Jones v. United States of America
Filing
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OPINION (See Written Opinion): The Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 filed by Petitioner Steven Jones [d/e 1 ] is DENIED as to his claims based on ineffective assistance of counsel and the Fair Sentencing Act. Entered by Judge Richard Mills on 11/04/2014. (VM, ilcd) Modified on 11/4/2014 to correct filing date. (VM, ilcd).
E-FILED
Tuesday, 04 November, 2014 10:59:04 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
STEVEN JONES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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NO. 12-3168
OPINION
RICHARD MILLS, U.S. District Judge:
Steven Jones was sentenced to 262 months following a plea of guilty.
Pending is Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence.
As directed, the Government filed a Response to the Motion.
The Petitioner has filed a Reply.
The Court concludes that no evidentiary hearing is warranted.
Petitioner is not entitled to habeas relief.
I. BACKGROUND1
A. Factual History
In September of 2008, Inspector Lee Mangold and Officer Matt
McElfresh of the West Central Illinois Drug Task Force received
information that Petitioner Steven Jones (“the Petitioner” or “Jones”) was
distributing cannabis and crack cocaine. On September 25, 2008, Inspector
Mangold saw Walter Thompson leaving the Petitioner’s residence. Walter
Thompson and his wife, Janet, were registered confidential informants with
the Illinois State Police and worked as confidential informants with Adams
County law enforcement. Mangold believed both individuals to be reliable
informants.
Janet and Walter Thompson informed the officers that Janet was
going with Jones in the next few days on a trip to St. Louis to purchase
drugs. Jones and Janet Thompson planned to travel together in a red
Plymouth van. On September 26, 2008, in the early morning hours, Janet
Most of the factual background is taken from the Report and
Recommendation entered by United States Magistrate Judge Byron G.
Cudmore on March 15, 2010. See United States v. Jones, Case No. 09CR-30041, Doc. No. 19.
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Thompson directed officers to the van, which was parked near a public alley
at an apartment complex. Officer McElfresh and a supervisor later returned
to the van and put a tracking device on it.
The tracking device was monitored by officers. After a one-to-two
minute delay, the device transmitted its whereabouts to a remote computer.
Shortly after 3:00 p.m. on September 26, 2008, Inspector Mangold saw the
red van pull up to the Thompsons’ residence, with Jones driving and Janet
Thompson as a passenger. Officers continued monitoring the van through
the remote computer as it traveled toward St. Louis. During the trip, Janet
Thompson placed cell phone calls to Walter Thompson, who relayed
information from her to Officer McElfresh. Inspector Mangold testified
officers did not have direct contact with Janet Thompson because they did
not want Jones to know she was passing on information regarding the trip
to law enforcement agents.
Eventually, the van arrived in St. Louis. The narcotics transaction
occurred at a house on Linton Avenue. Janet Thompson communicated
through Walter Thompson that narcotics were purchased and she was
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carrying cocaine for Jones. Officer McElfresh continued monitoring the
tracking device on a computer in his squad car, and others officers also set
up surveillance. At 10:30 p.m., Inspector Mangold and Officer McElfresh
observed the van, began to follow directly behind it, and saw it fail to signal
at an exit.
Canine Officer Saalborn, part of the surveillance team, started to
follow the van. He initiated a traffic stop after learning from Inspector
Mangold that the van had failed to signal at an exit. Officer Saalborn made
contact with Jones, asked for his driver’s license, and conducted a canine
sniff of the van. After the canine alerted on the passenger door, Saalborn
conducted a pat down search of Jones, but found nothing. Janet Thompson
then exited the van, walked back to Officer McElfresh, who had just
arrived, and handed him the drugs.
Saalborn issued Jones a written
warning citation for the traffic violation. Jones was transported to the
Adams County Sheriff’s Office, where he was interviewed by officers. Jones
then made incriminating statements regarding his drug activity.
