Ernest D. Shields v. United States of America
MEMORANDUM Opinion and Order. Signed by the Honorable Ruben Castillo on 3/31/2017. Mailed notice (lf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
ERNEST D. SHIELDS,
UNITED STATES OF AMERICA,
No. 16 C 10265
Chief Judge Rubén Castillo
MEMORANDUM OPINION AND ORDER
Ernest D. Shields (“Petitioner”) is serving a 15-year sentence for possessing a firearm
following a felony conviction in violation of 18 U.S.C. § 922(g). He filed a motion to vacate his
sentence under 28 U.S.C. § 2255 (“the petition”) alleging a claim based on Johnson v. United
States, 135 S. Ct. 2551 (2015), and a claim of ineffective assistance of counsel. (R. 1, Pet.) For
the reasons set forth below, the petition is denied.
At approximately 8:00 p.m. on January 10, 2011, Chicago Police Officers Craig
Coglianese and David Bachler were on routine patrol on the south side of Chicago in an
unmarked police vehicle. United States v. Shields, 789 F.3d 733, 738-41 (7th Cir. 2015). They
observed Petitioner’s vehicle parked and partially blocking a crosswalk, which violated a
Chicago municipal ordinance. Id. The officers stopped their vehicle alongside Petitioner’s. Id.
Officer Coglianese then exited his vehicle and approached Petitioner, who was sitting in the
driver’s seat, and asked to see his driver’s license. Id. Petitioner handed the officer his license,
then exited his vehicle and walked toward the rear of the vehicle with Officer Coglianese. Id.
When Petitioner reached the back of the police vehicle, he did not stop to talk to the officer and
instead began running east down an adjacent street. Id. Officer Coglianese began chasing him.
Id. As Officer Coglianese followed Petitioner down an alley, he saw Petitioner take a firearm out
of his right coat pocket. Id. Shortly thereafter, the officer caught up to Petitioner and pushed him
to the ground. Id. Officer Bachler arrived on the scene a minute or so later, and the two officers
placed Petitioner in handcuffs. Id. When they rolled him over they discovered a loaded .22caliber handgun underneath him on the ground. Id. This was the same gun that Officer
Coglianese had observed Petitioner remove from his pocket. Id. The officers placed Petitioner in
the back of their police vehicle, and Officer Coglianese read Petitioner his Miranda rights. Id.
Officer Coglianese then asked him, “Why are you running with a gun?” and Petitioner
responded, “I shouldn’t have had that weapon on me.” Id.
On June 22, 2011, Petitioner was indicted by a grand jury for possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g). Id. The indictment also alleged that Petitioner was
subject to a mandatory minimum sentence of 15 years under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), due to his prior criminal record. Id. Prior to trial, Petitioner
filed a motion to suppress the firearm and his statement following his arrest. Id. In that motion,
he argued that the traffic stop conducted by the officers was illegal, that the officers had
conducted an illegal search of his person, and that the statement he made to police about the gun
was involuntary. Id. At an evidentiary hearing on the motion, Officers Coglianese and Bachler
both testified, describing how Petitioner had fled and how they had recovered the firearm from
him. Id. Petitioner did not testify at the hearing. United States v. Shields, No. 11 CR 440, ECF
No. 77. The Court denied the motion in a written opinion, finding that the officers had credibly
and consistently testified about their recovery of the firearm and the statement Petitioner had
made after being given a Miranda warning. Id., ECF No. 60.
Approximately four weeks before the scheduled trial, Petitioner obtained new counsel,
Andrea Gambino, who filed a motion for reconsideration of the denial of his suppression motion
or, in the alternative, a request that the Court reopen the suppression hearing to allow Petitioner
to testify. Id., ECF Nos. 72, 75. Gambino also filed a motion to dismiss the indictment on Second
Amendment grounds. Id., ECF No. 76. She filed a separate motion to dismiss, arguing that
federal jurisdiction could not be established beyond a reasonable doubt due to the lack of
evidence showing that the weapon Petitioner possessed had traveled in interstate commerce. Id.,
ECF No. 90. At a subsequent hearing, Gambino asked for a continuance of the trial so that she
could have more time to file replies in support of the two motions. Id., ECF No. 142. The Court
denied the request, stating, “[E]ven though you are a very capable attorney and have tried
mightily, I don’t see where, if I allowed you two months, two years to file a reply brief, you’re
going to change my thinking on either motion.” Id. at 3. Thereafter, the Court denied the
motions. Shields, 789 F.3d at 740.
The jury trial began on March 25, 2013, and lasted three days. Id. On the second day of
the trial, Petitioner stipulated that he had incurred a prior felony conviction before the date of his
arrest. Id. At the close of the evidence, the jury found Petitioner guilty of possession of a firearm
by a felon. Id. The presentence report (“PSR”) calculated that Petitioner had a total offense level
of 33 and a criminal history category of VI, resulting in an advisory guidelines range of 235 to
293 months in custody. Id. The PSR also noted that Petitioner had three prior “violent felony”
convictions under Illinois law and was therefore subject to a mandatory minimum sentence of 15
years to life under the ACCA. Id. Prior to the sentencing hearing, Petitioner discharged Gambino
and, at his request, the Court permitted him to proceed pro se. Id. at 740-41 & n.9. Among other
arguments, Petitioner argued that the ACCA enhancement violated Alleyne v. United States, 133
S. Ct. 2151 (2013), because the fact of his prior convictions had not been determined by the jury.
Id. at 741. The Court found the ACCA enhancement applicable, and sentenced him to the
mandatory minimum sentence of 15 years, followed by five years of supervised release. Id.
Petitioner appealed, asserting various errors at trial and sentencing. Id. at 741-51. The
U.S. Court of Appeals for the Seventh Circuit affirmed his conviction and sentence in all
respects. Id. On November 2, 2015, the U.S. Supreme Court denied his petition for a writ of
certiorari. Shields v. United States, 136 S. Ct. 420 (2015). On November 1, 2016, Petitioner filed
the present petition. (R. 1.) He first claims that his enhanced sentence is invalid in light of the
Supreme Court’s decision in Johnson. (R. 1, Pet. at 6-15.) He also claims that his trial attorney,
Gambino, provided him with ineffective assistance on various grounds. (Id. at 16-29.)
