United States of America v. White et al

Filing 12

MEMORANDUM Opinion and Order. Signed by the Honorable Harry D. Leinenweber on 6/18/2015. Mailed notice (rp, )

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

DWAYNE WHITE,
Petitioner,

Case No. 14 C 2453

v.
Judge Harry D. Leinenweber
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
For

the

reasons

stated

herein,

Petitioner

Dwayne

White’s

(“White”) Motion to Vacate, Set Aside, or Correct Sentence [ECF
No. 1], and Motion for Default Judgment [ECF No. 6] are denied.
I.

BACKGROUND

On September 8, 2009, White was charged in an indictment with
four

offenses:

distribute

five

(1)

conspiracy

kilograms

or

more

to

possess

with

intent

to

of

cocaine

(Count

One);

(2)

attempted possession with intent to distribute five kilograms or
more

of

cocaine

(Count

Two);

(3)

possession

of

a

firearm

in

furtherance of a drug offense (Count Three); and (4) possession of
a firearm after having been convicted of a felony (Count Seven).
(No. 9 CR 687, ECF No. 18.)

The facts of this case are summarized

in United States v. Mayfield, 771 F.3d 417 (7th Cir. 2014), and
briefly restated here.

This case arises from a Bureau of Alcohol, Tobacco, Firearms
and Explosives (“ATF”) sting operation in which White and his coconspirators — Leslie Mayfield, Montreece Kindle, and Nathan Ward
— planned and ultimately convened to carry out what they believed
to be a stash house robbery.

Mayfield, who had been recruited by

a confidential informant (“CI”), Jeffrey Potts, was to assemble a
crew, gather weapons, and help a disgruntled drug courier carry
out the robbery.

The drug courier was actually an undercover

special agent, Dave Gomez.
According to the evidence presented at trial, on August 9,
2009,

Mayfield,

Kindle,

York”

met

Gomez

present.
how

the

with

Ward,

to

and

discuss

an
the

individual

known

as

“New

robbery.

White

was

not

Mayfield and the other men discussed the logistics of
robbery

would

be

carried

out

and,

at

the

end

of

the

conversation, indicated that the robbery was not too much for them
to handle.

The robbery was scheduled for the following day.

On August 10, 2009, White

appeared

in

a

brown

van

—

along

with Mayfield, Kindle, and Ward — at an Aurora, Illinois parking
lot where Gomez was waiting in another vehicle.

Mayfield got into

Gomez’s vehicle, and Gomez led the crew to a storage facility.
When the men exited their vehicles at the storage facility, Gomez
noticed White, who had not attended the previous day’s meeting.
Both White and Mayfield indicated that White was Mayfield’s little
brother.

White affirmed that he knew about the details of the

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robbery,

and

committed
details

to

Mayfield
the

indicated

plan.

of

the
and

that

better.

White

Nevertheless,

robbery

understood,

that

with

the

White.

more

was

Gomez
White

information

“100

went

percent”

through

indicated

Gomez

that

provided,

the
he
the

White also asked Gomez how many guns would be in the

stash house.
After

confirming

that

all

the

men

were

“good”

for

the

robbery, Gomez gave the arrest signal, and White and the other
crew members were taken into custody.
Kindle,

and

Ward

traveled

to

the

The van in which White,

storage

facility

contained

weapons, bullet-proof vests, latex gloves, and a large duffle bag.
An agent recovered a black ski mask from White’s pocket. White
informed the agent that he was lucky that he had not been caught
with the “work,” meaning the narcotics.
Before trial, the Government presented a motion in limine to
preclude Defendants from presenting an entrapment defense. Only
Mayfield filed a response, accompanied by a six-page, handwritten
“statement

of

fact.”

(No.

9

CR

687,

ECF

No.

69.)

