Young v. United States of America
Filing
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OPINION entered by Judge Michael P McCuskey on 5/23/13 denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255). This case is terminated. See written Opinion. Copy mailed to Derrick R Young, 14961-026, Victorville Federal Correctional Institution, PO Box 3725, Adelanto, CA 92301. (TC, ilcd)
E-FILED
Thursday, 23 May, 2013 03:23:16 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
____________________________________________________________________________
DERRICK R. YOUNG,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 12-CV-2168
OPINION
On June 26, 2012, Petitioner filed his well-drafted and well-argued Motion to Vacate, Set
Aside or Correct Sentence under 28 U.S.C. § 2255 (#1). On July 25, 2012, the Government filed
its Response (#4). On September 17, 2012, Petitioner filed his Reply (#7). The court has
reviewed the briefs and transcripts. Following this careful review, Petitioner’s Motion (#1) is
DENIED.
Background1
On November 3, 2008, police officer Scott Rosenbery observed a car make a right-hand
turn without signaling. Rosenbery initiated a traffic stop by activating his emergency lights.
1
As Petitioner’s Reply (#7) does not contest Respondent’s factual background as stated in
Respondent’s Response (#4), facts without direct citations are taken from Petitioner’s
Motion (#1) and Respondent’s Response (#4) where the two do not contradict.
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After the car stopped, the driver, who was the vehicle’s only occupant, identified himself as
Petitioner. Rosenbery learned that Petitioner was on parole.
Rosenbery asked Petitioner to step out of his car. Rosenbery then directed Petitioner to
interlock his hands over his head, but Petitioner placed his hands on the hood of his car instead.
By this time, a second squad car had arrived at the scene, and another police officer stood behind
Rosenbery while he was talking to Petitioner. When Rosenbery repeated his order directing
Petitioner to place his hands over his head, Petitioner began to run.
The two officers chased after Petitioner, who ignored their orders to stop. Rosenbery
fired a Taser, and Petitioner fell to the ground. The two officers secured Petitioner’s hands with
cuffs and lifted him to his feet. As they did so, Rosenbery observed a clear plastic bag containing
marijuana on the ground where Petitioner had fallen and seized it as evidence. While the officers
escorted Petitioner to the squad car, Petitioner began squirming and moving his hands toward the
front-right pocket of his jeans. At the squad car, the officers searched Petitioner’s pockets. In
Petitioner’s front-right jeans pocket, the officers found 42 packets of heroin, individually
wrapped in tinfoil. During a post-arrest interview, Petitioner admitted the heroin was his and said
that he had intended to sell it in Decatur.
On September 1, 2009, Petitioner was charged by indictment with one count of
knowingly possessing a mixture and substance containing heroin, a Schedule I controlled
substance, with the intent to distribute, in case 09-CR-20067. (No. 09-CR-20067, #4). On April
9, 2010, Petitioner filed, among other things, a motion to suppress the heroin as improperly
seized. The motion raised two claims: (1) the traffic stop was invalid because Petitioner had
signaled as required; and (2) Petitioner’s arrest was improper because it was made “without
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probable cause and/or, because he was on parole.” On May 27, 2010, this court held a hearing on
the motion to suppress. Petitioner’s counsel noted, in pertinent part, as follows:
[T]he only issue I see, Your Honor, is the parole search. Clearly under the
testimony before us, Your Honor – and there’s no question of its credibility;
it’s the only testimony we heard – my client failed to signal, and certainly an
officer is entitled to pull someone over for a traffic violation.
When [the officer] received word from, by radio that my client was on parole
– and Your Honor, I know, is well aware of this because we’ve argued this
issue before the Court before . . . . The Supreme Court has held that when an
individual is on parole a police officer may search him.
The other issue, Your Honor, would be: Do they have the right to arrest him?
And I think it’s probably a distinction without a difference in this particular
case because, to search him, first you must secure him.
Prior to the search, the officer was unable to search – secure my client and
search him, and then the chase ensued. And, of course, a new crime for which
the officer had probable cause to arrest came into being; that is, escaping from
the police officer. At that point, [Petitioner] clearly had the right to make the
search. [Petitioner] was in, in custody, and we go from there.
