Hardamon, Carletos v. United States ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3909
CARLETOS E. HARDAMON,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00 C 628—Michael J. Reagan, Judge.
____________
ARGUED DECEMBER 9, 2002—DECIDED FEBRUARY 14, 2003
____________
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
BAUER, Circuit Judge. After a jury found Petitioner
Carletos E. Hardamon guilty of conspiracy to distribute
cocaine base, the district court sentenced him to life in
prison and we affirmed his conviction and sentence in
United States v. Hardamon, 188 F.3d 843 (7th Cir. 1999).
Attorney Russell Prince Arnold represented Hardamon
at trial and at the sentencing hearing, but not on appeal.
Following his direct appeal, Hardamon filed a petition
for writ of habeas corpus alleging ineffective assistance
of trial counsel and arguing that Apprendi v. New Jersey,
530 U.S. 466 (2000), applies retroactively on collateral
review. The district court denied the writ but granted a
Certificate of Appealability with respect to the ineffective
2 No. 01-3909
assistance claim. This Court later issued a Certificate of
Appealability regarding the Apprendi claim. For the
following reasons, we affirm the district court’s denial of
the writ of habeas corpus.
BACKGROUND
Because Hardamon’s ineffective assistance of counsel
claim involves primarily testimony elicited from certain
government and defense witnesses, a recitation of rele-
vant statements made by those witnesses on direct and
cross-examination follows.
A. The Government’s Witnesses
1. Joseph Trotter
Joseph Trotter was a cooperating co-defendant who
testified that he made several trips with Hardamon in
1996 from Alton, Illinois, to Chicago in order to obtain
crack cocaine for sale in Alton. On one trip, Trotter re-
ceived $10,000 worth of crack from Hardamon, and
Hardamon instructed Trotter to wire the money from the
sale to Theodora Overton, another co-defendant. Trotter
further testified that Hardamon made at least three trips
to Alton to deliver and sell drugs out of Trotter’s apartment.
During his testimony, Trotter made several statements
to which Hardamon’s counsel did not object. First, Trotter
testified that he thought Overton “phoned either CJ
or Charles Media” claiming that she was calling her
supplier for more drugs; “CJ” was the alias Hardamon
used in Alton. This testimony was later corroborated by
Overton’s testimony. Trotter also stated that Hardamon
planned to discuss Overton’s greediness with her and that
Hardamon said he would “take care of it.” Trotter’s subse-
quent testimony that Hardamon did in fact talk with
No. 01-3909 3
Overton was based only on Trotter’s knowledge that
Hardamon planned to talk with her.
Under cross-examination by Hardamon’s attorney,
Trotter admitted that he spent seventeen of the last
nineteen years in prison. He also acknowledged that if
he did not cooperate with the government he could re-
ceive a life sentence; as a result of cooperating, he hoped
to be sentenced to as few as nine years. Trotter further
stated that he supplied drugs to another government
witness, Gina Blackmon, and that he lied to police about
his involvement in a drug-related shooting. Finally, Hard-
amon’s attorney elicited admissions from Trotter that
parts of his testimony regarding amounts of money he
gave to Hardamon and amounts Trotter made from deal-
ing drugs may have been inaccurate.
Not all of Trotter’s cross-examination, however, was
beneficial to Hardamon’s case; some questioning by
Hardamon’s attorney produced damaging evidence. Trotter
volunteered on cross-examination that Hardamon had
similar drug activities underway in Decatur, Illinois, on
the same night Trotter was arrested. Hardamon’s coun-
sel also asked Trotter if Hardamon had come to Alton
prior to October 1996 and Trotter stated that Hardamon
came once before that date “to check out the layout . . . see
how profitable it was.”
2. Charles Media
Cooperating co-defendant Charles Media testified on
direct examination that he drove Hardamon from Chi-
cago to Alton on one occasion and that Hardamon brought
two or three ounces of crack to sell in Trotter’s apartment
on that trip. Media also testified that on occasion he
saw Hardamon supply co-defendants Trotter and Overton
with cocaine to sell in Alton and that he saw Hardamon
accept merchandise in return for cocaine. Media further
4 No. 01-3909
recalled Hardamon saying that drugs seized from Trotter’s
apartment in a police raid belonged to him.
