United States of America v. Hinton

Filing 11

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 4/29/2015:Mailed notice(kef, )

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

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Case No. 15 C 0752

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On January 23, 2015, pro se Petitioner Jason Hinton filed the present motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the
Court denies Petitioner’s § 2255 motion and declines to certify any issues for appeal pursuant to
28 U.S.C. § 2253(c)(2).
PROCEDURAL BACKGROUND
On March 31, 2011, a grand jury returned a superseding indictment charging Petitioner
and his co-defendant with one count of knowingly and intentionally distributing 50 grams or
more of crack cocaine (Count One) and one count of conspiring to distribute and distributing 50
grams or more of crack cocaine (Count Two) in violation of 21 U.S.C. §§ 841(a)(1), 846. At his
jury trial, the majority of the evidence against Petitioner consisted of recorded telephone calls
between himself and a confidential informant. After a two day trial ending on April 3, 2012, the
jury returned a guilty verdict on both Counts One and Two of the superseding indictment finding
that Petitioner was responsible for distributing 50 grams or more of mixtures and substances
containing cocaine base as to both counts. On August 3, 2012, the Court sentenced Petitioner to

a total term of 132 months in prison.
On August, 14, 2012, Petitioner filed a timely notice of appeal. On appeal, Petitioner
argued that the Court erred when it denied his motion to produce the confidential informant and
that his 132 month sentence was manifestly unreasonable. On October 23, 2013, the United
States Court of Appeals for the Seventh Circuit rejected Petitioner’s arguments and affirmed
Petitioner’s conviction and sentence. See United States v. Hinton, 535 Fed. Appx. 528 (7th Cir.
2013) (unpublished). Petitioner filed the present motion pursuant to § 2255 on January 23, 2015.
Construing his pro se § 2255 motion liberally, see Ambrose v. Roeckeman, 749 F.3d 615, 618
(7th Cir. 2014), Petitioner maintains that his trial counsel was constitutionally ineffective in
violation of the Sixth Amendment. Petitioner also brings claims that are either procedurally
defaulted or claims that he already appealed to the Seventh Circuit, as addressed in detail below.
LEGAL STANDARD
“Relief under [§ 2255] is available only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a fundamental defect has occurred which
results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7th
Cir. 2013). In other words, under § 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). Accordingly, a § 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 v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)

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(relief under 2255 “will not be allowed to do service for an appeal”); United States v. Fleming,
676 F.3d 621, 625 (7th Cir. 2012) (“A § 2255 petition is ‘not a substitute for a direct appeal.’”)
(citation omitted). If a Section 2255 petitioner does not raise a claim on direct appeal, that claim
is barred from the court’s collateral review unless the petitioner can demonstrate cause for the
procedural default and actual prejudice from the failure to appeal, see Sandoval v. United States,
574 F.3d 847, 850-51 (7th Cir. 2009), or that enforcing the procedural default would lead to a
“fundamental miscarriage of justice.” Fleming, 676 F.3d at 625. Nevertheless, because claims
of ineffective assistance of counsel often involve evidence outside of the trial record, such claims
may be brought for the first time in a § 2255 motion. See Massaro v. United States, 538 U.S.
500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Flores, 739 F.3d 337, 341
(7th Cir. 2014).
ANALYSIS
I.

Ineffective Assistance of Trial Counsel Claims
Construing his pro se § 2255 petition liberally, Petitioner brings an ineffective assistance

of trial counsel claim. To establish constitutionally ineffective assistance of trial counsel,
Petitioner must show that (1) his trial attorney’s performance “fell below an objective standard
of reasonableness,” informed by “prevailing professional norms” 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). “To reflect the
wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, [the
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

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assistance.” Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014) (citation omitted). To
establish prejudice, it is not enough “to show that the errors had some conceivable effect on the
outcome of the proceeding,” instead trial counsel’s errors must be “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). If Petitioner fails to make a proper
showing under one of the Strickland prongs, the Court need not consider the other. See id. at
697 (“a court need not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant”); Groves, 755 F.3d at 591 (If petitioner “is unable to
make a sufficient showing of one of the Strickland prongs, we need not consider the other.”).
A.

