Najjar v. Dahleh et al

Filing 157

MEMORANDUM Opinion and Order Signed by the Honorable John F. Grady on July 23, 2014. (ph, )

14-244.14

July 23, 2014

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEFFERY CARTER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 14 C 244

MEMORANDUM OPINION AND ORDER
Jeffery Carter, along with a co-defendant, Kentrell Willis,
was convicted of carjacking in violation of 18 U.S.C. § 2119, using
and carrying a firearm during the carjacking in violation of 18
U.S.C. § 924(c)(1)(A), and being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1).
sentenced to a term of 264 months’ imprisonment.

Carter was

The conviction

and sentence were affirmed on appeal, United States v. Carter, 695
F.3d 690 (7th Cir. 2012), and certiorari was denied,
United States, 133 S. Ct. 913.

Carter v.

Carter has now filed a petition

under 18 U.S.C. § 2255, seeking to vacate his conviction and
sentence.

He has also moved for an evidentiary hearing.

Before discussing the petition, we will provide a brief
summary of the relevant facts.
At approximately 11:00 p.m. on June 23, 2009, Darrick and
Geraldine Anderson were returning home from a birthday party and

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parked their Ford Explorer in front of their home on South Peoria
Street in Chicago.

Kentrell Willis walked up to the driver’s side

and pointed a fully-loaded .22 caliber Ruger pistol at Darrick
Anderson’s head and ordered him out of the vehicle.
repeatedly

stated

to

Mr.

Anderson

that

he

would

Willis

kill

him.

Simultaneously, Jeffery Carter appeared at the passenger window and
stated to Mrs. Anderson, “Do you know what time it is?
stickup time.

Get on the ground, bitch.

I gotta gun.”

It’s

Carter led

Mrs. Anderson around the rear of the vehicle to the driver’s side,
where Willis was holding Mr. Anderson at gunpoint. Carter took Mr.
Anderson’s wallet and watch and Mrs. Anderson’s watch and purse.
The contents of the purse included Mrs. Anderson’s cell phone.
Willis and Carter then drove off in the Explorer.
The Andersons then entered their house.

Their daughter knew

that her mother’s cell phone had a “Family Locator” feature, which
made it possible to track the location of the cell phone by GPS.
The police were called, and the cell phone was tracked for the next
hour or so.
At approximately 11:30 p.m., Willis and Carter abandoned the
Andersons’ Explorer in a parking lot at the corner of 55th Street
and South Ashland Avenue. Carter called his uncle, David Chew, and
asked him to pick him and Willis up at the parking lot.

Shortly

thereafter, Mr. Chew did pick up Carter and Willis in a minivan
occupied by Carter’s other uncle, Milton Latham, and a cousin,

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Joseph Billups.

While riding in the minivan, Carter used

Mrs.

Anderson’s cell phone to call his parole officer and his mother.
At

approximately

midnight,

while

riding

in

the

uncle’s

minivan, Willis and Carter saw a man walking up to his home on a
side street near 63rd

Street.

They got out of the van and

approached the man, Jose Garcia, who started to run.

They chased

him down, and Carter held a handgun to Garcia’s chest while he and
Willis took Garcia’s wallet and phone.

Willis and Carter returned

to the van; Garcia entered his home and reported the robbery to the
police.
At about 12:12 a.m. on June 24, David Chew’s van pulled into
a gas station near 85th Street and Cicero Avenue, and all of the
occupants got out.

Carter attempted to give the handgun to Milton

Latham, but Latham refused to take it and placed it back inside
Chew’s van. Police officers patrolling the area noticed Willis and
thought that he fit the description of one of the carjackers.

The

officers detained all five individuals for questioning and noticed
the firearm inside the van, visible through the window.

It was a

loaded Ruger .22 caliber six-shot pistol.
Carter

and

Willis

were

arrested.

Carter had

been

seen

dropping something into a trash can at the rear of Chew’s van as
the police arrived.

It was recovered and found to be the wallet

that Carter and Willis had stolen from Jose Garcia.

