United States Of America v. Robinson

Filing 16

MEMORANDUM Opinion and Order signed by the Honorable Joan B. Gottschall on 3/14/2013. Electronic/Mailed notices. (jmm-r, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MARCUS ROBINSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Judge Joan B. Gottschall
Civil Case No. 08 C 5677
Criminal Case No. 04 CR 1090-2

MEMORANDUM OPINION & ORDER
Petitioner Marcus Robinson moves the court to vacate his conviction and sentence
pursuant to 28 U.S.C. § 2255. Robinson challenges his conviction on two grounds. He
first argues that his trial counsel was ineffective, in violation of the Sixth Amendment, for
failing to adequately cross-examine a witness and for failing to object to the
government’s closing statements, both related to the issue of whether Robinson had
engaged in transactions involving crack rather than powder cocaine. Second, he claims
that the statutory enhancement applied to his sentence pursuant to 21 U.S.C. § 851,
because of his prior felony conviction, and his resulting mandatory minimum sentence
under § 841(b), violated the Fifth Amendment’s due process clause. For the following
reasons, the court concludes that Robinson’s claims lack merit and denies the petition.
I. BACKGROUND
Robinson was arrested in February 2005. On March 10, 2005, a grand jury
charged him with seven of thirty-seven counts of an indictment that involved numerous
co-defendants. The defendants allegedly conspired to distribute controlled substances.

Count I charged Robinson with conspiring to distribute and possess with intent to
distribute more than 500 grams of mixtures containing cocaine and more than 50 grams
of mixtures containing cocaine base in the form of crack cocaine, in violation of 21
U.S.C. § 846. Count XXI charged Robinson with knowingly and intentionally possessing
with intent to distribute mixtures containing in excess of 5 grams of cocaine base in the
form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Counts XII, XXII, XXIV,
XXV, and XXVI charged Robinson with using a telephone in committing and in causing
and facilitating the drug offenses, in violation of 21 U.S.C. § 843(b).
Robinson was tried before a jury beginning on February 6, 2006.

He was

represented at trial by Douglas Rathe. Shortly before trial, the government sent Rathe a
letter regarding one of Robinson’s former co-defendants, James Cross, who was to testify
for the prosecution at trial:
For your information, during a pretrial interview with the government,
James Cross indicated he used marijuana in the past. Also, during pretrial
interviews, Cross discussed the the [sic] June 25, 2004 transaction in
which he asked Milton Patterson to do him a favor by providing drugs to
Marcus Robinson. Cross indicated that he thought he directed Patterson to
obtain the drugs from a jacket pocket in a closet in the basement of
Patterson’s house (where Cross lived). Cross also said that he was not
sure whether crack or powder cocaine was provided to Robinson on this
occasion, but thinks it was probably powder. When shown a copy of the
factual basis of his plea agreement, which stated that the substance
provided on this occasion was crack cocaine; Cross indicated he did not
read the facts in the plea agreement very well. Cross indicated that he
provided both crack cocaine and powder cocaine to Robinson during their
narcotics relationship with each other.
(Pet’r’s Mot. to Vacate Sentence Ex. A, ECF No. 1.) This letter was not introduced into
evidence during the trial to impeach Cross, although—as discussed below—whether
Cross provided Robinson with crack or powder cocaine was a key issue is Cross’s
testimony.

