existence of the confession fares no better. It is premised upon several observations made by
Walls concerning the government’s evidence of the confession. First, Walls notes that the
confession was presented at trial solely through the government’s witnesses (rather than through
defense witnesses) and that no written statement was signed by her. (/d.). She also points to the
fact that “in a house full of witnesses, the only people that the Government claimed could have
heard [the confession] were the Government’s witnesses.” (Jd. at pp. 3-4). Finally, Walls makes
the rather confusing statement that, “[s]urely the testimony of the house guests and relatives
present, estimated at 15 people by Agent Markhart . .. would have been more helpful to the
defense than a complete inability to impeach the prosecution’s witness regarding the content of
the statement.” (Pet. Br., p. 12). None of these observations calls into question the existence of
the confession.

Moreover, all four of Walls’ witnesses state in their affidavits that the agents “took” or
“removed” Walls to the kitchen (whereas the testimony at trial indicated that, by her actions,
Walls invited the agents to speak with her in the kitchen). Regardless of this purported
discrepancy, the witnesses’ proffered testimony in no way challenges Markhart’s testimony that,
once in the kitchen, Walls gave a confession. Indeed, Walls’ own affidavit addresses many
issues, but does not address, let alone deny, the existence of the confession, as detailed by the
government’s witnesses at trial. Likewise, she does not purport to deny the existence of the
confession in her motion, brief, or reply brief.

Finally, the court is left again only with Walls’ speculation that her witnesses could have
challenged the existence of the confession. See Pet. Br., pp. 11-12. Accordingly, petitioner

cannot establish that she suffered prejudice due to her counsel’s failure to present testimony

-13-


knew the packages at issue contained cocaine. They further testified that she informed them that
the packages belonged to Delano Target, a member of the Gangster Disciples street gang. The
defense did not present any evidence to contradict the government’s evidence relating to Walls’
confession. See Pet. Br., pp. 6-7.

Cc. Walls’ Post-Trial Motion and Subsequent Appeal

Following her November 13, 1998 conviction, Walls filed a motion for a new trial on
December 4, 1998. The court denied the motion on December 15, 1998. On February 1, 1999,
James A. Stamos replaced Mr. Levin as Walls’ counsel. On March 18, 1999, this court
sentenced Walls to 72 months’ imprisonment, pursuant to the applicable statutes and sections of
the United States Sentencing Guidelines.

Walls, represented by Mr. Stamos, timely appealed from her conviction and sentence. On
appeal, Walls made three arguments: (1) that FedEx’s initial search of the packages violated the
Fourth Amendment because it constituted a joint endeavor between state deputy sheriffs and
FedEx employees; (2) that the DEA’s field test of the contents of the packages was
constitutionally defective because the agent who conducted the search was not told why the
packages were suspicious prior to conducting the test and the cocaine was not in plain view; and
(3) that the agents’ entry into her home violated the Fourth Amendment because she did not
consent thereto. The first argument was premised on trial testimony that Gheric Bruce, a security
officer for FedEx who participated in the initial search in Memphis, was also “commissioned” by
the Shelby County Sheriff's Department (but was not a sheriff's deputy). There was no other
testimony at trial concerning the scope of Bruce’s involvement with the Sheriffs Department.

On August 15, 2000, the Seventh Circuit affirmed this court’s judgment in all respects relevant

4.



error or not, the outcome of this trial was no less reliable for having heard the additional
evidence.” Id.®

Even if petitioner had presented a colorable claim for habeas relief based upon trial
counsel’s failure to secure suppression of the drug evidence or to challenge its admission in a
post-trial motion, she could not prevail. She relies upon nothing more than one piece of trial
testimony to the effect that one of the FedEx employees who conducted the initial search was
“commissioned” by the Sheriff's Department. With that scant — and ambiguous — evidence, she
has failed to demonstrate that the search constituted state action (let alone that it was not
compliant with the Fourth Amendment). Indeed, the evidence presented at trial was that, in
conducting the search, the FedEx employees were acting in their capacity as such, with the
purpose of ensuring that contraband not be permitted to move through FedEx’s system.
Moreover, the Seventh Circuit found that even if the Fourth Amendment issue, itself, was not
forfeited (as the Seventh Circuit found it was), there was no plain error. Given the Seventh
Circuit’s finding, this court would not find prejudice from her trial counsel’s alleged error.

