IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

 Plaintiff,

 v.

LAVOYCE BILLINGSLEY

 Defendant.

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No. 12 C 4001

 Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Petitioner LaVoyce Billingsley filed this pro se Motion to vacate, set aside or correct his

sentence pursuant to 28 U.S.C. § 2255. Billingsley’s motion is based on a claim of ineffective

assistance of counsel before trial, at trial, and on appeal. For the reasons set forth below, the Court

dismisses Billingsley’s Motion.

BACKGROUND

On February 1, 2007, Billingsley and two co-defendants were charged in an indictment on

four counts: (1) conspiracy to possess with intent to distribute a controlled substance, namely, in

excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846; (2) attempted possession of a

controlled substance, namely, in excess of 5 kilograms of cocaine, in violation of 21 U.S.C. § 846;

(3) carrying and possessing a firearm during and in relation to a drug trafficking crime in violation

of 18 U.S.C. § 924(c); and (4) possession of a firearm after previously being convicted of a felony

18 U.S.C. § 922(g)(1).

On June 26, 2009, a jury convicted Billingsely of Counts One, Three and Four and acquitted

him of Count Two of the indictment. On January 20, 2010, this Court sentenced Billingsley to 100
months imprisonment each on Counts One and Three, to run concurrently; and 60 months

imprisonment on Count Four, to run consecutively to the sentence on Counts One and Three. On

April 6, 2011, the Seventh Circuit denied Billingsley’s appeal and affirmed the judgment and

sentence of this Court.

On May 22, 2012, Billingsley filed the instant Motion to vacate his conviction and correct

his sentence. He alleges that his attorneys were ineffective in preparing and executing his defense. 

In support of his position, Billingsley identifies eight separate grounds in which he contends this

ineffective assistance of counsel occurred.1 These are:

1. Counsel was ineffective for failing to move the Court for dismissal of the

indictment, prior to trial, because the government committed misconduct in

testifying falsely before the grand jury on material facts;

2. Counsel was ineffective for failing to object to and/or appeal the Court’s

order separating Billingsley from his co-conspirators and by prohibiting

communications between them;

3. Counsel was ineffective for failing to object to and/or appeal this Court’s

order that the Government did not need to produce a recording device that

malfunctioned during a conversation between Billingsley and an undercover

ATF agent;

4. Counsel was ineffective for failing to adequately introduce evidence to the

jury showing that Billingsley was engaged in a telephone call at the time of

his arrest, which would have purportedly refuted the allegation that

Billingsley possessed a firearm at the time of the arrest;

5. Counsel was ineffective for failing to move the Court to instruct the jury that

a defendant cannot be guilty of conspiracy if they conspired with a

government agent;

6. Counsel was ineffective for failing to request an “all or nothing” jury

instruction;

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When Billingsley filed his motion, the Court set a briefing schedule. The government filed a response brief

in accordance with the schedule; however, Billingsley never filed a reply brief. Billingsley also did not attach any

exhibits to his motion.

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7. Counsel was ineffective for failing to object to this Court’s decision to make

an upward variance from the United States Sentencing Guideline range

without first affording Billingsley notice that the Court was considering

making this variance; and

8. Counsel was ineffective for failing to properly convey the government’s plea

offer to Billingsley during the course of plea negotiations.

LEGAL STANDARD

Under 28 U.S.C. § 2255 “[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

sentence to vacate, set aside or correct the sentence.” The relief sought in a § 2255 motion “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). Thus, relief should be granted “only for an error of law that is

jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a

complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004)

(internal quotations and citations omitted). Rule 4 of the Rules Governing Section 2255 Proceedings

for the United States District Courts provides that “[i]f it plainly appears from the motion, any

attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief,

the judge must dismiss the motion and direct the clerk to notify the moving party.”

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DISCUSSION

To prevail on a claim of ineffective assistance of counsel, Billingsley must establish that he

was prejudiced as a result of his counsel’s alleged deficiencies under the two-prong test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). See McDowell v. Kingston, 497 F.3d 757, 761 (7th

Cir. 2007) (citing Strickland, 466 U.S. at 694). The burden of proof on a defendant asserting an

ineffective assistance of counsel claim is a heavy one. See Harris v. Reed, 894 F.2d 871, 874 (7th

Cir. 1990). “The benchmark for judging any claim to ineffectiveness must be whether counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result.” Strickland, 466 U.S. at 686.

