United States of America v. Handley
Filing
43
MEMORANDUM Opinion and Order Signed by the Honorable Ruben Castillo on October 21, 2015. Mailed notice (ph, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROMELL HANDLEY,
Petitioner,
No. 12 C 5032
V.
Chief Judge Rub6n Castillo
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Romell Handley ("Petitioner") is serving a20-year sentence for his participation in a
racketeering conspiracy. He filed a petition to vacate his sentence under 28 U.S.C. $ 2255 ("the
Petition") alleging ineffective assistance of counsel. (R. l, Pet.) For the reasons set forth below,
the Petition is denied.
BACKGROUND
I.
Petitioner's Conviction
The facts underlying Petitioner's conviction are set forth in detail in prior opinions of the
U.S. Court of Appeals for the Seventh Circuit and this Court. See United States v. Morales,655
F.3d 608 (7th Cir.
20ll);
United States v. Benabe,654F.3d753
(7thCil20ll);
United States v.
Benabe,436 Fed. App'x 639 (7th Cir. 201l) (per curiam); United States v. Delatorre,572F.
Supp. 2d967 (N.D. Il1. 2008); United States v. Delatorre,522 F. Supp. 2d 1034 (N.D. I11.2007);
United States v. Delatorre, 508 F. Supp. 2d 648 (N.D. 111.2007); United States v. Delatorue,438
F. Supp. 2d892 (N.D. Ill. 2006). They are repeated here only generally.
1n2002, state and federal authorities began an intensive investigation into the Insane
Deuces street gang after one of its members, Orlando Rivera, agreed to serve as a confidential
informant. Morales,655 F.3d at615,617. Petitioner was among 16 men indicted on various
racketeering-related charges in connection with the investigation. Id. at 615. The evidence
adduced at trial showed that the Insane Deuces was an organized street gang affrliated with the
Folks, a national network of local gangs. Id. The government's investigation focused on the
Aurora Deuces, a chapter of the Insane Deuces with a significant presence in Aurora, Illinois.1d.
As of 2002, the Aurora Deuces had become bitter rivals of the Latin Kings (also referred to as
the "Kings"). Id. at 616. This rivalry led to "frequent and escalating violence," which often
resulted in injury to innocent persons who were mistakenly believed to be rival gang members.
Id.
The Insane Deuces had its own set of "leyas," or laws, as well as a detailed hierarchy.
1d.
There were three tiers of membership within the gang: Seniors, Juniors, and Shorties. 1d. Shorties
were the gang's youngest members, and they held the responsibility of carrying out most of the
gang's activities, including shootings and other acts of violence, as well as selling drugs to fund
the gang. 1d. Shorties were often juveniles who were recruited to increase the gang's ranks. /d.
By participating in gang activities, Shorties could work their way up to becoming Juniors, who
were responsible for the gang's day-to-day operations.ld. Juniors directed Shorties in their
activities, including determining who would participate in particular acts of violence and
providing them with firearms..Id. Seniors were "longstanding members of the gang whose age
and accomplishments made them the leaders, broad-scope planners, and advisors for the gang."
.Id. Seniors directed Juniors on larger issues, but they were more removed from the gang's day-
to-day activities.
^Id.
Juniors were the leaders of the EME, and they directed the gang's day-to-day
activities, which included selling drugs, carrying out "missions" (attacks on rival gang
members), protecting and supporting fellow gang members and their families, and punishing
gang members who violated the gang's rules. .Id.
Working with law enforcement, Rivera reported on the gang's activities, conducted
controlled buys of narcotics and firearms from gang members, and surreptitiously recorded
several meetings and conversations between gang members. Id. The intelligence gathered
through Rivera produced evidence regarding "four murders, eleven attempted murders, two
solicitations to commit murder, other shootings, and narcotics distribution incidents-all
of
which the Deuces perpetrated in2002 alone." Id. From information obtained through River4
government authorities leamed about various members' roles in the gang. Id. The Seventh
Circuit summarized Petitioner's involvement in the gang as follows:
Handley declared to an Aurora police officer that he'd been "a King killer and a
Deuce all [his] life." According to Rivera's testimony, Handley was the Shorty
Enforcer in Aurora at the time of the events in this case, assigning missions to
Shorties and storing firearms for the missions at his home. He was involved in at
least three of the gang's affempted murders (either driving stolen cars during the
missions or personally firing on rivals). At some point, however, Handley lagged
in his participation, and the gang's leadership ordered other members to beat
Handley if they found him during the summer of 2002.
Id. at 618.
Following an extensive investigation, a federal grand jury returned
a
multi-count
indictment against Petitioner and 15 other gang members. Id. One of the 16 men pled guilty, and
another remained a fugitive. Id. The Court divided the remaining 14 defendants into two groups
for purposes of trial. Id. at 619. Petitioner was grouped with the "less major players," which were
to be tried before U.S. District Judge Harry D. Leinenweber. Id.