Il. Conclusion

For the foregoing reasons, Walls’ section 2255 motion to vacate her sentence is denied.
\
Enter:

Dayid H. Coar
United States District Judge

Dated: July 14, 2004

§ An attorney’s ineffectiveness in connection with a suppression issue may be used to show his
overall incompetence, and where such overall incompetence renders the proceedings unfair or unreliable,
it provides a basis for finding prejudice and ordering a new trial. See Holman, 95 F.3d at 492; Jones, 152
F.3d at 688 n.5. However, petitioner has not so argued here, and no such finding would be warranted, in
any event.

-17-


account of trial counsel’s failure to raise it during or after the trial (in a post-trial motion).’ Walls
did not present either of the ineffectiveness claims raised herein (or, indeed, any ineffectiveness
claims) on direct appeal.

Petitioner has proffered extrinsic evidence to support her first ineffectiveness claim (i.e.,
based upon her counsel’s failure to conduct a sufficient investigation and to present certain
evidence at trial). Therefore, her counsel’s purported failure to raise that claim on direct appeal
did not effect a procedural default. Jd. Petitioner’s second ineffectiveness claim is not premised
upon any extrinsic evidence, but instead upon one tidbit of trial testimony. Therefore, that claim
is at least facially subject to a procedural default analysis, as it was not raised on direct appeal
(although the underlying Fourth Amendment issue was). However, the court declines to dispose
of petitioner’s claim on the basis of procedural default and, as set forth in subsection (D), instead
finds that it is a claim that could not, under any circumstances, entitle petitioner to habeas relief.

Cc. Alleged Deficiencies in Trial Counsel’s Investigation and Presentation of
Evidence

Petitioner claims that her trial counsel rendered ineffective assistance by virtue of his
failure to conduct a sufficient investigation — in particular, his failure to interview certain
specified witnesses who could have testified at trial and provided testimony harmful to the

government’s case. “Effective representation of a criminal defendant requires pretrial

4 Petitioner contends that “[i]t was not until this ruling that the ineffective assistance claim
relative to the waiver of this issue was made apparent.” (Pet. Reply, p. 2). More specifically, she
contends that “current counsel was not aware that the [Seventh Circuit Court of Appeals] would consider
the issue waived until that court so ruled [on direct] appeal.” (Pet. Mot., p. 2). These statements appear
to be calculated to defend against the charge that the failure to raise on direct appeal the ineffectiveness
claim based upon trial counsel’s failure to raise the Fourth Amendment issue effected a procedural bar.
Contrary to defense counsel’s implication, an attorney’s failure to anticipate the Seventh Circuit’s
adherence to its own solid precedent does not constitute “cause.”

-9-



IL. Analysis

A Relevant Standards

Under 28 U.S.C. § 2255, federal prisoners can challenge the imposition or length of their
detention if their conviction or sentence was founded on an error that is “jurisdictional,
constitutional, or is a fundamental defect which inherently results in a complete miscarriage of
justice.” Oliver v. United States, 961 F.2d 1339, 1341 (7" Cir, 1995) (internal quotations and
citations omitted). If the court concludes that any such errors infected the judgment or sentence,
it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255 P 2.

Ineffective assistance of counsel is such a constitutional error. To establish that her trial
counsel’s assistance was ineffective, a petitioner must establish that: (1) her counsel’s
performance was deficient; and (2) the deficient performance prejudiced her defense. Strickland
vy. Washington, 466 U.S. 668, 687-691 (1984).

