Ineffective assistance claims should be brought in §2255 petitions, not direct appeals (United States v. Rucker, No. 13-2760 (7th Cir.))

United States v. Rucker, No. 13-2760 (7th Cir.). Decided August 19, 2014. Rucker purchased two kilos of cocaine from a man named Alvarez, and was indicted six weeks later with conspiracy to distribute a controlled substance and other narcotic offenses. Rucker plead guilty to attempting to possess, with the intent to distribute, two kilos of cocaine. An additional fifteen kilos of cocaine were attributed to Rucker at sentencing under relevant conduct. The government proved up the relevant conduct through Alvarez’s testimony at Rucker’s sentencing hearing.

The parties entered an agreed stipulation in which the parties agreed that 3.5 to 5 kilos of cocaine should be attributed to Rucker, instead of the original fifteen. The stipulation resulted in a two-point base offense level increase, resulting in a range of 78 to 97 months. The Court imposed a sentence of 87 months.

Rucker then encountered Alvarez in a holding cell eight days after he was sentenced. Alvarez was shackled but Rucker was not. Predictably, Rucker slammed Alvarez’s head against the wall, which sent Alvarez into convulsions. Rucker was thereafter charged with witness retaliation, and the case went to trial, after which Rucker was convicted. The guideline range was 210 to 262 months, but was capped at 240 by the statutory maximum. The Court sentenced him to 240 months to be served consecutive to his narcotics sentence.

Defendant’s arguments that the evidence was insufficient to sustain a conviction and that the sentence was unreasonable fell flat. Rucker also argued that trial counsel was ineffective because trial counsel stipulated that Alvarez’s testimony at Rucker’s sentencing contributed to a 24-month increase in Rucker’s sentence and that trial counsel failed to move for a judgment of acquittal at the close of evidence. These claims ultimately failed, too.

Before reaching the ineffective assistance claims, the Court correctly noted that ineffective assistance of counsel claims are “ill-suited to resolution on direct appeal, as it typically requires evaluation of the circumstances that confronted counsel and the reasoning that informed his decisions and defense strategy. E.g., United States v. Jones, 635 F.3d 909, 916 (7th Cir. 2011). Consequently, a “defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose,” United States v. Taylor, 569 F.3d 742, 748 (7th Cir. 2009) (quoting United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997)), as the record is unlikely to lend sufficient support to such a claim, and by raising it on direct appeal, the defendant will be foreclosed from pursuing the same claim on collateral review, e.g., United States v. Wallace, 753 F.3d 671, 676 (7th Cir. 2014).”

Despite the veiled warning from the Court at oral arguments, Rucker also raised the ineffective assistance claim on direct appeal. Consequently, the Court considered it and rejected it because its review of the evidentiary support for the claim was limited to what was in the trial court record (even though ineffective assistance claims usually allege error that occurred outside of the record). The Court was therefore hamstrung by the record and denied the claim. Unfortunately for Rucker, because this claim has already been adjudicated, it is res judicata for purposes of a §2255 petition, where the defendant could have fleshed out these claims with affidavits and other evidence that was not in the trial court record before the court.

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