Motion to Produce the Confidential Informant

First, Petitioner bases his ineffective assistance of trial counsel claim on counsel’s failure
to file a separate motion to produce the confidential informant instead of merely joining codefendant’s deficient motion. It is well-established that the government has a limited privilege
to withhold the identity of a non-testifying confidential informant. See United States v.
McDowell, 687 F.3d 904, 911 (7th Cir. 2012) (citing Roviaro v. United States, 353 U.S. 53, 59,
77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). “This privilege gives way if the defendant proves that the
disclosure of the informant’s identity ‘is relevant and helpful’ to his defense ‘or is essential to a
fair determination of a cause.’” United States v. Harris, 531 F.3d 507, 514 (7th Cir. 2008)
(citation omitted).1

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Petitioner also argues that the limited privilege under Roviaro does not apply because
the paid confidential informant in this matter was a “de facto” police officer. Petitioner,
however, does not cite any case law or facts supporting his argument. See Ripberger v. Corizon,
Inc., 773 F.3d 871, 879 (7th Cir. 2014) (perfunctory and undeveloped arguments are waived). In
addition, the use of paid confidential informants is a common practice in law enforcement to aid
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Assuming counsel’s performance in failing to file a separate or supplemental motion to
produce the confidential informant was deficient, Petitioner has not established that counsel’s
performance was prejudicial because Petitioner knew the identity of the confidential informant,
as he admitted in his opening brief on appeal. Moreover, prior to trial, the government produced
photographs of the confidential informant, along with transcripts and recorded conversations
with the confidential informant’s voice. In the context of this evidence, the Court concluded that
Petitioner and his co-defendant knew the identity of the confidential informant. (R. 132,
7/18/12, Mem., Op, & Order, at 7-8.) Because Petitioner knew the identity of the confidential
informant, he was not prejudiced by counsel’s allegedly deficient performance in failing to file a
supplemental or separate motion to produce the confidential informant. See United States v.
Andrus, 775 F.2d 825, 842 (7th Cir. 1985); see also United States v. Seymour, 739 F.3d 923, 927
(6th Cir. 2014); United States v. Partyka, 544 F.2d 345, 346 (8th Cir. 1976); United States v.
Casiano, 440 F.2d 1203, 1205 (2d Cir. 1971). Accordingly, Petitioner’s first ineffective
assistance of counsel claim fails.
B.

Discovery Issues

In his opening brief in support of his § 2255 petition, Petitioner argues that his defense
counsel did not share discovery with him, and thus he could not participate in his own defense.
In his reply brief, Petitioner makes a new argument challenging the evidence presented at trial
and asserting that his counsel failed to undermine the recordings or the use of the confidential
informant. Not only are arguments raised for the first time in a reply brief waived, see Darif v.

in the investigation of criminal activities. See United States v. Belzer, 743 F.2d 1213, 1219 (7th
Cir. 1982). Therefore, Petitioner’s argument that paid informants are essentially law
enforcement officials is unavailing.
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Holder, 739 F.3d 329, 337 (7th Cir. 2014), but part of this newly-made argument concerns
Petitioner’s sufficiency of the evidence argument discussed below.
Turning to his claim that defense counsel was ineffective for failing to share discovery
with him, Petitioner has failed to identify any case law or source supporting his argument that he
has a right, let alone a constitutional right, to view discovery materials. Indeed, many federal
courts have concluded that there is no such right. See Martinez v. Chandler, No. 11–2277, 2012
WL 2413512, at *4 (C.D. Ill. June 26, 2012) (“Petitioner cites no United States Supreme Court
case in support of his view that he has a constitutional right to view discovery materials. This
court is unaware of any Supreme Court decision stating that defense counsel is obligated to share
discovery materials with the defendant.”); see also Carillo v. United States, 995 F.Supp. 587,
591 (D.Vi. 1998) (“[T]here is no constitutional duty to share discovery documents with
petitioner. Petitioner cites no case law for this proposition, and this court finds none.”); United
States v. Stork, No. 3:12-CV-398 JD, 2014 WL 1766955, at *7 (N.D. Ind. May 1, 2014)
(collecting cases). Instead, counsel’s obligation under the circumstances is to review and discuss
the discovery materials with his client to keep him “informed of important developments in the
course of the prosecution.” Strickland, 466 U.S. at 688; see also Warren v. Baenen, 712 F.3d
1090, 1101 (7th Cir. 2013). Moreover, Petitioner failed to raise this issue with the Court prior to
trial when the Court asked if the parties were ready to proceed. Further, Petitioner does not
specify what evidence counsel failed to review or share with him in the first instance. See
Mendoza v. United States, 755 F.3d 821, 831 (7th Cir. 2014). Without more, there is no basis for
Petitioner’s claim that counsel’s performance was deficient under Strickland. The Court
therefore denies Petitioner’s ineffective assistance of counsel claim, especially in light of the