In April 2008, Judge Leinenweber commenced the trial of the less major players. United
States v. Morales, No. 03 CR 90,2009
WL
1456567, at
*l
(N.D. Il1. May 22,2009). However, a
mistrial was declared shortly after opening statements when several jurors asked to be removed
from the jury. Id. The retrial was scheduled for October 2008. Id.lnthe interim, the trial of the
other group of defendants-the so-called "leaders" of the gang-proceeded before this Court,
and all but one of the defendants were convicted of racketeering conspiracy and other offenses.l
Benabe,654 F.3d at757.
In October 2008, the retrial of the less major players was held. Morales,655 F.3d at 619.
On the govemment's motion, Judge Leinenweber empaneled an anonymous jury. Id. Thetrral
spanned more than two months, during which time the govemment presented extensive witness
testimony, recordings of gang meetings, and forensic evidence establishing the gang's activities,
rules, and purpose. .Id. Rivera described the inner workings of the gmg, explained what was said
in the various recorded meetings, and described the gang's organization and means of rule
enforcement. Id. Two other former gang members, Lorenzo Becerra and Akeem Horton, testified
in cooperation with the govemment regarding the gang's activities and the scope of participation
of each individual defendant. Id, The govemment also presented testimony from a variety
of
police officers and federal agents, as well as several victims of the violence perpetrated by the
gang.
Id. After a week of deliberations,
the
jury returned its verdicts finding Petitioner and all but
one other defendant guilty of racketeering conspiracy.2
Id. Severaldefendants were
sentenced to
I
the.irry could not reach a verdict as to defendant Harold Crowder. Benabe,654 F.3d at757
n.l. He was retried with the second group and convicted. Id.; Morales,655 F.3d at 615.
2
theirrry could not reach a verdict as todefendant Steven Perez. Morales,2009 WL 1456567,
* 1. He was retried on his own before this Court and convicted. Unrted States v. Perez, 673 F.3d
667,668 (7th Cir. 2012).
at
life in prison; Petitioner and others were sentenced to 20 years. Id. at620; Benabe,654 F.3d at
757.
On appeal, the defendants raised a variety ofjoint and individual arguments in what the
Seventh Circuit described as a "virtual cannonade of briefing." Morales,655 F.3d at 620. Jointly,
the defendants argued that the Court erred in empaneling an anonymous jury, erred in denying
their motions for severance, and erred in handling au allegation ofjuror misconduct that arose
during the trial. Id. at 620-33. Petitioner separately challenged his sentence, arguing that Judge
Leinenweber erred in holding him accountable for violent acts committed by other gang
members. Id. at644-47.lna lengthy published opinion, the Seventh Circuit rejected each
of
these arguments and affirmed Petitioner's conviction and sentence in all respects. Id. at 620-47.
II.
Section 2255 Petition
ln June 2012, Petitioner filed the present Petition. (R.
1, Pet.) He claims that his
trial
attorney, Beau Brindley, provided ineffective assistance in connection with a plea agreement
offered by the government prior to tnal. (Id. at 3; R. 3, Pet'r's Mem. at 4-7 .) The proposed plea
agreement would have required Petitioner to plead guilty to one count of possessing a firearm
in
violation of l8 U.S.C. $ 92a(c) and one count of conspiring to commit murder in aid of
racketeering in violation of l8 U.S.C. $ 1959(a)(5). (R. 4, Pet'r's Aff., Ex. A, Plea Offer'l|J5.)
The proposed agreement further provided that Petitioner would serye an agreed sentence of 15
years in prison. (Id. n 10.) Petitioner claims that Brindley erroneously advised him that the
statutory maximum penalty he faced if convicted on the racketeering charge was 10 years,
whereas the actual statutory maximum was 20 years. (R. 4, Pet'r's
Aff. fltT6-9.) Petitioner
contends that based on Brindley's inaccurate advice, he rejected the government's plea offer and
proceeded to trial.
Qd n 10.) He claims that had he known he was facing a2}-year sentence, he
would have accepted the plea offer. (Id.n D.) This Court granted Petitioner's request for an
evidentiary hearing and also appointed counsel to represent him in this case.3 (R. 21, Order.)
On
April 15,2015, the Court conducted an evidentiary hearing
on the Petition, taking
testimony from Petitioner and former Assistant U.S. Attorney Patrick Pope.a (R. 34, Min. Entry;
R. 36, Evidentiary Hr'g Tr.) Following the evidentiary hearing, the parties submiffed posthearing briefs. (See R. 38, Pet'r's Post-Hr'g Br.; R. 40, Gov't's Post-Hr'g Br.; R. 41, Pet'r's
Reply.)
According to the evidence presented, Petitioner was arrested in the underlying criminal
case
in September 2005. (R. 33, Stip. Facts fl'l| l-3.) After he was taken into custody, he waived
his Miranda rights and gave a detailed statement to law enforcement describing his long-time
involvement in the gang. (R. 32, Joint Ex. 7, ATF Report at 540-47.) He admitted becoming a
member of the Insane Deuces as a teenager, and although he claimed to have fallen away from
the gang to some extent since 2003, he admiffed that he was still a gang member, that he had
attended many gang meetings, and that for a time he had been a leader of the Shorties.
