Ozzie K. Cheek v. United States

Citations: 858 F.2d 1330; 1988 U.S. App. LEXIS 13994; 1988 WL 103433Docket: 87-2066

Court: Court of Appeals for the Eighth Circuit; October 11, 1988; Federal Appellate Court

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Ozzie K. Cheek appeals the denial of his 28 U.S.C. § 2255 motion for habeas corpus relief following a conviction for conspiracy and distribution of cocaine. Cheek and co-defendant Belle Underhill were indicted in January 1984. Cheek's attorney, Willard Bunch, initially represented him but sought to withdraw to represent Underhill, a request denied by the trial court due to potential conflict of interest. As a result, Bunch continued to represent Cheek during the second trial, which resulted in guilty verdicts on all counts.

After his conviction, Cheek entered into an agreement with the government to forego his right to appeal in exchange for cooperating in drug investigations. The court sentenced him to thirty years in prison, a $175,000 fine, and a ten-year special parole term. Following Cheek’s cooperation, his sentence was reduced to twenty years, and he became eligible for parole under 18 U.S.C. § 4205(b)(2), though the fine and special parole term remained unchanged.

Cheek later sought to appeal his conviction, claiming the government breached their agreement and he received ineffective assistance from counsel. His motion for an extension of time to file the appeal was denied as untimely, and this decision was upheld by the Eighth Circuit. In February 1987, Cheek filed the current motion to vacate his conviction, which the District Court denied without a hearing, leading to this appeal.

Cheek contends that the District Court incorrectly denied him an evidentiary hearing regarding his Sec. 2255 claims. However, an evidentiary hearing is unnecessary when the case files and records conclusively demonstrate that the petitioner is not entitled to relief. The court found that all of Cheek's claims could be resolved from the record, which confirmed that he was not entitled to relief, thus deeming the dismissal of his Sec. 2255 petition appropriate.

Cheek also claims his Sixth Amendment right to choose his attorney was violated. He initially retained attorney Willard Bunch but later expressed a desire to change counsel after Bunch attempted to withdraw to represent another defendant. Cheek argues that conditions of his pretrial release restricted him from hiring new counsel. The court determined that, assuming Cheek's facts are accurate, his argument lacks merit. The Sixth Amendment guarantees a fair opportunity to retain counsel of choice but this right is not absolute and is balanced against public interests in justice administration. 

The record indicates that Cheek had ample opportunity to voice any objections to Bunch's continued representation, as he could have requested amendments to his release terms or raised concerns during various court proceedings. The trial court invited Cheek to propose alternative counsel if he chose, but he did not communicate any desire to change representation. The court concluded that Cheek was afforded a reasonable opportunity to secure his preferred counsel and therefore was not denied his Sixth Amendment rights.

Cheek alleges that the trial court violated his Sixth Amendment right to confrontation and his Fifth Amendment right to due process by admitting hearsay evidence and providing improper jury instructions. These claims are typically addressed on direct appeal, and his failure to do so raises the question of whether they can be pursued in a collateral action under Sec. 2255. While not an absolute waiver of his right to challenge constitutional defects, a court may deny relief if a defendant has deliberately bypassed established federal procedures. The key issue is whether Cheek's decision to forgo an appeal was deliberate and strategic. Cheek argues that he did not deliberately waive his appeal rights, claiming misrepresentation by his attorney or the government's failure to uphold its agreement. However, the District Court concluded that Cheek's waiver was indeed deliberate, supported by a recorded exchange during his grand jury testimony, where he acknowledged forfeiting his right to appeal as part of a cooperation agreement with the government.

Cheek's waiver of his right to directly appeal was determined to be a knowing and voluntary act aimed at securing leniency from the sentencing court, as supported by his grand jury testimony. He confirmed the accuracy of the agreement and there is no evidence to substantiate his claims of misrepresentation by his attorney, Bunch, or breach by the Government. Contrarily, an FBI letter shortly after the agreement matched the terms discussed in the grand jury, undermining Cheek's allegations. Consequently, Cheek is barred from contesting claims regarding the admission of evidence and jury instructions in his Section 2255 motion.