On cross-examination, Media admitted to using sev-
eral aliases and fictitious birth dates throughout his
adult life. He also testified that Trotter had been obtain-
ing drugs from another supplier before meeting Hardamon.
Media revealed little information to police about his
own suppliers but admitted that Trotter provided him
with prostitutes. Finally, Media admitted he was willing
to accept more money from Trotter than Trotter owed
him but denied trying to extort Trotter.
3. Gina Blackmon
Gina Blackmon testified that she sold drugs for
Hardamon and that the two had a romantic relationship
from time to time. On one occasion, Trotter gave her
$1000 in drug proceeds to deliver to Hardamon in Chi-
cago. Blackmon also testified to statements Hardamon
made that reflected his control over two sellers, known as
“Tone” and “Echo,” and that he “would take care of them” if
they ever tried to take over. Finally, Blackmon testified
on direct examination, without objection, that she told
police Hardamon was one of Trotter’s main drug sup-
pliers, basing this knowledge on statements made by
Overton.
On cross-examination, Hardamon’s attorney elicited
testimony about Trotter’s use of teenagers to sell drugs
and about an occasion when she hid a gun that Trotter
had used in a shooting. Blackmon also admitted that
she believed Charles Media, another government wit-
ness, “killed some people and got off easy.” When asked,
however, if she had ever seen Hardamon with a controlled
substance, Blackmon testified that she had. This tes-
timony allowed the prosecution to introduce further tes-
timony from Blackmon about a specific instance when
No. 01-3909 5
she saw Hardamon with crack cocaine. Finally, Harda-
mon’s attorney attempted to discredit Blackmon’s tes-
timony by establishing that the government gave her
immunity from prosecution and that she had never ac-
tually seen Hardamon sell drugs.
4. Richard Smith
Richard Smith admitted on direct examination to
heavy drug use and to accompanying Trotter on drug
runs to Chicago. On those trips, Smith saw Hardamon
supply Trotter with drugs and witnessed Trotter pay
Hardamon for the drugs with cash and merchandise, such
as small electronic items, that Trotter had received from
drug sales in Alton. As with previous witnesses, Smith’s
testimony included statements to which Hardamon’s
attorney did not object. For example, Smith testified that
he knew Hardamon was supplying Trotter with drugs
“because [Smith] was present and [through] word of
mouth.” He also stated that he saw Hardamon involved
in a drug transaction on a particular occasion because
it was his “understanding that was the only purpose of
[Hardamon] being there.” Finally, Smith testified, with-
out objection, that Hardamon “was doing the same types
of things in Decatur that he was doing in Alton.”
On cross-examination, however, Smith testified that he
saw Charles Media supply “Tone” and “Echo” with drugs
and that he feared Media might kill him. Smith acknowl-
edged that he saw Media, but not Hardamon, trade crack
for guns, and he also testified that he saw Hardamon
delivering drugs in Alton. Finally, Smith admitted that
he received immunity for his testimony and that Joseph
Trotter had local drug sources long before Trotter met
Hardamon.
6 No. 01-3909
5. Theodora Overton
Cooperating co-defendant Theodora Overton testified on
direct examination that on four separate occasions
Hardamon supplied her with as much as five ounces of
drugs to sell. She also testified that Hardamon made
at least six trips to Alton in order to sell drugs himself.
Without objection, Overton further stated that she be-
lieved Hardamon had been dealing drugs for nine or ten
years in Chicago prior to doing so in Alton in 1996.
Hardamon’s attorney, however, brought out the admis-
sion that she would have been facing life in prison absent
her cooperation with the government, but because of her
cooperation, she hoped for a prison sentence of eighteen
years. Overton also admitted to having drug suppliers
prior to meeting Hardamon and that she started work-
ing with him in September or October 1996, and not
nine years earlier as she testified on direct examination.
Finally, Overton admitted that Hardamon supplied her
with drugs on only two of the four trips mentioned above
and that, short of her dealings with him, her knowledge
of Hardamon’s drug activity came from street conversations.