On this issue, this court’s primary concern was whether the officer had “a right to ask
[Petitioner] to put his hands on the vehicle instead of writing the ticket and allowing him to
leave.” In response, the Government first argued that once Rosenbery had probable cause to
believe Petitioner had committed a traffic offense, Petitioner could be arrested and searched.
Second, the Government argued that because Petitioner was on parole, the officer could lawfully
search Petitioner pursuant to Samson v. California, 547 U.S. 843 (2006) (holding that a
suspicionless search of a parolee, under California parole terms, did not violate Fourth
Amendment). Petitioner’s counsel noted that Samson v. California was controlling and conceded
this issue. This court then denied Petitioner’s motion to suppress. Further, this court found that
Rosenbery was credible and that Rosenbery had probable cause to stop Petitioner for failing to
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signal a right-hand turn. This court also found that Petitioner had fled before any search
occurred, and that the flight and possession of marijuana supplied probable cause for Rosenbery
to arrest, take into custody, and search Petitioner. Thus, this court concluded that the search of
Petitioner’s jeans pocket incident to arrest was with probable cause and therefore valid.
On August 6, 2010, Petitioner consented to a change-of-plea proceeding before United
States Magistrate Judge David G. Bernthal. At the outset of the hearing, the court confirmed
with the parties that the guilty plea was an “open plea” and that there was no plea agreement
between the parties. Following a thorough plea colloquy with Petitioner, during which the court
twice more affirmed that Petitioner was pleading guilty without any agreement, the court entered
a report recommending that this court accept the guilty plea. On September 1, 2010, this court
approved the recommendation of the magistrate judge and accepted Petitioner’s guilty plea.
On December 21, 2010, this court held Petitioner’s sentencing hearing. The Presentence
Investigation Report (PSR) listed three prior convictions that qualified Petitioner for career
offender status at his sentencing. These were two convictions for a controlled substance offense:
Possession of a Controlled Substance with Intent to Deliver (namely, cocaine) (Macon County
#04-CF-1326) (#29 ¶ 44) and Possession of Cannabis with Intent to Deliver (Macon County #04CF-769) (#29 ¶ 43), and one prior conviction for a crime of violence: Aggravated Battery with a
Firearm (Macon County #97-CF-733) (#29 ¶ 41); see also (#29 ¶ 26). The PSR concluded that
because Petitioner was 35 years old when he committed the underlying offense, which was a
felony controlled substance charge, he was considered a Career Offender under the sentencing
guidelines. Finally, PSR noted that Petitioner had an advisory guideline imprisonment range of
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188 to 235 months. Neither party objected to the PSR, so Petitioner was sentenced to 188 months
of imprisonment to be followed by a six-year term of supervised release.
This court then informed Petitioner of his right to appeal his sentence and the ways he
could file the appropriate notice of appeal. During this instruction, Petitioner’s attorney indicated
that Petitioner intended to challenge the denial of the motion to suppress on appeal. Regrettably,
due to a misunderstanding, this court erroneously informed Petitioner that he could appeal the
denial of his motion to suppress, and the Government did not correct this court.
Petitioner appealed his conviction, claiming that this court erred in denying his pretrial
motion to suppress evidence. The Seventh Circuit affirmed, noting as follows:
A guilty plea generally operates as a waiver of all non-jurisdictional issues on
appeal. There is a narrow exception under Federal Rule of Criminal Procedure
11(a)(2) that allows a defendant, with the consent of the court and the
government, to explicitly condition his guilty plea on the right to appeal
adverse judgments on pre-trial motions. Here, [Petitioner] argues that he made
such a conditional plea by expressing his intention to appeal the denial of the
motion to suppress at his sentencing hearing. The government stood by
silently during sentencing while the judge mistakenly informed [Petitioner]
that he could appeal that decision.
Although Rule 11(a)(2) requires conditional plea agreements to be in writing,
[Petitioner] argues that under United States v. Elizalde–Adame, the writing
requirement should be excused. We made clear in Elizalde–Adame that in
order to excuse the writing requirement of conditional plea agreements,
“something in the record ... [must] plainly show[ ] that the government had
agreed to a conditional plea and that the district court had accepted it.”