Under Strickland, the moving party must prove: (1) that his attorney’s performance fell

below an objective standard of reasonableness; and (2) that the attorney’s deficient performance

prejudiced the defendant such that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” McDowell, 497 F.3d

at 761. If the Court finds either the performance prong or the prejudice prong of the Strickland test

to be lacking, then there is no need to consider the other prong and the petition fails as a matter of

law. See United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir. 1990). “A defendant’s failure

to satisfy either prong is fatal to his claim.” Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993). 

In this case, Billingsley’s motion fails on both prongs.

I. The Failure to Move to Dismiss the Indictment Does Not Establish Ineffective

Assistance of Counsel

Billingsley’s first contention is that his counsel was ineffective because he failed to move

this Court to dismiss the indictment. Billingsley contends the indictment was procured fraudulently

because a government agent testified in front of the grand jury that there was an audio recording of

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Billingsley’s agreement to enter into the conspiracy when, in fact, there was not. Billingsley further

asserts that the agent’s testimony was the sole reason the grand jury indicted Billingsley.

“A district court may not dismiss an indictment for errors in grand jury proceedings unless

such errors prejudiced the defendants.” Bank of Nova Scotia v. United States, 487 U.S. 250, 254

(1988). “‘[P]rejudice’ occurs when the alleged violation had a substantial effect on the grand jury’s

decision to indict or when it was quite doubtful that the decision to indict was free from that

violation’s considerable influence.” United States v. Brooks, 125 F.3d 484, 497-98 (7th Cir. 1997)

(citing United States v. Anderson, 61 F.3d 1290, 1296 (7th Cir. 1995)). 

In this case, there is no basis to believe that the inaccurate testimony prejudiced Billingsley

in front of the grand jury. No evidence supports Billingsley’s assertion that the grand jury relied on

this testimony in charging him. Indeed, even without this testimony, the grand jury would have

likely indicted Billingsley because he already confessed to the crimes for which he was indicted. 

As a result, Billingsley’s counsel was reasonable in deciding not to move to dismiss the indictment

on this basis. Such a motion would have been meritless. Accordingly, this ground provides no basis

to vacate Billingsley’s sentence under Strickland.

II. The Failure to Object to the Purported Separation Order Does Not Establish

Ineffectiveness of Counsel

Billingsley also contends that his counsel was ineffective because he failed to object or

appeal the entry of an order that separated Billingsley from his co-defendants. First, there is no

evidence that such an order was entered. It was not entered by this Court and Billingsley has not

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presented any evidence that the Bureau of Prisons ever made such an order.2

 Accordingly, there is

no basis to find ineffective assistance of counsel on this ground.

Even if a separation order had been entered, there is still no basis to award Billingsley relief. 

Billingsley failed to articulate any reason for why this order violated his Fifth or Sixth Amendment

rights. He makes the conclusory assertion that the separation order affected his ability to prepare

his defense but failed to provide specific reasons for how it affected his defense. Indeed, he failed

to present any support for his assertion that a separation order was improper. As a result, Billingsley

has not established that there is a reasonable probability that, but for counsel’s failure to challenge

the separation order, the result of the proceeding would have been different so as to establish the

prejudice prong under Strickland. 

III. The Failure to Appeal this Court’s Ruling on an Evidentiary Privilege is Insufficient

to Establish Ineffectiveness of Counsel

Billingsley’s third contention is that his appellate counsel was ineffective because he failed

to appeal this Court’s ruling that the government was not required to tender its recording device due

to the investigative privilege.3

 Appellate counsel is deemed ineffective only if he or she fails to raise

appellate issues that are: (1) obvious; and (2) clearly stronger than the ones raised. See Kelly v.

United States, 29 F.3d 1107, 1112 (7th Cir. 1994). “In the context of an appeal, counsel need not

raise every conceivable argument that is supported by the record.” Hollenback v. United States, 987

F.2d 1272, 1275 (7th Cir. 1993). 

2

Billingsley contends that this order was entered pursuant to 28 C.F.R. § 524.72(f). 28 C.F.R. § 524 lists the

categories of classification for inmates who present special needs for management under the Bureau of Prisons’s Central

Inmate Management System.

