasonable juristcould disagree.The Court will deny a COA on this question. |
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| INEFFECTIVENESS OF SENTENCING/APPELLATE COUNSEL | |
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| Ground | COA Determination |
| Eight | (1) Reasonable jurists might disagree over whether sentencingcounsel was ineffective in failing to make a record regardingtrial counsel's deficient performance or to move for a newtrial. As the Court has already noted, reasonable jurists mightdisagree over whether some of trial counsel's performancewas deficient. Thus, reasonable jurists might also disagreewhether sentencing counsel should have recognized thosepotential errors and made a record and/or motion for a newtrial on that basis.The Court will issue a COA on this question. |
| (2) Sentencing counsel's failure to document allegedly falsetrial testimony was not deficient and did not prejudice Mr.Cates. As the court has discussed extensively throughout thependency of this action, there is no indication that there wasany false testimony. Therefore, failure to document suchtestimony, could not have been deficient nor could it haveprejudiced Mr. Cates. No reasonable jurist could disagree.The Court will deny a COA on this question. | |
| (3) Sentencing counsel's work on the presentence report waseffective and, in fact, helped Mr. Cates. Sentencing counselchallenged the presentence report in multiple ways, and theCourt sustained his challenges. Mr. Cates has not providedany additional basis on which sentencing counsel could havechallenged the presentence report. Accordingly, the Courtcannot find any basis to hold sentencing counsel ineffective.No reasonable jurist could disagree.The Court will deny a COA on this question. |
| (4) Sentencing counsel was not ineffective for failing tochallenge the presentence report's version of the factualevents on which Mr. Cates was convicted. A jury foundMr. Cates guilty of those very events. Therefore, sentencingcounsel had no basis to challenge those facts in the pre-sentence report, and his failure to do so could not have beendeficient or have prejudiced Mr. Cates. No reasonable juristcould disagree.The Court will deny a COA on this question. | |
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| Nine | (1) Reasonable jurists might disagree over whether appellatecounsel should have challenged the Court's jury instructionson appeal. The Court found that appellate counsel'sperformance on appeal could not have been deficient,because he raised his strongest argument. But reasonablejurists could disagree over that point and could also disagreeover whether appellate counsel could have shown clear errorin the jury instructions on appeal.The Court will issue a COA on this question. |
| (2) Appellate counsel's failure to challenge factual issues inthe presentence report was not ineffective. Even if the issuethat appellate counsel raised on appeal was not the strongest,the presentence report issue was clearly meritless. Therefore,failure to raise it did not prejudice Mr. Cates. No reasonablejurist could disagree.The Court will deny a COA on this question. | |
| (3) Appellate counsel's failure to challenge the allegedinconsistencies in witness testimony was not ineffective. Evenif the issue that appellate counsel raised on appeal was not thestrongest, the inconsistency issue was clearly meritless.Therefore, failure to raise it did not prejudice Mr. Cates. Noreasonable jurist could disagree.The Court will deny a COA on this question. |
| (4) Reasonable jurists might disagree over whether appellatecounsel should have challenged trial counsel's effectivenesson appeal. The Court found that appellate counsel'sperformance on appeal could not have been deficient,because he raised his strongest argument. But reasonablejurists could disagree over that point and, as the Court hasalready noted, reasonable jurists might also disagree overwhether trial counsel acted ineffectively, so reasonable juristsmight also disagree over whether appellate counsel shouldhave challenged that activity on direct appeal.The Court will issue a COA on this question. | |
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| (5) Reasonable jurists might disagree over whether appellatecounsel should have raised a sufficiency-of-the-evidenceargument on direct appeal. The Court found that appellatecounsel's performance on appeal could not have beendeficient, because he raised his strongest argument. Butreasonable jurists could disagree over that point and couldalso disagree over whether appellate counsel should havechallenged the sufficiency of the evidence on direct appeal.The Court will issue a COA on this question. | |
| (6) Reasonable jurists might disagree over whether appellatecounsel should have raised a challenge to Mr. Cates'sentence. The Court found that appellate counsel'sperformance on appeal could not have been deficient,because he raised his strongest argument. But reasonablejurists could disagree over that point and could also disagreeover whether appellate counsel should have raised achallenge to Mr. Cates' sentence.The Court will issue a COA on this question. |
| CHALLENGES TO SENTENCE | |
|---|---|
| Ground | COA Determination |
| Ten | Alleyne does not apply retroactively on direct appeal, Craytonv. United States, 799 F.3d 623, 624 (7th Cir. 2015), so Mr. Catescould not raise this ground and the Court's dismissal of it wascorrect. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| Eleven | The jury specifically found Mr. Cates guilty of aggravatedsexual abuse, subjecting him to a higher term in prison thanhe believes was correct. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| CHALLENGES TO PRETRIAL AND TRIAL PROCEDURE | |
