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Tucker v. United States

United States District Court, E.D. Wisconsin

November 9, 2016

IVY TUCKER, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 09-CR-131

          DECISION AND ORDER

          LYNN ADELMAN, District Judge.

         Pro se Movant Ivy Tucker has filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, raising claims of ineffective assistance of trial counsel and appellate counsel. The government filed an answer, asserting that the motion should be denied.

         BACKGROUND[1]

         On May 12, 2009, Tucker and nine co-defendants were charged with conspiracy to distribute more than one kilogram of heroin, the use of which resulted in a death on January 9, 2009. A seven-count superseding indictment, returned on June 23, 2009, re-alleged the conspiracy count against Tucker and his co-defendants and added six additional counts charging several of Tucker's co-conspirators with distribution of heroin on specific occasions during 2008 and 2009. All of Tucker's co-defendants pleaded guilty; Tucker proceeded to trial.

         The prosecutor's opening statement explained that the evidence against Tucker would consist mostly of testimony from his co-conspirators, all of whom had criminal backgrounds and drug problems. After summarizing the investigation that led to Tucker's arrest, the prosecutor commented on the devastating effects of heroin, and referenced some prospective jurors' personal experiences with family members' drug abuse, which had been shared with the court during voir dire. He said, “And heroin is a highly addictive drug. It's a horrible drug. And as we all know from news accounts, and some of the people told us during jury selection, it's a drug that can kill you. It can kill you the first time you use it.” (R. 584, 15.)

         Tucker's trial counsel did not object to these statements.

         Tucker's nine co-conspirators testified that Tucker ran a heroin distribution ring in Racine, Wisconsin, from 2008 through 2009. The jury also heard from the lead investigator on the case, Officer Jason Baranek, a twelve-year veteran of the Oak Creek, Wisconsin, Police Department and a member of the Drug Enforcement Unit.

         Baranek's testimony described how his investigation of Tucker unfolded and provided context for the rest of the Government's case. Baranek explained that Oak Creek was troubled by rising heroin overdoses and related theft cases in early 2008. This trend and information obtained from users prompted Baranek to begin an investigation into the Racine County sources of that heroin.

         Baranek explained that as part of the investigation, local law enforcement, working in conjunction with the Federal Drug Enforcement Administration (DEA), conducted “controlled purchases, ” in which a cooperating informant used government money to buy heroin from his drug source. (Id. at 36-37.) The individuals arrested after the controlled purchase were “debrief[ed]” in an effort to uncover the source of their drug supply, the identity of any other individuals involved, any practices used to deliver the drugs, and whether any other crimes were being committed. (Id. at 38.) Controlled buys were made from Louis McCormick, Nevondae Perry, Destiny Merritt, William White and Charles Stuck. (Id. at 37, 46.) Stuck, a mid-level dealer who was cooperating with the government, made a controlled purchase of heroin from Merritt. (Id. at 42-43, 47.) Stuck told Baranek and two other law enforcement officers that Tucker was offering to sell heroin directly to him. (Id. at 47-48.) Based on his experiences as a member of the Drug Enforcement Unit, Baranek also provided the jury with details about the use of “stash house[s]” and other drug-trafficking practices. (Id. at 39-40.)

         Merritt, Tucker's co-conspirator, said that he had given her cocaine in 2006, some of which she used and some of which she re-sold. (Id. at 63-64.) The two stayed in contact and began dating in 2008. (Id. at 65.) Merritt testified that Tucker paid her expenses, such as rent and car payments (Id. at 66-67), and in exchange Merritt sold heroin for Tucker and allowed him to store drugs in her apartment (Id. at 68-69). Merritt stated that she accompanied Tucker on trips where he purchased heroin, paying approximately $70, 000 for a kilogram. (Id. at 69-70.) Merritt also testified that she supplied Stuck with heroin she received from Tucker. (Id. at 74.) Tucker would “front” the drugs to Merritt, and she would reimburse him once she was paid. (Id. at 75.) Merritt also assisted Tucker in supplying heroin to other customers. (Id. at 81.)

         Merritt identified Ronsanta Tucker[2] as a member of Tucker's family who assisted him in the distribution of heroin. (Id. at 83.) She testified that Tucker got lots of money from McCormick - she had seen him pick up $13, 000 or $15, 000 - and she knew that Dadra Lockridge and James Silas assisted McCormick in the distribution of heroin. (Id. at 81-82.)

         Lockridge, a co-conspirator, testified that she began purchasing cocaine from McCormick in early 2009, developed a romantic relationship with him and began to assist in his heroin-dealing operation, including sales to Perry. (Id. at 98-100.) McCormick was purchasing heroin from Tucker in April 2009, and Lockridge testified about an occasion when she helped McCormick count out $10, 000, which he paid Tucker for 100 grams of heroin. (Id. at 101-03.) Lockridge helped McCormick repackage the heroin for distribution, and she knew McCormick's customers, including Jason Wood. (Id. at 103-04.) Lockridge also testified that she knew Merritt, that Merritt and Tucker had a romantic relationship, and that Tucker provided Merritt with cars for her use. (Id. at 105.)

