United States of America v. Waltower
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 10/7/2013. Mailed notice (mgh, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
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v.
STEPHEN T. WALTOWER,
Case No. 12-cv-7926
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
Before the Court is pro se petitioner Stephen T. Waltower’s motion to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies
Waltower’s Section 2255 motion and declines to certify any issues for appeal pursuant to 28
U.S.C. § 2253(c)(2).
Background
On September 7, 2007, Chicago police officers executed a search warrant at the
apartment of Kimesia Gooden, petitioner Stephen Waltower’s then-girlfriend. Waltower also
lived in the apartment. Waltower was not present during the search, but Ms. Gooden was on the
porch when the police arrived. Police Officer Chad Bauman searched the bedroom and recovered
the following items: a loaded Glock Model 19, 9-millimeter caliber semi-automatic pistol, serial
number GHP 572, with nine rounds of 9-millimeter caliber bullets that was manufactured outside
of the State of Illinois that was found under the mattress; 222 plastic baggies containing a total of
48.78 grams of cocaine base in the form of crack cocaine that were found in a male’s athletic
shoe and in the pockets of a jacket in the closet; 37 rounds of various types of ammunition were
found in a small bag in the closet; a “drug ledger” and 11 documents and pieces of mail with
Waltower’s name were found on the dresser; and a scale and grinder that were found inside a
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dresser drawer. Sergeant John Lucid, who also participated in the search of the bedroom found
$640 in United States currency in the pocket of a jacket.
Waltower did not return to the residence after the search, which he learned about from
Ms. Gooden. Ms. Gooden testified that she told Waltower that the police had found his gun. She
also testified that during a later conversation with Waltower about the search, he asked her to tell
the police that the gun was hers because of her lack of criminal history and that Waltower would
take responsibility for the drugs.
Police arrested Waltower on unrelated charges approximately one month after the search.
Officers Bauman and Greenwood interviewed Waltower about the items recovered by the police
in the search. Officer Greenwood advised Waltower of his Miranda rights and testified that
Waltower voluntarily spoke with the officers. When Officer Greenwood asked Waltower about
the gun, he told the officer that he purchased the gun for $300 or $400 from someone named Jeff,
who also went by “Joe” and resided in the 600 block of North Lawler in Chicago. Waltower also
claimed that he was holding the drugs that the police recovered for someone else.
A federal grand jury returned a three-count indictment followed by a superseding
indictment charging Waltower with possession with intent to distribute 50 grams or more of
cocaine base in the form of crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count I);
possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A) (Count II); and being a felon in possession of a firearm in violation of U.S.C. §
922(g)(1) (Count III).
On April 16, 2008, Waltower moved to suppress items recovered by the Chicago Police
Department in the search of an apartment, pursuant to a warrant, arguing that the warrant was not
supported by probable cause. The district court denied Waltower’s suppression motion on June
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1, 2009. Waltower proceeded to trial on the charges in the second superseding indictment:
conspiracy to possess with intent to distribute and to distribute 5 grams or more of cocaine base
in the form of crack cocaine and a detectable amount of heroin in violation of 21 U.S.C. § 846
(Count I); possession with intent to distribute 5 grams or more of cocaine base in the form of
crack cocaine in violation of 21 U.S.C. § 841(a)(1) (Count II); possession of a firearm in
furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count III); and
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count IV). On
June 10, 2009, the jury found Waltower guilty of Count Four (felon in possession) and acquitted
him of the remaining counts.
In preparation for sentencing, the United States Probation Office (“USPO”) submitted a
Presentence Investigation Report (PSR). After sentencing the USPO prepared a corrected PSR to
reflect a correction to Waltower’s criminal history category calculation. Relying on the
November 2008 Guidelines Manual, the USPO calculated Waltower’s adjusted offense level as
30 and his criminal history category as III. Based on the calculations, the advisory Guidelines
range was 121 to 151 months’ imprisonment. However, because the statutory-maximum
sentence for the offense of conviction was 10 years, pursuant to 18 U.S.C. § 924(a)(2), the USPO
determined that the advisory Guidelines range was limited to 120 months.