There is no evidence that when [Petitioner] pleaded guilty he had reached any
conditional agreement, written or otherwise, with the government. The record
indicates that his guilty plea was made freely and in consultation with his
attorney. At no point during the plea hearing does the record suggest that
[Petitioner] or his attorney intended to reserve the right to challenge the ruling
on the motion to suppress. We will not negate the intentions of the parties at
the time of this plea based on an unimportant misstatement made later at
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[Petitioner’s] sentencing hearing. Accordingly, we find that he has waived any
right to appellate review of the issue.
United States v. Young, 436 F. App’x 721, 722 (7th Cir. 2011) (internal citations omitted).
Analysis
Petitioner first claims that counsel was ineffective for failing to challenge one of his prior
convictions used to enhance his sentence as a career offender. Second, Petitioner claims that
counsel was ineffective for failing to preserve Petitioner’s ability to appeal the denial of his
suppression motion. Finally, Petitioner claims counsel’s lack of investigation into and
knowledge of Illinois law concerning parole searches prejudiced him by conceding that this
court should deny his suppression motion.
To succeed on a claim for ineffective assistance of counsel, Petitioner must show both
that his attorney’s performance was objectively deficient by falling outside the wide range of
competent representation and that he was prejudiced by the incompetent representation. United
States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011) (citing Strickland v. Washington, 466 U.S.
668, 687–96 (1984)). To establish prejudice, the petitioner must show that there is a reasonable
probability that, but for his counsel’s mistakes, the result of the trial would have been different.
Strickland, 466 U.S. at 694. “To reflect the wide range of competent legal strategies and to avoid
the pitfalls of review in hindsight, [a court’s] review of an attorney’s performance is highly
deferential and reflects a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Li v. United States, 648 F.3d 524, 527- 28 (7th Cir. 2011)
(citing Strickland, 466 U.S. at 689). “The defendant must overcome the presumption that, under
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the circumstances, the challenged action might be considered sound trial strategy.” Koons v.
United States, 639 F.3d 348, 351 (7th Cir.2011). If a strategic reason for a decision was sound at
the time it was made, the decision generally cannot support a claim of ineffective assistance of
counsel. Li, 648 F.3d at 528 (citing United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir.2005)
and United States v. Lathrop, 634 F.3d 931, 937–38 (7th Cir. 2011) (noting that, provided
counsel’s reasons for his decision were not “so far off the wall that we can refuse the usual
deference that we give tactical decisions by counsel, his performance will not qualify as
deficient.”)).
Claim 1: Career offender enhancement
Petitioner argues that his prior conviction in #04-CF-769 for possession of cannabis
should have been classified as a misdemeanor under the Controlled Substance Act (CSA) even
though he was sentenced to two years imprisonment, and accordingly, it did not qualify as a
prior felony conviction affording a career offender enhancement. Petitioner argues that, for a
state conviction to qualify as a predicate for enhancement under 21 U.S.C. § 851, the underlying
conduct must be punishable as a federal felony under the CSA, citing to Lopez v. Gonzales, 549
U.S. 47 (2006) and Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2586 (2010). Petitioner
argues that because his conviction of possession of cannabis with intent to deliver 5.5 ounces is
punishable under U.S.S.G. § 2D1.1 as a Base Offense Level 6, and a sentencing range of 0-6
months, that that conviction was not a federal felony, and accordingly, should not have qualified
as a career offender enhancement.
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The Government responds that Petitioner’s prior conviction was in fact a “controlled
substance offense”, and as such, qualifies under U.S.S.G. § 4B1.2(b). This court agrees with the
Government. “A defendant is a career offender if (1) the defendant was at least eighteen years
old at the time the defendant committed the instant offense of conviction; (2) the instant offense
of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a). “The term ‘controlled substance offense’
means an offense under federal or state law, punishable by imprisonment for a term exceeding
one year, that prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 4B1.2(b). “The term ‘crime of violence’ means any offense under federal or state
law, punishable by imprisonment for a term exceeding one year, that—(1) has as an element the
use, attempted use, or threatened use of physical force against the person of another, or (2) is
burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a).
