Graham v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ERIN GRAHAM,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
OPINION and ORDER
24-cv-253-jdp
A jury convicted Erin Graham of trafficking four women for sex by using force, threats,
fraud, or coercion. Graham challenges his conviction under 28 U.S.C. § 2255, contending that
his lawyer in this court was constitutionally ineffective. Specifically, Graham contends that
counsel was ineffective in the following ways: giving him bad advice that caused him to reject
a plea deal, including by failing to discuss the importance of the government’s fraud theory and
failing to adequately explain the potential sentence he could receive; failing to interview
witnesses, including one of the victims who asked to speak with Graham’s counsel; failing to
withdraw from the case when he learned that he may need to testify as a witness; and failing
to seek one of the victims’ mental health records.
For the reasons below, the court concludes that a hearing is needed to resolve Graham’s
claims related to the government’s plea offer. All other claims will be dismissed because it is
clear from the materials Graham submitted that he cannot prevail on those claims.
BACKGROUND
In March 2018, a grand jury indicted Graham on two counts: (1) sex trafficking “known
victim 1” (KV1) by force, threats of force, or coercion; and (2) transporting KV1 and “known
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victim 2” (KV2) across state lines to engage in prostitution. Dkt. 5.1 Reed Cornia, who was
representing Graham in related state-court proceedings, was appointed to represent Graham in
this court. Dkt. 3. In May 2018, a grand jury returned a superseding indictment with an
additional count that Graham conspired with Patience Moore to commit sex trafficking of KV1
by force, threats of force, or coercion. Dkt. 16.
In December 2018, Graham filed a pro se letter in which he accused Cornia of
“neglecting” him, alleging that Cornia had missed appointments with him and was not
interviewing witnesses, among other things. Dkt. 71. Graham did not ask for specific relief but
instead asked more generally for “some remedy to his situation.” Id. at 2. During a hearing with
Magistrate Judge Crocker, “defendant Graham and Attorney Cornia advised the court that they
can continue to work together and are continuing to work together productively in preparing
for trial on January 28, 2019.” Dkt. 74. Judge Crocker concluded that the issues raised in
Graham’s pro se letter were moot. Id.
Later in December 2018, Moore sought a subpoena for KV1’s mental health records,
and she asked the court to conduct an in camera review to determine which records should be
disclosed. Dkt. 76. Graham did not join the motion. During a hearing on the motion, counsel
for the government stated that KV1 “really is scared of these people.” Dkt. 85, at 7.
A few days after the hearing, Cornia moved to withdraw. He wrote that he interpreted
the government’s statements during the hearing to mean that KVI “feared Mr. Graham and
Ms. Moore and did not want anything to do with them.” Dkt. 90, at 1. This led Cornia to
1 Citations to docket entries are to the criminal case, No. 18-cr-43-jdp, unless otherwise noted.
Citations to documents filed on the docket reflect the page numbers as they appear on the
headers in the court’s electronic case file, not the page numbers on the documents themselves.
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believe that he was a potential witness because he had a conversation with KV1 in March 2018
in which she was “offering assistance to Mr. Graham and stating something to the effect that
Mr. Graham did not belong in jail or did not deserve the charges he faced (sex trafficking).”
Cornia also wrote that he “scheduled a face-to-face meeting with [KV1] so [he] could have a
staff person present during her statement to [Cornia],” but she “never showed up for the
meeting.” Id. So Cornia moved “for an Order allowing him to withdraw from Mr. Graham’s
case or in the alternative a ruling on the admissibility of potentially impeachable statements
made to Counsel by” KV1. Id. Cornia represented that Graham did not want him to withdraw.
Id. at 2. I denied the motion because Cornia’s withdrawal would work a substantial hardship
on Graham by delaying trial. Dkt. 92, at 1. I also noted that it was uncertain whether Cornia
would need to testify. Id.
Moore moved for reconsideration, asking the court to schedule a hearing on the
withdrawal issue. Dkt. 96. Moore argued that KV1’s credibility would be a key issue during
trial, and “Mr. Cornia’s testimony offers perhaps the most powerful impeachment evidence of
the case’s key witness,” so a hearing was needed to consider both defendants’ interests. Id.
I asked for additional input from the parties. Dkt. 117. In response, the government
summarized statements it had obtained from Cornia and KV1. Dkt. 120-1. Cornia said that
he spoke to KV1 over the phone for approximately 30 seconds, and she “said she was calling
to help, or that [Graham] doesn’t deserve this, or maybe she said both things. It was ‘something
along those lines.’” Id. at 1. The government summarized KV1’s statement about her
conversation with Cornia as follows:
KV1 said she was worried about being involved in the case and
worried about her child being taken from her. She said she wanted
the matter over with and that she was not going to testify against
[Graham]. 	She 	asked 	how 	she 	could 	make 	this 	go 	away.
