Hines v. United States of America

Filing 61

CORRECTED ORDER: The Court hereby SUBSTITUTES this CORRECTED ORDER for the Order entered March 18, 2013 (Doc. 59). Signed by Judge Michael J. Reagan on 3/22/13. (caa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
COREY HINES,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 11-cv-1064-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
I.

Introduction
Now before the Court is Corey Louis Hines’s petition to vacate, set aside

or correct sentence under 28 U.S.C. § 2255. Analysis of the petition begins with an
overview of the procedural history of the underlying criminal case.
On March 5, 2008, Hines was charged in an Indictment with one count of
possession of a prohibited object (marijuana) in a federal prison. (United States v.
Hines, Case No. 08-cr-30040-MJR) (Doc. 1) (“Crim. Doc.). On April 23, 2008, Hines
was charged in a Superseding Indictment with possession of a prohibited object
(marijuana) in a federal prison (Count 1), possession of marijuana with intent to
distribute (Count 2) and conspiracy to distribute and possess with intent to distribute
marijuana and heroin (Count 3) (Crim. Doc. 22).
After numerous, lengthy delays occasioned by Hines’s recalcitrant
behavior in refusing to cooperate with Magistrate Judge Philip M. Frazier and
Magistrate Judge Clifford J. Proud, with the examining psychologist during a Court1

ordered competency examination, with counsel and with the undersigned District
Judge, as well as numerous interlocutory appeals, a jury trial commenced. Hines
refused to come to the courtroom, even though the Court warned him that he would
forfeit his right to represent himself if he refused.
Hines was brought, unwilling, to the courtroom shortly before jury
selection and announced that he wanted nothing to do with the trial.

He was

represented at trial by Assistant Federal Public Defender Dan Cronin who waived
Hines’s presence at jury selection by stating that the Court had satisfied Rule 43(a) of
the Federal Rules of Criminal Procedure and the Constitution. On October 20, 2009,
the jury found Hines guilty on Counts 1 and 2, but not guilty on Count 3 of the
Superseding Indictment. On April 9, 2010, the undersigned Judge sentenced Hines to
a term of 60 months’ imprisonment on Count 1 and 84 months on Count 2, to be
served consecutively to each other and consecutively to the undischarged term of
imprisonment imposed in the United States District Court for the Eastern District of
Missouri. Hines was placed on supervised release for a term of 3 years on Count 1 and
4 years on Count 2, to run concurrently, and a special assessment of $100 on each of
Counts 1 and 2, for a total of $200.00.
Proceeding pro se, Hines appealed his conviction and sentence to the
United States Court of Appeals for the Seventh Circuit. United States v. Hines, 407
Fed.Appx. 975 (7th Cir. 2011). He raised the following challenges on appeal: (1)
use of confession; (2) defects in instituting the prosecution; (3) denial of a detention
hearing at his first appearance; (4) denial of a Faretta colloquy; (5) denial of a fair
hearing on pretrial motions; (6 and 7) pre-accusation and pretrial delay; (8) denial of
2

a hearing pursuant to 18 U.S.C. § 4247(d); (9) deprivation of pro se status; (10)
impaneling a jury in his absence; (11) the Court’s refusal to disqualify himself; (12)
the Court’s striking objections to the presentence report; (13) lack of subject-matter
jurisdiction; (14) lack of personal jurisdiction; and (15) defective Indictment (Doc. 261, “Brief of Defendant-Appellant”).
On February 10, 2011, the Seventh Circuit denied all of Hines’s
assertions of error and affirmed his convictions and sentence in all respects. The
Court denied rehearing on March 14, 2011. On April 15, 2011, Hines filed a Petition
for Writ of Certiorari with the United States Supreme Court. On October 3, 2011, the
Supreme Court denied review. Hines v. United States, 132 S.Ct. 352 (2011).
On December 5, 2011, Hines, proceeding pro se, filed a Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). On
January 30, 2012, Hines filed a motion requesting disposition of preliminary review of
his petition (Doc. 2). On March 15, 2012, Hines filed an interlocutory appeal “from
the final judgment denying § 2255 and motion for disposition of preliminary review of
§ 2255” (Doc. 3). On July 30, 2012, the Seventh Circuit issued its Mandate, dismissing
Hines’s appeal for lack of jurisdiction and denying his motion for rehearing (Doc. 18).
On July 9, 2012, while the petition for rehearing was pending, Hines
filed a motion seeking the recusal or disqualification of the undersigned Judge (Doc.
16). On August 8, 2012, the Court completed its preliminary review and directed the
Government to respond to the petition by September 18, 2012 (Doc. 21). The Court
also directed the Government to respond to the motion for recusal or disqualification
by August 28. Hines subsequently supplemented his petition (Doc. 20) and filed two
3