A federal prisoner can move to vacate his sentence on “the ground that the sentence was
imposed in violation of the Constitution or laws of the United States . . . or is otherwise subject
to collateral attack.” 28 U.S.C. § 2255(a). “Relief under this statute 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).
Petitioner first claims that his 15-year sentence is invalid in light of Johnson and that he
is entitled to be resentenced. 1 (R. 1, Pet. at 1-15.) The ACCA provides enhanced sentences for
defendants convicted of violating 18 U.S.C. § 922(g) who have “three previous convictions by
Without the ACCA enhancement, Petitioner’s conviction under 18 U.S.C. § 922(g) carried a statutory
maximum sentence of ten years. 18 U.S.C. § 924(a)(2).
any court . . . for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). “Violent
felony” is defined as “any crime punishable by imprisonment for a term exceeding one year” that
meets one of the following requirements: (1) it “has as an element the use, attempted use, or
threatened use of physical force against the person of another”; (2) it is burglary, arson,
extortion, or an offense involving the use of explosives; or (3) it “otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(i)-(ii).
The first clause is commonly referred to as the “elements clause,” the second as the “enumerated
crimes clause,” and the third as the “residual clause.”
In Johnson, the Supreme Court invalidated the residual clause as unduly vague, but left
intact the enumerated crimes clause and the elements clause. See Johnson, 135 S. Ct. at 2563
(“Today’s decision does not call into question application of the [ACCA] to the four enumerated
offenses, or the remainder of the Act’s definition of a violent felony.”); Stanley v. United States,
827 F.3d 562, 564 (7th Cir. 2016) (“Johnson holds that the residual clause is unconstitutionally
vague. Johnson does not otherwise affect the operation of the Armed Career Criminal Act.”).
There is no question that Petitioner was convicted of violating 18 U.S.C. § 922(g), or that he has
convictions for aggravated battery, residential burglary, and armed robbery under Illinois law.
He argues, however, that none of these offenses can be characterized as violent felonies after
Johnson. (R. 1, Pet. at 11-15.) The Court addresses each conviction in turn.
Aggravated Battery Conviction
Petitioner first argues that his 1994 Illinois aggravated battery conviction no longer
qualifies as a violent felony under the ACCA. (R. 1, Pet. at 7-12.) Because the residual clause
has been invalidated, Petitioner’s aggravated battery conviction must fall under either the
elements clause or the enumerated crimes clause to count as an ACCA predicate. Aggravated
battery is obviously not one of the enumerated crimes, 18 U.S.C. § 924(e)(2)(B)(ii), which leaves
the elements clause as the only possibility. As stated above, a prior conviction falls under the
elements clause if it “has as an element the use, attempted use, or threatened use of physical
force against the person of another.” Id. The Supreme Court has interpreted “physical force” in
this context to mean “violent force—that is, force capable of causing physical pain or injury to
another person.” Curtis Johnson v. United States, 559 U.S. 133, 140-42 (2010) (“Curtis
In determining whether a prior conviction qualifies as an ACCA predicate, courts
ordinarily apply a “categorical approach,” which focuses solely on the text of the statute
underlying the conviction. United States v. Mathis, 136 S. Ct. 2243, 2248 (2016). Application of
this approach “is straightforward when a statute sets out a single (or ‘indivisible’) set of elements
to define a single crime.” Id. The Court simply “lines up that crime’s elements alongside those of
the generic offense and sees if they match.” Id. The analysis becomes difficult, however, when
the relevant statute “ha[s] a more complicated (sometimes called ‘divisible’) structure, making
the comparison of elements harder.” Id. at 2249. In other words, “[a] single statute may list
elements in the alternative, and thereby define multiple crimes,” some of which involve violent
force while others do not. Id. In such cases, the Court employs a “modified categorical
approach.” Id. Under this approach, the Court may look to “a limited class of documents (for
example, the indictment, jury instructions, or plea agreement and colloquy) to determine what
crime, with what elements, a defendant was convicted of.” Id. But even under the modified
categorical approach, the question is not “what the defendant did in fact,” but rather, “whether
the elements of the crime . . . bring the conviction within the scope of the recidivist
enhancement.” Stanley, 827 F.3d at 565; see also Descamps v. United States, 133 S. Ct. 2276,
2287 (2013) (“Congress intended the sentencing court to look only to the fact that the defendant
had been convicted of crimes falling within certain categories, and not to the facts underlying the
prior convictions.” (citation omitted)).
Under Illinois law, a person commits battery “if he or she knowingly without legal
justification by any means (1) causes bodily harm to an individual or (2) makes physical contact
of an insulting or provoking nature with an individual.” 720 ILL. COMP. STAT. 5/12-3. The
offense is elevated to aggravated battery if certain conditions are met, including where the
offender knew the victim to be a peace officer, knew the victim to be pregnant, or committed the
offense on public property. 720 ILL. COMP. STAT. 5/12-3.05. A conviction based on the first
prong of the statute—i.e., “causing bodily injury”—has as an element the use, attempted use, or
threatened use of physical force, and therefore qualifies as a violent felony under the elements
clause of the ACCA. 2 Hill v. Werlinger, 695 F.3d 644, 650 (7th Cir. 2012). By contrast, a
conviction based on the second prong of the Illinois statute—i.e., involving “physical contact of
an insulting or provoking nature”—does not qualify as a violent felony for purposes of the
ACCA. See United States v. Evans, 576 F.3d 766, 768 (7th Cir. 2009) (explaining that a
conviction under the second prong of Illinois aggravated battery statute—for conduct like
“spit[ting] on a pregnant woman”—does not qualify as a predicate offense for federal sentencing
To the extent Petitioner is arguing that a conviction under the Illinois aggravated battery statute does not
involve the level of force required by Curtis Johnson, the Court finds such an argument unavailing. The
Seventh Circuit held in Hill—which was decided after Curtis Johnson and specifically referenced that
opinion—that a conviction under the first prong of the Illinois battery statute involves the level of force
needed to qualify as an ACCA predicate. Hill, 695 F.3d at 649-50. Hill has not been overturned, and the
Seventh Circuit has continued to uphold its reasoning in recent opinions. See United States v. Bailey, No.