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Billingsley also appears to assert that his trial counsel was ineffective because he failed to move this Court to

sanction its order for an interlocutory appeal of this issue. However, litigants have no right to an interlocutory appeal

of a court’s privilege ruling. See Mowhawk Industries v. Carpenter, 130 S. Ct. 599 (2009); Reise v. Bd. of Regents, 957

F.2d 293, 295 (7th Cir. 1992).

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In this case, the Court found that the investigatory privilege applied to the government’s

recording device. After performing an in camera inspection of the device, the Court found that there

was no evidence on the device that was sufficient to overcome the assertion of the privilege. The

Seventh Circuit reviews a district court’s decision on the applicability of the investigatory privilege

under an abuse of discretion standard. See Dellwood Farms v. Cargill, Inc., 128 F.3d 1122, 1125

(7th Cir. 1997). However, the Seventh Circuit has also found that there should be a strong

presumption against lifting the privilege. See id. Thus, there was a low likelihood that an appeal

on this issue would have been successful. Accordingly, the Court finds that this issue is not

sufficiently stronger than the appellate issues that were raised so as to raise the possibility that

counsel was ineffective.

IV. The Failure to Introduce Evidence that Billingsley was Engaged in a Telephone Call

at the Time of his Arrest Does Not Establish Ineffectiveness of Counsel

Billingsley’s next contention is that his counsel was ineffective because he failed to

subpoena telephone records, which would have shown that Billingsley was on the phone at the time

of his arrest. According to Billingsley, this evidence would have led the jury to conclude that

Billingsley threw a phone, and not a gun, under his car. To show prejudice from an alleged failure

to investigate under Strickland, Billingsley must show with specificity what the investigation would

have revealed and how it would have altered the outcome of the proceedings. United States ex rel.

Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (“When the allegation of the

ineffectiveness of counsel centers on a supposed failure to investigate, we cannot see how...the

petitioner’s obligation can be met without a comprehensive showing as to what the investigation

would have produced.”); see also Granada v. United States, 51 F.3d 82, 85 (7th Cir. 1995). In

addition, the prejudice based on a failure to investigate, “must be considered in light of the strength

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of the government’s case.” Rios v. Rocha, 299 F.3d 796, 808-09 (9th Cir. 2002) (internal citations

and quotations omitted).

In this case, Billingsley failed to show how the purported fact that he was on the phone at

the time of his arrest made it less likely that he possessed the firearm recovered from under his

vehicle. The undercover agent testified that Billingsley showed him the firearm before they traveled

to the stash house. The undercover agent testified that Billingsley refused to relinquish his firearm

before traveling to the stash house. Law enforcement found a .40 caliber Smith & Wesson

underneath Billingsley’s car at the time they arrested him. The government recovered two boxes

partially filled with .40 caliber ammunition from Billingsley’s car. Accordingly, regardless of

whether Billingsley was able to prove that he was using his cellphone at the time of his arrest, this

fact would have not have altered the outcome. Namely, the overwhelming evidence shows that the

.40 caliber Smith & Wesson recovered from underneath Billingsley’s car was, in fact, Billingsley’s. 

Thus, counsel’s failure to subpoena evidence to prove that Billingsley was on a cellphone at the time

of his arrest did not prejudice Billingsley or affect his case in any manner.

V. The Failure to Move this Court to Give a Jury Instruction that One Cannot Conspire

with a Government Agent and/or a Government Informant Does Not Establish

Ineffectiveness of Counsel

Billingsley’s next ground is that his counsel was ineffective by failing to request a jury

instruction that one cannot conspire with a government agent and/or a government informant. 

However, the evidence at trial showed that Billingsly conspired with his co-defendants, not with a

government agent. For example, Billingsley admitted in his post-arrest statement that he learned

about the conspiracy from his co-defendants. Specifically, Billingsley admitted that he discussed

the planned drug robbery with his co-defendant, Scott Lewis, two-days before the arrest. At this

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time, Billingsley agreed to act as a driver for the robbery. In addition, Billingsley’s phone records

demonstrated that he had been in contact with his co-defendants about the robbery, not the

government agent. Given that evidence, any request for a government agent conspiracy instruction

would have been futile. See United States v. Payne, 226 F.3d 792, 794 (7th Cir. 2000) (defendant

is entitled to jury instruction only if, among other things, “defendant’s theory is support by the

evidence” and “failure to include the instruction...would deny [defendant a fair trial”). Accordingly,

this ground does not provide a basis for an ineffective assistance claim. See, e.g., Ellis v. United

States, No. 03 C 4367, 2003 WL 22326585, *6 (N.D. Ill. Oct. 10, 2003) (holding there was no basis

for an ineffective assistance of counsel claim for failure to request a government agent jury

instruction when government presented sufficient evidence that defendant conspired with codefendants).