additional appeals (Docs. 29, 30).

The appeals were again denied for lack of

jurisdiction (Doc. 44). On February 26, 2013, the Court denied Hines’s motion to stay
adjudication

pending review on

certiorari and his motion

for

recusal or

disqualification of the undersigned Judge (Docs. 46, 48, 49). On March 1, 2013, the
Court denied Hines’s motion to strike the Government’s response to his petition
(Docs. 37, 50). For the reasons stated below, the Court now dismisses Hines’s § 2255
petition.
II.

Analysis
28 U.S.C. § 2255 authorizes a federal prisoner to ask the court which

sentenced him to vacate, set aside, or correct his sentence, if “the sentence was
imposed in violation of the Constitution or laws of the United States, or ... the court
was without jurisdiction to impose such sentence, or ... the sentence was in excess of
the maximum authorized by law….”
Relief under § 2255 is limited.

Unlike a direct appeal, in which a

defendant may complain of nearly any error, § 2255 proceedings may be used only to
correct errors that vitiate the sentencing court’s jurisdiction or are otherwise of
constitutional magnitude. See, e.g., Corcoran v. Sullivan, 112 F.3d 836, 837 (7th
Cir. 1997)(§ 2255 relief is available only to correct “fundamental errors in the
criminal process”). As the Seventh Circuit has declared, § 2255 relief “is appropriate
only for an error of law that is jurisdictional, constitutional, or constitutes a
fundamental defect which inherently results in a complete miscarriage of justice.”
Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (citing Borre v. United
States, 940 F.2d 215, 217 (7th Cir. 1991)). Accord Prewitt v. United States, 83
4

F.3d 812, 816 (7th Cir. 1996)(“... relief under 28 U.S.C. § 2255 is reserved for
extraordinary situations”)).
Section 2255 cannot be used as a substitute for a direct appeal or to relitigate issues already raised on direct appeal. Coleman v. United States, 318 F.3d
754, 760 (7th Cir.), cert. denied, 540 U.S. 926 (2003).

Accord Theodorou v.

United States, 887 F.2d 1336, 1339 (7th Cir. 1989)(§ 2255 petition “will not be
allowed to do service for an appeal.”).
A.

Timeliness of petition

Under the Antiterrorism and Effective Death Penalty Act of 1996, a §
2255 petition must be filed within one year of the date on which the judgment of
conviction becomes final. Robinson v. United States, 416 F.3d 645, 647 (7th Cir.
2005) (citing 28 U.S.C. § 2255, ¶ 6(1)). While the statute does not define finality,
“the Supreme Court has held that in the context of postconviction relief, finality
attaches when the Supreme Court ‘affirms a conviction on the merits on direct review
or denies a petition for a writ of certiorari, or when the time for filing a certiorari
petition expires.’” Id. (citation omitted).
In the current proceeding, the Supreme Court denied review on October
3, 2011. Hines, 132 S.Ct. 352. Hines filed his petition approximately two months
later on December 5, 2011. Accordingly, the petition is timely filed.
B.