16-1280, 2017 WL 716848, at *1 (7th Cir. Feb. 23, 2017) (“We already have concluded that the phrase
‘causes bodily harm’ in the Illinois statute defining battery . . . means force that would satisfy [Curtis]
Johnson’s requirement of violent physical force.”); United States v. Waters, 823 F.3d 1062, 1064 (7th
Cir.), cert. denied, 137 S. Ct. 569, 196 L. Ed. 2d 448 (2016) (observing that it had previously concluded
that an Illinois conviction for domestic battery—which contains provisions that are parallel to the battery
statute and applies where the victim is a family or household member—involves the level of force
required by Curtis Johnson, and defendant “has not persuaded us that this precedent should be
purposes); United States v. Saunders, No. 15 C 8587, 2016 WL 1623296, at *2 (N.D. Ill. Apr.
25, 2016) (“Battery [under Illinois law] does not automatically qualify as a violent felony
because there is an avenue by which battery may occur without force.”).
Given these different ways of violating the statute, the Seventh Circuit has held that the
Illinois aggravated battery statute is divisible, permitting application of the modified categorical
approach. See United States v. Lynn, ---F.3d----, 2017 WL 1101089, at *9 (7th Cir. Mar. 24,
2017); Stanley, 827 F.3d at 566; United States v. Rodriguez-Gomez, 608 F.3d 969, 973 (7th Cir.
2010); see also Bell v. United States, No. 16-CV-736-NJR, 2017 WL 553013, at *3 (S.D. Ill.
Feb. 10, 2017) (looking to charging document to determine whether petitioner’s Illinois
conviction for aggravated battery to a police officer fell under the elements clause of the ACCA);
Rogers v. United States, 179 F. Supp. 3d 835, 841-42 (C.D. Ill. 2016) (same).
In consulting the charging document in Petitioner’s case, it is clear that Petitioner’s
aggravated battery conviction was premised on the first prong of the statute, as it involved bodily
harm to the victim. The indictment charged that Petitioner “intentionally and knowingly without
legal justification caused bodily harm to Willie Edwards while using deadly weapons, to wit: a
hammer handle and a stick with nails on its end, by beating Willie Edwards about the head and
body.” (R. 7-1, State Ct. Records at 4.) The Court thus finds that Petitioner’s conviction has as an
element the use, attempted use, or threatened use of physical force, and therefore qualifies as a
violent felony notwithstanding Johnson. See Lynn, 2017 WL 1101089, at *10 (holding that
defendant’s convictions for aggravated battery involving the “causing bodily harm” prong of the
Illinois battery statute “were properly classified as violent felonies” under the elements clause of
the career offender guideline); Stanley, 827 F.3d at 565 (observing that “Stanley’s [Illinois]
conviction for aggravated battery of a peace officer . . . is outside the scope of Johnson” because
it is classified as a violent felony under the elements clause of the career offender guideline);
Bell, 2017 WL 553013, at *3 (holding that petitioner’s Illinois conviction for aggravated battery
constituted a violent felony under the elements clause of the ACCA and was unaffected by
Johnson where indictment charged that he caused bodily harm to the victim); Rogers, 179 F.
Supp. 3d at 841-42 (same).
Petitioner next argues that his 1995 Illinois residential burglary conviction no longer
qualifies as an ACCA predicate after Johnson. (R. 1, Pet. at 8, 12-13.) Burglary is one of the
offenses contained in the enumerated clause. 18 U.S.C. § 924(e)(2)(B)(ii). Because it is an
enumerated crime, “[n]o particular level of force is required for a burglary to count as a
predicate—in fact, no force at all.” Dawkins v. United States, 809 F.3d 953, 955 (7th Cir. 2016).
In Mathis, the Supreme Court held that burglary for purposes of the ACCA means “an unlawful
or unprivileged entry into . . . a building or other structure, with intent to commit a crime.” 136
S. Ct. at 2248. At the time of Petitioner’s conviction in 1995, the Illinois residential burglary
statute provided: “A person commits residential burglary who knowingly and without authority
enters the dwelling place of another with the intent to commit therein a felony or theft.” 3 720 ILL.
The Court offers no opinion about whether the Illinois residential burglary statute currently in effect,
which has been amended to “include the offense of burglary as defined in Section 19-1,” constitutes a
violent felony under the ACCA. See 720 ILL. COMP. STAT. 5/19-3 (eff. June 1, 2001). The amendment
complicates matters because the generic offense of burglary—which includes not only burglary to
buildings but also burglary to vehicles—is broader than the definition intended by the ACCA. See Mathis,
136 S. Ct. at 2250-51 (holding that Iowa burglary statute, which included burglary to vehicles, was
broader than generic burglary encompassed within the enumerated crimes clause of the ACCA); United
States v. Haney, 840 F.3d 472, 475 (7th Cir. 2016) (holding that defendant’s 1970s burglary conviction
under Illinois law did not constitute an ACCA predicate because the statute in effect at that time applied
not only to buildings but also to vehicles, which made it broader than the generic burglary offense
intended by the ACCA). The Seventh Circuit has left open the question of whether Illinois’ current
burglary statute is divisible, such that courts can resort to charging documents or other state court records
to determine whether the offense involved burglary of a dwelling or other structure. See Haney, 840 F.3d
at 475-76 & n.2. Because Petitioner’s conviction involved a different version of the statute, the Court
need not delve into this complex issue.
COMP. STAT. 5/19-3 (eff. Jan. 1, 1982, to May 31, 2001). The Illinois Supreme Court has
presumed that the term “dwelling place” as used in the statute refers to a “structure.” See People
v. Bales, 483 N.E.2d 517, 521 (Ill. 1985).
Thus, the Seventh Circuit held in Dawkins that Illinois residential burglary constitutes a
predicate offense for purposes of a parallel sentencing enhancement contained in the U.S.