The

Court

granted the Government’s Motion over Mayfield’s objection, (No. 9
CR 687, ECF No. 95), and subsequently denied Mayfield’s Motion for
Reconsideration.
After a one-week trial, a jury found White guilty on all four
counts of the indictment.
his

co-defendants

(No. 9 CR 687, ECF No. 186.)

appealed

their

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convictions,

White and

challenging

the

sufficiency of the evidence presented against them.

See, United

States v. Kindle, 698 F.3d 401, 405–08 (2012), vacated in part on
reh’g en banc sub nom., Mayfield, 771 F.3d 417.

Mayfield also

appealed the Court’s decision to grant the Government’s Motion in
limine precluding his entrapment defense.
Seventh Circuit affirmed the convictions.

Id. at 408–09.

The

Id. at 412.

Mayfield subsequently petitioned for rehearing en banc solely
on

the

issue

Seventh

of

Circuit

the

entrapment

vacated

its

defense.

decision

on

Upon

rehearing,

Mayfield’s

the

entrapment

defense, holding that Mayfield’s pre-trial proffer was sufficient
to overcome the Government’s Motion in limine. Mayfield, 771 F.3d
at 443.
panel

The Seventh Circuit indicated that it was reinstating the

opinion

to

the

extent

Mayfield’s co-defendants.

that

it

resolved

the

appeals

of

Id. at 424 n.3.

II.

LEGAL STANDARD

Under 28 U.S.C. § 2255(a), a federal prisoner “may move the
court which imposed the sentence to vacate, set aside, or correct
the

sentence”

on

the

basis

that

the

sentence

was

imposed

in

violation of the Constitution or laws of the United States. To
receive relief under § 2255, a prisoner must show a “fundamental
defect

which

justice.”

inherently

results

in

a

complete

miscarriage

of

United States v. Addonizio, 442 U.S. 178, 185 (1979)

(citation and internal quotations omitted). Alternatively, relief
may be granted if a prisoner can show the trial court made “an

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omission

inconsistent

with

the

rudimentary

demands

of

fair

procedure.”

Hill v. United States, 368 U.S. 424, 428 (1962).

Relief

§

under

petitioner

2255

“already

is

an

has

“extraordinary

had

an

remedy”

opportunity

for

because

full

the

process.”

Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
III.
A.
White
December 2,

filed

Motion for Default Judgment

his

2014,

§

the

2255

Court

went,

White

moved

for

Motion
ordered

response by January 19, 2015.
and

ANALYSIS

on
the

April

4,

2014.

Government

to

file

On
a

A month after that deadline came

default

judgment.

The

Government

promptly filed an appearance with the Court and, on May 4, 2015,
filed its response.
Although the Court may enter a default judgment against a
party that fails to respond after notice in a civil case, see, FED.
R. CIV. P. 55, “default judgment, without full inquiry into the
facts, is especially rare when entered against a custodian in a
habeas corpus proceeding,”
Cir. 1981).

Ruiz v. Cady, 660 F.2d 337, 340 (7th

As this Court previously noted, courts are reluctant

to grant a default judgment on a § 2255 motion because doing so
would

cause

the

public

to

bear

“either

the

risk

of

releasing

prisoners that were duly convicted or the costly and difficult
process of retrying them.”

Shell v. United States, No. 03 C 3182,

2004 WL 1899013, at *2 (N.D. Ill. Aug. 16, 2004) (citing Ruiz, 660

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F.2d at 340), aff’d, 448 F.3d 951 (7th Cir. 2006).

Such sanctions

are disproportionate to “the wrong of a tardy response.”

United

States v. Larsen, No. 04-CR-29, 2012 WL 2675014, at *1 (E.D. Wis.
July 5, 2012) (citation omitted).

Accordingly, a default judgment

should only be entered on a § 2255 motion where the Government’s
delay has been extreme.

Id. (citing Ruiz, 660 F.2d at 341).

Even

where the delay approaches the tipping point, courts should still
decide

the

motion

on

the

merits

if

possible

because

“if

the

petition has no merit[,] the delay in disposing of it will in the
usual case have caused no prejudice to the petitioner.”