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Carter

gave

a

full

confession,

describing

the

Anderson

carjacking and the Garcia robbery and implicating Willis as well as
himself.1
CARTER’S GROUNDS FOR RELIEF
Carter claims that his attorney failed to provide him with
effective assistance and that this ineffective assistance resulted
in his conviction and unlawful sentence, in violation of the Sixth
Amendment. In order to make out a claim of ineffective assistance,
the petitioner must show both that “counsel’s representation fell
below an objective standard of reasonableness” and that “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Ground One
Carter’s first ground is that counsel was ineffective “for
failure to analyze fingerprints on firearm to show I never touched
it.”

(Pet. at 4.)

This is a choice of trial strategy that is well

within the range of effective representation.

First of all, the

absence of fingerprints on the firearm would not show that Carter
had never touched it.
fingerprints,

1/

as

an

The hard surfaces of a firearm rarely show
expert

government

rebuttal

witness

would

For this reason, we tried the case with separate juries, and Willis’s
jury did not hear Carter’s confession.
Willis has filed his own § 2255 petition, which is separately docketed.
We will be ruling on that petition at the same time as this ruling on Carter’s
petition.

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undoubtedly have testified had defense counsel offered testimony
that the firearm did not bear Carter’s fingerprints.
what if the weapon did bear Carter’s prints?

Secondly,

That was a risk

defense counsel understandably avoided, since he knew that Carter
had

given

a

complete

confession

to

the

carjacking

and

the

additional robbery in which the weapon was used.
Carter’s first ground is rejected.
Ground Two
Ground Two is that
[t]he identification procedure was suggestive and that
such
suggestiveness
was
unnecessary,
and
the
identification in open court was unreliable and violate
my due process.
(Pet. at 5.)

Carter argues that the police officer who conducted

a lineup for Mr. and Mrs. Anderson was unduly suggestive in that he
told them that the people who robbed them were “in custody.”
However, Mr. Anderson identified only Willis, not Carter, and Mrs.
Anderson identified neither defendant at the time of the lineup.
At trial, the Andersons disputed what the officer stated in his
report, and they were extensively cross-examined by defense counsel
concerning what had happened at the lineup.

Defense counsel also

called the officer to testify what the Andersons had told him
during the lineup. In short, the matter was thoroughly explored at
trial and presented a credibility issue for the jury to decide.

As

the government points out in its response to the petition, the
reliability of eyewitness identification was probably only of

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secondary importance to the jury.

They had Carter’s confession

that he participated in the carjacking of the Andersons and his use
of her cell phone to call his mother and his probation officer.

As

for the failure of Jose Garcia to identify Carter, the wallet that
was stolen from Garcia was in Carter’s possession at the gas
station where the defendants were arrested.

He was seen dropping

it into a trash can at the rear of Chew’s van as the officers
arrived.
Carter complains of defense counsel’s failure to raise these
alleged problems about eyewitness identification on appeal.

In

response to the question on the petition form that asks “If you did
not raise this issue in your direct appeal, explain why,” Carter
replied, “Because my lawyer didn’t do it saying it was a waste of
time.”

The lawyer was correct.

Identification issues would have

had no prospect of success on appeal.
Ground Two of the petition is rejected.
Ground Three
Ground Three is that
I was never charged with Mr. Garcia’s robbery and the
government stated that they would not use Mr. Garcia’s
testimony at trial yet defense counsel allowed the
government to use Mr. Garcia at trial anyway.
(Pet. at 6-7.)

The government makes no response to this claim that

Carter’s counsel was assured that the government would not offer
evidence of the Garcia robbery.

The court has no recollection of

any discussion of such an assurance.

What we recall is that the

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government moved in limine prior to trial to admit the Garcia
evidence,

and,

after

extended

argument,

we

ruled

in

the

government’s favor.
Even assuming that government counsel had at some previous
stage of the case indicated that Garcia would not be called, and
then

reneged

on

the

assurance,

we

fail

to

see

how

any

constitutional right of Carter would have been violated. His claim
is that defense counsel was ineffective in that he “allowed the
government to use Mr. Garcia at trial anyway,” but it was the court
that allowed the testimony.