VI. The Failure to Request an “All or Nothing” Jury Instruction Does Not Establish

Ineffectiveness of Counsel

Similarly, Billingsley contends that his counsel rendered ineffective assistance because he

did not request an “all or nothing” jury instruction. Specifically, Billingsley argues that because he

was charged with conspiring to distribute more than five kilograms of cocaine, the jury could only

convict him if it found he conspired to distribute more than five kilograms, not if it found he

conspired to distribute less. There is no support for Billingsley’s theory. To sustain a conviction

for conspiracy under 21 U.S.C. § 846, the government must prove beyond a reasonable doubt that

Billingsley agreed with at least one other individual to commit an unlawful act - - here, to rob a drug

stash house - - and that Billingsley knowingly and intentionally joined the agreement. See United

States v. Duran, 407 F.3d 828, 835 (7th Cir. 2005) (citing United States v. Thornton, 197 F.3d 241,

254 (7th Cir. 1999)). The government does not need to prove the exact drug quantity charged in

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order to secure a proper conviction. See United States v. Garcia, 580 F.3d 528, 535 (7th Cir. 2009);

United States v. Martinez, 518 F.3d 505, 509 (7th Cir. 2008) (holding that drug quantity is not an

element of a crime defined by 21 U.S.C. § 846); United States v. Carrera, 259 F.3d 818, 830 (7th

Cir. 2001) (jury is not required to find that any specific quantity of drugs is involved before it may

properly find a § 846 violation); cf Payne, 226 F.3d at 795 (holding that a proposed instruction that

would require the jury to acquit if it found that the conspiracy proven varied from the conspiracy

charged in the indictment was an incorrect statement of the law.). Accordingly, the difference

between the indictment and the jury’s verdict with respect to the amount of drugs for which

Billingsley was found responsible does not negate that he is guilty of the conspiracy itself. Thus,

Billingsley’s counsel was not ineffective in failing to request or an “all-or-nothing” jury instruction.

The reason that specific amounts were submitted to the jury was for sentencing purposes. 

Under the Supreme Court’s decision in Apprendi v. New Jersey, “any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved

beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Therefore, while

Billingsley could have been convicted under § 846 without a finding of any specific amount, he

could not have been sentenced above the statutory maximum unless a specific amount was submitted

to the jury. Since Billingsley was sentenced in accordance with the jury’s finding on the amount,

and was in fact sentenced below the statutory maximum, this ground provides no basis to vacate

Billingsley’s sentence.4

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Billingsley also contends that his counsel was ineffective because he did not request an option of a “detectable

amount” on the special verdict form. However, Billingsley presented no evidence to suggest that the jury would have

found a detectable amount compared to what they did find: a measurable amount, but less than 500 grams. Accordingly,

Billingsley failed to establish the prejudice prong on this claim.

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VII. The Court Did Not Violate Federal Rule of Criminal Procedure 32(h) in Sentencing

Billingsley

Billingsley also argues that his sentence should be vacated because this Court violated Fed.

R. Crim. P. 32(h) by making an upward departure from the sentencing guidelines without first

providing him notice that the Court intended to do so. Federal Rule of Criminal Procedure 32(h)

provides that: “Notice of Possible Departure from Sentencing Guidelines: Before the court may

depart from the applicable sentencing range on a ground not identified for departure either in the

presentence report or in a party’s prehearing submission, the court must give the parties reasonable

notice that it is contemplating such a departure.” However, the government had advocated for an

upward variance in its sentencing submission based on the application of the factors set forth in 18

U.S.C. § 3553, such as the seriousness of the offense, the defendant’s criminal history and the

defendant’s characteristics. The Court relied on these grounds in reaching its sentence. 