Bleitner

v. Welborn, 15 F.3d 652, 653 (7th Cir. 1994).
The Government’s delay in this case is not so extreme as to
warrant

a

default

judgment.

Moreover,

because

the

Government

filed a response less than four months after the Court-imposed
deadline, the claimed grounds for default have been eliminated,
and the Court may decide the motion on the merits.

See, United

States v. Messino, No. 97 C 2767, 1998 WL 729557, at *1 (N.D. Ill.
Oct. 15, 1998).

White’s Motion for Default Judgment is therefore

denied.
B.
White
because

he

Ineffective Assistance of Counsel Claim

claims

that

received

he

is

entitled

ineffective

to

assistance

relief
of

under

counsel.

§

2255
White

argues that his trial counsel was ineffective in failing to (1)
call additional alibi witnesses, (2) adequately communicate with

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him, and (3) challenge the sufficiency of the evidence against
him.

Related

to

this

third

argument,

White

contends

evidence of his guilt was presented at trial.

that

no

White also argues

that his appellate counsel was ineffective in failing to present
an entrapment defense.
To prevail on a claim for ineffective assistance of counsel,
a

petitioner

deficient,

must

show

meaning

that:

it

fell

“(1)
below

counsel’s

an

performance

‘objective

standard

was
of

reasonableness’ informed by ‘prevailing professional norms’, and
(2)

counsel’s

meaning

that

counsel’s

deficient
there

is

performance
a

unprofessional

‘reasonable
errors,

would have been different.’”

the

prejudiced

the

probability
result

of

petitioner,

that,
the

but

for

proceeding

Smith v. Brown, 764 F.3d 790, 795

(7th Cir. 2014) (quoting Strickland v. Washington, 466 U.S. 668,
687–88 (1984)).
is

highly

The Court’s review of an attorney’s performance

deferential,

and

a

defendant

“must

overcome

the

presumption that, under the circumstances, the challenged action
might

be

considered

sound

trial

strategy.”

Koons

v.

United

States, 639 F.3d 348, 351 (7th Cir. 2011) (citation and internal
quotations omitted).
1.

Alibi Witnesses

White first argues that his trial counsel was ineffective in
failing

to

call

certain

alibi

witnesses

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who

were

not

family

members.

White does not indicate who the witnesses are or what

testimony they would provide.
“[A] lawyer’s decision to call or not to call a witness is a
strategic

decision

generally

not

subject

to

review.

The

Constitution does not oblige counsel to present each and every
witness that is suggested to him.”

United States v. Best, 426

F.3d 937, 945 (7th Cir. 2005) (quoting United States v. Williams,
106

F.3d

1362,

1367

(7th

Cir.

1997))

(internal

quotations

omitted).

Here, where there was no question that White showed up

in

with

Aurora

Mayfield,

Ward,

and

Kindle

on

the

day

of

the

robbery, counsel’s decision not to call alibi witnesses was sound
trial

strategy.

testimony

of

Moreover,

certain

White’s

unidentified

speculation

witnesses

is

regarding
insufficient

the
to

establish prejudice — that is, the “reasonable probability that,
but

for

counsel’s

unprofessional

errors,

proceeding would have been different.”

the

result

of

the

Strickland, 466 U.S. at

687–88; see also, United States v. Asubonteng, 895 F.2d 424, 429
(7th Cir. 1990) (explaining that conclusory allegations do not
satisfy Strickland’s prejudice component).

The Court therefore

rejects White’s claim that his counsel was ineffective in failing
to call certain witnesses.
2.

Attorney Communication

White next argues that had there been adequate communication
with his attorney during trial, “counsel would have known there

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was no evidence against the petitioner.”
at 5.)

(White Mem., ECF No. 3,

Again, the Court finds White’s non-specific, conclusory

allegations insufficient to establish prejudice under Strickland.
See, Asubonteng, 895 F.2d at 429.