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[Graham]’s attorney told her the only way to do that is for her to
say she was lying. KV1 asked if she would get in trouble with her
attorneys. [Graham]’s attorney said he could not talk about that
on the phone but that she would not be on their good side.
[Graham]’s attorney said he would produce a sheet of paper that
she could sign to make it go away. KV1 said that she would sign
it. [Graham]’s attorney later sent her a text with the time and date
for her to show up to sign the paper.
Id. at 1–2. KV1 also said that she did not show up for the meeting, but she called Cornia again;
he answered “but said he had to go because he had another client on the line and hung up.”
Id. at 2. She tried to call him “8–10” more times, but he did not pick up, and she did not leave
a message. Id.
In response to these statements, Moore asked that the court appoint a second attorney
to represent Graham “so that Attorney Cornia can be called as a witness and properly examined
by all parties during trial.” Dkt. 118. I granted that request. Dkt. 119.
In January 2019, Graham and Moore moved to continue the trial date from January
28, 2019, to April 8, 2019. Dkt. 103. Counsel for defendants cited multiple reasons, including
outstanding discovery issues and workload. Magistrate Judge Crocker granted the motion.
Dkt. 104.
Later in January 2019, a grand jury returned a second superseding indictment. The new
indictment made two changes that are relevant to Graham’s motion: (1) it added fraud as one
of the means that Graham trafficked KV1; and (2) it added new trafficking counts for three
more victims—KV2, KV3, and KV4—and those counts also included fraud as one of the means.
Dkt. 123.
In February 2019, the government filed a brief opposing Moore’s request for KV1’s
mental health records, contending that Moore had failed to meet the standard under Federal
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Rule of Criminal Procedure 17(c) for obtaining a subpoena and that the records were privileged.
Dkt. 130.
In March 2019, the government offered a plea agreement in which Graham would plead
guilty 	to 	sex 	trafficking 	KV1, 	and 	the 	remaining 	charges 	would 	be 	dismissed.
No. 24-cv-253-jdp, Dkt. 283-4. The sex trafficking charge at issue, 18 U.S.C. § 1591(a)(1) and
(b)(1) carries a mandatory minimum of 15 years in prison. Id. Graham rejected the offer.
On March 14, 2019, Moore pleaded guilty. Dkt. 155. The following day, Magistrate
Judge Crocker denied as moot Moore’s request for an in camera review of KV1’s mental health
records. Dkt. 157.
On March 22, 2019, Graham filed a pro se letter in which he asked for an ex parte
hearing because of problems with Cornia’s representation. Dkt. 163. Among other things,
Graham alleged that he “did not know [he] had so many new charges until we were in court
on Friday” and that “there are witnesses [Graham] ask[ed] [Cornia] to contact that he has not
mention[ed].” Id. at 1. Graham wanted to keep the trial date if Cornia could “give [the court
and Graham] his word that he can make these things happen” before trial, but “if he can’t
focus on [Graham’s] trial,” Graham asked for “consideration of a new attorney.” Id. at 2. A few
days later, Graham filed another pro se letter, stating that he no longer wanted a hearing, he
did not want the trial pushed back, and he was “sure Mr. Cornia is going to help me defend
myself against these charges.” Dkt. 173.
On April 1, I appointed Nicholas Gansner to assist Cornia at trial. Dkt. 180.
Trial began on April 8 and lasted five days. Each of the four known victims in the
indictment testified against Graham, and Graham testified for himself.
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The jury found Graham guilty on all counts. Dkt. 201. I later sentenced Graham to 300
months of imprisonment for the sex-trafficking counts and 120 months for the transportation
counts, to run concurrently. Dkt. 250.
Graham appealed the conviction, contending that his rights under the Confrontation
Clause were violated because the government played a recording that included Moore accusing
him of sex trafficking, but Graham did not have an opportunity to cross examine Moore about
the accusation. The court of appeals affirmed the conviction, concluding that there was no
violation of the Confrontation Clause, and even if there was, the error was harmless because
the government’s case against Graham was very strong, and Moore’s statements were both
cumulative and of limited evidentiary value. U.S. v. Graham, 47 F.4th 561, 563 (7th Cir. 2022).