The PSR indicated that the contested conviction in case #04-CF-769 was that of
possession of cannabis with intent to deliver, a Class 3 felony. Under Illinois law, a Class 3
felony was punishable by a term of not less than two years and not more than five years. 730
ILCS 5/5-8-1(a)(6) (2009).2 Petitioner’s possession of cannabis with intent to deliver therefore
2
Although the statute’s location in the Illinois Code has since moved, the current punishable
term for a Class 3 felony has not changed. 730 ILCS 5/5-4.5-40(a).
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was an offense under Illinois law punishable by a term exceeding one year and prohibits the
distribution or dispensing of cannabis, a controlled substance so it qualifies as a controlled
substance offense. Then, because Petitioner was 38 years old at the time of the underlying
conviction, and Petitioner does not contest that his other conviction was sufficient to qualify for
his career offender enhancement, he had two prior felony convictions of a controlled substance
offense, and therefore qualified for the career offender enhancement.
Petitioner argues, however, that Lopez requires that his conviction must be a felony under
federal law, in addition to state law. This court does not agree. First, Petitioner’s reference to the
base offense level of 6 erroneously treats his conviction as one for mere possession, not what he
was actually convicted for, which was possession with intent to distribute. Second, the holding in
Lopez v. Gonzales and its progeny Carachuri-Rosendo v. Holder and Moncrieffe v. Holder is
peculiar to the statutory framework in the Immigration and Nationality Act (INA). The INA
provides that an individual with an aggravated felony has worse collateral effects than a simple
felony conviction. Lopez v. Gonzales, 549 U.S. 47, 50 (2006). When removal proceedings were
initiated against the defendant in Lopez, the Government used a prior conviction that they
classified as an aggravated felony to disqualify him from discretionary cancellation of removal.
Id. at 51. The section of the INA that the Government sought to use permitted the classification
of an aggravated felony only for a conviction of illicit trafficking in a controlled substance, 8
U.S.C. 1101(a)(43)(B). However, the defendant’s state conviction was for helping someone else
possess cocaine, which under South Dakota law was treated the same as mere possession. Id. at
53. The Supreme Court held that “[u]nless a state offense is punishable as a federal felony it
does not count,” id. at 55, for the purposes of the INA, because, among other reasons, commerce
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or trafficking “was no part of [the defendant’s state law] offense of helping someone else to
possess, and certainly it is no element of simple possession, with which the State equates that
crime.” Id. at 54. Petitioner has not provided any precedential case demonstrating that the
holding in Lopez has been extended to the career offender enhancement statute. Accordingly,
Lopez is inapposite to Petitioner’s claim because his sentence enhancement was not under the
rubric of the INA and the reasoning in Lopez is not extensible to the career offender provisions.
Finally, as the Government points out, even without resort to the contested conviction,
Petitioner still possesses the requisite two prior state convictions of either a crime of violence or
a controlled substance offense for classification as a career offender, i.e., possession of cocaine
with intent to deliver, and aggravated battery with a firearm. Even in the absence of the cannabis
conviction, Petitioner remains a career offender and was sentenced as one. Thus, Petitioner’s
counsel had no basis in law to challenge Petitioner’s prior conviction for possession with intent
to distribute. Accordingly, Petitioner’s counsel did not provide ineffective assistance on this
issue.
Claim 2: Preserving appeal of the denial of the suppression motion
In Claim 2, Petitioner claims that trial counsel provided ineffective assistance by
incorrectly advising him that he could take an open plea and still preserve his suppression issue
for appeal. In his attached affidavit, Petitioner testifies that
5) My lawyer informed me that the Government offered me a plea agreement
in which I was required to waive all of my rights to appeal and collaterally
attack my sentence and conviction. I refused that plea agreement. I informed
my attorney that I did not want to waive my rights to appeal.
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6) Mr. Taylor then informed me that if I entered into an ‘open plea’ it would
preserve my rights to appeal my sentence and conviction.
7) I then asked my attorney will it also preserve my rights to challenge my
suppression issues because I did not give the officer consent to search. Mr.
Taylor assured me that it would.
