United States of America v. Hunter
Filing
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MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 10/5/2015: For the foregoing reasons, the Court overrules Hunter's second and third claims of ineffective assistance of counsel but grants an evidentiary hearing on his first claim. The Court will, by separate order, appoint counsel to represent Hunter on his remaining claim. See Rule 8(c), Rules Governing Section 2255 Proceedings. Mailed notice.(pjg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
vs.
CHRISTOPHER HUNTER
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)
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Case No. 15 C 250
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In December 2011, Christopher Hunter pled guilty to a charge of conspiracy to
possess heroin with intent to distribute in violation of 21 U.S.C. § 846, and in May 2012
the Court sentenced him to a twenty year prison term. On appeal, Hunter challenged this
Court's denial of his motion to suppress incriminating evidence obtained through Title III
wiretaps. The court of appeals dismissed his appeal because he had not properly
preserved the right to appeal when pleading guilty. United States v. Adams, 746 F.3d
734, 739 (7th Cir. 2014).
Hunter has filed a pro se motion under 28 U.S.C. § 2255. He contends that his
trial counsel rendered ineffective assistance by:
failing to preserve his right to appeal the denial of his motion to suppress;
failing to challenge the enhancement of his sentence under 21 U.S.C. § 851
and the Sentencing Guidelines' career offender provision; and
failing to inform the government that he wanted to cooperate with the
government.
For the reasons stated below, the Court overrules Hunter's second and third claims
and orders a hearing on the first.
Background
The charges against Hunter arose from his affiliation with a street gang that
distributed large amounts of heroin on the west side of Chicago. In 2009, the Drug
Enforcement Administration and Chicago Police Department launched an investigation
into the drug trafficking operation by conducting controlled purchases of heroin,
surveillance, interviews with informants and witnesses, and court-authorized wiretaps.
The investigation led to charges against fourteen members of the gang, including Hunter.
Hunter's role in the illegal operation involved mixing heroin with other substances to dilute
its potency and increase its quantity.
Following the return of the indictment, the government filed an information
pursuant to 21 U.S.C. § 851(a), describing two of Hunter's previous felony drug
convictions, to support enhanced punishment. The information referenced a 1993
conviction for possession of a controlled substance with intent to deliver on school
grounds or a public way, which resulted in a five years prison sentence, and a 1997
conviction of manufacture or delivery of cocaine, which resulted in a six year prison
sentence.
On March 17, 2011, Hunter filed a motion to suppress the fruits of the courtordered wiretaps. The Court denied the motion on September 15, 2011. On December
21, 2011, Hunter entered a plea of guilty to count one of the indictment, a charge of
conspiracy to possess heroin with intent to distribute, pursuant to a written "plea
declaration." The plea declaration stated, in three places, that Hunter was reserving the
right to appeal the denial of his motion to suppress. Plea Declaration, Case No. 10 CR
673-6, dkt. no. 461 at 1 ("Defendant leaves open certain non-factual, non-frivolous legal
arguments for sentencing"), 2 (defendant "expressly reserves his right to appeal this
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Court's ruling on his motion to suppress"), 8 ("Appellate rights. HUNTER further
understands that he is waiving all appellate issues that might have been available if he
had exercised his right to trial. HUNTER understands that he may appeal the validity of
this plea of guilty and the sentence imposed. Further, HUNTER, expressly reserves the
right to appeal the District Court's ruling on his motion to suppress.").
At the guilty plea hearing, however, neither the Court nor anyone else made any
mention of these terms in Hunter's plea declaration. Indeed, the Court made no
reference to Hunter's right to appeal, aside from advising Hunter that he would have the
right to appeal his sentence—a statement that Hunter might have interpreted as
reaffirming his right to appeal the wiretap ruling. See Case No. 10 CR 673-6, Dec. 21,
2011 Tr. at 20. The Court did not say or hint that Hunter would be giving up any aspect of
his right to appeal if he pled guilty. Nor did the Court or anyone else address the
proposition that by pleading guilty, Hunter would be waiving any non-jurisdictional issues
that arose prior to the plea.
In the government's sentencing memorandum, it argued that that Hunter's
involvement in the heroin conspiracy made him legally responsible for the ten to thirty
kilograms of heroin involved in the operation. The government also argued that Hunter
had knowledge that the members of the street gang used guns. The government also
sought to increase Hunter's punishment pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851,
based on his prior drug convictions in 1993 and 1997—though only one previous drug
conviction is needed to satisfy section 851. The government also argued that Hunter
qualified as a career offender under U.S.S.G. § 4B1.1 because of his two previous drug
offenses as well as his 1992 criminal sexual assault conviction—though U.S.S.G. § 4B1.1
requires only two prior convictions for controlled substance offenses or crimes of violence.