ANALYSIS
A. Overview of claims and legal standards
Graham contends that Cornia was constitutionally ineffective for the following reasons:
1. 	He did not explain to Graham that fraud was a significant theory in the
sex-trafficking charges.
2. 	He did not interview KV1 or the other victims to determine what their testimony
was likely to be.
3. 	He did not explain how the sentencing guidelines would apply to any of the
charges except for Count 2 involving the sex trafficking on KV1.
4. 	He did not inform Graham about a plea offer from the government before the
offer expired.
5. 	He did not withdraw from the case when he should have known that he was a
potential witness.
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6. 	He did not seek to obtain KV1’s mental health records. 2
A claim for ineffective assistance of counsel has two elements: (1) deficient performance;
and (2) prejudice. Strickland v. Washington, 466 U.S. 668 (1984). To prove deficient
performance, Graham must show Cornia’s performance “fell below an objective standard of
reasonableness” as measured by prevailing professional norms. Id. at 688. The court must
“indulge a strong presumption that [Cornia’s] conduct [fell] within the wide range of
reasonable professional assistance.” Id. at 689. To prove prejudice, Graham must show “a
reasonable probability that, but for [Cornia’s] unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
The question before the court now is not whether the petition should be granted.
Rather, the question is whether Graham is entitled to a hearing. The court must hold a hearing
unless “the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). The court of appeals has construed this to mean
that a hearing is necessary “when the petitioner alleges facts that, if proven, would entitle him
to relief.” Boulb v. U.S., 818 F.3d 334, 339 (7th Cir. 2016) (internal quotation marks omitted).
In applying that standard, the court may disregard “allegations that are vague, conclusory, or
palpably incredible, rather than detailed and specific.” Id.
The first four alleged deficiencies are related to Graham’s allegation that he would have
accepted the government’s plea offer but for Cornia’s deficient performance, so the court will
consider those issues first.
2 Graham also includes various other criticisms of Cornia’s performance in his statement of
facts. But his briefs do not include an argument that the other issues qualify as ineffective
assistance of counsel, and Graham does not explain how any of those issues prejudiced him, so
the court will not consider the issues.
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B. Failure to provide adequate plea advice
A defendant has the right to effective assistance of counsel in deciding whether to accept
a plea offer. Lafler v. Cooper, 566 U.S. 156, 168 (2012). The Strickland standard applies at this
stage, Sawyer v. United States, 874 F.3d 276, 278 (7th Cir. 2017), but courts have provided
additional guidance for what prejudice means in that context. Specifically, the defendant must
show a reasonable probability that, but for his counsel’s deficient performance, the following
things would have happened: (1) the defendant would have accepted the plea; (2) the
government would not have withdrawn the plea offer in light of intervening circumstances;
(3) the court would have accepted the plea’s terms; and (4) the conviction or sentence, or both,
under the offer’s terms would have been less severe than under the judgment and sentence that
in fact were imposed. Brock-Miller v. U.S., 887 F.3d 298, 311–12 (7th Cir. 2018).
In this case, the parties assume at this stage that requirements (2) through (4) of the
prejudice inquiry are satisfied, so the court will not address those. As for the first requirement,
Graham must do more than simply allege that he would have pleaded guilty; he must also come
forward with objective evidence supporting that allegation. Hutchings v. U.S., 618 F.3d 693,
697 (7th Cir. 2010). Objective evidence includes the nature of the misinformation provided
by the attorney to the petitioner and the history of plea negotiations. Id.
The question is a close one, but the court concludes that Graham has provided enough
evidence to warrant a hearing on the question whether he was denied effective assistance of
counsel when deciding whether to accept the government’s plea offer.
On the question of deficient performance, a threshold challenge for Graham is that he
concedes that Cornia gave him the correct advice when he was presented with the government’s
plea offer: take the offer. Graham contends that Cornia was ineffective for four other reasons:
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1. 	After the government added a fraud theory to the sex-trafficking charges, Cornia did
not explain to Graham the importance of that theory or how that theory would
make it harder to prevail at trial. 3
2. 	Cornia did not interview KV1 or the other victims or take other steps to determine
what their testimony was likely to be, even after KV1 reached out to Cornia, so
Graham still believed when he rejected the government’s plea offer that the victims
would not testify against him.
3. 	Cornia did not explain to Graham how the sentencing guidelines would apply to
any of the charges except for Count 2 involving the sex trafficking of KV1.
4. 	The government’s plea offer expired on March 19, 2019, but Cornia did not inform
Graham about the offer until March 21.