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At trial, the government presented recordings obtained through a wiretap that had
been placed on Cross’s phones from May 21 to June 16, 2004, and again from June 22 to
July 21, 2004. Cross testified as to the content of the telephone calls and his transactions
with Robinson. At the time of the calls, Cross did not know that his conversations were
being recorded. (Jury Trial Tr. 108.) He stated that he was arrested in December 2004
and charged with conspiracy to distribute crack and powder cocaine. (Tr. 103.) He
agreed to cooperate with the government as part of a plea agreement, in exchange for the
government’s recommendation of an eighteen-year sentence. (Tr. 104.) Cross testified
that he had previous convictions for drug distribution and sexual abuse. (Tr. 105.) On
cross-examination by Rathe, Cross stated that he had agreed to cooperate with the FBI
because he was facing a possible sentence of thirty years to life imprisonment. (Tr. 191.)
Cross admitted that he was testifying in order to get out of prison one day. (Tr. 258.)
Cross testified that during Summer 2004, he supplied Robinson with both powder
and crack cocaine in “distribution amounts.” (Tr. 111, 115.) He testified that he sold
Robinson drugs on several occasions. (Tr. 115.) Interpreting the government’s wiretap
recordings, Cross testified that the word “crack” was not used in his neighborhood;
“cooked” or “hard” were the terms used to refer to crack cocaine. (Tr. 203.) Cross
testified that he kept no records of drug sales to Robinson and that he was testifying from
memory about events that had happened almost two years before the trial. (Tr. 195.)
Cross testified that on June 10, 2004, he sold Robinson “cooked” cocaine, but he
did not recall the quantity. (Tr. 211.) On a wiretap recording made on June 12, 2004,
Robinson stated, “I’m gonna need something soon,” which Cross testified meant that
Robinson was requesting “some drugs.” (Tr. 143.) Cross testified that he usually

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provided Robinson with “a quarter ounce or a half an ounce” of “[h]ard, cooked” cocaine.
(Tr. 150.)
During a call recorded on June 25, 2004, Robinson told Cross, “I need
something,” and then said “an onion.” Cross testified that the term “onion” meant “an
ounce.” (Tr. 152.) He explained on cross-examination that an “onion” could refer to an
ounce of either powder or crack cocaine, but that the drugs involved in the transaction on
that date were “cooked.” (Tr. 221, 224.) On a call recorded later that day, Cross asked
his cousin, Milton Patterson, to “serve Robinson” with an ounce of cocaine. (Tr. 15455.) Cross stated that he told Patterson that he could find the cocaine in a suit pocket in
the basement of Patterson’s home, where Cross was living. (Tr. 230.) Cross was not
present when Patterson gave Robinson the baggie of drugs. (Tr. 231.) The government
played a wiretap recording from later that evening, during which Cross spoke to
Robinson again. Robinson said, “Yeah, I got it.” (Tr. 155.) Cross testified that this
meant that Patterson had given Robinson the ounce of cocaine. (Tr. 156.)
The government then brought out the fact that Cross had previously told the
government that he thought he had sold Robinson powder, not crack, cocaine on June 25,
2004. The prosecutor asked Cross to explain how he knew, based on the recorded phone
calls, that it was in fact crack that had been provided to Robinson on that date:
Q. . . . you testified today, Mr. Cross, that it was your understanding that
Robinson was asking for crack cocaine, is that right?
A. Yes.
Q. In previous meetings with the government did you ever indicate that
you thought Robinson was asking for a different kind of drug?
A. Yes, at one point I thought it was powder, it had been so long.

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Q. Why - - why, Mr. Cross, do you believe that it’s crack cocaine rather
than powder cocaine?
A. When I heard the part when I said I did something to it, so that’s when
I knew it was crack.
Q. What are you referring to with your last statement, the part that you
did something to it?
A. Cooked it.
Q. Let me direct your attention to lines 8 and 9. You say “Everything I
do look good.” What did you mean by that, Mr. Cross?
A. Everything I touch as far as the drugs look good.
(Tr. 156-57.) On cross-examination, Rathe asked Cross about inconsistent statements he
had made to the government about whether the transaction involved crack:
Q. Did you meet with the government a few days before trial to get ready
for your trial preparation?
A. Yes.
…
Q. And at that time did you tell the government that as far as you
believed, that you had – did you tell the government that you had
directed Patterson to obtain the drugs from a jacket pocket in a closet
in the basement of Patterson’s house?
A. Yes.
Q. Is that where you lived as well?
A. Yes.
Q. And did you say that you were not sure whether it was crack or
powder that was provided to Robinson on this occasion, but you think
it was probably powder?
A. No, I know what it was, because -Q. I’m sorry, the question -A. It was cooked.