B. Hardamon’s Witnesses
During Hardamon’s case-in-chief, defense counsel
called four police witnesses to the stand; two of which are
relevant to this appeal. First, DEA Special Agent Ralph
Moore testified that he did not mention Hardamon as
one of Trotter’s drug suppliers or mention Hardamon
moving cocaine from Chicago to Alton when testifying
before the grand jury. Moore also admitted that witnesses
interviewed by police were unable to establish specific
dates for Hardamon’s trips to Alton, but that police be-
lieved Hardamon brought five ounces of crack to Alton
from Chicago on December 29, 1996. Moore further tes-
tified that Hardamon “had been convicted of crack co-
No. 01-3909 7
caine” in Decatur; defense counsel’s objection to this tes-
timony was overruled.
Second, DEA Special Agent Paul Robinson admitted
that, prior to Trotter’s arrest, police reports did not
link Hardamon to drug dealing in Alton and that Trotter
was the first to identify Hardamon as a “big dealer.” De-
fense counsel’s questioning about how police concluded
Hardamon’s alias was “CJ,” however, later allowed the
prosecution to introduce the actual mug shot line-up
shown to witnesses who identified Hardamon as “CJ.”
Each of the government’s witnesses also made an in-court
identification of Hardamon as “CJ.”
C. Defense Counsel’s Conduct at Sentencing and
His ARDC Status
After his conviction, a Presentence Investigation Report
(“PSR”) concluded that Hardamon was responsible for
twenty ounces of crack cocaine, which he transported to
Alton in September 1996, by relying on information from
Theodora Overton. Hardamon’s attorney made only gen-
eral objections to this conclusion and did not call Overton
to the stand to challenge her statements. After question-
ing defense counsel for failing to make specific objections,
the district court adopted the determinations set out in
the PSR and sentenced Hardamon to life in prison.
Finally, prior to the trial, the Supreme Court of Illinois
had placed Hardamon’s trial attorney on probationary
status, pursuant to a petition filed by the Administrator
of the Attorney Registration and Disciplinary Commis-
sion (ARDC). In Re: Russell Prince Arnold, IL Disp. Op.
M.R. 12891 (Ill. Sup. Ct. 1996). Affidavits from Hardamon
and his father state that Hardamon’s attorney did not
disclose his probationary status to Hardamon prior to trial.
8 No. 01-3909
ANALYSIS
We undertake a de novo review of a district court’s
legal conclusions on an ineffective assistance of counsel
claim, while examining findings of fact for clear error.
United States v. Traeger, 289 F.3d 461, 470 (7th Cir. 2002).
To be successful on an ineffective assistance claim,
Hardamon must: 1) show that his attorney’s perfor-
mance fell below an objective standard of reasonableness
under prevailing professional norms; and 2) demonstrate
a reasonable probability that this deficient performance
affected the result of the trial. Strickland v. Washington,
466 U.S. 668, 687 (1984); United States v. Lindsay, 157
F.3d 532, 534-35 (7th Cir. 1998).
Under the performance prong of the Strickland test, we
consider counsel’s performance in the context of the case
as a whole, viewed at the time of the conduct, and main-
tain a strong presumption that the defendant received
effective assistance. Lindsay, 157 F.3d at 534-35. To
establish the requisite prejudice under the second prong
of Strickland, the defendant must show a reasonable
probability that, but for his attorney’s performance, the
result of the trial would have been different. Traeger, 289
F.3d at 470.
Hardamon argues that we should not apply the Strick-
land test but, instead, should apply the standard set
forth in United States v. Cronic because his trial attorney
failed to subject the government’s case to meaningful
adversarial testing. See United States v. Cronic, 466 U.S.
648, 654 n.11 (1984). This failure, Hardamon argues,
resulted in the adversarial process becoming presump-
tively unreliable. We do not agree and find that the Strick-
land test governs Hardamon’s claim.
Hardamon points to six specific instances in which
his attorney’s assistance was ineffective: 1) he failed to
object to testimony on direct examination of government
No. 01-3909 9
witnesses; 2) he allowed evidence harmful to Hardamon’s
case to be admitted through his cross-examination of
government witnesses; 3) his direct examination of de-
fense witnesses further produced damaging evidence; 4) he
failed to prepare adequately for and object at Hardamon’s
sentencing hearing; 5) he failed to investigate the case
adequately; and 6) he failed to disclose that the Su-
preme Court of Illinois had placed him on probationary
status prior to Hardamon’s trial.
