United States District Court, E.D. Wisconsin
J.P. STADTMUELLER, District Judge.
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
Taylor v. Illinois,
484 U.S. 400
Florida v. Nixon,
543 U.S. 175