Cheek also asserts ineffective assistance of counsel, which must be evaluated under the Strickland v. Washington two-part test. To succeed, Cheek must demonstrate that Bunch's performance was deficient and that this deficiency adversely affected the outcome of his case. A deficiency is established if counsel did not display the skills expected of a competent attorney in similar circumstances. Prejudice is shown if it is likely that the result would have differed but for the errors. Cheek specifically claims Bunch failed to object to testimony from informant Susan Jones about conversations implicating him in drug distribution, which he argues was inadmissible "prior bad acts" testimony. However, the District Court indicated that any objection would likely have been overruled, as the evidence was admissible under Federal Rule of Evidence 404(b) to establish motive and conspiratorial intent.

Bunch's failure to object to prior bad acts testimony did not constitute ineffective assistance under the Strickland standard. Such evidence is permissible under Rule 404(b) to establish a defendant's motive and intent, particularly in drug-related prosecutions. The District Court found the evidence admissible, and therefore, Bunch's lack of objection does not indicate a deficiency in skill or diligence. Furthermore, any potential objection would likely have been denied, meaning it did not prejudice Cheek's case.

Cheek claimed ineffective assistance due to Bunch's alleged conflict of interest, arguing that Bunch's loyalties to Underhill compromised his Sixth Amendment obligation to provide competent representation. This claim relied on Bunch's prior representation of Underhill in unrelated matters. To succeed, Cheek needed to show that an actual conflict adversely impacted Bunch's performance, as outlined in Cuyler v. Sullivan. Cheek did not meet this burden.

Cheek argued that Bunch's representation constituted a "successive representation" conflict, referencing cases like United States v. Agosto and United States v. Shepard. However, the court clarified that concerns in these cases—breach of confidentiality or prioritization of personal interests—did not apply here, as Bunch's past representation of Underhill involved unrelated matters. There was no risk of Bunch misusing confidential information or failing to defend Cheek adequately. Moreover, the record indicates that Underhill could not afford Bunch's services, negating any potential financial conflict of interest.

Cheek argues that a conflict of interest arose from Bunch's divided loyalty due to his past representation of Underhill, who had a conflicting defense strategy. Although Cheek's defense was a general denial while Underhill's was entrapment, the court found no evidence that Bunch's prior representation adversely impacted his performance for Cheek. Cheek claims that Bunch failed to effectively challenge the credibility of Government witness Susan Jones, asserting that Bunch's cross-examination supported Underhill’s entrapment defense. However, the trial transcript indicates that Bunch actively undermined Jones's credibility by questioning her trustworthiness and highlighting her history as a drug dealer and Government informant, thus countering Cheek's argument.

Cheek also contends that Bunch was ineffective for not objecting to Jones's testimony on hearsay grounds. The court ruled the testimony admissible under Federal Rule of Evidence 801(d)(2)(E), which excludes co-conspirator statements from hearsay. The court supported this by referencing established legal precedents, rejecting Cheek's assertion that Bunch's inaction constituted deficient performance, as the trial judge would have likely admitted the evidence regardless of an objection.

Furthermore, Cheek claims ineffective assistance because Bunch failed to move for severance from Underhill's case during the second trial. The court noted that Bunch had previously filed a severance motion that was denied, and maintaining the same strategy in the second trial was reasonable. The court concluded that any new motion would also have been denied.

Finally, Cheek argues that Bunch did not request adequate jury instructions regarding co-conspirator statements and prior bad acts. The District Court dismissed this claim, finding it without merit. Overall, Cheek's claims of ineffective assistance of counsel were rejected based on the evidence presented and the court's reasoning.

Cheek's appeal has been denied, affirming the District Court's decision regarding his Sec. 2255 motion. The court found that Cheek failed to demonstrate that Bunch's actions, including not objecting or suggesting alternative instructions, prejudiced his case or compromised the trial's outcome, as per the Strickland standard. Cheek's claims included allegations of the government's use of altered transcripts, violations of his Sixth Amendment rights concerning counsel and fair trial, and the admission of co-conspirator hearsay. The court noted that Cheek did not express dissatisfaction with Bunch's representation, which negated any obligation for the trial court to inquire further. Cheek's belief that the government had offered more favorable terms than what was ultimately provided was also addressed, but found unconvincing. The document highlights the distinction between the "deliberate bypass" approach and the "cause and prejudice" test as applied in habeas cases, confirming the ongoing applicability of both standards in relevant contexts. Chief Judge Wright, who presided over both trials, confirmed that Bunch perceived no conflict of interest in representing both Cheek and Underhill.