3
(Id.)He
The Court expresses its gratitude to attomey Heather Winslow, who graciously served as
appointed counsel for Petitioner in this case.
a
Due to some unusual extenuating circumstances, Brindley did not testify or otherwise
participate in this case. When the Petition was first filed, Pope had several discussions with
Brindley in which Brindley reportedly disputed Petitioner's version of events. (R. 19, Gov't's
Resp. to Ct.'s Order at 2.) Brindley's account-according to Pope-was that Brindley advised
Petitioner on several occasions prior to trial that he was facing a2}-year statutory maximum
penalty if convicted on the racketeering charge. (Id. at 3.) Brindley told Pope that Petitioner
refused to accept the l5-year plea offer because he wanted a sentence of l2 years, which the
govemment was not willing to offer. (Id. at 4.) In July 2014, Pope was in the process of
finalizing an affidavit containing this information for Brindley's signature when Brindley was
informed by the U.S. Attorney's Office in Milwaukee that he was the target of a criminal
investigation being conducted by that office. (Id. at2-3.) Brindley later advised Pope that he
would not be signing an affidavit in this case on the advice of his own legal counsel. (Id.; see
alsoR.36, Evidentiary Hr'g Tr. at 103.) Brindley was later indicted on charges of witness
tampering and related offenses, but was ultimately acquitted of those charges. See United States
v. Brindley, No. l4 CR 468 (N.D. Ill. order dated Aug. 31,2015).
admitted to committing certain acts on behalf of the gmg, including stealing a car to be used for
a drive-by shooting.
(Id.)He also gave agents information about various other gang members,
as
well as details of the gang's structure and operation. (Id.) At the end of the interview, he asked
"what he was going to get for his cooperation." (Id.at 545.) He was told that no promises could
be made to him at that time. (Id.) He then stated that he wanted to cooperate but
to speak with a lawyer."
(Id) Atthat point the interview
"felt he needed
was terminated.(Id.)
On October I l, 2005, a detention hearing was held, and Petitioner was ordered detained
pending trial. (R. 33, Stip. Facts !f 4.) In May 2006, the grand jury returned a second superseding
indictment charging sixteen defendants with various oflenses. (Id.n 6.) Petitioner was charged
solely under Count I, the racketeering conspiracy count. (/d.) Between the date of his arrest and
2007, Petitioner was represented by a succession of attorneys: John Meyer, Charles Aron, and
James Shapiro.
(1d.ffi3-12.) Petitioner testified that he had intended to plead guilty since the
date of his arrest, but admitted that he never asked Meyer, Aron, or Shapiro to try to negotiate a
plea agreement on his behalf. (R. 36, Evidentiary FIr'g Tr. at 14-15,62-63.)
Following the withdrawal of Shapiro in September 2007, the Court appointed Brindley to
represent Petitioner. (R. 33, Stip. Facts fl 12.) According to Petitioner, Brindley told him at their
first meeting: "[W]e're not negotiating, we're not pleading and we're not cooperating. Weore
going to trial." (R. 36, Evidentiary Hr'g Tr. at 17.) Notwithstanding Brindley's statement,
Petitioner felt that he could have asked Brindley for a plea agreement if he wanted to, but he
acknowledged that he did not do so at that time. (Id.) Eventually, Petitioner did make several
requests of Brindley to try to obtain a plea agreement. (Id. at 18.) Petitioner testified that
Brindley told him that a plea would not be in his best interests because o'the government would
probably offer me more than I would possibly get if I were to go to trial." (Id.)
However, Brindley did engage in plea negotiations with the government. (Id. at 73.) Pope
testified that he engaged in multiple plea discussions with Brindley between late October and
mid-November 2007 . (Id. at73,76.) Prior to beginning those discussions, Pope calculated the
advisory sentencing guidelines range for Petitioner based upon the allegations in the indictment.
(Id. at 74.) Because the racketeering conspiracy offense involved four murders, several affempted
murders, and other violent acts, Pope calculated an offense level of 43, which is "as high as you
can go." (Id.
at74,78.) Offense level43 carries a corresponding sentencing range of life
imprisonment, regardless of a defendant's criminal history category. (Id. at 75.) However,
because the racketeering conspiracy charge carried a statutory maximum sentence
of 20, that was
the maximum sentence that could be imposed. (Id.) Even though the statutory maximum was
capped at 20 years, the government's calculation of life was still relevant in Pope's view. (1d.)
The calculation would dictate what type of plea the government was willing to agree to, and
it
would also likely impact the Court at sentencing in terms of deciding whether a sentence at or
near the statutory maximum was appropriate. (Id. at 78.)
The 2O-year statutory maximum was the "main subject of discussion" between Pope and
Brindley during plea negotiations. (Id. at 75.) Pope testified that "the entire purpose" of the plea
negotiations was to try to "reach a plea agreement that would be less than the statutory mar
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