On November 8, 2009, Waltower’s counsel filed a sentencing memorandum in which he
challenged, among other things, the USPO’s four-level enhancement under Guideline §
2K2.1(b)(6) for possessing a firearm in connection with another felony offense, arguing that
Waltower was acquitted of the narcotics-related offenses, and that the testimony of Ms. Gooden
regarding petitioner’s drug trafficking should not be credited by the district court. The
memorandum also contained arguments for a sentence five years below the maximum ten years’
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imprisonment based on: (1) his period of incarceration for four months when he faced identical
charges by the State; (2) his conduct while on home confinement; (3) his request that his bond be
revoked before his sentencing date so that he could begin serving his term of incarceration; (4)
his lifelong struggle with substance abuse; (5) his upbringing surrounded by gangs and drugs;
and (6) his rapport with defense counsel.
On November 12, 2009, the district court held a sentencing hearing. Waltower’s counsel
reiterated his challenge to the four-level enhancement under § 2K2.1(b)(6). The court rejected
the argument and adopted the USPO’s calculations, finding that Waltower’s advisory range was
121 to 151 months, limited by statute to 120 months. The court sentenced Waltower to 120
months’ imprisonment. Waltower appealed his sentence, arguing that the district court erred in
relying on acquitted conduct to calculate his guideline range and imposing his sentence.
Waltower also argued that his trial counsel should have moved to suppress his post-arrest
statements and the district court should not have admitted the statements. The Seventh Circuit
Court of Appeals affirmed his conviction in U.S. v. Waltower, 643 F.3d 572 (7th Cir. 2011), but
left Waltower’s argument regarding the post-arrest statements for collateral review.
In his pro se Petition to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody, pursuant to 28 U.S.C. § 2255, Waltower makes three arguments for relief from his
sentence: (1) he claims his trial counsel was ineffective for failing to move to suppress
Waltower’s post-arrest statements to Chicago police officers regarding the gun and narcotics
retrieved in the search; (2) he claims his trial counsel was ineffective because he did not argue
the factors that would allow the court to sentence him below the guideline; and (3) he claims that
the district court improperly relied on acquitted conduct in calculating his sentencing range.
Legal Standard
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“[R]elief under § 2255 is an extraordinary remedy because it asks the district court
essentially 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); see also Bousley v.
United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Section 2255 relief
“is available only when the ‘sentence was imposed in violation of the Constitution or laws of the
United States,’ the court lacked jurisdiction, the sentence was greater than the maximum
authorized by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545
F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255).
Discussion
This Court will first address Waltower’s ineffective assistance of trial counsel claims. To
prevail, Waltower must demonstrate that his that (1) his trial attorney’s performance “fell below
an objective standard of reasonableness,” and (2) “but for counsel’s unprofessional errors the
result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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.” Yu Tian Li v. United States, 648
F.3d 524, 527-28 (7th Cir. 2011). To establish prejudice, Waltower must show that his trial
counsel’s errors were “so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Morgan v. Hardy, 662 F.3d 790, 802 (7th Cir. 2011) (quoting Strickland, 466 U.S. at
687, 693).
Waltower first argues that his trial counsel was ineffective for failing to move to suppress
his post-arrest statements to police officers regarding the gun and the drugs recovered in the
search of the apartment he shared with Ms. Gooden. Although his trial counsel did not file a
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motion to suppress, he did request leave of court to file such a motion in addition to a motion to
suppress the items recovered in the search. Ultimately, trial counsel must have changed his
strategy because he did not file a motion to suppress the statements despite filing a motion to
suppress the items in the search. The record demonstrates that Officer Greenwood, who
interviewed Waltower following his arrest, testified that he administered Miranda warnings and
that Waltower indicated he understood his rights and voluntarily spoke with him and Officer
Bauman. The trial record also indicates that Waltower’s counsel vigorously and extensively
cross-examined Officer Greenwood about the interview, the voluntariness of the statements, and
whether he did in fact give Waltower Miranda warnings. It is therefore likely that the trial court
would have denied a motion to suppress the statements had one been filed. Waltower provides no
basis in his argument for the suppression of the statements. The likelihood of prevailing on a
motion is directly relevant to the question of whether the failure to make the motion constitutes
ineffective assistance of counsel. United States v. Madewell, 917 F.2d 301, 304 (7th Cir. 1990).