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highly deferential presumption that defense counsel’s conduct fell within a wide range of
reasonable professional assistance. See Groves, 755 F.3d at 591.
II.

Procedurally Defaulted Claims
In his § 2255 motion, Petitioner also maintains that: (1) he was denied his constitutional

right to confront a witness under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004); and (2) the evidence at trial was insufficient to support his conspiracy
conviction. Petitioner did not raise these claim on direct appeal, and thus they are barred from
the Court’s collateral review unless Petitioner demonstrates cause for the procedural default and
actual prejudice from the failure to appeal or that enforcing the procedural default would lead to
a “fundamental miscarriage of justice.”
Here, Petitioner argues that his procedurally defaulted claims are excepted based on trial
counsel’s ineffective assistance of counsel. Indeed, it is well-established that “[m]eritorious
claims of ineffective assistance can excuse a procedural default.” Richardson v. Lemke, 745
F.3d 258, 272 (7th Cir. 2014); see also Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010)
(“Ineffective assistance of counsel can constitute cause to set aside a procedural bar.”) As
discussed above, however, Petitioner has failed to establish that his trial counsel provided
constitutionally ineffective assistance of counsel under Strickland. As such, his ineffective
assistance of trial counsel claim does not excuse his procedural default of these claims.
Even if Petitioner had not procedurally defaulted these claims, they fail on the merits.
First, because the government offered the confidential informant’s statements as context for
Petitioner’s admissions, and not for the truth, these statements were not “testimonial hearsay”
triggering confrontation clause protections. See United States v. Gaytan, 649 F.3d 573, 579-80

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(7th Cir. 2011) (“a confidential informant’s out-of-court statements are not hearsay if they are
offered not for the truth but to put the defendant’s statements in context or to make what he said
and did in reaction to the informant’s statements intelligible to the jury.”); United States v.
Tolliver, 454 F.3d 660, 666 (7th Cir. 2006) (“Crawford only covers testimonial statements
proffered to establish the truth of the matter asserted.”). In addition, the Court instructed the jury
both at the time it admitted the recordings and at the end of the evidentiary portion of the trial
that the “confidential informant’s statements are offered only to provide context for the
statements of the other individuals, and are not to be considered for the truth of the matters
asserted.” (10 CR 0789, R. 113, Jury Instr., at 16.) The instructions ensured “that the jury [was]
aware of the proper weight and consideration to give the non-testifying informant’s statements.”
United States v. Wright, 722 F.3d 1064, 1068 (7th Cir. 2013) (citations omitted). Hence,
Petitioner’s confrontation clause claim is without merit.
Next, Petitioner argues that the evidence presented at trial was insufficient to support his
conspiracy conviction. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979). Jackson holds that due process is satisfied if–when viewing the evidence in the light
most favorable to the prosecution–“any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (emphasis in original). The Jackson
standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Id.
Summarizing the evidence in a light most favorable to the government, trial evidence
revealed that between June 2, 2008, and June 3, 2008, Petitioner exchanged several recorded

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telephone calls with an individual who was a confidential informant with the FBI. During these
telephone calls, Petitioner arranged to sell approximately nine ounces of crack cocaine to the
informant for $5,600. On June 3, 2008, Petitioner stated to the informant that he was stuck in
traffic, but that another man named “Breed,” who was Petitioner’s co-defendant in this matter,
would meet the confidential informant. Surveillance observed and video-taped Petitioner’s codefendant enter the informant’s vehicle at which time he sold the informant 221.5 grams of crack
cocaine for $5,600. After the drug deal, in another recorded phone call, Petitioner called the
informant to make sure everything was “good.” The jury heard these telephone calls, after which
the FBI case agent identified the speakers as Petitioner, his co-defendant, and the confidential
informant. There was additional evidence linking Petitioner to the telephone calls, including that
his wife was the subscriber for his cell phone that he used during the drug transaction. Viewing
this evidence in the government’s favor, Petitioner has failed to argue, let alone establish, that
“the record is devoid of the evidence from which a reasonable jury could find guilt beyond a
reasonable doubt.” See United States v. Salinas, 763 F.3d 869, 877 (7th Cir. 2014) (citation
omitted). Therefore, Petitioner’s sufficiency of the evidence claim fails on the merits.
III.

