Ronald Terry v. United States ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 26, 2013*
Decided June 26, 2013
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 12-2428
RONALD Q. TERRY, Appeal from the United States District
Petitioner-Appellant, Court for the Eastern District of Wisconsin.
v. No. 10-C-0789
UNITED STATES OF AMERICA, Charles N. Clevert, Jr.,
Respondent-Appellee. Judge.
ORDER
Ronald Terry, a federal prisoner serving a 260-month sentence for drug and firearm
convictions, appeals the district court’s denial of a motion to vacate his sentence under 28
U.S.C. § 2255. In his motion, and on the issue on which the district court granted a
certificate of appealability, he argues that trial counsel was constitutionally ineffective.
Specifically, Terry argues, counsel should have more vigorously cross-examined a
government witness during the second of two hearings on a motion to suppress
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 12-2428 Page 2
wiretapped phone calls. The denial of that motion to suppress led Terry to plead guilty.
Because counsel’s cross-examination was reasonable, we affirm the judgment.
In affirming Terry’s conviction in United States v. Terry, 572 F.3d 430 (7th Cir. 2009),
we described the facts, and we summarize those relevant here. Investigators obtained the
phone number, and then the calling records, of a codefendant, Mark Cubie. Those records
established probable cause to wiretap Cubie’s phone, and the interceptions from that
wiretap enabled a grand jury to indict Terry. The key issue at the suppression hearings was
whether investigators obtained Cubie’s phone number illegally, thus tainting the eventual
wiretap. At the first hearing Daniel Thompson of the Milwaukee Police Department
testified how the government lawfully obtained Cubie’s phone number. Defense counsel
responded by attacking Thompson’s credibility. Over the course of two hearings, counsel
managed to get Thompson to admit various mistakes in his testimony and in his record-
keeping during the investigation. The district court, however, found that Thompson’s
mistakes were made in good faith and did not undermine the legality of obtaining Cubie’s
phone number or the wiretap. On direct appeal we declined to disturb the district court’s
credibility finding or its conclusion that the wiretap was lawful. Id. at 435. This appeal
concerns only two of Thompson’s mistakes, which Terry argues that constitutionally
effective counsel would have probed further.
The first mistake was an incorrect date on a report of calls to and from Cubie’s
phone. Thompson explained at the initial hearing that he had prepared a report listing all
incoming and outgoing calls for Cubie’s phone. Terry’s counsel sought to prove that
investigators possessed this call data before receiving judicial approval on April 12 at 3:04
p.m. to gather this data on Cubie’s phone. While cross-examining Thompson, counsel
pointed out that the report contained two conflicting time stamps. The first stamp, April 11
at 4:00 p.m., appears on the report’s first page and was entered manually by Thompson.
The second stamp, April 12 at 3:18 p.m., is located on the report’s second page and was
automatically generated by a computer program. Counsel suggested that, because
Thompson apparently started the report on April 11, the government had access to the data
a day before receiving authorization. Thompson testified that he had simply made a
mistake by manually entering the wrong date.
The second mistake precedes the report and concerns how Thompson learned of
Cubie’s phone number. Thompson testified at the first hearing that he obtained Cubie’s
phone number from call data that he obtained from an agent who had been monitoring
Terry’s phone. Skeptical of this testimony, at the end of the hearing Terry’s counsel
requested proof that the government had been monitoring Terry’s phone legally before
April 12. The government was unable to locate the proof after the hearing and moved to
reopen to explain why. At the second hearing Thompson conceded that no order
No. 12-2428 Page 3
authorizing the collection of data from Terry’s phones was issued until May and no record
of Terry’s phone calls existed until then. To explain how, then, he obtained Cubie’s
number, he testified that a confidential informant’s call to a phone number that Cubie
previously used, and the lawful phone monitoring of another co-defendant, led him to
Cubie’s current phone number.
In his § 2255 motion Terry argues that at the second hearing counsel provided
ineffective assistance in violation of the Sixth Amendment. First, Terry contends, counsel
should have further questioned Thompson about the computerized time stamp on his
report of Cubie’s call data. Second, Terry maintains, counsel needed to question Thompson
about the agent who supposedly gave Thompson Terry’s call data before the agent had
received authorization to monitor Terry’s calls. The district court denied the motion,
reasoning that there would have been no point in retreading this already-covered ground.
We agree with the district court that counsel reasonably did not probe further into
issues that counsel had already explored. An attorney’s performance is ineffective only if it
was objectively unreasonable, Strickland v. Washington, 466 U.S. 668, 687 (1984); Monroe v.
Davis, 712 F.3d 1106, 1116 (7th Cir. 2013), and deciding what questions to ask a prosecution
witness on cross-examination is a matter of strategy that courts are especially reluctant to
second-guess. See United States v. Jackson, 546 F.3d 801, 814 (7th Cir. 2007); United States v.
Hirschberg, 988 F.2d 1509, 1513 (7th Cir. 1993); United States v. Smith, 62 F.3d 1073, 1078 (8th
Cir. 1995).
In making his first argument that counsel should have probed more into the
computerized time stamp, Terry emphasizes that the court order authorizing investigators
to obtain Cubie’s phone records was time-stamped only 14 minutes before Thompson’s
report summarizing the records was time-stamped. Therefore, Terry concludes, counsel
should have asked Thompson how he completed in only 14 minutes a report that
summarized in detail the data regarding eight different phones. But this argument wrongly
assumes that the computerized time stamp on Thompson’s report refers to its completion
date. In fact Thompson testified at the hearing that the time stamp refers to the report’s
origination date, and that he left the report open until receiving all the call data. Thompon’s
second argument—that counsel should have asked Thompson to identify the agent who
provided Terry’s call data—is also meritless. At the second hearing, where Thompson
recanted his testimony about the agent, he explained that he did not use call data from the
agent to identify Cubie’s phone. The name of the agent thus became both irrelevant and
unnecessary to probe.
AFFIRMED