(Affidavit in Support of Mr. Young’s Motion Under 2255, #2 exh. 3 ¶¶ 5-7). As Petitioner
clarifies in his Reply, the two issues he contests in this motion are: 1) petitioner was incorrectly
advised that an open plea would preserve his right to appeal; and 2) trial counsel did not
negotiate the proper plea to preserve the issue for appeal. (#7 p.5). But as discussed above, to
succeed on a claim for ineffective assistance of counsel, Petitioner cannot only show that his
attorney’s performance was objectively deficient, but he must also show that he was prejudiced
by the incompetent representation. Jones, 635 F.3d at 915. “[A] court need not determine
whether counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697. “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.” Id. Petitioner states that “[h]ad counsel
not ill-advised petitioner on this point, [Petitioner] would not have pleaded guilty and insisted on
going to trial,” (#2 p. 9), and that “[b]ecause Petitioner would not have accepted this plea had he
known that he was waiving his rights to [] challenge his conviction and sentence at every stage
of the proceedings, especially during his suppression, [] he would have insisted on going to
trial,” (#7, p.7). Petitioner appears to assert that he was prejudiced because but for his counsel’s
erroneous advice that an unconditional open plea would have preserved his right to appeal, he
would not have entered into the open plea and instead insisted on going to trial.
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“In the context of plea agreements, the prejudice prong focuses on whether the deficient
information was the decisive factor in a defendant’s decision to plead guilty or to proceed to
trial.” Julian v. Bartley, 495 F.3d 487, 498 (7th Cir. 2007). Further, “the defendant must show
that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
However, a “mere allegation by the defendant that he would have insisted on going to trial is
insufficient to establish prejudice.” Berkey v. United States, 318 F.3d 768, 772 (7th Cir. 2003).
Instead, “[t]he defendant must go further and present objective evidence that a reasonable
probability exists that he would have taken that step.” United States v. Cieslowski, 410 F.3d 353,
359 (7th Cir. 2005).
On August 6, 2010, Petitioner filed a Notice Regarding Entry of a Plea of Guilty in which
he consented to a plea hearing with Magistrate Judge David G. Bernthal. (#20). In his plea
hearing on August 8, 2010, Judge Bernthal noted that Petitioner was changing his plea of guilty
from a plea agreement to an open plea. Petitioner affirmatively and knowingly waived his right
to a trial. That portion of the colloquy proceeded as follows:
Q (Judge Bernthal): I talk about all that because under the Constitution and the
laws of the United States, you have an absolute right to a
trial by jury. So if you do not plead guilty, then Judge
McCuskey will see you on the 17th of September; and at
that time, he’ll assign a trial date, and your case will go
forward for a trial because nobody can take away your right
to a trial by jury.
[ * * *]
Having discussed these rights with you—first of all, do you
have any question about any of the rights?
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A (Petitioner):
Q:
A:
Q:
A:
Q:
No, sir.
Do you understand you’re giving them up if you plead
guilty?
Yeah.
Do you still want to go forward—
Yeah.
—with the guilty plea? All right.
(Change of Plea Hearing, No. 09-20067 #41 7:5-11; 9:22-10:5). This court has reviewed the
transcript of the plea hearing and the sentencing hearing, and was unable to find any evidence in
the record to indicate that Petitioner would have, at that time, chosen to go to trial had he been
informed that an open plea would waive his right to appeal the ruling on the suppression motion.
Petitioner’s affidavit also does not claim as much. Thus, Petitioner has failed to present objective
evidence that a reasonable probability exists that he would have chosen to go to trial rather than
take the open plea. Further, to the extent that Petitioner now seeks an evidentiary hearing to
demonstrate this point, the underlying matter, regarding whether the seized heroin would have
been suppressed as an impermissible parolee search but for this court’s ruling, is moot, as will be
discussed in the next section. Petitioner cannot sustain his ineffective assistance claim on this
issue either.
Claim 3: Illinois statute on searches of parolees
Last, Petitioner claims that counsel provided ineffective assistance when he allegedly
incorrectly interpreted Illinois law on searches of individuals on parole or supervised release
status during Petitioner’s suppression hearing. Petitioner argues that counsel mistakenly applied
Samson v. California, 547 U.S. 843 (2008) to a provision in the Illinois parole statute, 730 ILCS
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5/3-3-7(a)(10), and in doing so, failed adequately to challenge Petitioner’s search and subsequent
seizure of the heroin.