Sentencing Guidelines. 4 809 F.3d at 954-55. In reaching this conclusion, the court relied on the
Supreme Court’s decision in Taylor v. United States, 495 U.S. 575 (1990), which held that “a
person has been convicted of a burglary for purposes of a § 924(e) enhancement if he is
convicted of any crime, regardless of its exact definition or label, having the basic elements of
unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime.” Id. at 599.
Although Dawkins was decided several months before Mathis, the court in Dawkins
applied essentially the same definition of generic burglary adopted by the Supreme Court in
Mathis. Indeed, the definitions of burglary set forth in Taylor and Mathis both closely match the
language of the Illinois residential burglary statute in effect at the time of Petitioner’s conviction.
See Mathis, 136 S. Ct. at 2248; Taylor, 495 U.S. at 599. Thus, it is no surprise that in a recent
unpublished case, the Seventh Circuit concluded post-Mathis that “residential burglary under
Dawkins and several other cases cited in this opinion arose in the context of a challenge to the career
offender provision of the U.S. Sentencing Guidelines, which, like the ACCA, provides for an enhanced
sentence where the defendant has prior convictions for a “crime of violence.” 827 F.3d at 564. Until 2016,
the career offender guideline defined “crime of violence” in the same manner as the ACCA: with an
elements clause, an enumerated crimes clause, and a residual clause. See U.S.S.G. § 4B1.2(a)(1) (eff.
Nov. 1, 2009). The Seventh Circuit previously interpreted Johnson to mean that the residual clause in the
career offender guideline was also void for vagueness. United States v. Hurlburt, 835 F.3d 715, 725 (7th
Cir. 2016) (en banc). This holding is no longer valid after the Supreme Court’s recent decision in Beckles
v. United States, --- S. Ct. ---, 2017 WL 855781 (Mar. 6, 2017), which held that the Sentencing
Guidelines are not subject to vagueness challenges. Notwithstanding the evolution of the law on this
issue, the Court finds that cases interpreting the terms contained in the career offender guideline remain
§ 5/19-3 is ‘burglary’ as defined in Taylor . . . thus making the crime an appropriate ACCA
predicate without regard to the invalidated residual clause.” United States v. McClain, --- F.
App’x ---, 2016 WL 7436145, at *2 (7th Cir. Dec. 22, 2016); see also Khoury v. United States,
No. 15-CR-30013-DRH, 2017 WL 373295, at *2 (S.D. Ill. Jan. 26, 2017) (finding that
petitioner’s 1993 and 1994 Illinois residential burglary convictions constituted violent felonies
under the ACCA post-Mathis); Berry v. Krueger, --- F. Supp. 3d ---, 2017 WL 65420 (C.D. Ill.
Jan. 6, 2017) (finding that petitioner’s 1984 Illinois residential burglary conviction constituted a
violent felony under the ACCA post-Mathis). Therefore, the Court concludes that Petitioner’s
Illinois residential burglary conviction counts as a predicate offense under the ACCA
Armed Robbery Conviction
Petitioner also argues that his 2005 Illinois conviction for armed robbery does not
constitute a violent felony after Johnson. (R. 1, Pet. at 8, 13-15.) Again, this conviction counts as
a predicate if it falls within either of the two clauses that remain valid after Johnson. Armed
robbery is not one of the enumerated crimes, 18 U.S.C. § 924(e)(2)(b), which leaves only the
elements clause. As stated above, an offense qualifies as a violent felony under the elements
clause if it “has as an element the use, attempted use, or threatened use of physical force against
the person of another.” 18 U.S.C. § 924(e)(2)(B)(ii). Under the Supreme Court’s decision in
Curtis Johnson, this means “force capable of causing physical pain or injury to another person.”
559 U.S. at 140-42.
The Illinois robbery statute provides that “[a] person commits robbery when he or she
knowingly takes property . . . from the person or presence of another by the use of force or by
threatening the imminent use of force.” 720 ILL. COMP. STAT. 5/18-1(a). The offense is elevated
to aggravated robbery when the defendant commits robbery as defined by the statute “while
indicating verbally or by his or her actions to the victim that he or she is presently armed with a
firearm or other dangerous weapon.” 720 ILL. COMP. STAT. 5/18-1(b)(1). By its terms, the statute
includes as an element the use of force or, at a minimum, threatening the imminent use of force,
which tracks the language of the ACCA’s elements clause. 18 U.S.C. § 924(e)(2)(B)(ii). Because
of the plain language of the robbery statute, the Seventh Circuit has long held that a conviction
under that statute falls under the elements clause of the ACCA. United States v. Carter, 910 F.2d
1524, 1532 (7th Cir. 1990) (“It is beyond dispute that under Illinois law, robbery is an offense
that has as an element the use or threatened use of force.”); United States v. Dickerson, 901 F.2d
579, 584 (7th Cir. 1990) (holding that Illinois robbery statute “in its own terms includes the
elements of either ‘use of force or . . . threatening the imminent use of force,’ that clearly come
within the scope of 18 U.S.C. § 924(e)(2)(B).”).
Petitioner believes that some minimal level of force could be used to commit robbery
under the Illinois statute that would not satisfy the definition of force required by Curtis
Johnson—for example, where a defendant “tug[s] a key chain attached to clothing free from its
owner.” (R. 1, Pet. at 14.) The Court disagrees that the act of pulling something attached to a
person’s clothing without his or her permission is not “capable of causing physical pain or
injury,” which is all that Curtis Johnson requires. 559 U.S. at 140-42. But in any event,
Dickerson remains binding precedent in this Circuit, and this Court must follow it unless it is
overturned by the Seventh Circuit. Notably, both the Seventh Circuit and district judges within
this Circuit have continued to rely on Dickerson even after the Curtis Johnson decision. See
United States v. Nigg, 667 F.3d 929, 937 (7th Cir. 2012) (applying Dickerson to reject argument
that conviction under Arizona robbery statute did not constitute a violent felony under the
ACCA); United States v. Jones, No. 07 CR 415, 2016 WL 6995569, at *3 (N.D. Ill. Nov. 29,
2016) (applying Dickerson and holding that Illinois armed robbery conviction constituted a
violent felony for purposes of the ACCA); Adams v. United States, No. 16-1096, 2016 WL
4487835, at *2 (C.D. Ill. Aug. 25, 2016) (same).