Accordingly, the Court did not violate Rule 32(h). See Irizarry v. United States, 553 U.S. 708, 714

(2008) (holding that Rule 32(h) “does not apply to 18 U.S.C. § 3553 variances by its terms”); United

States v. Walker, 447 F.3d 999, 1007 (7th Cir. 2006) (holding that Rule 32(h) does not apply when

a district court exercises its discretion and makes an upward variance based on factors specified in

§ 3553(a).). Thus, Billingsley’s seventh ground provides no basis to vacate his sentence.5

VIII. The Government Never Offered Billingsley a Plea Agreement

The final ground upon which Billingsley’s motion is based is an assertion that his counsel

was ineffective because he never advised his client that the government offered a sentence of 5 years

if Billingsley pled guilty. However, there is no evidence that the government ever made such an

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Billingsley also makes the conclusory statement that his counsel was ineffective in appealing this issue. Since

Rule 32(h) was inapplicable, there was nothing for Billingsley’s counsel to appeal.

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offer. Indeed, the government flatly denies this assertion. Since Billingsly has not presented any

evidence to establish the existence of such an offer, this ground cannot provide Billingsly with any

relief.

IX. Billingsley Is Not Entitled to an Evidentiary Hearing

A petitioner is not entitled to an evidentiary hearing on the merits of a § 2255 motion if “it

plainly appears form the motion, any attached exhibits, and the record of prior proceedings that

moving party is not entitled to relief.” Rule 4 of the Rules Governing Section 2255 Proceedings for

the United States District Courts. In this case, it plainly appears from Billingsley’s petition and the

record of the prior proceedings that Billingsley is not entitled to relief. Therefore, the Court need

not conduct a hearing on Billingsley’s § 2255 petition. See Lafuente v. United States, 617 F.3d 944,

946 (7th Cir. 2010) (citing 28 U.S.C. § 2255(b)); Cooper v. United States, 378 F.3d 638, 641-42 (7th

Cir. 2004)).

X. Billingsley Is Not Entitled to a Certificate of Appealability

Unless this Court issues a certificate of appealability, an appeal may not be taken to the

United States Court of Appeals from this Court’s judgment in a § 2255 proceeding. See 28 U.S.C.

§ 2253(c); see also Buie v. McAdory, 322 F.3d 980, 981 (7th Cir. 2003). Courts may only grant a

certificate of appealability when the petitioner has presented “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Gonzalez v. Thaler, 132 S. Ct. 641, 649

n.5 (2012). A substantial showing of the denial of a constitutional right requires the petitioner to

show that reasonable jurists could find room to debate whether the petition should have been

resolved in a different manner or that the issues presented are adequate to entitle the petitioner to

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proceed further with his claims. See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot

v. Estelle, 463 U.S. 880, 893 (1983)). 

Because Billingsley’s ineffective assistance claim is denied on the merits, to obtain a

certificate of appealability Billingsley must demonstrate that reasonable jurists would find this

Court's assessment of the constitutional claims either debatable or wrong. See Miller-El v. Cockrell,

537 U.S. 322, 338 (2003) (quoting Slack, 529 U.S. at 484). Billingsley has not made such a showing

here, and the Court concludes that reasonable jurists could not find room to debate its ruling on the

constitutional merits of Billingsley's ineffective assistance of counsel claim. Thus, because

Billingsley has failed to make a substantial showing of the denial of a constitutional right this Court

must therefore deny Billingsley a certificate of appealability for the claims raised in his § 2255

Motion. See 28 U.S.C. § 2253(c)(2); see also Gonzalez, 132 S.Ct. at 649 n.5. The decision of

whether or not to grant a certificate of appealability is a screening device used to conserve judicial

resources and prevent the Courts of Appeals from being overly burdened with unmeritorious

petitions to vacate, set aside, or correct a sentence pursuant to § 2255. See Young v. United States,

124 F.3d 794, 799 (7th Cir. 1997). Therefore this Court will not issue a certificate of appealability.

CONCLUSION

Billingsley’s Motion for relief pursuant to 28 U.S.C. § 2255 is denied and he is denied a

certificate of appealability.

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________________________________________

Virginia M. Kendall

United States District Court Judge

Northern District of Illinois

Date: 12/27/2012

 

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