Procedurally Barred Claims
“[A] section 2255 motion is neither a recapitulation of nor a substitute

for a direct appeal.” Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992),
overruled on other grounds, Castellanos v. United States, 26 F.3d 717 (7th Cir.
5

1994) (citations omitted). “As a result, there are three types of issues that a section
2255 motion can not raise: (1) issues that were raised on direct appeal, absent a
showing of changed circumstances; (2) nonconstitutional issues that could have been
but were not raised on direct appeal; and (3) constitutional issues that were not
raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the
procedural default as well as actual prejudice from the failure to appeal. Id. (citing
United States v. Rodriguez, 792 F.Supp. 1113 (N.D.Ill.1992); see Norris v. United
States, 687 F.2d 899, 900 and 903-04 (7th Cir. 1982) (On appeal from the denial
of a section 2255 motion, the court refused to consider issues previously decided
on direct appeal from the conviction and nonconstitutional issues that could have
been but were not raised on direct appeal. The court would consider
constitutional issues that could have been raised on direct appeal only if
petitioner showed cause and prejudice) (additional citations omitted) (emphasis in
original).
In the instant petition, Hines asserts several claims that are exactly the
same as those raised in his direct appeal of his conviction: (1) defect in instituting
the prosecution; (2) speedy trial violation (“preaccusation and pretrial delay”); and
(3) abuse of discretion (failure to hold a timely Faretta colloquy, failure to grant a
fair hearing, failure to give a fair competency hearing, denial of right to proceed pro
se, commencing trial (impaneling jury) in his absence and the undersigned Judge’s
failure to recuse himself). Hines has not alleged any “changed circumstances” that
would merit revisiting issues already decided on direct appeal. He cannot relitigate
these claims. In summary, Hines is procedurally barred from challenging these
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determinations again in a § 2255 petition, and the claims merit no further
consideration.
Next, Hines contends that the Court abused its discretion by not ordering
the Government to comply with a discovery rule that required it to produce evidence
that would have proven his defense of “lack of in personam jurisdiction” (Doc. 1-1, p.
20). This claim is also procedurally barred, not because Hines raised it on direct
appeal but because he did not.

Assuming that there is a potential constitutional

violation, i.e., that the Government violated its duty to disclose exculpatory
evidence, Hines has not shown the necessary cause and prejudice that he must show
in order to raise the issue in his § 2255 petition. See Miller v. United States, 183
Fed.Appx. 571, 579 (7th Cir. 2006).
Even if Hines’s claim were not procedurally barred, it is meritless. First,
the Court did order compliance with discovery rules in this case (Crim. Doc. 7).
Second, the Court is not required to compel compliance with Brady v. Maryland, 373
U.S. 97 (1963), because Brady is a “self-executing constitutional rule that due
process requires disclosure by the prosecution of evidence favorable to the accused
that is material to guilt or punishment.” United States v. Garrett, 238 F.3d 293,
302 (5th Cir. 2000). Third, the evidence that Hines contends was “suppressed,”
relates to his frivolous claim that the Court lacks personal jurisdiction over him
because he is not a citizen.
More specifically, Hines sought production of such things as his original
birth certificate; Social Security record; applications for a State identification card,
driver’s license and food stamps; and copies of records which he claimed should be
7

provided at no charge by the Clerk of Court for this District (Crim. Docs. 100, 102).
The Government responded that it was not in possession of any of the documents
sought, which were, in any case, “irrelevant to any material issue in this case as there
is no such valid ‘personal jurisdiction’ defense in this case” (Crim. Docs. 117, 119).
Hines’s motion for production of these documents was denied as moot on September
11, 2009, after a hearing in open court – which Hines refused to attend – when the
Court appointed counsel to represent him (Crim. Doc. 128).
Hines was not prejudiced by the Court’s refusal to order the Government
to produce the documents at issue. He was an inmate in a federal prison within the
United States and was charged with violating federal statutes by bringing drugs into
that facility. This Court’s jurisdiction over Hines – regardless of whether he was a
citizen of this country – was properly exercised. His continued pursuit of this frivolous
claim is further evidence of the obstructive behavior that marked this action.
Moreover, Hines was, from the day of the hearing (September 11, 2009) forward, at
all times represented by counsel who could request production of any relevant
documents. Hines’s claim that the Court should have ordered the Government to
produce the documents at issue is both procedurally barred and meritless.
C.