On May 6, 2009, a federal grand jury charged Jones with knowingly
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and intentionally possessing with the intent to distribute 5 or more grams
of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
B. Motion to Suppress Evidence
On January 19, 2010, the Petitioner filed a motion to suppress
evidence, wherein he sought to suppress all items seized at the time of his
arrest, in addition to all statements made subsequent to his arrest. Jones
claimed he did not commit a traffic violation prior to the stop, the
Government had failed to establish the reliability of the canine used to
conduct a sniff on Jones’s vehicle, and the length of his detention prior to
the finding of any contraband far exceeded the scope of the original stop.
The motion to suppress was referred to Judge Cudmore for an
evidentiary hearing and Report and Recommendation. On March 9, 2010,
Judge Cudmore heard evidence and the arguments of counsel and, after
taking the matter under advisement, issued a Report and Recommendation
on March 15, 2010. Judge Cudmore found the law enforcement officers to
be credible witnesses and determined that the stop of Jones’s van was
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constitutional and supported by probable cause.2
Moreover, Judge
Cudmore considered Officer Saalborn’s testimony regarding the canine
sniff, finding that the officer was credible and the canine sniff was
reasonable and not in violation of the Fourth Amendment.
Judge Cudmore further found that even if no traffic violation
occurred, reasonable suspicion supported a Terry stop of the vehicle. See
Terry v. Ohio, 392 U.S. 1, 21-22 (1968). This conclusion was based on
Judge Cudmore’s finding that two informants, Janet and Walter Thompson,
provided “extensive, detailed information to law enforcement” that was
reliable and corroborated by law enforcement. Judge Cudmore further
noted that officers received “contemporaneous transmissions from the
tracking device that were consistent with the information provided by the
Thompsons regarding the van’s whereabouts.” Finally, the Report and
Recommendation concluded that the stop was constitutional, even if a
traffic violation did not occur. Therefore, Judge Cudmore recommended
that Jones’s motion to suppress be denied.
One of the officers, Matt McElfresh, died in a recreational vehicle
accident on May 30, 2009, which was prior to the suppression hearing.
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On April 14, 2010, United States District Judge Jeanne E. Scott
adopted the Report and Recommendation and denied Jones’s motion to
suppress.
C. Guilty Plea and Change of Plea Hearing3
At a pre-trial conference held the day before the trial was scheduled,
the Petitioner’s counsel asked the Court to inquire of Jones if he still
intended to exercise his right to a jury trial. Jones responded by saying that
he had decided to plead guilty. The hearing was recessed to provide Jones
the opportunity to think about his decision, discuss his desire to plead
guilty with his counsel, and to allow counsel to answer any questions he
had.
When the Court reconvened several hours later, it inquired of Jones
and his counsel regarding Jones’s ability to enter a knowing plea. Counsel
stated he had no reason to doubt the Petitioner’s competence and his
ability to enter a knowing plea. Jones stated he had sufficient time and was
The Court relies on the transcript of the Hearing, which was held
on March 9, 2010. See United States v. Jones, Case No. 3:09-cr-30041,
Doc. No. 50.
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satisfied with counsel’s representation.
Subsequently, the Government discussed the essential elements of the
offense. The Court informed Jones of the maximum potential punishment
he would face and explained his rights were he to proceed to trial. The
Court then inquired of the Petitioner’s intent to plead guilty. Jones stated
no one had made any promises which persuaded him to plead guilty.
Moreover, no one threatened Jones or made him feel like he had to plead
guilty. The Petitioner acknowledged he was entering the guilty plea based
on his own free will.
The Court explained the sentencing process, including the presentence investigation and report and the application of the sentencing
guidelines.
The Government summarized its evidence and the Court
continued with the plea colloquy. Jones acknowledged he did what the
prosecutor said he had done. On May 10, 2010, therefore, Jones pled
guilty after stating he understood the proceedings and had decided to plead
guilty based on his own free will.
D. Motion to withdraw guilty plea
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On June 25, 2010, Jones filed a pro se motion to withdraw his guilty
plea. On July 14, 2010, Jones’s attorney reported that Jones wished to
withdraw the pro se motion. On July 20, 2010, Jones filed another pro se
motion to withdraw the plea and also requested the appointment of
counsel.