To meet the first prong of this test, a petitioner must show that her counsel’s performance
fell beneath the “objective standard of reasonableness” guaranteed by the Sixth Amendment.
Strickland, 466 U.S. at 688. In alleging deficient performance, a petitioner is required to
“Gdentify the acts or omissions of counsel that are unreasonable.” United States v. Hodges, 259
F.3d 655, 658 (7" Cir. 2001) (internal quotations and citation omitted). Moreover, “[a] party
must present evidence, not mere conclusory allegations” to support her claim that her counsel’s
performance was deficient in a certain respect. Barkauskas v. Lane, 946 F.2d 1292, 1295 (7"
Cir. 1991) (citations omitted). See also Enoch v. Gramley, 70 F.3d 1490, 1498-99 (7" Cir. 1995)

(where the petitioner “makes conclusory or speculative allegations rather than specific factual

6-


herein. See United States v. Walls, et al., 225 F.3d 858 (7" Cir. 2000). As to the first argument
in particular, the Seventh Circuit rejected it because it was being raised for the first time (i.e., it
had not been raised during the trial or thereafter in a post-trial motion). See Walls, 225 F.3d at
862. Walls did not file a petition for certiorari to the United States Supreme Court.

D. Walls’ Section 2255 Motion

On August 14, 2001, represented by Mr. Stamos, petitioner timely filed a section 2255
motion to vacate her sentence. Petitioner seeks habeas relief on the grounds that she was denied
effective assistance of counsel as guaranteed by the Sixth Amendment to the United States
Constitution. Specifically, she contends that her trial counsel rendered ineffective assistance by:
(1) conducting an insufficient investigation through his failure to interview witnesses who could
have “affect[ed] key pieces of the prosecution’s case” (in that they would have contradicted the
government’s version of the controlled delivery and subsequent related events) and (2) failing to
argue that the initial search violated the Fourth Amendment in that one of the FedEx employees
who conducted the initial search of the packages was dually employed by Fed Ex and the

Sheriff's Department and the search constituted unlawful state action. (Pet. Mot., p. 2).?

3 Along with her motion and supporting brief, Walls submitted her own affidavit challenging the
performance of her trial attorney, Mr. Levin. In it, she contended that he: literally would not listen to her
version of the events of her arrest; refused to accept a list of witnesses from her; refused to talk to any
defense witnesses; did not allow her to testify in her defense even though she told him at trial that she
wanted to (stating that she would be “eaten up on the stand”); and mentally coerced her to advise the
court that she did not want to testify, notwithstanding that she actually wanted to testify. (Pet. Br., Aff.
of Daisy Walls, 413). Walls also submitted the affidavits of four individuals who were present at her
home on the date of the controlled delivery. Walls has expressly premised her motion upon only several
of the allegations made in the affidavits, and has entirely ignored the others, failing even to reference
them in her motion, her supporting brief, or her reply brief. The court will disregard those allegations in
the affidavits that are not relevant to the grounds for relief asserted in Walls’ section 2255 motion.

~5-



on direct appeal. See United States v, Frady, 456 U.S. 152, 170-75 (1982). In that vein, it notes
that Mr. Stamos assumed representation of Walls when her trial counsel ceased representing her
shortly after the verdict was handed down and thus seeks to fault Walls for Mr. Stamos’ failure to
raise both ineffectiveness claims sometime prior to the filing of the instant section 2255 motion.

The Seventh Circuit “has held that most claims of ineffective assistance of trial counsel
are properly raised for the first time in a § 2255 motion rather than on direct appeal.” McCleese
v. United States, 75 F.3d 1174, 1178 (7" Cir.1996) (citations omitted), However, “[w]here a
defendant offers no extrinsic evidence to support his claim of ineffective assistance of counsel
and he was represented by different counsel on appeal, that defendant must bring that claim on
direct appeal or face procedural default for failing to do so.” McCleese, 75 F.3d at 1178
(citations omitted).