Had defense counsel objected on the

basis that he had been assured the evidence would not be used, we
would have inquired as to whether the defendant had been unfairly
prejudiced by the government’s change of position. Carter does not
suggest any
prejudice.

way

in

which

the

Garcia testimony

caused unfair

It was clearly relevant evidence, and we would have

admitted it over the objection Carter claims should have been made.
We reject Ground Three of the petition.
Ground Four
Ground Four is that counsel was ineffective “for not arguing
minor role in the offense.”

(Pet. at 8.)

Had Carter been found to

be a minor participant, he would have been entitled to a two-level
decrease in his offense level.
§3B1.2.
defendant

U.S. Sentencing Guidelines Manual

Carter argues that he was less culpable than his coWillis,

but

“the

fact

that

other

members

of

the

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conspiracy were more involved does not entitle a defendant to a
reduction in the offense level.”
F.3d 613, 616 (7th Cir. 2008).

United States v. Gonzalez, 534
Carter participated fully with

Willis in the intimidation and robbery of the Andersons.

As the

Seventh Circuit observed, Carter “actively assist[ed] Willis in the
criminal endeavor.”

Carter, 695 F.3d at 698.

Had defense counsel

made a minor-participant argument at sentencing, we would have
rejected it.

Counsel was not ineffective for failing to make the

argument, and Carter has not suffered any prejudice as a result of
his not making it.
Ground Four is rejected.
Ground Five
In

Ground

Five,

Carter

alleges

that

his

counsel

was

ineffective for
[f]alsely advis[ing] me that the government would not use
Mr. Gracia [sic] as a witness against me, because we won
the motion to have him not to testify.
(Pet. at 8A.)

This is a slight variation of Ground Four, because

Carter now asserts that counsel told him that “we won the motion to
have

him

not

misstatement,

to

testify.”

there

was

no

Even
unfair

if

counsel

prejudice

had
to

made

Carter

this
in

a

constitutional sense. We reject Ground Five for the same reason we
reject Ground Four.

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Ground Six
Ground

Six

asserts

that

defense

counsel

was

ineffective

because Carter told him
[t]hat the letter that is being shown (at trial) is a
letter I provided to my former defense counsel Miangel
Cody and that is violating my attorney client privilege
and he did nothing about it.
(Pet. at 8B.)

We have no recollection of any letter of Carter

being admitted, or even discussed, at trial.

In its response to

the petition, current government counsel states that his review of
the trial record does not contain any reference to a letter by
Carter, and as a result, “the government is unable to respond
directly to this allegation.” (Gov’t’s Resp. at 16.)

In his reply

memorandum, Carter does not provide any further information about
the letter.

We have no idea what he claims the letter said or how

he was prejudiced by it.
We reject Ground Six for insufficient presentation.
Ground Seven
Ground Seven is another ineffective representation claim:
I told my defense attorney that detective Haleem
statements in regards to the Anderson’s that the men who
robbed them were in custody and he should have moved for
a mistrial because those statements was bad faith since
I was not pick out of line-up at the police station
shortly after the robbery.
(Pet. at 8C.)

Detective Haleem’s suggestive statement to the

Andersons that the men who robbed them were “in custody” was not a
ground for a mistrial, and, had the motion been made, it would have

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been denied.

Ground Seven is a variation of Ground Two, and we

reject it for the same reason we rejected Ground Two.
CONCLUSION
The petitioner has failed to show that his attorney was
constitutionally

ineffective

in

his

representation

of

him.

Accordingly, the motion to vacate the conviction and sentence
pursuant to 28 U.S.C. § 2255 is denied.
There

are

no

factual

issues

that

require

resolution;

therefore, the petitioner’s motion for an evidentiary hearing is
denied.
Because the petitioner has not made a substantial showing of
the denial of a constitutional right, we deny a certificate of
appealability pursuant to Rule 11(a) of the Rules Governing Section
2255 Proceedings for the United States District Courts.

DATE:

July 23, 2014

ENTER:

_______________________________________________
John F. Grady, United States District Judge