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Prior to sentencing, Hunter's counsel submitted a position paper in which he
argued that Hunter was responsible for one to three kilograms of heroin and that a firearm
enhancement under the Sentencing Guidelines should not be applied. Counsel also
argued that the records regarding Hunter's 1993 conviction did not show which of the four
counts charged in that case was the subject or Hunter's guilty plea, and he also noted
that and one of the charges, possession of narcotics within 1000 feet of a school, is no
longer a crime in Illinois. At the sentencing hearing, Hunter's counsel advised the Court
that Hunter believed the 1993 drug conviction was for simple possession. Id. at 2.
Neither defense counsel nor the government, however, obtained the court file, which
might have provided more detailed disposition information.
On May 16, 2012, this Court sentenced Hunter to the mandatory minimum term of
twenty years imprisonment. On appeal, Hunter's attorney challenged this Court's denial
of the motion to suppress the Title III wiretaps. As indicated earlier, the Seventh Circuit
dismissed Hunter's appeal. Adams, 746 F.3d at 739. The court concluded that Hunter's
attorney did not preserve the issue for appeal because he failed to get approval of a
conditional plea from the government and this Court as required by Federal Rule of
Criminal Procedure 11(a)(2). Id. During oral argument before the court of appeals,
"Hunter's attorney conceded the error and asserted that his failure to obtain the
government and district court's approval of the reservation could constitute ineffective
assistance of counsel." Id.
In his section 2255 motion, Hunter says that before he pled guilty, he told his
attorney that he wanted to "go all the way through the appeal stages with his suppression
hearing." Def.'s Sec. 2255 Mot. at 4. Hunter also says that "the only reason why [he]
pled guilty is because counsel would not pursue a trial on his behalf and because he felt
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counsel would pursue the suppression hearing through the appeal stages . . . ." Id.
Hunter says that if he knew "counsel was not going to preserve his appeal rights to the
suppression hearing, he would have told the judge . . . ." Id.
Hunter has moved the Court to vacate his conviction and permit him to withdraw
his guilty plea due to trial counsel's ineffective assistance.
Discussion
Section 2255 permits a defendant to move the trial court to vacate, set aside or
correct the sentence if it was "imposed in violation of the Constitution …." 28 U.S.C. §
2255(a). Hunter contends his counsel rendered ineffective assistance in violation of the
Sixth Amendment, which entitles a defendant to assistance by a "reasonably competent
attorney." Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
To sustain a claim of ineffective assistance of counsel, a defendant must show that
counsel's performance fell below an objective standard of reasonableness and that the
deficient performance prejudiced the defendant by depriving him of a fair proceeding.
Strickland, 466 U.S. at 687; United States v. Hall, 212 F.3d 1016, 1021 (7th Cir. 2000).
To show prejudice in a guilty plea context, the defendant must show that but for counsel's
error, he would not have pled guilty but instead would have gone to trial. Hill v. Lockhart,
474 U.S. 52, 59 (1985); Hutchings v. United States, 618 F.3d 693, 697 (7th Cir. 2010);
Moore v. Bryant, 348 F.3d 238 (7th Cir. 2003). On an ineffective assistance claim
regarding sentencing, the defendant must show a reasonable possibility that his sentence
would have been different but for counsel's deficient performance. See, e.g., Bailey v.
United States, 566 F. App'x 512, 514 (7th Cir. 2014).
Hunter seeks an evidentiary hearing on his claims. A court should grant an
evidentiary hearing on a section 2255 motion when the defendant's allegations, if proven,
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would entitle him to relief. Sandoval v. United States, 574 F.3d 847 (7th Cir. 2009). But
where the "motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief," no hearing is required. 28 U.S.C. §2255(b).
Hunter presents three claims of ineffective assistance of counsel. He claims that
counsel was ineffective due to his 1) failure to challenge the denial of Hunter's motion to
suppress the Title III wiretap evidence, 2) failure to challenge Hunter's section 851 and
career offender status, and 3) failure to inform the government that Hunter wanted to
cooperate. The Court will address the second and third claims first.
1.
Failure to challenge section 851 and career offender status
Hunter argues that his counsel was ineffective for failing to challenge the section
851 enhancement and his career offender status.
a.
Section 851 enhancement
Hunter pled guilty to a charge under 21 U.S.C. § 846 of conspiring to possess one
kilogram or more of heroin with intent to distribute. Section 846 provides that a person
convicted of conspiring to violate 21 U.S.C. § 841 is subject to the same penalties as a
person convicted of the underlying substantive offense. Under section 841, a person
convicted of possession with intent to deliver a kilogram or more of heroin is subject to a
minimum prison term of ten years and a maximum term of life imprisonment. 21 U.S.C. §
841(b)(1)(A). If, however, the person violates section 841 "after a prior conviction for a
felony drug offense has become final," then the minimum prison term is increased to
twenty years. Id.