As a preliminary matter, Mr. Stamos did not enter an appearance as Walls’ counsel until
February 1, 1999, almost two months after Walls had filed, and the court had rejected, her
motion for a new trial. On direct appeal, Mr. Stamos raised the Fourth Amendment issue that is
presented herein as the basis for one of petitioner’s two ineffectiveness claims (i.e., that because
the FedEx employee who conducted the initial search of the packages was “commissioned” by
the Sheriff’s Department, FedEx’s initial search was a joint endeavor with the government and
was subject to the Fourth Amendment prohibition against unreasonable seizures and searches,
and, ultimately, the search did not comply therewith). However, on direct appeal, the Fourth
Amendment issue was asserted as a free-standing ground for appeal, rather than a basis for an

ineffectiveness claim (as here). As noted above, the Seventh Circuit deemed the issue waived on

-8-


‘Minute Order Form (06/97)

Ase

United States District Court, Northern District of Illinois

ne Magistrate dee David H. Coar “than Asiged Jue

CASE NUMBER 01 C 6256 DATE 7/14/2004

CASE

TITLE Walls v. United States .

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
Petitioner’s Motion to Vacate Pursuant to 28 U.S.C. § 2255
DOCKET ENTRY:
(i) Q Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) QO Answer brief to motion due. . Reply to answer brief due__.
(4) oO Ruling/Hearing on__—_s set for____at
(5) iia) Status hearing[held/continued to] [set for/re-set for] on setfor at.
(©) Qa Pretrial conference{held/continued to] [set for/re-set for] on setfor ss at_
(7) Qo Trialfset for/re-set for]on___at
(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__at.
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) C)Local Rule 41.1 CUFRCP41(a)(1) (© FRCP41(a)(2).

(10) [Other docket entry] For the reasons set forth in the attached Memorandum Opinion and Order,

This case is terminated.

number of notices

WL ,2,6 204

petitioner’s section 2255 motion to vacate her sentence (Doc. #1) is deni

(1)

{For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.
Mail AO 450 form.

Ns

docksting dfputy Ynitials

Copy to judge/magistrate judge.

LoLsia “Sl
tunes Sead

courtroom. date mailed notice

deputy’s
initials

O19 Wad SI TNE N00
oa be

aed/le

railing deputy initials



points” and thereby impacted his general credibility as a witness. (Id.). Second, she argues that
«the witnesses would have directly challenged the existence of the confession.” (Pet. Reply, p.
3). See also Pet. Br. pp. 11-12.

In support of her argument that the proffered testimony would have impeached Markhart,
Walls refers specifically to Monique Byrd’s affidavit stating that she was the person who greeted
Markhart and that she neither said “Mama, your package is here” nor heard anyone else do so.
See Pet. Br. p. 5, Aff. of M. Byrd, 914-5 Walls also contends that her son, Danielle, could have
offered testimony contradicting Markhart’s testimony concerning her behavior during the
delivery (e.g., that she scrutinized his clothing, asked her son to sign for the packages, and could
not have seen the label designating the electrical company as the recipient of the packages before
she signed for the electrical company). See Pet. Br., pp. 5-6. The only portion of Danielle’s
affidavit that is arguably relevant in this regard is his statement that FedEx told his mother to sign
for the electrical company by her initials. See Pet. Br., Aff. of Danielle Walls.® Walls does not
cite any other testimony and, indeed, there is no other testimony in any of the four affidavits that
contradicts Markhart’s testimony on the challenged points (i.e., vis a vis the circumstances
surrounding the controlled delivery).

Ultimately, this first argument fails because Byrd’s and Danielle’s testimony would not

5 Interestingly, Byrd also states in her affidavit that she heard Markhart tell Walls to sign her
name by the “X” (which contradicts the proffered testimony of other defense witnesses). See Pet. Br.,
Aff. of M. Byrd, J 11. Although she also states that Walls never asked anyone to sign for her, her
testimony is insufficient to impeach Markhart on this point, as Byrd admits that she was out of the
presence of Walls and Markhart for a number of minutes. See Pet. Br., Aff. of M. Byrd, 9 6, 7, 12.