First, Hardamon argues that his attorney’s failure to
object during direct examination of government wit-
nesses amounts to ineffective assistance. Specifically,
Hardamon complains that his attorney did not object
to testimony from Trotter about conversations Overton had
with Hardamon, wherein Overton implicated Hardamon
as her drug supplier. Similarly, Hardamon points to
testimony from Blackmon and Smith that bolsters the
fact that Hardamon was a drug supplier in Alton. He
also argues that defense counsel failed to object to damag-
ing testimony from Smith and Overton about Hardamon’s
prior bad acts, namely his drug activity in Decatur and
how long Hardamon had been selling drugs in Chicago
prior to doing so in Alton. Much of this testimony, even
if objectionable as to one witness, eventually came in
through other, unobjectionable means.
We find that defense counsel’s decision to abstain
from objecting to this testimony is reasonable. A compe-
tent trial strategy frequently is to mitigate damaging
evidence by allowing it to come in without drawing addi-
tional attention to it, such as an objection would. United
States v. Payne, 741 F.2d 887, 891 (7th Cir. 1984) (“A
competent trial attorney might well eschew objecting . . . in
order to minimize jury attention to the damaging mate-
rial”). Further, as Hardamon conceded at oral argument,
in certain cases where such testimony was given, an ob-
jection was not warranted because the prosecutor at-
10 No. 01-3909
tempted to correct or limit the witnesses’ improper re-
sponses. Defense counsel’s decision to limit objections
to evidence concerning Hardamon’s prior bad acts was,
likewise, not unreasonable. Objecting to this evidence
may further influence the jury negatively. Id. Defense
counsel knew that similar testimony would be intro-
duced later and chose not to call additional attention to
the issue.
Second, Hardamon argues that his attorney’s deficient
performance appears in the cross-examination of govern-
ment witnesses. Specifically, he claims that poor cross-
examination by his attorney allowed for the admission
of damaging evidence that would not have been admit-
ted otherwise. As examples, Hardamon points to Trotter’s
testimony regarding Hardamon’s drug sales in Decatur
and Alton and testimony concerning Hardamon’s first
appearance in Alton as well as testimony from Black-
mon and Smith about seeing Hardamon with a con-
trolled substance. Again, it is hard to find defense coun-
sel’s performance deficient in these situations. Often an
attorney must take risks on cross-examination, and
when hostile witnesses are involved, these risks may
backfire. Such risk taking, however, does not necessarily
amount to ineffective assistance.
Furthermore, we find that Hardamon’s attorney effec-
tively attacked the credibility of several witness on cross-
examination, a point which Hardamon also conceded at
oral argument. As a whole, he elicited admissions that
witnesses expected drastic sentence reductions for cooper-
ating, were drug addicts or dealers, had cheated people
in the past, had been involved in drug-related shootings,
had spent significant amounts of time in prison, and had
lied to police during investigations. He also established
doubt about witnesses’ certainty of specific dates Hardamon
was alleged to have been selling drugs in Alton. That
the jury ultimately believed the cumulative testimony of
No. 01-3909 11
multiple government witnesses is not for this Court to
contradict. United States v. Algee, 309 F.3d 1011, 1016
(7th Cir. 2002) (“Credibility determinations, however, are
within the province of the jury, and we will not reverse
them just because the credited testimony comes from
confessed law-breakers or known liars.”).
Third, Hardamon claims that trial counsel’s handling
of witnesses during Hardamon’s case-in-chief further
demonstrates his unreasonable performance. In this re-
gard, Hardamon urges that the direct examination of
DEA Agents Moore and Robinson allowed damaging
evidence to be admitted. As in previous instances, we
find that defense counsel performed reasonably at this
stage. Counsel established that police could not get con-
sistent dates from witnesses about Hardamon’s activities
in Alton and that such witnesses also deeply implicated
themselves in statements to police concerning Hard-
amon’s activities.