Almost all the cases involving ineffective assistance at the plea stage that Graham relies
on in his briefs involved claims that counsel gave the defendant the wrong advice on how to
plead (and the petitioner followed that advice) or simply failed to provide any advice. 4 The
only exception is Foster v. United States, in which the petitioner acknowledged that his lawyer
gave him the correct advice to plead guilty but contended that his lawyer was ineffective for
3 Graham’s declaration includes a confusing sentence that Cornia “did not explain how fraud
was not a significant theory in the case for all known victims.” Dkt. 283-1, ¶ 11. Based on the
argument in Graham’s brief, the court understands that the second “not” is a typographical
error, and the sentence should read that Cornia “did not explain how fraud was a significant
theory in the case for all known victims.”
4 See U.S. v. Reed, 719 F.3d 369, 371 (5th Cir. 2013) (challenging recommendation to reject
plea offer); Williams v. Jones, 571 F.3d 1086, 1088 (10th Cir. 2009) (same); Julian v. Bartley,
495 F.3d 487, 499 (7th Cir. 2007) (same); Boria v. Keane, 99 F.3d 492, 494 (2d Cir. 1996)
(challenging failure to provide any advice); U.S. v. Day, 969 F.2d 39, 40 (3d Cir. 1992)
(challenging recommendation to reject plea offer). The court’s own research also uncovered
cases in which courts granted relief to petitioners alleging that they followed their lawyer’s bad
advice on how to plead. See Torres–Chavez v. United States, 828 F.3d 582, 583 (7th Cir. 2016)
(challenging recommendation to reject plea offer); DeBartolo v. U.S., 790 F.3d 775, 780 (7th
Cir. 2015) (challenging recommendation to accept plea offer); Quintana v. Chandler, 723 F.3d
849, 855–57 (7th Cir. 2013) (same); Kerr v. Thurmer, 639 F.3d 315, 318 (7th Cir. 2011)
(challenging recommendation to reject plea offer); Paters v. U.S., 159 F.3d 1043 (7th Cir. 1998)
(same); Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991) (same).
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failing to warn him of the possibility that the government would file a Section 851 information
that would increase his mandatory minimum by ten years. 735 F.3d 561, 566 (7th Cir. 2013).
In that case, the court assumed without deciding that the lawyer’s performance was deficient
because the court concluded that there was no prejudice. Id.
Having said that, neither side has cited any authority holding or implying that counsel
cannot be ineffective in the plea context unless counsel gives the “wrong” advice on whether to
plead guilty. The question remains whether Cornia’s performance fell below an objective
standard of reasonableness. Strickland, 466 U.S. at 688. When advising a client on a plea, “[a]
reasonably competent attorney will attempt to learn all of the facts of the case, make an
estimate of the likely sentence, and communicate the result of that analysis.” Julian, 495 F.3d
at 495. The government does not dispute in this case that a reasonably competent lawyer would
have followed up on KV1’s request to talk, explained the potential trial implications for the
government’s new fraud theory, explained the potential sentence for all the charges in the
indictment, and provided Graham with timely notice of the government’s plea offer.
“Ineffective assistance claims generally require an evidentiary hearing if the record
contains insufficient facts to explain counsel’s actions as tactical.” Osagiede v. U.S., 543 F.3d
399, 411–12 (7th Cir. 2008). In this case, a hearing is needed to determine whether Cornia
acted as Graham alleges, and if so, whether Cornia had a strategic reason for doing so.
The government’s argument appears to focus on the issue of prejudice. As for the failure
to interview KV1 and other witnesses, the government says that Graham has not identified any
favorable testimony that witnesses would have offered. But that is the point. Graham says that
he believed at the time that the victims would testify in his favor. Dkt. 283-1, ¶ 19. That belief
had some support at the time based on KV1’s efforts to contact Cornia. If Graham had known
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that all the victims were all testifying against him, he says that he would have pleaded guilty.
Id., ¶ 20.5 The government’s case rested largely on the testimony of the four victims, so it is
plausible that information about their likely testimony could have been decisive in a pleading
decision. In the context of an ineffective assistance claim for bad plea advice, evidence of
prejudice includes “the type of mis-information likely to impact a plea.” See Julian, 495 F.3d at
499.
The government’s only response to this is that the victims’ testimony was already
“locked in” during the grand jury proceedings. No. 24-cv-253-jdp, Dkt. 31, at 13. But the
government does not explain how Graham would have known how the victims testified before
the grand jury or even whether they testified. In fact, Graham says in his declaration that he
did not even know at the time of the plea offer who all the known victims in the superseding
indictment were. Dkt. 283-1, ¶ 19.