6 Danielle and Ida Grimes also state that Markhart placed the packages on the couch, instead of
holding them with the clipboard on top of them, as he testified he did (which is relevant only insofar as it
relates to how Walls knew that the packages were addressed to the electrical company). See Pet. Br.,
Aff. of Danielle Walls, 5; Aff. of Ida Grimes, § 11).

-ll-



preparation and investigation.” Shetterly, 971 F.2d at 74 (citations omitted). As to the latter,
“[alttorneys have a professional obligation to conduct ‘reasonable investigations or to make a

29

reasonable decision that makes particular investigations unnecessary.” Brown v, Sternes, 304
F.3d 677, 691 (7" Cir. 2002) (quoting Strickland, 466 U.S. at 691).

The standard for assessing the reasonableness of counsel’s investigation is an objective
one. See Williams v. Washington, 59 F.3d 673, 679 (7" Cir. 1999), “The amount of preparation
is a matter of professional judgment, which is entitled to deference.” Shetterly, 971 F.2d at 74
(citation omitted). “[A] petitioner alleging that counsel’s ineffectiveness was centered on a
supposed failure to investigate has the burden of providing the court sufficiently precise
information, that is, a comprehensive showing as to what the investigation would have
produced.” United States v. Gramley, 915 F.2d 1128, 1134-35 (7" Cir. 1990) (internal quotations
and citation omitted).

The government concedes that, assuming the truth of Walls’ allegations (as outlined
above), she can satisfy the first prong of the required showing under Strickland, However, it is
not necessary for the court to analyze this issue because Walls cannot, in any event, meet the
second prong of Strickland’s test. That is, assuming the truth of her allegations concerning her
trial counsel’s insufficient investigation and corresponding failure to present certain testimony at
trial, she cannot show prejudice stemming from his deficient performance in that regard.

In support of her claim of prejudice, Walls contends that had defense counsel conducted a
sufficient investigation and presented certain testimony at trial, it “could reasonably be expected
to effect [sic] the outcome of the trial.” (Pet. Reply, p. 2). First, she argues that certain

testimony would have impeached a “key Government witness [Markhart] on several specific

-10-


allegations” in support of ineffectiveness claim, he is not entitled to an evidentiary hearing, and
his claim fails).

To meet the second prong of the test, a petitioner must demonstrate to a reasonable
probability that, but for her counsel’s performance, “the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. See also Washington v. Smith, 219 F.3d 620, 632-33
(7* Cir, 2000). “In requiring the defendant to show prejudice to the outcome of the trial, the
Supreme Court noted that ‘the purpose of the Sixth Amendment guarantee of counsel is to ensure
that a defendant has the assistance necessary to justify reliance on the outcome of the
proceeding.” United States v. Hernandez-Rivas, 348 F.3d 595, 600-01 (7" Cir. 2003) (quoting
Strickland, 466 U.S. at 691-92).

To prevail, a petitioner must overcome the strong presumptions that her counsel’s
performance fell within the wide range of reasonable professional assistance and that the original
verdict was reliable. See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Hodges, 259 F.3d at
658, Walls’ burden in establishing her claim of ineffective assistance is heavy. United States v.
Shetterly, 971 F.2d 67, 74 (7" Cir. 1992). “Substandard representation may be harmless where
the evidence against the defendant is overwhelming.” Shetterly, 971 F.2d at 74 (citations
omitted),

B. Procedural Default

The government claims that both of petitioner’s ineffective assistance of counsel claims
are procedurally defaulted. Specifically, the government argues that petitioner should have

sought a new trial based upon her trial counsel’s alleged shortcomings prior to sentencing and/or

Te



carefully scrutinized his clothing and avoided signing for the packages — first by asking her son,
Danielle Walls (“Danielle”), to sign for the packages and ultimately by signing the name of the
corporate addressee (rather than her own name). See Pet. Br., p. 5. He also testified that she
exclaimed “I’ll sign the electric company” before she could have seen the address labels on the
packages (because he held the packages with the clipboard on top of them). The defense did not
present any evidence to contradict this testimony. See Pet. Br., p. 6.