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Q. Your attorney can ask you whatever questions he wants. My question
to you is did you tell the government that you probably thought it was
powder?
A. To my knowledge, it was cooked.
Q. Did you tell the government it was powder?
A. It was cooked.
(Tr. 253-54.)
On redirect, Cross testified that Robinson was one of his regular customers (Tr.
272), and that he supplied cooked and powder cocaine to Robinson in amounts of
“anywhere from like a quarter to half ounce. On occasions he bought an ounce or two at
a time.” (Tr. 271.) On re-cross, Rathe asked again about the June 25, 2004 transaction:
Q. June 25, 2004 is pretty set out in the transcript except for one thing,
and that is you say it was cooked . . . but you told the U.S. Attorney it
could be powder. Do you remember that?
A. I remember the day - - if you look farther down, I said everything I
touch look good. That’s how I knew it was cooked.
Q. But you deal with both cooked and powder, is that correct?
A. True.
(Tr. 276-77.) Cross admitted that he didn’t remember the dates and amounts of cocaine
sold to Robinson during the sixty day period during which the wiretap was in place. (Tr.
277.) On further redirect, the government asked Cross what he meant when he said
“Everything I do looked good,” on the June 25, 2004, recording.

He explained,

“Everything cooked looked good.” (Tr. 282.) Rathe returned to the topic on further recross:
Q. When you use the word “Everything I do look good,” are you referring
to everything you do with drugs looks good?
A. No, I’m talking about everything I whip up cooked.

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Q. So you’re not talking about everything you do, both powder and crack.
“Everything” in your interpretation, your understanding, simply
means everything you cook?
A. On this particular conversation that I’m having, yes, that’s what I’m
talking about, cooked.
Q. But in your drug dealing business, everything you do is good whether
it’s powder or cooked, isn’t it?
A. I don’t have to do anything to powder.
(Tr. 283.)
Later in the trial, Milton Patterson testified that he pleaded guilty to selling an
ounce of crack cocaine to Robinson on June 25, 2004. (Tr. 385.) Based on his plea
agreement, he expected to serve thirty-one months in prison; had he not cooperated with
the government, he would be subject to a forty-six month sentence. (Tr. 386, 397.)
Patterson testified that Cross called him on June 25, 2004, and told him he wanted him to
“go downstairs and look in one of his pants that he had placed where he had an ounce of
crack cocaine and give it to Marcus Robinson.” (Tr. 387.) Robinson then came to the
house, and Patterson gave him an ounce of crack wrapped in plastic bags. (Tr. 388.) On
cross-examination, Patterson stated that the drugs were on a shelf in the basement “in a
hat.” (Tr. 392.) He stated that the drugs felt hard and looked like a round rock about an
inch in diameter. (Tr. 395.)
During its closing statement, the government quoted Robinson’s recorded
conversation with Cross the evening of June 25, 2004: “[Cross asked,] ‘Did you see
him? Yeah, I got it. Look good too.’ Then Cross says ‘Everything I do look good.’ He
got it and you know it’s crack.” (Tr. 452.) The prosecutor continued, “How do you
know that the ‘onion’ was crack cocaine? Well, you remember that call. ‘Everything I
do looks good.’” (Tr. 456.)

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During the defense’s closing statement, Rathe argued that Robinson was not a
member of a conspiracy, but was merely Cross’s customer. (Tr. 476.) As to whether
Robinson had purchased crack from Cross, Rathe argued that Cross did not remember
most of the transactions at issue. (Tr. 470.) He pointed out that the reference to an
“onion” was not necessarily to crack and that there was no way to tell that any
transactions involved crack because no drugs were recovered from Robinson when he
was arrested. (Tr. 477-78.) He further argued that the case rested on the testimony of
witnesses who had an incentive to do what they could to help themselves. (Tr. 478-79.)
Moreover, Cross’s and Patterson’s stories about the transaction of June 24, 2004, were
not the same. For example, Cross stated that he kept the cocaine in his suit coat pocket,
while Patterson stated that he found it in a hat. (Tr. 480.) Rathe concluded by arguing
that the government had “to prove that this was crack cocaine” and had not done so
beyond a reasonable doubt. (Tr. 484.)
On February 9, 2006, Robinson was found guilty of all counts. Regarding Count
I, the jury found that Robinson participated in a conspiracy to distribute and to possess
with intent to distribute 50 grams or more of cocaine base in the form of crack cocaine
and a measurable amount but less than 500 grams of cocaine. Regarding Count XXI, the
jury found that on June 25, 2004, Robinson possessed with intent to distribute 5 grams or
more (but less than 50 grams) of cocaine base, in the form of crack cocaine.
The court denied Robinson’s motion for acquittal or for a new trial. On February
3, 2006, the government gave notice, pursuant to 12 U.S.C. § 851(a)(1), of its intention to
seek increased punishment based on Robinson’s prior felony convictions for drug
offenses. Given this notice, pursuant to § 841(b), Robinson faced a statutory mandatory