Graham’s evidence of prejudice is not robust, but “[t]he petitioner’s burden for
receiving an evidentiary hearing is relatively light.” Torres–Chavez, 828 F.3d at 586. The court
concludes that a hearing is needed to determine what Graham knew about the known victims’
likely testimony and how that information affected his decision to reject the government’s plea
deal.
It is a closer call whether Graham has alleged prejudice regarding Cornia’s alleged failure
to explain the importance of the government’s fraud theory and failure to discuss the
5 Graham presents an alternate theory in his brief that KV1 could have made statements that
were favorable to Graham if Cornia had interviewed her, and he could have used those
statements to impeach her during trial. But Graham did not submit a declaration from KV1
regarding what she would have said, so the only indication we have of that is how she testified
at trial. So any theory of prejudice based on the possibility that KV1 would have provided
exculpatory evidence is speculative and not supported by objective facts.
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sentencing guidelines for all his charges. As for the fraud theory, Graham says in his declaration
that he would have accepted the plea offer if he “understood the government’s theory about
compulsion to be based in fraud.” Dkt, 283-1, ¶ 13. But he doesn’t explain why. A conclusory
statement in a declaration generally is not enough to require a hearing. Boulb, 818 F.3d at 339.
In his brief, Graham says that fraud was “easily . . . proven,” in part because “he kept no
receipts, no books, and would be unable to prove how the money was divided.” Dkt. 283, at
21, 24. But Graham did not concede fraud at trial. He testified repeatedly that each of the
known victims were paid what he promised them, Tr. Trans. Day 4, afternoon, Dkt. 217, at
70:6–7; Tr. Trans. Day 5, Dkt. 211, at 50, and he denied making other promises, Tr. Trans.
Day 4, Dkt. 217, at 68:19–22, Tr. Trans. Day 5, Dkt. 211, at 49–50. Neither side presented
documentary evidence of what was promised and what was paid, so it came down to the
credibility of the witnesses. That is no different from the evidence presented about coercion,
threats, and force: the victims testified that Graham used those means to sex traffic them;
Graham denied that he did so.
Graham says that the difference was that he believed at the time of the plea offer that
he “had witnesses and evidence to rebut th[e] allegations” about force and coercion. Dkt. 283,
at 24. But if Graham believed that witnesses would support him regarding the allegations of
force and coercion, why didn’t he believe the same thing regarding fraud? Graham does not
say.
At this point, Graham has not plausibly alleged that a better understanding of the
government’s fraud theory, by itself, would have led him to accept the government’s plea offer.
But the court must look at the potential cumulative effect of different instances of deficient
performance. Myers v. Neal, 975 F.3d 611, 623 (7th Cir. 2020). The court has already
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concluded that Graham is entitled to a hearing on the issue of Cornia’s alleged failure to
investigate witnesses, so if the alleged failure to explain the fraud theory contributed even
slightly to Graham’s decision to reject the plea offer, the court must consider it. The addition
of the fraud theory did provide a substantial new avenue for the government to obtain a
conviction, so it could have had some influence on Graham’s decision whether to plead guilty.
The court will allow Graham to present evidence at the hearing that Cornia’s failure to explain
the government’s fraud theory contributed to his decision to reject the government’s plea offer.
As for Cornia’s alleged failure to discuss how the sentencing guidelines would apply to
all of the charges in the superseding indictment, it is well established that faulty or incomplete
advice regarding a potential sentence can qualify as ineffective assistance. See Brock-Miller, 887
F.3d at 310; U.S. v. Barnes, 83 F.3d 934, 939–40 (7th Cir. 1996). But Graham says nothing in
his declaration about how or whether his decision to reject the plea offer was influenced by
information that Cornia did or did not provide about sentencing implications. So Graham has
not plausibly alleged that he was prejudiced by any failure by Cornia to adequately explain the
sentencing guidelines. Again, however, the court will hold a hearing on the issue whether
Graham rejected the government’s plea offer because of Cornia’s failure to investigate
witnesses. As with the failure to explain the implications of the fraud theory, a failure to explain
the sentencing guidelines could have contributed to Graham’s decision, so the court will allow
Graham to develop that issue at the hearing.