The trial testimony established that after Walls had signed for and accepted the packages,
Markhart departed from her home. Thereafter, Sharee Williams (Walls’ co-defendant) and
Danielle exited the rear of the house with the packages and went to a neighboring house.
Following a series of events culminating with the cessation of the transmission of the signal from
one of the packages (which normally would indicate that the package had been opened), the
agents proceeded to the residence to which Williams and Danielle had gone, There they found
the unopened packages. The agents then proceeded to Walls’ residence, where they knocked,
identified themselves, and informed Walls of their investigation. Ultimately, Walls opened the
door and stepped back, and the agents stepped inside?

Markhart testified that petitioner subsequently invited him and the other agents to talk
privately with her in the kitchen. See Pet. Br., p. 6. The agents administered Walls’ Miranda
rights, which she acknowledged. The government’s witnesses, including Markhart, testified that

Walls admitted that this was the third time that she had accepted similar packages and that she

2 In connection with the trial of this case, the court ruled that Walls had consented to the agents’
entry. The Seventh Circuit upheld the court’s ruling on direct appeal. Although petitioner has submitted
affidavits that address the circumstances of the agents’ entry into her home, she does not challenge the
constitutionality of their entry in asserting her ineffective assistance of counsel claims herein.

3-



challenging the confession. See Enoch, 70 F.3d at 1498-99; Shetterly, 971 F.2d at 75.

Although Walls contends that her counsel’s failures, as outlined above, “create[d] a
failure in the adversarial process so egregious that the process can not possibly be relied on to
produce a fair result,” the court finds that is not the case. (Pet. Br., p. 13). Ultimately, the court
finds that none of the proffered testimony would call into question the existence of Walls’ own
confession, which constitutes overwhelming evidence of her guilt and forecloses any finding of
prejudice. See, e.g., United States v. Pierson, No. 01 C 0053, 2003 US. Dist. LEXIS 14229
(N.D. Ill. Aug. 15, 2003) (denying petition for habeas relief where the petitioner alleged that
counsel failed to investigate his case and interview material witnesses and failed to present
available impeachment evidence at trial; the evidence that counsel failed to investigate and/or
present at trial was not inconsistent with the evidence adduced at trial, and the petitioner’s claims
did not undermine the trial court’s finding of guilt, precluding any finding that he was prejudiced
by his counsel’s deficient performance). For that reason and the reasons set forth above, the
court denies Walls’ motion. Because the record conclusively establishes that petitioner is not
entitled to habeas relief, she is not entitled to an evidentiary hearing, and her motion is dismissed.
See McCleese, 75 F.3d at 1182. See also United States v. Taglia, 922 F.2d 413, 419 (7" Cir.
1991); Humphrey v. United States, 896 F.2d 1066, 1070 (7" Cir. 1990).

D. Trial Counsel’s Failure to Challenge the Constitutionality of the Initial

Search Based Upon FedEx’s and the Government’s Purported Joint
Endeavor

Petitioner also claims that her trial counsel rendered ineffective assistance through his

“failure to present the argument that the initial search of the packages by FedEx employees

constituted an unlawful state action, in violation of the Fourth Amendment because of the agent’s

-14-



attorney’s failure to object to the magistrate’s recommendation to deny his motion to suppress
without considering whether error existed; it was “enough to note that whether there was etror or
not, the outcome of this trial was no less reliable for having heard the additional evidence”)
(citation omitted); United States v. Jones, 152 F.3d 680, 688 (7" Cir. 1998) (“ineffectiveness
claims based on a counsel’s performance in connection with a motion to suppress evidence does
not constitute the type of prejudice contemplated by Strickland’) (citation omitted); United States
y. Williams, 106 F.3d 1362, 1367 (7" Cir, 1997) (rejecting as “futile” ineffective assistance of
counsel claim premised upon trial counsel’s performance in arguing for the suppression of
evidence; “the damage done by an inept attorney in this context does not constitute prejudice as
defined under Strickland’) (citation omitted).

