Chapman v. United States

VERNON CHAPMAN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Case No. 16-CV-4918

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

December 10, 2018

Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER

The petitioner, Vernon Chapman, is currently in the custody of the Federal Bureau of Prisons serving a 200-month prison sentence. Chapman moves this Court to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. For the following reasons, that Motion is denied without an evidentiary hearing. In addition, this Court declines to certify any issues for appeal.

Background

The following are the general facts of this case as set forth in the trial record and the Seventh Circuit Court of Appeals decision in United States v. Chapman, 804 F.3d 895 (7th Cir. 2015). In January of 2011, Vernon Chapman was charged with one count of distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). Later that year, he was charged with an additional four counts of distributing a controlled substance under 21 U.S.C. § 841(a)(1), as well as two counts of violating 21 U.S.C. § 843(b). All of these charges were consolidated into one case, which proceeded to a jury trial. At trial, Chapman was found guilty on all counts.

The charges against Chapman stemmed from his alleged involvement in narcotics transactions with an undercover DEA informant throughout 2010. On five separate occasions, Chapman sold heroin and crack cocaine to the informant. During all of these drug transactions, the informant was wearing a Hawk recording device, which captured audio and video recordings of each encounter. The recordings from the Hawk devices were then downloaded onto a DVD through a computer software program.

Prior to trial, Chapman and his attorneys made several motions to have an expert examine the recording from a drug transaction with the informant in November 2010. Chapman alleged that the DVD recording of that transaction omitted certain acts and statements between him and the informant. According to Chapman, these statements and acts would have been picked up by the Hawk recorder and were material to the issue of his guilt. In July of 2012, Chapman's attorney, Michael Bolan, filed a motion seeking the appointment of an expert to examine the original audio and video recordings depicted in the November DVD. The court granted the motion and appointed audio-visual expert Adam Dew. Dew had over ten years of experience working with digital videos. After examining the November recording, Dew opined that the DVD did not show any signs of tampering. He noted, however, that he did not have access to the original camera recordings and that there was a glitch and audio skip in the DVD.

In May of 2013, Chapman's new attorney, Steven Hunter, filed a motion seeking a forensic expert to again examine the November DVD recording. The motion reasserted that the DVD did not contain the entire contents of the Hawk recording device. The court granted the motion, appointing Barry Dickey. Dickey is an expert in forensic evaluation or authentication of audio and visual media. After examining the DVD containing the November recording, Dickey concluded that the recording did not contain any anomaly that would call into question the authenticity or continuity of the recording.

In December of 2013, Chapman filed a motion on his own behalf, seeking the appointment of a computer expert rather than an audiovisual expert. In that motion, Chapman alleged that approximately ten minutes of the conversation from the November exchange was missing from theDVD. The district court conducted two different hearings before concluding that a third expert was not necessary because Chapman did not produce any evidence suggesting that the DVD had been tampered with. In April of 2014, Chapman's third attorney, Bart Beals, filed a similar motion asking the court for appointment of a computer expert. After again holding a hearing, the district court denied the motion, noting that Chapman had failed to present any evidence that the data from the Hawk device would differ from the data on the DVD that his experts had reviewed.

During the trial in May of 2014, all of the recordings from the drug transactions were admitted into evidence. An FBI special agent who had activated the Hawk recording device before the November transaction and listened in real time while the transaction took place also testified at trial. The agent testified that the Hawk device had been working that day, and that he reviewed the DVD containing the recordings from the Hawk device. He further testified that the DVD was a true and accurate copy of what he heard during the transaction and of what was contained on the Hawk device. Chapman testified in his own defense and did not deny his involvement in the drug transactions. Instead, he raised an entrapment defense and filed a motion for acquittal based on that defense, which the district court denied. Chapman was found guilty and was found to be a career offender under the Sentencing Guidelines. He was sentenced to 200 months in prison.

On appeal, Chapman challenged the denial of a computer expert, the admission of the November DVD, the denial of acquittal based on an entrapment defense, and his sentence. He argued that the district court erred by not authorizing funds under the CJA to allow him to hire a computer expert to test the Government's evidence. He also argued that he should have been allowed to subpoena Dew so that Dew could testify that he did not have access to the original camera recordings. The Court of Appeals rejected both arguments and affirmed the denial of the expert and the subpoena. Chapman also argued that admitting the November DVD violated the Best Evidence Rule because it was not the original recording, so it was therefore inadmissible. TheSeventh Circuit Court of Appeals again rejected this argument, holding that the DVD was properly admitted as a duplicate and noting that Chapman had failed to raise a genuine issue about its authenticity. Chapman further challenged the district court's denial of his motion for acquittal based on an entrapment defense. However, the Seventh Circuit found that there was sufficient evidence presented at trial to establish that the Government did not induce Chapman to engage in the illegal drugs transactions.

Chapman filed a petition for a writ of certiorari, which the Supreme Court denied. Chapman has now filed the present motion, which alleges that he was repeatedly denied effective assistance of counsel throughout his trial. In particular, he alleges that all of his trial attorneys were ineffective for failing to obtain a computer expert, that he was improperly instructed to testify in his own defense, and that his attorney failed to object to his career offender status during sentencing.

Legal Standard

Under 28 U.S.C. § 2255, a person may seek to vacate, set aside or correct a sentence that has been "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Relief under section 2255 is "an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Therefore, relief is only available in cases where a jurisdictional or constitutional error has been made and where there has been a "complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). A section 2255 motion is not a substitute for a direct criminal appeal. Clay v. United States, 311 F. Supp. 3d 911 (N.D. Ill. 2018) (Dow, J.).

Discussion

In his petition and supplemental motion for section 2255 relief, Chapman raises five points of error upon which he contends relief should be granted. As an initial matter, Chapman withdrawshis claims that his counsel failed to raise an agency defense at trial and failed to request a jury instruction based on an agency-type defense. He has stated that the argument was improperly included in his petition, so the Court will not consider it.

The Court first considers whether an evidentiary hearing is necessary to resolve Chapman's claims. A petitioner is entitled to an evidentiary hearing unless the 'files and records of the case conclusively show that the prisoner is entitled to no relief,' or the petitioner's allegations are only vague and conclusory. Torres-Chavez v. United States, 828 F.3d 582, 586 (7th Cir. 2016) (quoting Lafuente v. United States, 617 F.3d 944, 946 (7th Cir. 2010)). The Seventh Circuit requires that petitioners file a detailed affidavit along with their section 2255 motion, outlining the specific facts supporting their allegations. Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002). In addition to the allegations set forward in that affidavit, courts are also permitted to consider all of the 'files and records of the case,' including the government's response, when determining whether or not a petitioner is entitled to an evidentiary hearing. See York v. United States, 55 F. Supp. 3d 1028, 1033 (N.D. Ill. 2014) (Castillo, J.) (citing Koons v. United States, 639 F.3d 348, 355 (7th Cir. 2011)). No hearing is required if the allegations in the motion are unreasonably vague or conclusory, or if the allegations can be resolved based on the record alone. Oliver v. United States, 961 F.2d 1339, 1343, n.5 (7th Cir. 1992). After reviewing the record and submissions, Chapman's claims can be resolved based on the record alone. Therefore, this Court does not require an evidentiary hearing.

I. Failure to Seek Computer Expert

Chapman first claims that his trial lawyers were ineffective for failing to retain a computer expert. To succeed on a claim of ineffective assistance of counsel, a petitioner must show that his trial attorney's performance fell below an objective standard of reasonableness and that there is...