As for Cornia’s alleged failure to communicate the plea deal, the government does not
dispute that a hearing is needed to determine when Cornia told Graham about the plea offer
and whether any delay prevented Graham from accepting the offer. However, even if Cornia
waited until after the offer expired to communicate the offer to Graham, there could be no
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prejudice unless Graham first shows that he would have accepted the offer but for Cornia’s
alleged ineffectiveness. So this aspect of Graham’s claim will be contingent on Graham showing
that he rejected the plea offer because Cornia gave him bad or incomplete advice.
C. Failure to withdraw from the case
Graham contends that Cornia was ineffective “for failing to timely withdraw when he
became a material witness to KV1’s recantation.” Dkt. 283, at 25. This contention is based on
the short conversation that Cornia had with KV1 in March 2018 during which, according to
Cornia, KV1 said “something to the effect that Mr. Graham did not belong in jail or did not
deserve the charges he faced (sex trafficking).” Dkt. 90, at 1.6 Graham says that Cornia should
have realized that he would need to testify about the statements KV1 made to him, so Cornia
should have withdrawn “promptly” so that he could serve as a witness. Dkt. 283, at 25. Graham
alleges that Cornia chose not to testify so that he could protect himself rather than serve his
client.
Graham acknowledges that Cornia did move to withdraw in December 2018 on these
grounds. The court denied that motion, in part because it would have delayed trial, while also
noting that Graham did not want Cornia to withdraw. Dkt. 92. But the court granted Moore’s
request to appoint a second attorney, Nicholas Gansner, “so that Attorney Cornia can be called
as a witness and properly examined by all parties during trial.” Dkt. 118 and Dkt. 119.
6 The quoted statement is from a motion that Cornia filed with the court in the criminal case.
The government later took a statement from Cornia regarding his conversation with KV1, and,
according to the government’s summary, Cornia remembered KV1 saying that “she was calling
to help, or that [Graham] doesn’t deserve this, or maybe she said both things. It was ‘something
along those lines.’” Dkt. 120-1, at 1.
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Graham has not shown that he is entitled to a hearing on this claim. A threshold
problem is that Graham does not identify when he believes that Cornia should have withdrawn
from the case. He seems to imply in his brief that Cornia should have moved to withdraw as
soon as he had the conversation with KV1 in March 2018. But Graham does not support that
view. As already discussed, it was not clear at the time that KV1 contacted Cornia how she was
likely to testify at trial, so Cornia did not yet know that KV1’s statements were potential
grounds for impeachment. Graham is suggesting a rule that would require defense counsel to
withdraw immediately after an alleged victim makes a statement that could be favorable to the
defense. Graham cites no authority in support of such an unreasonable rule.
Graham does not point to any evidence suggesting that Cornia knew before December
2019 of a potential conflict between the statements KV1 made to him and her likely testimony
at trial. Distilled, Graham’s argument seems to be that Cornia should have known about a
potential conflict before then because he should have followed up on KV1’s attempt to talk to
Cornia. But that is just a repackaging of Graham’s claim that Cornia was ineffective for failing
to investigate the likely testimony of trial witnesses, and the court has already determined that
Graham is entitled to a hearing on that claim.
Regardless of how this claim is properly characterized, Graham has not alleged any facts
showing prejudice. Graham’s primary argument regarding prejudice is that failing to withdraw
prevented defense counsel from impeaching KV1 at trial with the statements she made to
Cornia.7 But this argument fails for multiple reasons. First, Cornia’s failure to withdraw did
7 Graham also says that a “prompt, timely withdrawal would have prevented many of the other
aspects of deficient performance and prejudice discussed elsewhere in this motion.” Dkt. 283,
at 25. But Graham does not explain what he means by this, and he identifies no prejudice other
than the failure to impeach KV1 with her prior statements, so this argument is forfeited.
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not prevent Graham from introducing evidence of KV1’s alleged statements to Cornia. As
noted above, the court granted Moore’s request to appoint Gansner for that purpose. Graham
does not contend that any ethical obligation would have prevented Cornia from remaining on
the case while providing brief testimony elicited by another lawyer. Instead, Graham cites a
declaration that Gansner submitted, averring that he did not understand his role to include
conducting an examination of Cornia. Dkt. 283-3. As the government points out, the issue of
the potential need for Cornia to testify was discussed during the final hearing, Dkt. 267, at 20
and during trial, Dkt. 208, at 25, when Gansner was present, see Dkt. 185 and Dkt. 191. But
even if the court assumes that Gansner’s misunderstanding was somehow Cornia’s fault, that
still would not be the direct result of Cornia’s failure to withdraw.