On August 19, 2010, a hearing was held before the undersigned. At
the hearing, following the Court’s inquiry, the Petitioner confirmed that he
wanted the same counsel to continue representing him. Accordingly, the
Court denied the motion in its entirety.
E. Motion to aggrieve an unlawful act
On September 8, 2010, the Petitioner filed a pro se Motion to
Aggrieve an “Unlawful Act” and Motion to Appoint Counsel.
In the
motion, Jones alleged that the tracking device placed on his vehicle violated
his constitutional rights. The motion was re-characterized as a motion to
suppress
and
referred
to
Judge
Cudmore
for
a
Report
and
Recommendation.
On September 21, 2010, Judge Cudmore held a hearing on the
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motion to suppress.
In the Report and Recommendation entered on
September 22, 2010, Judge Cudmore noted that the use of the tracking
device had been addressed as a factual matter previously in ruling on the
motion to suppress. Judge Cudmore further observed that Jones’s counsel
had stated that he previously discussed the tracking device issue with the
Petitioner a number of times.
Judge Cudmore concluded that regardless of the use of the tracking
device, the investigating officers were receiving information from the
confidential informant in the van who was talking by cell phone to them
about the drug deal. Accordingly, the result should be the same whether
the tracking device evidence was considered or not in that the evidence
should not be suppressed. The Report and Recommendation further stated
that Jones acknowledged he wanted counsel to continue to represent him.
On October 18, 2010, the Court entered an Order adopting the
Report and Recommendation and denying the Petitioner’s Motion to
Aggrieve an “Unlawful Act.”
F. Sentencing and appeal
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On October 19, 2010, a sentencing hearing was held. After ruling on
the Petitioner’s objections, the Court found that he qualified as a career
offender based on two prior crimes of violence in Adams County, Illinois:
(1) aggravated criminal sexual assault; and (2) unlawful restraint. The
Court determined the offense level to be 34 with a criminal history category
of VI, resulting in a guidelines range of 262 months to 327 months of
imprisonment, to be followed by ten years of supervised release.
Following the sentencing, Jones filed a notice of appeal. He raised one
issue – whether the Court committed procedural error when imposing
sentence because, according to Jones, it did not consider the applicable
statutory factors and non-frivolous arguments made by counsel at
sentencing. The United States Court of Appeals for the Seventh Circuit
affirmed the judgment on November 14, 2011. See United States v.
Jones,438 F. App’x 515 (7th Cir. 2011) (unpublished). The appellate court
determined that this Court’s discussion of the sentencing factors met the
procedural requirements of sentencing and rejected the Petitioner’s
arguments that the Court had failed to address his arguments in mitigation
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and improperly presumed that a within-guidelines sentence was reasonable.
G. Motion pursuant to 28 U.S.C. § 2255
On June 27, 2012, the Petitioner filed the Motion [Doc. No. 1] under
28 U.S.C. § 2255. In the motion, Jones raises the following four claims:
(1) Jones received ineffective assistance of counsel because his counsel
failed to prepare an effective defense, resulting in Jones finding it is
in his best interest to plead guilty;
(2) The prosecutor committed misconduct when he introduced
information that was obtained by use of a warrantless tracking device;
(3) The Court violated Jones’s Fourth and Sixth Amendment rights
by allowing evidence obtained without a warrant; and
(4) Jones should have received the benefit of the Fair Sentencing Act
of 2010.
As directed, the Government filed a response [Doc. No. 7] to the
Petitioner’s motion and the Petitioner filed a reply [Doc. No. 11].
Subsequently, the Petitioner filed a rebuttal [Doc. No. 11] to the
Government’s response and the Government filed a sur-reply [Doc. No.
12].
The Petitioner has filed a number of additional motions in support of
his habeas motion.
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II. DISCUSSION
A. Legal standards
A petitioner is entitled to habeas relief under § 2255 if his “sentence
was imposed in violation of the Constitution or laws of the United States.”