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minimum sentence of twenty years for Count I and ten years for Count XXI. The judge
denied Robinson’s motion for a downward departure. On May 23, 2006, the court
sentenced Robinson to terms of 240 months each on Counts I and XXI, and to terms of
48 months each on the remaining counts, all to run concurrently. Robinson was also
sentenced to ten years of supervised release. During the sentencing, the judge noted that
Robinson had “a substantial and extensive” history of criminal misconduct. He stated
that he would give the same sentence regardless of whether the statutory enhancement
applied. (Tr. 33.) The judge emphasized that dealing cocaine was a serious offense, that
the sentence had to reflect a need for incapacitation, and that he was “tempted to go
higher.” The Seventh Circuit denied Robinson’s appeal on April 26, 2007. Robinson
filed a § 2255 petition on October 6, 2008.
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 2255, a person convicted of a federal crime may move to
vacate, set aside, or correct his sentence “upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). If
the petition is successful, “the court shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial or correct the sentence as
may appear appropriate.” Id. § 2255(b).
Post-conviction relief is “an extraordinary remedy” because a petitioner has
already “had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518,
521 (7th Cir. 2007). Relief “is appropriate only for ‘an error of law that is jurisdictional,

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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)
(quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)). In deciding a § 2255
motion, “evidence and inferences drawn from it are viewed in a light most favorable to
the government.” United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000).
III. ANALYSIS
A. Ineffective Assistance of Trial Counsel
Robinson claims that this trial counsel was ineffective for 1) failing to use
impeachment evidence to cross-examine witness James Cross and 2) failing to object to
the government’s argument during closing. Claims of ineffective assistance of counsel
may be raised during a collateral challenge even if the claim was not raised on direct
appeal. Massaro v. United States, 538 U.S. 500 (2003). To prevail on an ineffective
assistance of counsel claim, a petitioner must show that: (1) “counsel’s performance was
deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984).
In order to establish deficient performance, a petitioner must establish “that
counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.
“The question is whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or most
common custom.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (quoting Strickland,
466 U.S. at 690). Judicial scrutiny of counsel’s performance is “most deferential.” Id.
In order to demonstrate prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding

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would have been different.” Strickland, 466 U.S. at 694. An ineffective assistance of
counsel claim can fail for lack of prejudice “without ever considering the question of
counsel’s actual performance.” United States v. Taylor, 569 F.3d 742, 748 (7th Cir.
2009).
1. Impeachment of James Cross
Cross was a central witness to the government’s case. Along with the wiretap
recordings and Patterson’s testimony, the government used Cross’s testimony to prove
that the June 25, 2004, sale of drugs to Robinson involved crack rather than powder
cocaine. The jury concluded that Robinson was guilty of possessing with intent to
distribute between 5 and 50 grams of crack. As there was little other evidence as to the
specific quantities and types of drugs purchased by Robinson, and no drugs were
recovered from Robinson, the ounce (28.35 grams) of drugs Robinson allegedly
purchased on June 25, 2004, may well have formed the basis for the jury’s conclusion
that Robinson was guilty under Count XXI of possession of crack cocaine.
Robinson contends that the letter sent to Rathe by the government shortly before
trial would have demonstrated that Cross was interested only in conforming to the
provisions of his plea agreement, not in telling the truth about the type of drugs he sold
Robinson.