As explained in more detail

below, and as the Seventh Circuit affirmed, the evidence presented
against White was sufficient to support his conviction.

The Court

therefore rejects White’s claim that attorney-client communication
was inadequate.
3.
White

argues

Sufficiency of the Evidence

that

trial

counsel

failed

to

challenge

the

sufficiency of the evidence and, relatedly, maintains that there
is no proof of guilt against him.

White contends that he was not

aware of what was taking place on August 10, 2009, in part because
Gomez used language designed to cause confusion.

The Government

responds that White’s trial counsel did challenge the sufficiency
of the evidence on various grounds.

For instance, counsel argued

that that White had not joined in the drug trafficking conspiracy
because White was not a party to any of the conversations or
meetings that took place prior to August 10, 2009.

Counsel also

emphasized that there was no evidence from any of the recorded
conversations admitted into evidence in which White talked about
robbing a stash house or selling or distributing cocaine.
The Government also contends that there was ample evidence
supporting

White’s

conviction,

such

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as

White’s

agreement

to

participate

in

the

robbery

after

Gomez

provided

a

detailed

explanation of the plan and the ski mask found on White’s person.
In light of this evidence, the Government argues that it would
have been objectively unreasonable to argue that there was “no
evidence” of White’s guilt.

Ultimately, the Seventh Circuit found

the evidence against White sufficient to support his conviction on
all four counts.

See, Kindle, 698 F.3d at 407.

Circuit’s

decision,

the

Court

agrees

declining

to

that

there

was

argue

with

“no

Given the Seventh

the

Government

evidence”

against

that
White

represented sound trial strategy.
Because

the

record

documents

trial

counsel’s

efforts

to

challenge the sufficiency of the evidence against White, the Court
cannot

accept

Moreover,

to

White’s
the

argument

extent

sufficiency

of

the

ineffective

assistance

that

evidence
of

that
White
against

counsel

counsel
seeks

failed
to

him,

claim,

the

to

do

so.

re-litigate

the

separate
Court

from
notes

his
that

“[i]ssues that were raised and resolved on direct appeal may not
be reconsidered on a § 2255 motion unless the law has changed or
new facts have come to light.”

United States v. Hamilton, No. 09

C 654, 2010 WL 1656850, at *2 (N.D. Ill. Apr. 21, 2010).

Because

the sufficiency of the evidence against White has already been
raised and resolved on direct appeal, and White has presented no
reason to disturb the Seventh Circuit’s ruling, the Court rejects
White’s insufficient evidence claim.

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4.

Entrapment Defense

White next argues that his appellate counsel was ineffective
in

failing

entrapment

to

pursue

defense,

a

an

entrapment

defendant

must

defense.
show:

“To
(1)

raise

that

he

an
was

induced by a government actor to commit the crime at issue; and
(2) that he was not predisposed to commit that crime.” United
States v. Hall, 608 F.3d 340, 343 (7th Cir. 2010).
Circuit

recently

clarified

that

“inducement

The Seventh

means

government

solicitation of the crime plus some other government conduct that
creates a risk that a person who would not commit the crime if
left to his own devices will do so in response to the government’s
efforts.”

Mayfield,

771

F.3d

at

434–35.

In

determining

predisposition, the Court considers the following five factors:
(1) the defendant’s character or reputation; (2) whether
the
government
initially
suggested
the
criminal
activity; (3) whether the defendant engaged in the
criminal activity for profit; (4) whether the defendant
evidenced a reluctance to commit the offense that was
overcome by government persuasion; and (5) the nature of
the inducement or persuasion by the government.
United States v. Blassingame, 197 F.3d 271, 281 (7th Cir. 1999).
In the predisposition analysis, a defendant’s reluctance to commit
the crime “looms large.”
Unlike
proffer
preclude

in

Mayfield, 771 F.3d at 437.