Indeed, in a recent case, the Seventh Circuit rejected an argument like Petitioner’s in the
context of determining whether a federal bank robbery conviction constituted a violent crime for
purposes of a parallel federal sentencing enhancement contained in the U.S. Sentencing
Guidelines. United States v. Armour, 840 F.3d 904, 908-09 (7th Cir. 2016). The Seventh Circuit
concluded that the offense involved the level of force required by Curtis Johnson even though it
could be accomplished through “‘intimidation,’ as distinct from by ‘force or violence.’” Id. As
the Seventh Circuit explained:
Curtis Johnson teaches that the violent force that must be feared for robbery by
intimidation to be a crime of violence has a low threshold—a fear of a slap in the
face is enough. This low threshold of violent force is necessarily satisfied in
attempted bank robbery by intimidation. A bank employee can reasonably believe
that a robber’s demands for money to which he is not entitled will be met with
violent force of the type satisfying Curtis Johnson because bank robbery . . .
inherently contains a threat of violent physical force.
Id. at 909 (citations omitted). Another judge in this District recently concluded that this
reasoning applies with equal force to the Illinois armed robbery statute, and this Court agrees.
See Jones, 2016 WL 6995569, at *3 (applying Armour and Dickerson to reject Section 2255
petition arguing that Illinois armed robbery conviction did not constitute a violent felony under
the ACCA). For these reasons, the Court concludes that Petitioner’s Illinois armed robbery
conviction falls under the elements clause of the ACCA. Petitioner thus has three prior violent
felony convictions as defined by the ACCA and is properly serving an enhanced sentence under
that statute. His first claim is denied.
Ineffective assistance of counsel claim
Petitioner’s other claim is that he received ineffective assistance from his trial counsel.
(R. 1, Pet. at 16-29.) Under the Sixth Amendment, a criminal defendant is entitled to “‘effective
assistance of counsel’—that is, representation that does not fall ‘below an objective standard of
reasonableness’ in light of ‘prevailing professional norms.’” Bobby v. Van Hook, 558 U.S. 4, 6
(2009) (per curiam) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). To prevail on
such a claim, the petitioner must show that counsel’s performance was deficient and that the
deficient performance prejudiced him. Strickland, 466 U.S. at 687. On the deficiency prong, the
central question is “whether an attorney’s representation amounted to incompetence under
‘prevailing professional norms,’ not whether it deviated from best practices or most common
custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 690).
In other words, counsel “need not be perfect, indeed not even very good, to be constitutionally
adequate.” McAfee v. Thurmer, 589 F.3d 353, 355-56 (7th Cir. 2009) (citation omitted); see also
Harrington, 562 U.S. at 110 (“[T]here is no expectation that competent counsel will be a
flawless strategist or tactician[.]”).
In evaluating counsel’s performance, the Court must avoid employing the benefit of
hindsight and must respect its “limited role in determining whether there was manifest deficiency
in light of information then available to counsel.” Premo v. Moore, 562 U.S. 115, 125 (2011).
The Court should also consider counsel’s performance “as a whole rather than focus on a single
failing or oversight.” Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir. 2010). As the Seventh Circuit
has explained: “[I]t is essential to evaluate the entire course of the defense, because the question
is not whether the lawyer’s work was error-free, or the best possible approach, or even an
average one, but whether the defendant had the ‘counsel’ of which the sixth amendment speaks.”
Sussman v. Jenkins, 636 F.3d 329, 351 (7th Cir. 2011) (citation omitted).
On the prejudice prong, Petitioner must establish a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. A reasonable probability is one that is “sufficient to undermine
confidence in the outcome.” Id. “In assessing prejudice under Strickland, the question is not
whether a court can be certain counsel’s performance had no effect on the outcome or whether it
is possible a reasonable doubt might have been established if counsel acted differently.”
Harrington, 562 U.S. at 111. “The likelihood of a different result must be substantial, not just
conceivable.” Id. at 112. When the petitioner complains that his attorney failed to make an
argument that itself had no merit, he cannot establish prejudice. Stone v. Farley, 86 F.3d 712,
717 (7th Cir. 1996) (“Failure to raise a losing argument, whether at trial or on appeal, does not
constitute ineffective assistance of counsel.”).
Failure to question Officer Coglianese about a civil lawsuit
Petitioner first argues that his trial counsel, Gambino, was ineffective in failing to
investigate a prior lawsuit filed against Officer Coglianese. (R. 1, Pet. at 16.) An attorney has a
general duty to investigate the material facts of a case and can render ineffective assistance by
failing to conduct a reasonable investigation. See Rompilla v. Beard, 545 U.S. 374, 380-81
(2005). What is considered “reasonable” is viewed from the attorney’s perspective at the time.
Id. Counsel is not required to “scour the globe on the off chance something will turn up;
reasonably diligent counsel may draw a line when they have good reason to think further
investigation would be a waste.” Id. at 383. A petitioner who claims that his Sixth Amendment
rights were violated by his attorney’s failure to adequately investigate must provide “sufficiently
precise information, that is, a comprehensive showing as to what the investigation would have
produced.” Richardson v. United States, 379 F.3d 485, 488 (7th Cir. 2004) (citation omitted).
Here Petitioner points to Quarles v. City of Chicago, et al., No. 04-cv-3753 (N.D. Ill.
filed June 1, 2004), a civil lawsuit brought by another individual against Officer Coglianese and
more than 20 other Chicago police officers. (R. 1, Pet. at 20.) That case stemmed from a 2002
incident in which the plaintiff was a passenger in a vehicle involved in a drive-by shooting,
which was pursued by Chicago police in a high-speed chase. Quarles, No. 04-cv-3753, ECF No.
1 ¶¶ 5-6. Police eventually stopped the vehicle, but the plaintiff fled the scene and was pursued
on foot by several unnamed officers. Id. ¶¶ 10-11. He claimed that he was knocked to the ground
and brutally beaten by 15 to 25 Chicago police officers even though he was not resisting. Id. He
further alleged that the officers conspired amongst each other to cover up the unwarranted
beating by claiming that he had resisted arrest, that he had sustained his injuries by falling down,
and that he had been in possession of a firearm. Id. ¶ 12. The case ultimately settled out of court.