Under 21 U.S.C. § 851, if the government intends to rely on a defendant's prior
convictions for enhanced punishment, it must file an information identifying the
convictions upon which it relies. 21 U.S.C. § 851(a). Section 851 sets out a procedure
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for a defendant to challenge the government's reliance on a prior conviction.
In November 2010, the government filed an information identifying two prior
convictions as qualifying Hunter for an enhanced sentence under section 851. The
information described the following convictions:
(i) On or about August 30, 1993, in the Circuit Court of Cook County,
Illinois, Docket # 93CR0784501, defendant CHRISTOPHER HUNTER
was convicted of possession of a controlled substance with intent to
deliver on school ground or public way, in violation of the Ill. Rev. Stat., ch.
56 ½, ¶ 1407(d), and sentenced to five years of incarceration.
(ii) On or about June 4, 1997, in the Circuit Court of Cook County, Illinois,
Docket # 97CR0946301, defendant CHRISTOPHER HUNTER was
convicted of manufacture/delivery of cocaine, in violation of the Ill. Rev.
Stat., ch. 56 ½, ¶ 1401(c), and sentenced to six years of incarceration.
Information, Case No. 10 CR 673-6, dkt. no. 220, at 1-2.
Hunter seems to say that both of these convictions were for possession-only drug
offenses, not distribution offenses. This does not matter for purposes of section 851.
Enhancement under sections 841(b)(1)(A) and 851 requires only that the prior conviction
was for a felony drug offense. The statutes do not require the prior offense to involve
distribution. A defendant convicted of a possession-only offense that is a felony (in other
words, an offense with a statutory maximum penalty of more than one year) is eligible for
the statutory enhancement. See, e.g., United States v. Jones, 559 F.3d 831, 837 (8th Cir.
2009); United States v. Brown, 383 F. App'x 543, 546 (7th Cir. 2010); Castle v. United
States, 994 F. Supp. 2d 754, 755 (W.D.N.C. 2014); Garcia v. United States, No. 1:10-cv387, 2013 WL 1703739, at *10 (S.D. Ind. Apr. 19, 2013). Thus trial counsel did not
perform deficiently in failing to challenge Hunter's section 851 status, nor was Hunter
prejudiced.
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b.
Career offender status
To qualify for career offender status under the Sentencing Guidelines, a defendant
must meet three criteria: 1) he must be at least eighteen years old at the time he
committed current offense; 2) the current offense must be a felony involving violence or a
controlled substance offense; and (3) he must have at least two prior felony convictions
for a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). In
contrast to section 851, a conviction for simple possession of a controlled substance does
not qualify a defendant for career offender status, due to the way "controlled substance
offense" is defined in U.S.S.G. § 4B1.2(b). See Salinas v. United States, 547 U.S. 188,
188 (2006) (per curiam); United States v. Atkinson, 979 F.2d 1219, 1222 (7th Cir. 1992).
Hunter had three prior convictions that qualified under the career offender
guideline: a 1990 conviction for criminal sexual assault, and the 1993 and 1997
controlled substance offenses described earlier. Hunter does not dispute that his 1990
conviction was a crime of violence within the meaning of the career offender guideline.
He contends, however, that both of the narcotics offenses were possession-only offenses
and thus did not qualify. He argues that his counsel rendered ineffective assistance in
failing to challenge application of the career offender guideline.
Hunter's trial counsel did, in fact, argue that the 1993 crime was for simple
possession and thus did not qualify under U.S.S.G. § 4B1.2(b). See Def.'s Position
Paper as to Sentencing Factors, Case No. 10 CR 673-6, dkt. no. 630 at 3-4. The
government, however, did not rely on that conviction in its position paper; rather, it relied
on the 1990 sexual assault conviction and the 1997 narcotics conviction. See Gov't's
Sentencing Mem., Case No. 10 CR 673-6, dkt. no. 660 at 9-10. The Court did the same
in finding that Hunter was a career offender.
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Hunter offers nothing other than his own say-so to support his contention that the
1997 conviction was for simple possession. The only evidence in the record is to the
contrary. In the presentence report, the probation officer described the conviction as one
for delivery of a controlled substance. See Presentence Report, Case No. 10 CR 673-6,
dkt. no. 553 at 15. Hunter's unsupported contention is insufficient to show otherwise.
In any event, application of the career offender guideline had no impact on
Hunter's sentence. The mandatory minimum sentence for Hunter's crime was twenty
years imprisonment, due to the section 851 enhancement. The Court imposed a twenty
year sentence, and the law did not permit a lower sentence. Thus Hunter's career
offender status under the Sentencing Guidelines did not affect his sentence. For this
reason, even if counsel performed deficiently in failing to challenge the use of the 1997
narcotics conviction, Hunter was not prejudiced.