Mayfield’s
response
Defendants

counsel,

to

the

from

White’s

trial

Government’s
raising

an

counsel

Motion

in

entrapment

made

no

limine

to

defense.

Accordingly, appellate counsel did not raise the issue on appeal.

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The Court must therefore determine whether trial counsel’s failure
respond

to

professional

the

Government’s

norms

and

Motion

resulted

in

in

limine

prejudice.

As

fell
the

below
Seventh

Circuit has emphasized, a defendant’s initial burden in defeating
a motion in limine to exclude evidence of entrapment is not great:
“the defendant must produce some evidence from which a reasonable
jury could find government inducement and lack of predisposition.”
Id. at 443.
White has not shown that his counsel lacked “sound reason” in
choosing not to present an entrapment defense.
the

factors

the

Court

uses

to

weigh against this strategy.

assess

Indeed, most of

predisposition

appear

to

First, as to White’s character or

reputation, the Government notes that White has a prior conviction
for possession of a controlled substance which occurred in 2006.
Second, the Government did not initially approach White about the
scheme — Mayfield did.
for profit.

Third, White participated in the scheme

As Gomez indicated, the 25 to 35 kilograms of cocaine

stored in the stash house would be split five ways, and that
everybody
evidence
robbery.

involved
that

was

White

“going

displayed

to
any

eat.”

Fourth,

reluctance

to

there

is

commit

no
the

Indeed, White listened as Gomez re-explained the plan,

approved of the additional information Gomez provided, and asked
how many guns would be in the stash house.

Finally, as to the

nature

there

of

the

Government’s

inducement,

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is

nothing

extraordinary about an invitation to enter the drug trade on the
“usual terms” — that is, to quickly acquire a large quantity of
drugs and resell them for a significant profit.
344.

Taken

decision

together,

not

to

these

pursue

an

factors

Hall, 608 F.3d at

suggest

entrapment

that

defense

counsel’s

represented

a

legitimate trial strategy.
The

facts

Mayfield’s.
contained

of

White’s

case

are

distinguishable

from

The Seventh Circuit found that Mayfield’s proffer
sufficient

predisposition.

evidence

of

both

inducement

and

As to inducement, the court observed that Potts,

the CI who initially recruited Mayfield,
targeted Mayfield at a moment of acute financial need
and against a backdrop of prolonged difficulty finding
permanent, family-supporting work, . . . appealed to
Mayfield’s friendship and camaraderie and to their
common struggle as convicted felons trying to make a
living, . . . gave Mayfield money in order to create a
debt that he knew Mayfield would be unable to repay and
then exploited that debt by alluding to his status as a
member of the Gangster Disciples, . . . [and] pestered
Mayfield over a substantial period of time.
United States v. Mayfield, 771 F.3d 417, 441 (7th Cir. 2014).
to

predisposition,

the

court

noted

that

Mayfield

As

repeatedly

rejected Potts’ entreaties, relenting only when Potts implied that
the Gangster Disciples might retaliate against him if he failed to
repay

his

debt.

Id.

at

442.

White

has

not

indicated

what

evidence, if any, could support the requisite inducement or lack
of

predisposition

necessary

to

support

an

entrapment

defense.

Without this information, the Court cannot conclude that counsel’s
- 13 -

failure respond to the Government’s Motion in limine fell below
professional norms.
in prejudice.
present
exploring

an

Nor can the Court conclude that it resulted

As the Government notes, counsel’s decision not to
entrapment

White’s

defense

previous

prevented

criminal

the

conduct.

Government

from

The

thus

Court

rejects this final basis for White’s ineffective assistance of
counsel claim as well.
IV.

CONCLUSION

For the reasons stated herein, White’s Motion for Default
Judgment [ECF No. 6] is denied.

Having found no grounds upon

which to grant White relief under § 2255, the Court also denies
his Motion to Vacate, Set Aside, or Correct his Sentence [ECF
No. 1].

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: June 18, 2015

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