He argues that Rathe’s failure to introduce the government’s letter into

evidence therefore rendered Rathe’s performance deficient.
The court disagrees.

Although the jury ultimately believed Cross’s and

Patterson’s testimony about selling Robinson crack cocaine on June 25, 2004, Rathe’s
cross-examination of Cross was not deficient. The government referred to Cross’s prior
statement to the government during direct examination. On cross-examination, Rathe

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specifically asked Cross whether he had previously told the government that the
transaction involved powder rather than crack cocaine. He pressed Cross on this point on
both cross-examination and re-cross. He also addressed the fact that Cross did not
remember the details of his transactions with Robinson, and pointed out inconsistencies
between Cross’s and Patterson’s accounts of the transaction. Rathe also brought out the
fact that Cross had an interest in cooperating with the government to obtain a reduced
sentence.
In response to Rathe’s questioning, Cross repeatedly insisted that he had sold
Robinson “hard” or “cooked” cocaine on June 25, 2004, based on the fact that he stated
on the recorded phone call, “Everything I do look good.” Given Cross’s testimony, the
court concludes that introducing the letter into evidence would have done little to
undermine Cross’s testimony further. The letter does not clearly establish that the June
25, 2004, sale involved powder cocaine; rather, it says that Cross was not sure what kind
of drugs he sold Robinson. More importantly, the letter does not undermine Cross’s
interpretation of his own statement on the wiretap recording that “Everything I do look
good.” Introducing the letter might actually have been damaging to the defense. The
letter provides additional evidence that Cross provided Robinson with drugs, including
crack cocaine.

And each time Rathe returned to the topic of whether Cross sold

Robinson powder or crack cocaine, Cross was afforded another opportunity to explain his
prior inconsistent statement to the jury, and to explain why, after listening to the wiretap
recordings, he believed that he had in fact sold Robinson crack. The court concludes that
Rathe acted reasonably and competently in impeaching Cross’s testimony using other
methods.

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2. Failure to Challenge the Prosecution’s Closing Statements
The government stated at the close of its case that the June 25, 2004, sale
involved crack.

Robinson contends that his attorney should have objected to the

statement and was ineffective for failing to do so. The court finds no valid basis,
however, on which Rathe could have made such an objection. The government was
commenting on evidence in the record, specifically Cross’s testimony as to why he
believed he had sold Robinson crack. The government asked the jury to infer from
Cross’s statement on the wiretap recording that “Everything I do look good” that he had
cooked the cocaine.

“Attorneys have . . . leeway in closing arguments to suggest

inferences based on the evidence, highlight weaknesses in the opponent’s case, and
emphasize the strengths in their own case.” Soltys v. Costello, 520 F.3d 737, 745 (7th
Cir. 2008).
Moreover, during Rathe’s own closing statement, he argued strongly that the
government had failed to prove that the June 25, 2004, sale involved crack. The court
concludes that Rathe’s performance during the closing arguments was not deficient, and
that Robinson was not deprived of his Sixth Amendment right to counsel.
B. Constitutionality of the Mandatory Minimum Sentence
As Robinson had been convicted of a prior drug felony, a statutory enhancement
applied to his sentence, pursuant to 21 U.S.C. § 851. He was thus subject to a twentyyear mandatory minimum sentence for Count I, pursuant to § 841(b)(1). Robinson
asserts that the sentence violates the due process clause of the Fifth Amendment and that
it should be vacated because it is excessive and greater than necessary to punish him for
the crimes he committed.