|---|---|
| Ground | COA Determination |
| Twelve | Mr. Cates' indictment was neither duplicitous normultiplicitous (no matter which ground Mr. Cates sought toargue). Mr. Cates was charged with two entirely separatecrimes and the jury was asked to answer which of thosecrimes he was guilty of. There was nothing improper in theindictment. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| Fifteen | Mr. Cates was subject to an indictment and, therefore, notentitled to a preliminary hearing. Fed. R. Cr. P. 5.1(a)(2). Noreasonable jurist could disagree.The Court will deny a COA on this question. |
| Sixteen | Trial counsel did not challenge the makeup of the jury or thevenire, so Mr. Cates cannot raise a substantive challenge tothat effect in this collateral proceeding. See Aki-Khuam v.Davis, 339 F.3d 521, 526 (7th Cir. 2003). No reasonable juristcould disagree (although the Court notes that it is issuing aCOA allowing Mr. Cates to argue that trial counsel wasineffective for failing to raise this argument).The Court will deny a COA on this question. |
| CHALLENGES TO GOVERNMENT'S HANDLING OF EVIDENCE | |
|---|---|
| Ground | COA Determination |
| Thirteen | There is no evidence whatsoever that the governmentfabricated any evidence at any point of any proceeding in thiscase. The Court's dismissal of this claim was, therefore,appropriate. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| Fourteen | There is no evidence whatsoever that the governmentfabricated any evidence at any point of any proceeding in thiscase. The Court's dismissal of this claim was, therefore,appropriate. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| Seventeen | There is no evidence whatsoever that the governmentfabricated any evidence at any point of any proceeding in thiscase. The Court's dismissal of this claim was, therefore,appropriate. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| Eighteen | There is no indication whatsoever that the Government failedto turn anything over to Mr. Cates. Therefore, there cannot bea Brady violation. No reasonable jurist could disagree.The Court will deny a COA on this question. |
| Nineteen | There is no evidence whatsoever that the governmentfabricated any evidence at any point of any proceeding in thiscase. The Court's dismissal of this claim was, therefore,appropriate. No reasonable jurist could disagree.The Court will deny a COA on this question. |
In sum, the Court will deny a COA over most of the questions it addressed in its earlier orders, but will issue a COA on the following eight questions:
(1) whether trial counsel was constitutionally ineffective in failing to discuss trial strategy more fully with Mr. Cates;
(2) whether trial counsel was constitutionally ineffective in failing to call Kandice Velez as a witness;
(3) whether trial counsel was constitutionally ineffective in failing to challenge the jury's and venire's racial makeup;
(4) whether sentencing counsel was constitutionally ineffective in failing to make a record regarding trial counsel's deficient performance or to move for a new trial on that basis;
(5) whether appellate counsel was constitutionally ineffective in failing to challenge the Court's jury instructions on appeal;
(6) whether appellate counsel was constitutionally ineffective in failing to challenge trial counsel's effectiveness on appeal;
(7) whether appellate counsel was constitutionally ineffective in failing to raise a sufficiency-of-the-evidence argument on appeal;
(8) whether appellate counsel was constitutionally ineffective in failing to challenge Mr. Cates' sentence on appeal.
The last matter that the Court must take up is Mr. Cates' most recent motion for disclosure of grand jury materials. (Docket #15). The Court agrees with the Government that the request should be denied. (Docket #17 at 3-5). The basis for Mr. Cates' request is his unsubstantiated conclusion that the Government somehow abused the grand jury process. Mr. Cates' actions—taken at their most innocent, he had sex with the victim of a crime while on active duty and investigating that crime—clearly supported his indictment in this case. There simply is no evidence of abuse of the grand jury process. Moreover, some of the requests Mr. Cates has made do not even appear to be available from the Government. (See Docket #17 at 4-5). And the documents that are available have either already been disclosed or are irrelevant to Mr. Cates' allegations. (See Docket #17 at 4-5). For these reasons, the Court will deny Mr. Cates' most recent motion for disclosure of grand jury materials.
Accordingly,
IT IS ORDERED that Mr. Cates' § 2255 motion (Docket #1) be and the same is hereby DENIED in its entirety;
IT IS FURTHER ORDERED that, the Court having rejected all of Mr. Cates' claims in his § 2255 motion, a certificate of appealability be and the same is hereby GRANTED as to the eight questions detailed above and DENIED as to the remaining questions;
IT IS FURTHER ORDERED that Mr. Cates' most recent motion for disclosure of grand jury materials (Docket #15) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is hereby DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 27th day of January, 2016.
BY THE COURT:
/s/_________
J.P. Stadtmueller
U.S. District Judge