Graham’s claim that Cornia should have withdrawn is really a claim that Cornia should
have directed Gansner to put him on the witness stand to attempt to impeach KV1. But
Graham cannot show deficient performance or prejudice for such a claim. As Cornia himself
acknowledged in his motion to withdraw, his memory was hazy regarding exactly what KV1
said to him. Cornia believed that KV1 said “something to the effect” that Graham “did not
belong in jail” or “did not deserve the charges he faced.” Dkt. 90, at 1. The government had
already indicated during the final pretrial conference before Magistrate Judge Crocker that they
would challenge Cornia’s testimony as “very unsure and wishy-washy.” Dkt. 266, at 40.
But even if the court assumes that Cornia could have persuaded the jury that KV1 made
statements like the ones he identified in his motion to withdraw, there is no reasonable
possibility that Cornia’s testimony could have led to a different result at trial, and, in fact, any
attempt to impeach KV1 could have easily backfired. Statements that Graham “did not belong
in jail” or “did not deserve” his charges are vague and do not directly contradict KV1’s trial
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testimony that Graham used force, threats, and fraud to sex traffic KV1. KV1 admitted during
trial that she “did love” Graham in the past and she was “grateful” to him at the time. Id. at
72. So a vague statement that KV1 believed at one time that Graham did not “deserve” his
charges would have added little to what was already in the record. And any impeachment value
the statements had would have been undermined by KV1’s testimony that both Graham and
Moore pressured KV1 to change her story after Graham was arrested, Dkt. 215, Tr. Trans. Day
2, afternoon, at 111–12, supporting an inference that any previous hesitance by KV1 to testify
against Graham was the result of that pressure, not any belief that Graham was innocent.
The bottom line is that testimony from Cornia about KV1’s alleged statements would
have done little to bolster Graham’s defense, so it was not deficient performance for Cornia to
refrain from offering that testimony, and the absence of Cornia’s testimony was not prejudicial.
Graham contends that the court should apply the standard from conflict-of-interest
cases, under which prejudice is shown if “there is a reasonable likelihood that . . . counsel’s
performance would have been different had there been no conflict of interest.” Blake v. U.S.,
723 F.3d 870, 880 (7th Cir. 2013). But the conflict-of-interest standard applies only when
“defense counsel was faced with a choice between advancing his own interests above those of
his client.” Id. That standard is not met in this case because, as already discussed, Cornia could
have testified without compromising his own interests. And even if there was a conflict of
interest, Graham has not alleged facts showing that Cornia would have tried to impeach KV1
with her prior statements if she had made those statements to someone else.
The court will dismiss this claim.
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D. Failure to seek KV1’s mental health records
Before she pleaded guilty, Moore sought a subpoena for KV1’s mental health records,
and she asked the court to conduct an in camera review to determine which records should be
disclosed. Dkt. 76. The government moved to quash the subpoena. Dkt. 130. Before the court
issued a ruling, Moore entered a plea agreement with the government, so Magistrate Judge
Crocker concluded that the issue was moot. Dkt. 157.
Graham contends that it was unreasonable for Cornia not to pursue the mental health
records without knowing what information was in the records. Graham says that the records
“could speak to KV1’s competency to testify, inconsistent prior statements, or other matters
related to her credibility.” Dkt. 283, at 38. To support that belief, Graham cites a journal entry
that KV1 wrote while she was receiving mental health treatment. The entry is styled as a letter
to Graham, and it includes the following paragraph:
I love you so much. Your the best African I met. You provide me
with everything fast food “chicken nugget.” An Iphone lets not
forget dinner and a movie. You helped me get over Saad. Thank
God he was nothing but spoiled milk. You are different you’ve
been my [illegible] every since. I wish I met you first.
Dkt. 76, at 4. Graham says that more statements like this could be in KV1’s mental health
records.
This claim fails on both the deficient performance and the prejudice requirements of an
ineffective assistance claim. As for deficient performance, Cornia explained during the final
pretrial conference with Magistrate Judge Crocker why he did not seek the records:
I think it’s going to come up that there was some mental health
issues. But as far as what those contain, it’s never been my
practice, unless I think it’s extremely pertinent to the case, that
those come in. And I think it’s well enough—it would be
well-enough established that she had bipolar disorder, that she
was being medicated, that that— I think she can testify to that.
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Dkt. 266, at 56:4–11. He continued that he “did a lot of Chapter 51 cases and 55 cases” and
had “seen a lot of medical records,” so he had “a pretty good gist of what we’d find, particularly
in regards to a bipolar disorder.” Id. at 57:3–6. In response, Judge Crocker agreed that Cornia
had taken “a logical and correct approach to this,” id. at 56:13, reasoning that “it’s not even
clear at this point that Ms. Moore or her attorneys would have been granted permission to look
at those records for anything,” id. at 56:24–57:1, and it was speculative that the mental health
records would include information that was favorable to Graham, id. at 57:12–18.