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District courts lack the authority to refuse to impose a mandatory minimum
sentence, unless authorized to do so by statute. U.S. v. Roberson, 474 F.3d 432, 436-437
(7th Cir. 2007) (noting that 18 U.S.C. § 3553(a) is a “very general statute [that] cannot be
understood to authorize courts to sentence below minimums specifically prescribed by
Congress”). Even if the district court itself considers the mandatory minimum sentence
unreasonable, the imposition of the sentence does not violate a defendant’s right to due
process. See id. The Seventh Circuit has made clear that mandatory minimum sentences
do not violate the Fifth Amendment. United States v. Nigg, 667 F.3d 929, 935 (7th Cir.
2012) (affirming mandatory minimum sentence under Armed Career Criminal Act);
United States v. Franklin, 547 F.3d 726, 735 (7th Cir. 2008) (“[T]he Supreme Court and
this court have consistently held that mandatory minimum sentences are not a violation of
a defendant’s due process rights.”).
The court acknowledges that the crack-powder cocaine disparity in the mandatory
minimum sentences of § 841 in place at the time of Robinson’s sentencing has been
roundly criticized by the Sentencing Commission. See Kimbrough v. United States, 552
U.S. 85, 98 (2007). But despite the disparity in the mandatory minimums in effect at the
time of Robinson’s sentence, the imposition of a twenty-year sentence was not a due
process violation. In United States v. Lawrence, 951 F.2d 751, 755 (7th Cir. 1991), the
Seventh Circuit held “that Congress’ enactment of different penalties for cocaine base
and cocaine evinces a rational purpose and does not violate the Due Process clause.”
The Seventh Circuit revisited that question after the Fair Sentencing Act of 2010
amended the Controlled Substances Act. In United States v. Moore, 644 F.3d 553 (7th
Cir. 2011), the court held that despite Congress’s amendments to the act, the appellee

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failed to “demonstrate that Congress has no reasonable basis for believing that crack is
more dangerous than powder cocaine.” Id. at 556 (citing Vance v. Bradley, 440 U.S. 93,
111 (1979)). The appellate court rejected the argument that the disparity in sentencing
between convictions involving powder and crack cocaine was so great that it violated due
process:
[T]hat argument relates to the wisdom of the approach Congress selected
to address the problems associated with crack cocaine, something we have
no authority to second-guess. As such, whether we believe another
approach to the issue—such as a lower crack-to-powder ratio—would be
preferable is irrelevant to our analysis. Because Moore has not
demonstrated that the crack-powder disparity rests on grounds wholly
irrelevant to the achievement of Congress’s objective, it survives rationalbasis review.
Id. at 557 (internal citations, quotation marks, and alteration omitted). Other courts have
likewise rejected the argument that the mandatory minimum sentences set out in § 841
violate due process. United States v. Johnson, 413 F. App’x. 783, 784 (6th Cir. 2011);
United States v. Grant, 312 F. App’x 39, 41 (9th Cir. 2009) (reversing district court for
sentencing below the mandatory minimum); see also United States v. LabradaBustamante, 428 F.3d 1252, 1265 (9th Cir. 2005) (upholding twenty-year mandatory
minimum sentence under § 841 against an Eighth Amendment challenge).
Robinson also suggests that the twenty-year sentence conflicts with 18 U.S.C.
§ 3553(a). But even were that so, it would not make the sentence unconstitutional. The
Seventh Circuit has acknowledged that, “in some instances, mandatory minimum
sentences prevent a judge from fashioning a sentence for a particular defendant based on
that defendant’s unique characteristics.” Nigg, 667 F.3d at 935. Yet it “has never
recognized a constitutional right to individualized sentencing in non-capital cases. . . . [A]

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sentencing scheme not considering individual degrees of culpability would clearly be
constitutional.” Id. (international quotations and citation omitted).
Furthermore, in this case, the sentencing transcript reveals that, in the view of the
sentencing judge, there was no genuine conflict between the sentence Robinson received
and the § 3553(a) factors. The court would not have been required to sentence Robinson
below a twenty-year term even were the mandatory minimum inapplicable. The judge
indicated that he would have imposed a similar sentence without the statutory
enhancement, and he imposed terms of 240 months for both Count I and Count XXI,
although the mandatory minimum sentence for Count XXI was only ten years.
IV. CONCLUSION
Because Robinson’s counsel was not constitutionally ineffective, and because
Robinson’s sentence comported with the due process requirements of the Fifth
Amendment, the court denies his petition to vacate his conviction and sentence pursuant
to § 2255.

ENTER:

/s/
JOAN B. GOTTSCHALL
United States District Judge
DATED: March 14, 2013

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