Id., ECF No. 12.
Petitioner believes that Gambino was ineffective in failing to discover the lawsuit or use
it to impeach Officer Coglianese at trial. 5 (R. 1, Pet. at 18.) The record reflects that Gambino was
aware of the civil lawsuit, however, as she referenced it in her motion for acquittal filed shortly
after trial. See United States v. Shields, No. 11 CR 440, ECF No. 100 at 6. Petitioner believes
In his petition, Petitioner mentions only the Quarles case. (R. 1, Pet. at 19-20.) He attaches as an exhibit
a complaint filed in another case, McWilliams v. McWilliams, et al., No. 06-CV-3058 (N.D. Ill. filed June
5, 2006), which also named Officer Coglianese as a defendant. Petitioner offers no explanation for why
he attached this case to his petition, and the Court can discern few similarities between McWilliams and
Petitioner’s case. McWilliams involved a husband and wife involved in a contentious divorce; the wife
called the police and claimed that the husband had threatened her. Officer Coglianese and another officer
responded to the call, and the husband claimed that they kicked down his door, unlawfully searched his
home, and in the process stole $2,500 in cash. Id., ECF. No. 1. The case ultimately settled out of court.
Id., ECF No. 163. Without some argument from Petitioner as to how Gambino might have used the
McWilliams case at his criminal trial, and why her failure to do so prejudiced him, the Court declines to
pursue the matter further.
that Gambino should have used the lawsuit at trial to impeach Officer Coglianese, but the Court
does not find deficient performance or prejudice on this ground. Had counsel sought to introduce
evidence about the Quarles lawsuit, this Court would not have permitted it.
Petitioner does not point to any sworn statements made by Officer Coglianese in the
Quarles case, and it is thus not entirely clear how Gambino would have used the case to attack
his credibility. To the extent Petitioner wanted Gambino to question Office Coglianese about the
complaint itself, this would raise hearsay problems. The complaint might be admissible as a
public record, see FED. R. EVID. 803(8), but the allegations contained within it constitute a
second level of hearsay. See Jordan v. Binns, 712 F.3d 1123, 1133 (7th Cir. 2013) (observing
that third-party statements “do not become admissible for their truth by virtue of their presence
in a public record and instead must have an independent basis for admissibility”). Petitioner does
not explain how the plaintiff’s allegations in Quarles might have been admitted under an
exception to the hearsay rule, nor can the Court discern any applicable exception.
Assuming Gambino could have gotten around that threshold problem, evidence about
Officer Coglianese’s prior conduct also raises concerns under Federal Rule of Evidence 404(b).
Under that rule, “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the
character.” Such evidence “may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” FED. R. CIV. P. 404(b)(2). But it is “not enough for the proponent of the other-act
evidence simply to point to a purpose in the ‘permitted’ list and assert that the other-act evidence
is relevant to it.” United States v. Gomez, 763 F.3d 845, 856 (7th Cir. 2014) (en banc). Instead,
“the rule allows the use of other-act evidence only when its admission is supported by some
propensity-free chain of reasoning.” Id.
Petitioner apparently believes that the Quarles lawsuit would have been admissible to
show that Officer Coglianese had a modus operandi of planting guns on fleeing suspects. (See R.
1, Pet. at 18-19.) Evidence of modus operandi is usually used to prove identity, but identity was
not an issue at Petitioner’s trial. See United States v. Robinson, 161 F.3d 463, 467 (7th Cir.
1998); Patterson v. City of Chi., No. 15-CV-4139, 2017 WL 770991, at *3-4 (N.D. Ill. Feb. 28,
2017). Even if the evidence was marginally relevant, evidence of a prior bad act is admissible
only if it “bears a singular strong resemblance to the pattern of the offense charged with the
similarities between the two crimes sufficiently idiosyncratic to permit an inference of pattern.”
Gomez, 763 F.3d at 854 (citation and internal quotation marks omitted). The Quarles lawsuit
does not meet that standard.
The underlying incident alleged in Quarles occurred in 2002—nine years prior to
Petitioner’s arrest by Officer Coglianese. Quarles, No. 04-cv-3753, ECF No. 1. It involved a
drive-by shooting and a high-speed chase, neither of which occurred in Petitioner’s case. Id. The
crux of the plaintiff’s claim in Quarles was that multiple officers had brutally beaten him without
justification. Id. Although Petitioner complained that he was kicked while Officer Coglianese
was attempting to restrain him, he did not raise the type of excessive force allegations contained
in Quarles. The Quarles complaint did contain an allegation that the officers had planted a gun
on the plaintiff, but the plaintiff’s allegations were far too general to be of any use against
Officer Coglianese. All of the allegations in the complaint referred generally to “the defendant
officers”—of which there were 25—and nowhere did it describe what individual actions Officer
Coglianese was alleged to have taken in connection with the plaintiff’s arrest. Id. It is thus
unclear whether Officer Coglianese was even the officer who was alleged to have planted the
gun. Id. Additionally, the Quarles case settled out of court and there were never any findings of
fact regarding Officer Coglianese; indeed, he and the other officers expressly denied any
wrongdoing in the stipulation and release that was filed when the case settled. Id., ECF No. 12 at
2. Therefore, the Quarles lawsuit does not meet the standard of admissibility for prior bad acts
evidence under Rule 404(b). 6
Even if the lawsuit were found to be admissible under Rule 404(b), the Court must also
consider Rule 403, “which applies with full force in this context.” Gomez, 763 F.3d at 856
(citation and internal quotation marks omitted). In conducting the balancing test required by Rule
403, the Court would have excluded this evidence. Allowing inquiry into the Quarles lawsuit
would have led to a “distracting and time consuming mini-trial regarding the merits of these
other allegations,” particularly given that there were no findings of fact made against Officer
Coglianese in the Quarles case. Patterson, 2017 WL 770991, at *3-4. Rule 408 would have
barred Gambino from attempting to use the settlement in the Quarles case to prove that Officer
Coglianese engaged in the actions alleged by the plaintiff. See FED. R. EVID. 408(a) (prohibiting
introduction of evidence regarding a settlement to “prove or disprove the validity . . . of a
disputed claim”). Additionally, the events in Quarles occurred nearly a decade before
Petitioner’s arrest, and the case did not involve actions by Officer Coglianese sufficiently similar
To the extent Petitioner believes the evidence could have been used to show a “habit” by Officer
Coglianese, this argument fails for the same reason. Evidence of a “habit” can be admitted under Rule
406. FED. R. EVID. 406 (“Evidence of a person’s habit . . . may be admitted to prove that on a particular
occasion the person or organization acted in accordance with the habit or routine practice.”). But “before
a court may admit evidence of habit, the offering party must establish the degree of specificity and
frequency of uniform response that ensures more than a mere ‘tendency’ to act in a given manner, but
rather, conduct that is ‘semi-automatic’ in nature.” Nelson v. City of Chi., 810 F.3d 1061, 1073-74 (7th
Cir. 2016) (citation omitted). Evidence of one other incident involving Officer Coglianese nine years prior
to the events underlying Petitioner’s arrest and involving a different factual scenario would not come
close to meeting that standard.