The rationale for this rule is that the failure to secure the suppression of reliable evidence
does not undermine confidence in the reliability of the outcome of the trial. Holman, 95 F.3d at
488-492.” That is, “[iJn cases where an attorney’s mistake resulted in the admission of evidence
that would have otherwise been suppressed, the outcome of the trial does not become any less
reliable.” Hernandez-Rivas, 348 F.3d at 601 (citations omitted). Accordingly, it is not necessary

for the court to determine whether Mr. Levin’s performance was deficient, as “whether there was

T Indeed, the exclusionary rule operates to bar the admission of reliable evidence. As the Seventh
Circuit has explained, “It is inconsistent with the function of the exclusionary rule to permit a criminal
defendant on federal habeas review to claim prejudice because but for his counsel’s incompetence on the
suppression issue he would have gotten away with the crime. Such a claim may be factually true — but
that alone does not entitle a convict to a new trial because that alone does not constitute ‘prejudice’
within the meaning of Strickland. Strickland prejudice relates to the fairness of the proceedings and to
the confidence one may place in the outcome, i.e., to the correctness of the verdict.” Holman, 95 F.3d at
491. See also Elizalde-Adame v, United States, 56 Fed. Appx. 279, 280 (7" Cir. 2003) (“(T]he
‘prejudice’ component of Strickland is designed to identify situations in which lawyers’ deficiencies
create an unacceptable risk of convicting the innocent. The exclusionary rule is not an innocence-
protection device; it serves other social goals. [] Holman establishes that... the propriety of a search
[may not be] litigated on collateral review, through the expedient of blaming the lawyer.”).

-16-


subject to the dictates of the Fourth Amendment and further contended that it did not comply
therewith. Following a hearing held over the course of two days and some intervening discovery,
this court denied the motion.

Subsequently, the drug evidence was admitted at trial, Numerous government witnesses
testified at trial. Walls did not testify at trial.

B. _ Relevant Facts’

On April 22, 1998, FedEx employees in Memphis, Tennessee searched two packages that
were addressed to the “Tascam Electrical Supply Company” at 9121 South Colfax in Chicago
and discovered cocaine therein. The packages were addressed to the attention of Walls. There is
no “Tascam Electrical Supply Company” in Chicago, and 9121 S. Colfax is Walls’ private
single-family residence. FedEx subsequently notified the Drug Enforcement Agency (“DEA”) of
its discovery of the cocaine, and the DEA decided to make a “controlled delivery” of the
packages to Walls’ home. Court-ordered break-wire devices were inserted into the packages to
facilitate the agents’ tracking of the packages following their delivery.

The next day, DEA Agent Homer Markhart posed as a FedEx deliveryperson to make the
delivery. He wore a FedEx uniform, drove a FedEx truck to Walls’ house, and approached her
door with the packages. Markhart testified at trial about Walls’ conduct during the delivery, as
well as that of several other people in and around the residence at the time. Included in his
testimony was his recollection of a young girl yelling, “Mama, your package is here” as he

approached the house. See Pet. Br., p. 4. He also testified that after Walls came to the door, she

' The facts underlying Walls’ conviction are more fully set forth in the Seventh Circuit’s opinion
denying Walls’ direct appeal. See United States v. Walls, et al., 225 F.3d 858 (7" Cir. 2000).

-2-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DAISY WALLS, ) DOCKETFR
)
Petitioner, ) JUL 16 2004
) No. 01 C 6256
v. )
) HONORABLE DAVID H. COAR
UNITED STATES OF AMERICA, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner Daisy Walls’ motion to vacate her sentence pursuant to 28 U.S.C. § 2255 is
before this court. For the following reasons, the court finds that habeas relief is not warranted
and denies Walls’ motion in its entirety.

L Background

A. Walls’ Trial and Conviction

On November 13, 1998, following a jury trial, Walls was convicted of conspiracy to
possess with intent to distribute a substance containing cocaine, in violation of 21 U.S.C. § 846
(Count I), conspiracy to distribute a substance containing cocaine, in violation of 21 U.S.C. §
846 (Count II), and possession with intent to distribute a substance containing cocaine, a
Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Count Il).