         Stuck, another co-conspirator, testified that he met Merritt in January 2008 and began purchasing heroin from her shortly thereafter. (Id. at 114.) Stuck kept some of the heroin for personal use and sold the rest in South Milwaukee. (Id. at 117.) Stuck also testified that Merritt told him her boyfriend was her heroin supplier (Id. at 121), and that on at least one occasion Tucker accompanied Merritt when she sold to Stuck (Id. at 122). Stuck described purchasing increasing amounts of heroin from Merritt from August through October of 2008. (Id. at 120.) He tried to reduce the amount of his purchases in November and December because his girlfriend was placed in a rehabilitation program, and he wanted to quit and remain with her. (Id.)

         Co-conspirator Ronsanta testified that at some point in 2008 or 2009, Tucker asked him to help sell heroin. (Id. at 134.) Tucker dropped off the heroin at Ronsanta's house and told him when people were expected to pick up the packages. (Id.) Ronsanta handed over the packages and collected the payments. (Id.) Ronsanta identified McCormick, White, and Perry as people who picked up heroin from his house. (Id. at 135.) He also indicated that Merritt was working with Tucker. (Id. at 137.)

         McCormick testified that Tucker was his heroin supplier in 2008 and 2009. (R. 585, 5, 9.) Initially he purchased it through a “mutual friend, ” and later the friend introduced him to Tucker. (Id. at 7.) McCormick stated that he began purchasing two to three grams per week, periodically increasing the quantity until he was buying 100 grams every couple weeks, which he sold in Racine. (Id. at 8-10.) McCormick stated that he sometimes picked up heroin from Ronsanta. (Id. at 20-21.) McCormick also knew Merritt as a Tucker associate. (Id. at 21-22.)

         McCormick said Lockridge, Jessica Detlaff, and Wood acted as heroin distributors for him. (Id. at 12-13.) McCormick described a drug transaction with Tucker when Wood accompanied him. Wood paid McCormick for heroin and they drove to a Racine mall where McCormick then paid the money he had received from Wood to Tucker, obtained heroin for distribution, and gave Wood his share. (Id. at 15-17.) McCormick sold heroin that he purchased from Tucker to George Malone, Silas, White, and Perry. (Id. at 17-19.) On cross-examination, Tucker's counsel questioned McCormick about the dates of his meetings with Tucker. McCormick testified that he told the DEA he first met Tucker in January or February 2008. (Id. at 28.)

         Silas testified that he was introduced to Tucker by a friend and that he asked Tucker to supply him with heroin. (Id. at 56-57.) At first Silas was purchasing one to three grams two to three times per day, going through Ronsanta to purchase the drugs. (Id. at 58-59.) He then began purchasing one to five grams per day directly from Tucker. (Id. at 59.) Silas continued purchasing heroin from Tucker until May 2009. (Id. at 61.) Silas testified that in early 2008 he won $1, 500 at a casino, and used some of the money to purchase heroin from Tucker. (Id. at 59-60.) On cross-examination, Silas indicated that the gambling win and heroin purchase occurred in January 2008. (Id. at 71.)

         In 2009, Wood lived in Burlington, Wisconsin, and bought heroin from McCormick. (Id. at 75.) He purchased drugs from McCormick for about 14 or 15 months from mid-2008 through mid-2009. (Id. at 77.) McCormick did not always have the drugs on hand, so Wood sometimes accompanied McCormick when he picked up heroin from Tucker. (Id. at 79-80.) At times Wood drove McCormick to pick up drugs. (Id. at 81.) On one occasion, Tucker entered their car, and Wood paid McCormick for heroin he had previously purchased. (Id.) McCormick then gave the money to Tucker in exchange for more heroin, some of which was supplied to Wood. (Id. at 81-82.) On cross-examination, Wood testified that he probably started purchasing heroin from McCormick at the end of 2008. (Id. at 85.)

         Perry and White grew up together in Racine; both were heroin users and at times would loan each other heroin to avoid withdrawal. (Id. at 94-95.) White introduced Perry to Tucker, who referred Perry to Ronsanta. (Id. at 96.) Initially Perry purchased one or two gram quantities from Ronsanta, and Perry had a group he would regularly sell to. (Id. at 98.) He would make arrangements to purchase the heroin by calling either Tucker or Ronsanta. (Id. at 99.) On cross-examination, Perry testified that between April and May 2009 he made 15 heroin purchases from Tucker; although he generally purchased a gram, two purchases were for five grams, and one was for ten grams. (Id. at 102-104.)