28 U.S.C. § 2255. “[R]elief under § 2255 is an extraordinary remedy
because it asks the district court to reopen the criminal process to a person
who already has had an opportunity for full process.” Almonacid v. United
States, 476 F.3d 518, 521 (7th Cir. 2007). A petitioner is not entitled to
habeas relief unless there is “an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which inherently results
in a complete miscarriage of justice.” Harris v. United States, 366 F.3d
593, 594 (7th Cir. 2004) (internal quotation marks and citation omitted).
A claim of ineffective assistance of counsel is appropriate to bring in
motions under § 2255. To establish a claim of ineffective assistance of
counsel, a petitioner must show that counsel was deficient in his
performance which resulted in prejudice to his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). A petitioner must show that
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counsel’s performance “fell below an objective standard of reasonableness.”
Id. at 688. To demonstrate prejudice, he must show “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” There is a “strong
presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance.” Id. at 689.
B. Ineffective assistance of counsel claim
The Petitioner alleges counsel’s failure to investigate resulted in the
lack of an effective defense. Jones suggests that counsel did not address his
concerns and failed to devise a legal strategy. Jones contends counsel
should have questioned the Government’s use of the “illegally obtained
evidence (warrantless electronic tracking device),” which he asserts violated
his Fourth Amendment rights. He contends that counsel never questioned
the Government’s assertion that a warrant was produced. Because of these
problems, the Petitioner claims counsel was ineffective in negotiating the
plea bargain which Jones alleges resulted in an erroneous outcome.
Jones does not specify what his attorneys should have done in
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mounting a defense. These unsubstantiated claims do not provide evidence
of ineffective assistance of counsel. The Court further notes that, during
his plea colloquy, under oath, Jones stated that he was satisfied with his
counsel and the decision to plead guilty was based on his own free will.
Even if counsel’s performance could be found to be objectively
unreasonable, there is no constitutional violation unless the petitioner can
show that he would not have pleaded guilty and would have insisted on
going to trial. See Warren v. Baenen, 712 F.3d 1090, 1101 (7th Cir.
2013). The Court concludes the Petitioner’s bare allegations that he would
have proceeded to trial are not sufficient. “An ineffective assistance of
counsel claim cannot rest upon counsel’s alleged failure to engage in a
scavenger hunt for potentially exculpatory information with no detailed
instruction on what this information may be or where it might be found.”
United States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002).
Jones provides no specifics as to what counsel should have done
differently.
The Petitioner’s conclusory allegations that counsel was
incompetent for failing to prepare an adequate defense and for failing to
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contest the officers’ use of the tracking device do not entitle him to relief.
Significantly, the officers were contemporaneously receiving information
from the informants regarding the vehicle’s whereabouts. Because one of
the officers observed a traffic violation, the stop of the vehicle was
supported by probable cause. The Petitioner’s counsel stated that he had
previously discussed the use of the tracking device with Jones on a number
of occasions. Regardless of any information from the tracking device,
however, law enforcement had probable cause to stop, search and arrest
Jones.
In United States v. Jones, 132 S. Ct. 945 (2012), the United States
Supreme Court held that the government’s attachment of a GPS device to
a vehicle and use of that device to monitor the vehicle’s movements is a
search within the meaning of the Fourth Amendment. See id. at 949. The
Court concludes to the extent the Petitioner contends that counsel was
ineffective for failing to challenge the evidence pursuant to Jones, that
argument is without merit because the Supreme Court decided Jones almost
two years after the Petitioner’s sentencing.
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Although defense attorneys generally are not required to anticipate
changes in the law, they may have an obligation to “make an argument that
is sufficiently foreshadowed in existing case law.” See Shaw v. Wilson, 721
F.3d 908, 916-17 (7th Cir. 2013). The Court concludes that Petitioner’s
attorneys had no such obligation to predict the Supreme Court’s holding
because he is unable to show prejudice, based on the probable cause to stop,
search and arrest the Petitioner even without the information provided by
the tracking device.
Accordingly, the Petitioner’s claims of ineffective assistance based on
counsel’s alleged failure to investigate and/or challenge the tracking device
are without merit.