This Court therefore finds that the record shows trial counsel did not act unreasonably by opting
to challenge Officer Greenwood’s post-arrest interview with Waltower through crossexamination rather than a motion to suppress that likely would have failed.
Next, Waltower argues that his trial counsel was ineffective for failing to argue the 18
U.S.C. § 3553(a) factors at sentencing. This argument however is contradicted by the record.
Counsel filed a sentencing memorandum in which he challenged the PSR and devoted most of
the memorandum to Waltower’s personal characteristics and history that counsel believed
warranted a sentence well below the guideline range. The memorandum specifically addresses
Waltower’s lifelong battle with substance abuse, his difficult upbringing surrounded by gangs
and drugs, his personal rapport with counsel, and his cooperative behavior while on home
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confinement. Therefore, the record conclusively demonstrates that counsel did what Waltower
claims he failed to do and this basis for relief fails. See Humphrey v. United States, 896 F.2d
1066, 1070 (7th Cir. 1990).
Waltower’s third argument for relief is that the district court improperly relied on conduct
for which he was acquitted when calculating the guidelines range and imposing his sentence.
This issue was already addressed on direct appeal and rejected by the Seventh Circuit. A
Section 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a
defendant may appeal the same claims a second time. See Bousley, 523 U.S. at 621 (relief
under 2255 “will not be allowed to do service for an appeal”); Varela v. United States, 481 F.3d
932, 935 (7th Cir. 2007) (A section 2255 motion is “neither a recapitulation of nor a substitute
for a direct appeal.”). Moreover, the United States Supreme Court has held that a sentencing
court may consider conduct for which a defendant has been acquitted, as long as the court finds
that conduct was proved by a preponderance of the evidence. United States v. Watts, 519 U.S.
148, 152-55, 136 L. Ed. 2d 554, 117 S. Ct. 633 (1997). The Seventh Circuit has repeatedly held
that Watts remains good law after United States v. Booker, 543 U.S. 220, 160 L. Ed. 2d 621, 125
S. Ct. 738 (2005). Waltower, 643 F.3d at 576; United States v. Hurn, 496 F.3d 784, 788 (7th Cir.
2007); United States v. Horne, 474 F.3d 1004, 1006 (7th Cir. 2007).
Because the motion, files, and records of this case conclusively establish that Waltower is
not entitled to any relief under Section 2255, the Court need not hold an evidentiary hearing
under the circumstances. See Yu Tian Li, 648 F.3d at 532; Koons v. United States, 639 F.3d 348,
354-55 (7th Cir. 2011); 28 U.S.C. § 2255(b).
Under 28 U.S.C. § 2253(c)(2), a petitioner must request a certificate of appealability
because he does not have the absolute right to appeal a district court’s denial of
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his Section 2255 motion. See Miller-El v. Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003). A petitioner is entitled to a certificate of appealability only if he can make a
substantial showing of the denial of a constitutional right. See id. at 336. In order to make such a
showing, Waltower must demonstrate that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Id. at 336 (quoting Slack
v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Waltower fails to
show that reasonable jurists would debate that his petition should be resolved differently.
Accordingly, this Court declines to certify any issues for appeal.
CONCLUSION
For the reasons stated herein, this Court denies Waltower’s Motion to Vacate, Set Aside,
or Correct his Sentence pursuant to 28 U.S.C. § 2255 and declines to certify any issues for appeal
pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
Date: October 7, 2013
Entered: _______________________________
U.S. District Judge
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