Agent Moore’s testimony regarding Hardamon’s drug
activities in Decatur, while prejudicial to Hardamon’s
case, was not admitted into evidence as a result of poor
trial work by defense counsel. In fact, Hardamon’s attor-
ney objected to this statement, but was overruled. The
admissibility of the statement was an issue for direct
appeal, which Hardamon has exhausted, and it does not
indicate ineffective assistance of counsel. Nor does de-
fense counsel’s questioning of Agent Moore, which led to
testimony regarding five ounces of crack cocaine police
believed Hardamon brought to Alton on December 29, 1996,
amount to unreasonable performance. Similarly, though
testimony from Agent Robinson allowed prosecutors to
introduce a mug shot line-up shown to witnesses, which
implicated Hardamon, nearly every government witness
also made an in-court identification of Hardamon as “CJ,”
the drug supplier in Alton.
12 No. 01-3909
Fourth, having exhausted his critique of defense counsel’s
trial performance, Hardamon turns to his attorney’s hand-
ling of the sentencing hearing. Hardamon argues that
his attorney did not adequately prepare for the sentenc-
ing hearing and as a result missed a crucial objection to
the PSR. Specifically, Hardamon points to statements by
Overton, which attributed twenty ounces of cocaine to
Hardamon, and claims that they were contradictory
and unreliable. Hardamon argues this point, knowing full
well that we affirmed his conviction and sentence on di-
rect appeal, see United States v. Hardamon, 188 F.3d
843, 852 (7th Cir. 1999), but claims that his attorney
should have called Overton to the stand at the sentenc-
ing hearing. Because Overton was clearly a hostile wit-
ness, we fail to see how not calling her to testify was so
unreasonable as to amount to ineffective assistance.1
Fifth, Hardamon urges us to find that his attorney
failed to investigate the case adequately. In support of
this argument, he offers a personal affidavit and an affida-
vit from his father attesting to their shared belief that
trial counsel made no meaningful investigation. Hard-
amon, however, does not explain how or in what manner
his trial attorney failed to investigate the case, and his
brief makes only passing mention of this argument with-
out developing it. As we have stated, “a petitioner alleging
that counsel’s ineffectiveness was centered on a supposed
failure to investigate has the burden of providing the
1
We also note that in the district court’s rejection of this ar-
gument, the court confirmed that its adoption of the PSR recom-
mendations was not based solely on what Overton told probation
officers. In fact, the court had ample opportunity to observe
Overton at trial and determine her credibility. From those ob-
servations as well as the PSR, the district court rejected
Hardamon’s argument that failure to challenge Overton’s state-
ments amounts to ineffective assistance; we agree.
No. 01-3909 13
court sufficiently precise information, that is, ‘a compre-
hensive showing as to what the investigation would have
produced.’ ” United States ex rel. Simmons v. Gramley,
915 F.2d 1128, 1133 (7th Cir. 1990). Hardamon did not
do so.
Hardamon’s sixth and final argument is that his attor-
ney’s probationary status, and his apparent failure to
disclose that status to his client, rendered his performance
deficient. Hardamon, however, did not demonstrate how
trial counsel’s probationary status related to any error
at trial. Bond v. United States, 1 F.3d 631, 637 (7th Cir.
1993). We have held that the suspension of an attorney
does not amount to per se ineffective assistance, and
probationary status is less of a sanction than suspension.
Id. Accordingly, we find that defense counsel’s performance,
when taken as a whole, does not violate the performance
prong of the Strickland test; it was not so unreasonable
as to fall below an objective standard of reasonableness
under prevailing professional norms.
Hardamon’s claim also fails the prejudice prong of the
Strickland test. Hardamon concedes that sufficient evi-
dence supported his conviction, and his only argument
regarding prejudice is that the evidence supporting his
guilt was not overwhelming. We find that there is no
reasonable probability that, but for his trial attorney’s
performance, the result of the trial would have been
different.
Finally, at oral argument Hardamon dispensed with
his contention that Apprendi v. New Jersey, 530 U.S.
466 (2000), is applicable on collateral review in light of
this Court’s decision to the contrary in Curtis v. United
States, 294 F.3d 841 (7th Cir. 2002), cert. denied, __ U.S. __,
123 S.Ct. 451 (2002). The district court, therefore, properly
denied his petition for a writ of habeas corpus.
AFFIRMED.
14 No. 01-3909
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-14-03