to the misconduct alleged by Petitioner in his criminal case. The allegations in Quarles—which
described the brutal beating of an unarmed suspect by more than 20 Chicago police officers—
were also highly inflammatory and carried a “high likelihood that the jury [would] draw
conclusions based on improper considerations.” Patterson, 2017 WL 770991, at *4.
Given the lack of similarity in the underlying events, the distance in time between them,
the lack of detail regarding the precise actions taken by Officer Coglianese in the Quarles case,
and the inflammatory nature of the allegations in Quarles, the Court would not have permitted
Gambino to inquire into this lawsuit even if she had sought to do so. See id. (refusing to permit
plaintiff in suit against police officers to introduce evidence of prior lawsuits naming the officers
as defendants, where plaintiff’s request was “a thinly veiled attempt to do precisely what Rule
404(b) forbids: ask the jury to make an inference that because the defendants committed battery
or falsified police reports in the past (which may or may not be true), they did the same thing on
the day in question in this lawsuit”); Hill v. City of Chi., No. 06 C 6772, 2011 WL 3840336, at
*6 (N.D. Ill. Aug. 30, 2011) (excluding inflammatory evidence that officer physically abused
suspect during interrogation in another case, because “there is a real danger that evidence of
Officer Halloran’s interrogation of Gomez would induce the jury to decide this case based on
Defendant Halloran’s conduct in connection with Gomez—not Hill”).
It is also worth noting that the other officer involved in Petitioner’s arrest, Officer
Bachler, was not named as a defendant or otherwise involved in the Quarles lawsuit. He offered
testimony that was highly consistent with Officer Coglianese’s, and he personally saw the gun
recovered from Petitioner after he was restrained by Officer Coglianese. The Quarles lawsuit
would have done nothing to undercut Officer Bachler’s credibility. Nor would it have undercut
the evidence of the inculpatory statement Petitioner made to police about his possession of the
firearm after his arrest. For these reasons, the Court finds that Petitioner has failed to establish
ineffective assistance of counsel on this ground. See Stone, 86 F.3d at 717.
Failure to request Giglio materials
Petitioner makes a related argument that Gambino was ineffective in failing to make a
formal motion for Giglio materials or other discovery. 7 (R. 1, Pet. at 19-22.) He argues that had
Gambino filed such a motion, the prosecution “may well have tendered the civil lawsuit, Chicago
Police Department records of complaints, and Office of Professional Standards records and
statements of Off. Coglianese.” (Id. at 19.)
As explained above, Gambino’s performance must be viewed with a high degree of
deference, leaving room for a variety of strategic approaches and even reasonable errors. See
Harrington, 562 U.S. at 104-05; Premo, 562 U.S. at 124-26. Gambino first appeared in this case
less than a month before trial—sixth in a succession of attorneys who had represented Petitioner
in the nearly two years the case had been pending. See Shields, No. 11 CR 440, ECF Nos. 9, 16,
22, 30, 62, 69. She could have reasonably presumed that all available discovery motions had
already been made by Petitioner’s five prior attorneys. Immediately upon taking the case, rather
than focusing on discovery, she focused on obtaining dismissal of the charges, seeking
reconsideration of the suppression issue and dismissal of the indictment on other grounds. Id.,
ECF Nos. 75, 78, 90. The Court granted a short extension of the trial date to consider her
motions. Id., ECF No. 72. After the Court denied her motions—and her request for another
continuation of the trial date—she clearly focused on the impending trial. See id., ECF No. 142,
Tr. of Proceedings at 3-6.
In Giglio v. United States, the Supreme Court expanded the scope of the disclosures required by Brady
v. Maryland, 373 U.S. 83 (1963), to include potentially exculpatory material relating to the credibility of a
government witness. 405 U.S. 150, 154-55 (1972).
Gambino’s performance at trial demonstrated that she was well-prepared, well-versed in
the underlying facts, and had a clear strategy for obtaining an acquittal: attacking the officers’
accounts and focusing on the lack of any corroborating evidence to show that Petitioner was in
possession of a firearm. The trial transcripts reflect that she was a capable advocate who put the
government’s evidence to the test each step of the way. She participated in jury selection, raised
numerous objections, gave an opening statement, cross-examined the government’s witnesses,
participated in the jury instruction conference, and made a compelling closing argument. Id.,
ECF Nos. 143 & 144, Trial Trs. As the Supreme Court has observed, “[I]t is difficult to establish
ineffective assistance when counsel’s overall performance indicates active and capable
advocacy.” Harrington, 562 U.S. at 111.