Graham does not address Cornia’s or Magistrate Judge Crocker’s reasoning in his brief,
and he does not respond to any of the arguments the government made in the criminal case
against disclosing the records. For this reason alone, the court concludes that Graham has
forfeited any claim based on a failure to seek the mental health records. Graham’s position
seems to be that failing to seek mental health records is per se unreasonable in any case in
which the victim testifies because it is always possible that such records will include information
that is favorable to the defendant. But if a motion seeking to compel the disclosure of the
records would have been denied, a failure to file such a motion is not deficient performance.
As for prejudice, Graham offers nothing but speculation to support a conclusion that
KV1’s mental health records include information that could have led to a different result at
trial. KV1 admitted during her testimony that she suffered from depression and bipolar
disorder and that she received in-patient mental health treatment and was prescribed
medication. Dkt. 208, Tr. Trans. Day 2, morning, at 91:5–9, Dkt. 215, Tr. Trans. Day 2,
afternoon, at 71:3–25, 117:18–25. Graham does not explain why additional details about
KV1’s treatment would have been helpful. Instead, he says that the records could have included
additional favorable statements like those in KV1’s journal. Graham does not explain why that
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is a reasonable inference, but even if it is, there is no reasonable possibility that such statements
would have changed the result of the trial. KV1 discussed the journal at trial, and she admitted
that she wrote that she “love[d]” Graham and was “grateful for him for being in [her] life.”
Dkt. 215, Tr. Trans. Day 2, afternoon, at 72:11–12. Those statements do not undermine KV1’s
testimony that Graham used force, threats, and fraud to sex traffic KV1. But even if the
statements were favorable to Graham, they did not sway the jury, so it is unlikely that more
statements of the same kind would have.
Graham cites Brown v. Smith, 551 F.3d 424 (6th Cir. 2008), as supporting a finding of
ineffective assistance of counsel under the circumstances of this case. But that case is
distinguishable. The petitioner had been convicted of sexually assaulting his fourteen-year-old
daughter. Before trial, the daughter’s therapist contacted defense counsel offering to testify for
the defendant and later sent two letters to the court “express[ing] her belief that an innocent
man had been convicted.” Id. at 431. Despite this, defense counsel neither sought the
daughter’s therapy records nor followed up with therapist. In this case, Graham has identified
no basis to believe that KV1’s mental health records included noncumulative evidence that was
favorable to Graham. Speculation is not enough to support an ineffective assistance of counsel
claim for failing to seek mental health records. See Thompson v. Hepp, No. 17-cv-805-wmc, 2021
WL 861135, at *7 (W.D. Wis. Mar. 8, 2021); Amey v. Patton, 606 F. App’x 924, 929 (10th
Cir. 2015).
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CONCLUSION
The court will hold a hearing on Graham’s claim that his trial counsel provided
ineffective assistance in advising Graham whether to accept the government’s plea offer. All
other claims are dismissed.
ORDER
IT IS ORDERED that:
1. 	Erin Graham’s motion to hold a hearing on his claims under 28 U.S.C. § 2255 is
GRANTED in part and DENIED in part. The court will hold a hearing on Graham’s
claims that his trial counsel provided ineffective assistance of counsel by failing to
investigate the potential testimony of witnesses, failing to discuss the government’s
fraud theory, failing to explain the sentencing implications of all the charges, and
failing to provide timely notice of the government’s plea offer. Graham’s claims that
trial counsel provided ineffective assistance by failing to withdraw from the case and
failing to seek KV1’s mental health records are DISMISSED.
2. 	The clerk of court is directed to contact the parties to set a half-day hearing in May
2026.
3. 	No later than 28 days before the hearing, the parties are to subpoena any witnesses
who 	are 	not 	testifying 	voluntarily 	and 	to 	seek 	writs 	of 	habeas 	corpus 	ad
testificandum for any incarcerated witnesses.
4. 	No later than 21 days before the hearing, the parties are to file any pre-hearing
motions, witness lists, and exhibit lists, along with electronic copies of those
exhibits. The clerk of court will send counsel instructions on how to submit exhibits
to the court. Objections and responses are due no later than 14 days before the
hearing.
5. 	If needed, the court will hold a pre-hearing conference one week before the hearing.
Entered January 8, 2026.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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