C. Claims of prosecutorial misconduct and constitutional violations
Jones next alleges that the prosecutor committed misconduct when he
introduced evidence of the tracking device. He further asserts that the
Court violated his Fourth and Sixth Amendment rights by allowing
evidence obtained by law enforcement after use of the tracking device.
These claims are without merit and also were waived by the Petitioner when
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he entered his guilty plea.
The entry of a “guilty plea constitutes a waiver of non-jurisdictional
defects occurring prior to the plea.” United States v. Cain, 155 F.3d 840,
842 (7th Cir. 1998). The United States Supreme Court has explained that
the entry of a “guilty plea represents a break in the chain of events” in the
criminal case because a “defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged, [and] he
may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea.”
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Because Jones did not specifically reserve any pre-plea issues for
review in his unconditional plea, he is barred from raising those issues in
this motion.
However, a defendant does not waive an ineffectiveness claim relating
to the waiver (or the plea agreement in its entirety) and its negotiation. See
United States v. Smith, 759 F.3d 702, 707 (7th Cir. 2014). Thus, Jones
can challenge the validity of the plea by demonstrating ineffective assistance
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during the plea process.
The Petitioner has failed to demonstrate ineffective assistance relating
to his plea. The Court recessed the hearing, allowed Jones several hours to
consider the decision, and then proceeded with a detailed colloquy to
ensure that his plea was knowing and voluntary.
Subsequently, the
Petitioner filed two motions to withdraw the guilty plea which were denied.
Jones confirmed he wanted the same attorney to represent him. Based on
the detailed colloquy at the time the plea was entered, the Court finds that
Petitioner’s plea was knowing and voluntary.
The Court concludes that by pleading guilty, the Petitioner waived
any claims of prosecutorial misconduct and, further, waived claims that the
Court violated his constitutional rights by allowing evidence of the tracking
device.
The Court further finds that even if they were not waived, Jones’s
claims of prosecutorial misconduct and constitutional right violations are
meritless. The Court found that absent any evidence of a tracking device,
law enforcement had probable cause to stop the vehicle and search and
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arrest Jones, based on information provided by the informants.
Accordingly, Jones’s claims have been waived and are also meritless.
D. Application of the Fair Sentencing Act
The Petitioner alleges he should have received a lower sentence based
on the application of the Fair Sentencing Act of 2010. Because Jones had
two previous convictions for crimes of violence, he was sentenced as a
career offender. The career offender guideline did not change following the
enactment of the Fair Sentencing Act. See United States v. Griffin, 652
F.3d 793, 803 (7th Cir. 2011). Therefore, the amendments have no effect
on Jones’s applicable guideline range as a career offender. See U.S.S.G. §
1B1.10, cmt. N.1(A). Jones is not entitled to a reduced sentenced based on
the Fair Sentencing Act.
III. CONCLUSION
The Petitioner has failed to show that he is in federal custody
pursuant to an unconstitutional or illegal sentence. Accordingly, none of
his claims warrant relief under § 2255. Jones’s ineffective assistance of
counsel claims shall be denied. His claims relating to the tracking device
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will be dismissed.
An appeal may be taken if the Court issues a certificate of
appealability. See 28 U.S.C. § 2253(c)(1)(A). Because the Petitioner has
not “made a substantial showing of the denial of a constitutional right,” see
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of
appealability under Rule 11 of the Rules Governing Section 2255
Proceedings.
Ergo, the Motion to Vacate, Set Aside or Correct Sentence Under 28
U.S.C. § 2255 filed by Petitioner Steven Jones [d/e 1] is DENIED as to his
claims based on ineffective assistance of counsel and the Fair Sentencing
Act.
The Petitioner’s claims related to the tracking device are procedurally
barred based on the Petitioner’s guilty plea and are therefore DISMISSED.
The Petitioner’s Motion of Inquiry [d/e 14], Motion for Default
Judgment [d/e 15] and Motion for Summary Judgment [d/e 17] are
DENIED.
The Court declines to issue a certificate of appealability pursuant to
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Rule 11 of the Rules Governing Section 2255 Proceedings.
ENTER: November 3, 2014
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge
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