But regardless of whether Gambino should have filed a formal discovery motion,
Petitioner does not point to any specific evidence that she would have obtained as a result of
such a motion other than the Quarles lawsuit, discussed above. Instead he offers only speculation
about the existence of potentially useful documents that counsel might have obtained. (See R. 1,
Pet. at 19-23.) This is insufficient to raise a viable ineffective-assistance claim. See Richardson,
379 F.3d at 488 (“Without any evidence, . . . Richardson cannot show that he was prejudiced by
his counsel’s alleged failure to investigate[.]”);United States v. Ashimi, 932 F.2d 643, 649 (7th
Cir. 1991) (observing that to find for the petitioner on a claim of failure to investigate, “[the
court] must know what the attorney would have discovered after ‘adequate’ investigation”);
United States ex rel. Partee v. Lane, 926 F.2d 694, 701 (7th Cir. 1991) (“[A] habeas court cannot
even begin to apply Strickland’s standards to such a claim [for failure to investigate or failure to
elicit favorable testimony] unless and until the petitioner makes a specific, affirmative showing
as to what the missing evidence or testimony would have been.” (citation and internal quotation
It is worth noting that even if Gambino had filed a discovery motion, it is doubtful that
this Court would have delayed the trial to permit discovery at that late stage. On the first day of
trial, Petitioner—speaking on his own behalf—complained to the Court that he had not had an
opportunity to conduct sufficient discovery. Shields, No. 11 CR 440, ECF No. 143, Trial Tr. at 89. In denying his request for a continuance, the Court noted that the trial would be essentially “a
replay of the motion to suppress,” as it involved testimony from the same two officers about
events that “took all of about five or ten minutes.” Id. at 9. As the Court observed, this was not “a
very complicated case.” Id. Indeed, this Court denied Gambino’s request for a second
continuance of the trial date to permit further briefing on her motion to reopen the suppression
issue. See id., ECF No. 142, Tr. of Proceedings at 3-6. This is a good indication that the Court
would not have permitted further delays in the case without a strong justification—far more than
the vague assertions Petitioner makes here about the need for more discovery. Therefore, the
Court finds that Petitioner has failed to demonstrate ineffective assistance on this ground.
Failure to object to the police dispatch tape
Petitioner’s final argument is that Gambino was ineffective in failing to object to the
admission of a police dispatch tape recorded during the time Officer Coglianese was chasing
Petitioner. (R. 1, Pet. at 23.) Petitioner believes that “[i]n failing to object to hearsay of the
dispatcher’s tapes, [Gambino] weakened her argument against the credibility of Off.
Coglianese.” (Id.) It is true that Gambino did not object to the admission of the tape, although
she did object to a transcript of the tape prepared by the government being used for any purpose
other than as an aid to the jury. Shields, No. 11 CR 440, ECF. No. 143, Trial Tr. at 165, 192-93.
The Court found merit to Gambino’s objection and limited the government’s use of the transcript
in the manner she requested. Id. at 193. Had Gambino objected to the admission of the tape in its
entirety, the Court would have overruled her objection. It has long been recognized that police
dispatch tapes are admissible under exceptions to the hearsay rule for present sense impressions
and excited utterances. See, e.g., United States v. Thomas, 453 F.3d 838, 844 (7th Cir. 2006);
United States v. Boyce, No. 10-CR-533, 2011 WL 5078186, at *3 (N.D. Ill. Oct. 26, 2011);
United States v. Wimberly, No. 94 CR 591, 1995 WL 215043, at *1-2 (N.D. Ill. Apr. 10, 1995);
United States v. Campbell, 782 F. Supp. 1258, 1260-61 (N.D. Ill. 1991) The Court would have
found those exceptions satisfied here, given that the recording was made contemporaneously
with Officer Coglianese chasing a fleeing suspect. See Wimberly, No. 94 CR 591, 1995 WL
215043, at *1-2 (finding that radio communications between officers that described the officers’
contemporaneous pursuit of a fleeing suspect were admissible under hearsay exceptions for
excited utterances and present sense impressions).
Additionally, it is abundantly clear from the record that Gambino did not want the police
dispatch tape excluded, because it was a key piece of evidence supporting her theory that Officer
Coglianese had concocted the story about Petitioner having a gun after the fact. She elicited
testimony and argued at numerous points during trial that nowhere on the dispatch tape did
Officer Coglianese yell out, “Gun!” or otherwise alert his partner that he had seen a gun in
Petitioner’s hand. Far from “weakening” her attack on Officer Coglianese’s credibility, the tape
bolstered her argument by providing irrefutable, objective evidence that Officer Coglianese did
not say anything about Petitioner having a gun while he was chasing him. Although Gambino’s
strategy ultimately did not succeed with the jury, the Court finds this attributable to the fact that
two police officers provided credible, consistent testimony that Petitioner was in possession of a
firearm, rather than to any failing by Gambino. See United States v. Farr, 297 F.3d 651, 657-58
(7th Cir. 2002) (“[L]awyers are not miracle workers. Most convictions follow ineluctably from
the defendants’ illegal deeds.”) (citation omitted). The Court finds that Petitioner has failed to
establish an entitlement to relief on this ground.
As a final matter, in his reply brief Petitioner requests that the Court conduct an
evidentiary hearing on his ineffective-assistance claim. (R. 10, Reply at 7.) The Court need not
hold a hearing under Section 2255 if the “files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Sandoval v. United States, 574
F.3d 847, 850 (7th Cir. 2009) (petitioner is entitled to a hearing in a Section 2255 case if he
“alleges facts that, if proven, would entitle him to relief” (citation omitted)). Even accepting all
of Petitioner’s allegations as true, the records and filings in this case establish that he was not
deprived of his Sixth Amendment right to counsel at trial. Therefore, the Court need not conduct
an evidentiary hearing on this claim. For these reasons, the petition is denied.
Certificate of Appealability
To obtain a certificate of appealability, Petitioner must make a substantial showing of the
denial of a constitutional right by establishing “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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (citation and internal quotation marks omitted). For the
reasons fully explained herein, the Court finds that reasonable jurists could not debate the
outcome of the petition or find a reason to encourage Petitioner to proceed further. The Court
declines to grant him a certificate of appealability.
For the foregoing reasons, the motion to vacate under 28 U.S.C. § 2255 (R. 1) is
DENIED. Petitioner is DENIED a certificate of appealability.
Chief Judge Rubén Castillo
United States District Court
Dated: March 31, 2017
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