Walls was represented by Lawrence Wolf Levin at trial. Prior to trial, the defense filed a
motion to suppress the evidence of the cocaine. In support of her motion, Walls argued that the
privately-employed Federal Express (“FedEx”) employees who initially opened the packages
containing the cocaine were performing a public, law-enforcement function and, thus, were

functionally equivalent to government agents. Walls thus contended that the initial search was

[2


contradict Markhart’s testimony in any significant respect, let alone destroy his general
credibility. Byrd’s testimony arguably contradicts Markhart’s testimony that a girl said “Mama,
your package is here” (although its ability to do so is weakened by Byrd’s admission that she was
not in Markhart’s presence the entire time, including towards the beginning of his time at the
house and while Walls was in the house). Danielle’s testimony arguably contradicts Markhart’s
testimony on one point, as well, but only very indirectly. He states that Markhart asked his
mother to sign for the electrical company, whereas Markhart testified that she stated she would
sign for the electrical company before he had revealed to her in any way that the packages were
addressed to the electrical company.

In any event, all of the challenged testimony by Markhart constituted mere
“circumstantial evidence of [Walls’] knowledge that the packages contained drugs.” (Gov't
Resp., p. 6). In essence, it went directly to Walls’ knowledge that the packages contained drugs,
which was conclusively established by her confession, alone. Moreover, these purported
discrepancies are simply insufficient to impact Markhart’s general credibility. Thus, the court is
left with nothing other than Walls’ speculation that her son and the other proffered witnesses
could have impeached Markhart and harmed his general credibility (see Pet. Br., p. 11), which is
insufficient to support a finding of prejudice. See Enoch, 70 F.3d at 1498-99; Shetterly, 971 F.2d
at 75 (speculation concerning what evidence might have been discovered had counsel conducted
a sufficient investigation is insufficient to demonstrate prejudice; the petitioner is required to
show what the evidence would have been and how it would have yielded a different outcome)
(citations omitted).

Walls’ argument that the proffered witnesses would have called into question the very

~-12-


dual employment with the Sheriffs Department.” (Pet. Mot., p, 2). She alternatively frames the
claim as one based upon her trial counsel’s “failure to preserve for appeal the issue that the initial
search of the package constituted an unlawful state action because the [FedEx employees] who
undertook the search were employed at the time as Deputy Sheriffs for Shelby County.” (Pet.
Reply, p. 4). As noted above, petitioner’s contention concerning the meritoriousness of the
underlying Fourth Amendment issue is premised upon a single piece of trial testimony to the
effect that a FedEx employee who participated in the initial search of the packages was also
“commissioned” by the Shelby County Sheriff’s Department. Walls contends that this piece of
trial testimony, alone, provided a basis for suppressing the drug evidence, as it demonstrated that
the FedEx security agents were acting in a dual capacity (e., a joint endeavor on the part of the
government and FedEx) and therefore that the search constituted state action. She argues on that
basis that the search was subject to the Fourth Amendment’s prohibition against unreasonable
searches and seizures and contends further that it contravened the Fourth Amendment. See Pet.
Br., pp. 13-15.. She does not cite a single case in support of her contention that this Fourth
Amendment issue is a meritorious one.

It is not necessary for this court to address whether petitioner’s claim is procedurally
defaulted or to delve into the merits of the claim. This is so because, on collateral review, the
failure to preserve a Fourth Amendment issue can never be found to be “prejudicial” within the
meaning of Strickland. Holman v. Page, 95 F.3d 481, 492 (7" Cir. 1996), cert. den,, 520 U.S.
1254 (1997) (holding that “under Strickland no prejudice exists when evidence gathered in
violation of the Fourth Amendment is erroneously admitted at trial”). See also Hernandez-Rivas,

348 F.3d at 601 (rejecting the petitioner’s ineffective assistance of counsel claim based upon his

-15-