         White testified that he became familiar with Tucker as someone from the street who sold heroin. (Id. at 116.) He knew Ronsanta. (Id. at 119.) White bought heroin from Tucker, who later directed him to start buying from Ronsanta. (Id. at 120.) From time to time White also purchased heroin from Silas. (Id. at 121.) White was selling heroin to young people he called the “Oak Creek kids, ” who came to Racine from South Milwaukee, Oak Creek, and Franklin. (Id. at 120.) Prior to purchasing heroin through Tucker, White bought from McCormick. (Id. at 128.) During August 2008 he was buying through Tucker. (Id. at 131.)

         During his defense Tucker offered into evidence a stipulation that if called to testify, Noconnco Price - who was never charged in relation to the case - would state that he spoke with DEA investigators on January 14, 2009, identified Tucker as a heroin customer of Silas; and reported that he had seen Tucker give Silas money on one occasion. (R. 586, 11.) Tucker exercised his right not to testify, and the court instructed the jury that no inference of guilt could be drawn from that decision. (Id. at 12.)

         During closing arguments, defense counsel questioned the credibility of the Government's witnesses by implying that they had a motivation to lie in exchange for favorable plea deals. In rebuttal, the prosecutor stated, “But we're supposed to trust that they're smart enough that they all get together somewhere, somehow - some of these people are out, some are in jail. They're all over the place. But they all sit down shortly after their arrest and say this is what happened. And - what? All their stories are the same? It's the same guy? It's Mr. Tucker.” (Id. at 49.)

         The prosecutor also explained to the jury how their plea agreements might affect the testifying co-conspirators, saying, “They testified as to their deal. Their deal - their deal isn't made with the Government. They're still facing long prison terms. And their deal and their ultimate sentence isn't decided by the Government. It's not decided by the United States Attorney's Office. It's decided by one man. That's Judge Randa, who's sitting in here. Who's listening to this testimony. Who's examining what these witnesses say. And he'll make the ultimate determination.” (Id. at 50.)

         The prosecutor went on to add, “You know, it's one person's witness against another. And in this case it's nine witnesses against Mr. Tucker, saying that he was involved in this role, in this conspiracy. You've heard the evidence in this case. You - each and every one of you know what the truth in this case is.” (Id. at 61.) The prosecutor utilized imagery of local children purchasing heroin from street dealers, “And he was selling it to the Oak Creek kids, as Mr. White testified to. There are all these kids coming down from Oak Creek, Franklin, South Milwaukee. You know, we know that there's an increase in heroin because we read about it every day in the paper. And these kids are going down there looking for one thing. They're looking for heroin.” (Id. at 24.)

         After closing arguments, the court instructed the jury as to the law, reminded the jury that lawyers' statements are not evidence (Id. at 64), and admonished the jury that Tucker's decision not to testify should not be regarded or considered by it in arriving at a verdict (Id. at 66). Ultimately, the jury returned a verdict of guilty on the conspiracy count and found that the offense involved more than one kilogram of heroin. Tucker was sentenced to 480 months' imprisonment, followed by five years of supervised release. Tucker filed a timely notice of appeal on February 7, 2012.

         On appeal Tucker contended that the prosecutor made numerous improper remarks that denied him his right to a fair trial under the due process clause of the Fifth Amendment to the United States Constitution. Tucker, 714 F.3d at 1011. He contended that the prosecutor: (1) referenced prior witness statements not in evidence; (2) improperly commented on Tucker's decision not to testify; (3) misconstrued the nature of the co-conspirators' plea agreements; and (4) improperly referenced familial experiences with heroin that jurors had shared with the court during voir dire. Id. at 1012. He also argued that Baranek was improperly allowed to testify as a “dual capacity” witness. Id. at 1011. The court of appeals affirmed Tucker's conviction in a decision issued April 30, 2013. Id. at 1017. Tucker filed a petition for rehearing, which the court of appeals denied on July 24, 2013. United States v. Tucker, No. 12-1281, docket available at www.pacer.gov (last visited Sept. 28, 2016). Tucker did not file a petition for certiorari review.

         On October 17, 2014, the Clerk of Court opened two actions for § 2255 relief: 14-C-1303 (the 1303 action), which Tucker filed pro se; and 14-C-1304 (the 1304 action), which was filed on Tucker's behalf by counsel. Each § 2255 motion was accompanied by a declaration under penalty of perjury that it was placed in the prison mailing system on October 16, 2014. The two actions, both of which raise ineffective assistance of counsel claims, were consolidated into the 1303 action by the November 4, 2014, order of Judge Randa, and the government was ordered to file an answer to all grounds for relief presented in the consolidated action. (ECF No. 5.)

         Due to Judge Randa's unavailability, this action was transferred to me.

         ANALYSIS

         “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the ...


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