Sentencing Claims
Next, Petitioner argues that his 132 month sentence is unconstitutional and illegal

because it was “disparate to national and even regional sentences for the same drug quantity.”
On appeal, Petitioner made a similar–if not the same–argument, namely, that his sentence was
unreasonable because it was substantially longer than those of similarly situated defendants
involved in a related drug conspiracy. The Seventh Circuit rejected this argument explaining
that it has repeatedly held that “[c]hallenging a within-range sentence as disparate is a

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‘pointless’ exercise.” See Hinton, 535 Fed. Appx. at 531 (citation omitted). Petitioner further
argues in the present motion that the Court improperly applied the Sentencing Guidelines
because his sentence was unreasonable in light of his criminal history and personal
characteristics, an argument the Seventh Circuit also rejected on direct appeal. See id.
Moreover, Petitioner’s newly-made argument that the Court improperly applied the
Sentencing Guidelines by considering “a non-final State of Illinois case” fares no better because
Petitioner failed to raise this argument on direct appeal and this argument, standing alone, does
not implicate a constitutional error. See Hawkins v. United States, 724 F.3d 915, 916-17 (7th
Cir. 2013); see also United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (“[D]eviations
from the Sentencing Guidelines generally are not cognizable on a § 2255 motion”) (citation
omitted). As the Seventh Circuit teaches, a § 2255 motion is “neither a recapitulation of nor a
substitute for a direct appeal.” Varela v. United States, 481 F.3d 932, 935-96 (7th Cir. 2007)
(citation omitted). Thus, Petitioner’s sentencing arguments are not cognizable on collateral
review.2
IV.

Certificate of Appealability
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2255

Proceedings, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Therefore, the Court must determine whether to grant
Petitioner a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) in the present

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Because the motion, files, and records of this case conclusively show that Petitioner is
not entitled to any relief under § 2255, the Court need not hold an evidentiary hearing under the
circumstances. See Koons v. United States, 639 F.3d 348, 354-55 (7th Cir. 2011); 28 U.S.C. §
2255(b).
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Memorandum, Opinion, and Order. See Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 649
n.5, 181 L.Ed.2d 619 (2012).
Under 28 U.S.C. § 2253(c)(2), a petitioner does not have the absolute right to appeal a
district court’s denial of his § 2255 motion, instead, he must first request a certificate of
appealability. 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; White v. United States, 745 F.3d
834, 835 (7th Cir. 2014). Under this standard, Petitioner 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.” Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529
U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). In cases where a district court denies a
habeas claim on procedural grounds, a certificate of appealability should issue only if the
petitioner shows that (1) jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right, and (2) jurists of reason would find it debatable
whether the district court was correct in its procedural ruling. See Slack, 529 U.S. at 485.
Petitioner has not established that jurists of reason would debate that the Court should
have resolved his ineffective assistance of counsel claims in a different manner, especially in
light of the strong presumption that counsel’s performance falls within the wide range of
reasonable professional assistance. See Johnson v. Thurmer, 624 F.3d 786, 792 (7th Cir. 2010)
(“It is well established that [the court’s] scrutiny of counsel’s trial strategy is to be deferential
and that we do not second guess the reasonable tactical decisions of counsel in assessing whether

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his performance was deficient.”). Also, a reasonable jurist would not conclude that the Court
erred in ruling that Petitioner has procedurally defaulted his confrontation clause and sufficiency
of the evidence claims. See Slack, 529 U.S. at 484 (“Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.”). Last, Petitioner’s sentencing claims are not cognizable on
collateral review. As such, the Court declines to certify any issues for appeal pursuant to 28
U.S.C. § 2253(c)(2).
CONCLUSION
The Court denies Petitioner’s motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255 and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
Dated: April 29, 2015
ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge

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