Petitioner argues that Samson is inapposite because California law requires that “inmates
who opt for parole to submit to suspicionless searches by a parole officer or other peace officer
at any time,” Samson, 547 U.S. at 852, whereas Illinois law does not require the same. Petitioner
argues that the relevant Illinois parole statute, 730 ILCS 5/3-3-7(a)(10) requires that “[t]he
conditions of every parole and mandatory supervised release are that the subject… consent to a
search of his or her person, property, or residence under his or her control.” Petitioner asserts
that the Illinois statute requires that an inmate on parole must give consent before a search can be
conducted. Indeed, “[a]lthough defendant’s condition allows for a greater variety of searchers
and searches, it still requires that he give his consent to each search before it is conducted…. We
hold that the search condition of defendant’s MSR does not establish prospective consent to all
searches.” People v. Moss, 217 Ill. 2d 511, 525-26 (Ill. 2005); see also People v. Wilson, 228 Ill.
2d 35, 39 (Ill. 2008) (noting that “defendant’s search condition, which mandated that he ‘shall
consent to a search,’ did not constitute prospective consent.”).
The Government responds that the basis of Petitioner’s search was not his parole status,
but rather, as a search incident to arrest for flight following a traffic stop and his possession of
marijuana. Although the Fourth Amendment generally requires law enforcement officers to
obtain a warrant based on probable cause prior to conducting a search, one of the exceptions to
that rule is that an officer may conduct a warrantless search of a person incident to that person’s
lawful arrest. Chimel v. California, 395 U.S. 752, 762-63 (1969); United States v. Childs, 277
F.3d 947, 953 (7th Cir. 2002); United States v. Williams, 209 F.3d 940, 943 (7th Cir. 2000).
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Traffic violations provide police officers the necessary probable cause to stop a vehicle and
arrest the driver. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (“It is not a
violation of the Fourth Amendment to arrest an individual for even a very minor traffic
offense.”). In addition, “it is reasonable for the police to search the body, clothing, and
immediate possession of anyone in custody following an arrest on probable cause.” United
States v. Jackson, 377 F.3d 715, 716 (7th Cir. 2004).
Under Illinois law, failing to signal a turn at an intersection is a traffic violation. 625
ILCS 5/11-804. Petitioner does not contest that he failed to signal the turn. Accordingly, this
court determined that there was probable cause to stop Petitioner for the traffic violation. See
(#39 p. 44). During the traffic stop, the law enforcement officer discovered that Petitioner was
on parole. Id. No search had taken place at this point. During the stop, however, Petitioner “takes
off running”, which, as this court previously stated, is what “puts it into a different posture.”
(#39 p. 45). Even if the traffic stop alone was not sufficient to give the officer probable cause to
arrest, Petitioner’s flight during the stop surely provides valid grounds for probable cause
sufficient to justify an arrest. Tom v. Voida, 963 F.2d 952, 960 (7th Cir. 1992) (“a suspect’s
actual flight from an officer may certainly provide information to ripen an officer’s preexisting
suspicions into probable cause.”) (emphasis in original). “[A] police officer who makes a lawful
arrest may conduct a warrantless search of the arrestee’s person and the area “within his
immediate control.” Davis v. United States, 131 S. Ct. 2419, 2424 (2011), citing Chimel v.
California, 395 U.S. 752 (1969). As this court noted before, Petitioner’s resistance to arrest and
flight provided probable cause for arrest, and law enforcement officers were entitled to search
him incident to arrest. Thus, the search of his person was lawful. By extension, counsel’s failure
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to argue the parole issue was not ineffective assistance because he had no duty to make futile
arguments. See Benefiel v. Davis, 357 F.3d 655, 664 (7th Cir. 2004).
IT IS THEREFORE ORDERED THAT:
(1) Petitioner’s Motion (#1) is DENIED.
(2) This case is terminated.
ENTERED this 23rd day of May, 2013
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
U. S. DISTRICT JUDGE
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