United States v. Rogers

13 F. App'x 386
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 26, 2001
DocketNo. 00-3126
StatusPublished

This text of 13 F. App'x 386 (United States v. Rogers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rogers, 13 F. App'x 386 (7th Cir. 2001).

Opinion

ORDER

Essil Rogers was convicted after a jury trial of conspiracy to distribute cocaine base, 21 U.S.C. §§ 846, 841(a)(1), and was sentenced to 240 months’ imprisonment. [387]*387In this direct appeal Rogers challenges the effectiveness of his trial attorney, claiming that his performance was so deficient as to constitute a constructive denial of the right to counsel. We affirm.

The record in this case evidences a chronic lack of punctuality on the part of Rogers’s retained trial attorney, Michael Wayne Smith (now deceased). For instance, Smith failed to appear at the first pretrial conference, causing the district court to reschedule it for the next day. When Smith again failed to arrive at the scheduled time; he was sanctioned $100. Smith also did not appear at the final pretrial conference and arrived nearly Vk horns late on the third day of trial, prompting the district judge to note, “I want the record to show that Mr. Smith has-seems to be habitually late.” Smith later explained that he could not drive due to a heart condition and that he was having problems finding a ride. The court nonetheless found Smith negligent and fined him another $100. Smith’s chronic tardiness aside, however, the record shows that he actively participated in Rogers’s trial-for instance, he made evidentiary objections, presented alibi witnesses, cross-examined the government’s witnesses (pointing out possible bias and inconsistencies in their testimony), made a closing argument, and submitted proposed jury instructions.

The jury returned a guilty verdict on August 18, 1999, and sentencing was set for January 4, 2000. Smith, however, failed to appear on the scheduled date. That same day, Rogers submitted a letter to the court, stating that:

[Mr. Smith] did not represent me at all. As you well know I couldn’t get him down here to even discuss my case with me, let alone to show up at court. He wasn’t prepared for my representation, plus he didn’t get my fifty (50) plus subpoenas out. He never even talked to the people, and I gave him addresses and telephone numbers of everyone. Some of the people told me they didn’t get one at all, others got theirs at three [or] four in the mourning [sic]. I asked him to ask the court for a continuance, because, he hadn’t got with me to discuss my defense. He told me my request was denied. I’m sure your [sic] well aware that Mr. Smith will not respond] to [my] calls or letters. I have filed a complainant [sic] with the Disciplinary Commission and the Bar Association, and I found out theirs [sic] plenty of others that he did wrong. Some of the people he didn’t subpoena are very vital to my defense.

The court construed this letter as a motion for new counsel, granted it, and appointed attorney John Delaney to represent Rogers.

On March 31, 2000, Rogers (through Delaney) filed a motion for a new trial pursuant to Fed.R.Crim.P. 33, claiming he received ineffective assistance of counsel. The district court concluded that the motion was untimely, denied it for lack of jurisdiction, and added that Rogers could challenge Smith’s alleged ineffectiveness by way of a motion under 28 U.S.C. § 2255. Rogers then filed another Rule 33 motion, presenting evidence that, throughout his representation of Rogers, Smith had been under investigation by the Illinois Attorney Registration and Disciplinary Commission and was later suspended from the practice of law for one year. The district court denied that motion as well, holding that Rogers had not satisfied the requirements of Rule 33’s “stringent multistage test .” On August 11 a sentencing hearing was held, at which Delaney was present, and judgment was entered.

Rogers now appeals on the sole ground that he received ineffective assistance of trial counsel. We have often [388]*388cautioned that the preferred method for raising a claim of ineffective assistance is either by bringing a motion for a new trial or a request for collateral relief under 28 U.S.C. § 2255. See, e.g., United States v. Woolley, 123 F.3d 627, 634 (7th Cir.1997). This is because ineffective assistance claims usually fall short of finding support in the original trial record, and if such a claim is brought on direct appeal and rejected, any future challenges to the effectiveness of trial counsel will be constrained by the law of the case. United States v. Hardamon, 188 F.3d 843, 847 (7th Cir.1999). Apparently aware of these concerns, Rogers asks us to dismiss this appeal “without barring a subsequent § 2255 motion on the same issue” if we “believe! ] that additional evidence must be added to the record, to establish prejudice or for other reasons.” On the other hand, Rogers wishes to proceed with this appeal if we think that ineffective assistance is established on the trial record. As the government correctly notes, however, there is no authority for bringing such a conditional appeal. If an ineffective assistance claim is made on direct appeal and rejected, or not raised and later held waived, the defendant must, either way, live with the consequences. Guinan v. United States, 6 F.3d 468, 473 (7th Cir.1993). Although Rogers cites United States v. Garrett, 90 F.3d 210, 214-15 (7th Cir.1996), to support the contrary proposition-that we can dismiss a claim of ineffective assistance without prejudice if we determine that the issues raised require an assessment beyond the scope of the trial record-that case involved a situation where an ineffective assistance claim was simply proposed in a defendant’s response to his attorney’s motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). And as we often do in Anders cases, we noted that such a claim, if presented on direct appeal, would not be ripe for adjudication because the trial record did not provide clear evidence of ineffective assistance. That is quite different from dismissing an ineffective assistance claim that was actually raised on appeal, as Rogers proposes we do here.

At oral argument Rogers’s attorney, in response to a question from the bench, assured us that Rogers was aware of the consequences of raising a claim of ineffective assistance at this time but wished to proceed nevertheless. We therefore move on to the merits of his claim.

Normally, to establish ineffective assistance of counsel, a defendant must show that his attorney’s performance was deficient and that he was prejudiced by that deficient performance. Kitchen v. United States, 227 F.3d 1014, 1019-20 (7th Cir.2000). Here, Rogers concedes that the trial record does not demonstrate prejudice but argues that Smith’s performance was so deficient that prejudice must be presumed.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Cronic
466 U.S. 648 (Supreme Court, 1984)
Marvin Martin v. James H. Rose William Leech
744 F.2d 1245 (Sixth Circuit, 1984)
Raymond Alton Tucker v. Ed Day, Warden
969 F.2d 155 (Fifth Circuit, 1992)
Michael J. Guinan v. United States
6 F.3d 468 (Seventh Circuit, 1993)
United States v. Orvid v. Garrett
90 F.3d 210 (Seventh Circuit, 1996)
United States v. Steven Paul Oliver
118 F.3d 562 (Seventh Circuit, 1997)
United States v. Marcia G. Woolley
123 F.3d 627 (Seventh Circuit, 1997)
Kenny L. Smith v. United States
182 F.3d 1023 (Eighth Circuit, 1999)
Isiah Kitchen v. United States
227 F.3d 1014 (Seventh Circuit, 2000)

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Bluebook (online)
13 F. App'x 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rogers-ca7-2001.