For these reasons, the Court overrules Hunter's second ineffective assistance
claim.
2.
Failure to inform government about desire to cooperate
Hunter claims that he wanted to cooperate with the government but his attorney
refused to allow him to do so. Def.'s Section 2255 Mot. at 5. Hunter has provided no
support for this contention. In addition, during Hunter's guilty plea colloquy, the Court
asked if he had any problems with the quality of his legal counsel. Hunter replied, "[w]ell,
he did everything he could for me in this case…." Case No. 10 CR 673-6, dkt. no. 806,
Dec. 21, 2011 Tr. at 10. Hunter's current claim that counsel refused to let him cooperate
contradicts his sworn statement during the plea colloquy. A defendant is bound by the
representations he makes in court under oath during the plea colloquy unless he has a
compelling explanation for contradiction. See Thomson v. United States, 732 F.3d 826,
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829-30 (7th Cir. 2013) ("[A] [§ 2255] motion that can succeed only if the defendant
committed perjury at the plea proceedings may be rejected out of hand unless the
defendant has a compelling explanation for the contradiction."); Hutchings, 618 F.3d at
699. Hunter has not offered any viable basis to disregard his statement at the plea
colloquy.
In addition, Hunter has offered no evidence that counsel's alleged failure to allow
him to cooperate prejudiced him. Specifically, Hunter offers nothing that would suggest
that he had information the government might have found valuable in a way that would
have enabled him to get a better deal or a lesser sentence.
For these reasons, the Court overrules Hunter's third ineffective assistance claim.
3.
Guilty plea and appeal from denial of motion to suppress
Hunter's counsel attempted to challenge on appeal this Court's denial of Hunter's
motion to suppress, but the court of appeals dismissed the appeal. The court of appeals
determined that Hunter had pled guilty unconditionally and that this waived any nonjurisdictional defects that occurred prior to the guilty plea. The court further concluded
that Hunter's reservation in the plea declaration of his right to appeal was ineffective
because a conditional guilty plea requires the consent of both the government and the
trial court. Adams, 746 F.3d at 739.
Hunter says that he intended to preserve his right to appeal, made this clear to
counsel, and understood that counsel had done what was necessary to accomplish this.
Because Hunter is proceeding pro se, the Court reads his section 2255 motion as
challenging counsel's failure to do what was necessary to preserve the point for appeal
and his failure to inform Hunter that, due to the nature of his guilty plea, he would not be
able to challenge the denial of the motion to suppress on appeal.
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Hunter has sufficiently alleged that he did not understand that by pleading guilty,
he would waive his right to challenge the denial of the motion to suppress. It is likely that
counsel did not understand this either. Counsel almost certainly drafted the plea
declaration that Hunter signed, which stated, twice, that Hunter "expressly reserves his
right to appeal this Court’s ruling on his motion to suppress." Plea Declaration, Case No.
10 CR 673-6, dkt. no. 461 at 2; see also id. at 9. There could hardly be better evidence of
what counsel advised Hunter.
Counsel's advice, however, was wrong. The Court should have caught this at the
time of the guilty plea, but it failed to do so. Nor did the government make any mention of
it at the plea hearing. Cf. Moore v. Bryant, 348 F.3d 238, 243 (7th Cir. 2003) (plea
colloquy insufficient to undermine claim of ineffective assistance where the colloquy did
not address the point on which counsel's advice was deficient). As a result, Hunter
almost certainly entered his guilty plea believing that he would be able to appeal the
denial of his motion to suppress evidence.
The government argues that the Court ruled correctly in denying Hunter's motion to
suppress, but that is beside the point. The issue for present purposes is whether Hunter
has shown that but for counsel's allegedly improper advice, he would have gone to trial.
See Hill, 472 U.S. at 59. Hunter's statements to this effect in his section 2255 motion,
combined with the overwhelming evidence that counsel gave him bad advice regarding
the consequences of a plea, are sufficient to entitle him to an evidentiary hearing. See
Hutchings, 618 F.3d at 697 ("subjective" evidence consisting of defendant's statement
that he would have gone to trial, plus "objective" evidence of counsel's bad advice
regarding consequences of guilty plea, constitutes sufficient evidence of prejudice).
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Conclusion
For the foregoing reasons, the Court overrules Hunter's second and third claims of
ineffective assistance of counsel but grants an evidentiary hearing on his first claim. The
Court will, by separate order, appoint counsel to represent Hunter on his remaining claim.
See Rule 8(c), Rules Governing Section 2255 Proceedings.
Date: October 5, 2015
_________________________________
MATTHEW F. KENNELLY
United States District Judge
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