Ineffective Assistance of Counsel Claims
Hines alleges eight reasons why his appointed counsel was ineffective:

(1) failure to raise the defect in instituting the prosecution; (2) failure to raise the
Fourth Amendment violation; (3) failure to attack the defective indictment; (4)
refusal to advocate Hines’s case; (5) refusal to withdraw; (6) failure to consult with
Hines; (7) failure to bring to bear such skill and knowledge as would have rendered
8

the trial a reliable adversarial testing process; and (8) failure to defend Hines at
sentencing. As will be explained below, the claims are both procedurally barred and
meritless.
First, an evidentiary hearing on Hines’s ineffective assistance of counsel
claims is not warranted. These claims often require an evidentiary hearing, “because
they frequently allege facts that the record does not fully disclose.” Osagiede v.
United States, 543 F.3d 399, 408 (7th Cir. 2008). But the issues raised here can be
resolved on the existing record, which conclusively demonstrates that Hines is
entitled to no relief. See Rule 8(a) of RULES GOVERNING SECTION 2255 PROCEEDINGS;
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir.), cert. denied, 551 U.S.
1132 (2007); Gallo-Vasquez v. United States, 402 F.3d 793, 797 (7th Cir. 2005);
Galbraith v. United States, 313 F.3d 1001, 1010 (7th Cir. 2002). Stated another
way, Hines has not alleged facts that, if proven, would entitle him to relief. See
Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009).
Second, under the Seventh Circuit’s analysis in McCleese v. United
States, 75 F.3d 1174 (7th Cir. 1996), the claims are procedurally barred. There the
Court observed that most ineffective assistance claims are properly raised for the first
time in a § 2255 petition. McCleese, 75 F.3d at 1178 (collecting cases). The Court
explained that this procedure is justified on two grounds:

(1) “in order to be

successful, such claims generally require that the record be supplemented with
extrinsic evidence that illuminates the attorney's errors”; and (2) “where trial counsel
was also appellate counsel … he can hardly be expected to challenge on appeal his
own ineffectiveness at trial.” Id. (citations omitted) (internal quotation marks
9

omitted). The result of this rule is that “[w]here a defendant offers no extrinsic
evidence to support his claim of ineffective assistance of counsel and he was
represented by different counsel on appeal, that defendant must bring that claim on
direct appeal or face procedural default for failing to do so.” Id. (citations omitted).
Here, Hines proceeded pro se on appeal, so he cannot escape this
procedural bar on the basis of the second ground, that trial counsel was also
appellate counsel. Consequently, unless Hines offers extrinsic evidence to support his
claims of ineffective representation, the claims are procedurally barred.
Upon careful review of Hines’s petition and supplement, the Court finds
that Hines has offered no objective extrinsic evidence to support his claims. The only
evidence offered that is outside the criminal records is a self-serving affidavit in
which Hines merely sets forth the grounds asserted in his petition and states that his
counsel was deficient. This is not objective evidence that would support a prejudice
argument.

Because Hines offers no material extrinsic evidence in support of his

ineffective assistance claims and because he was represented by counsel at trial but
proceeded pro se on appeal, these claims are not of the type properly raised for the
first time in a § 2255 motion. See McCleese, 75 F.3d at 1178. As such, they are
procedurally barred. Nonetheless, the Court will review the claims individually to
determine whether they overcome a procedural default by meeting the cause and
prejudice test.
The Sixth Amendment to the United States Constitution accords criminal
defendants the right to effective assistance of counsel. Wyatt v. United States, 574
F.3d 455, 457 (7th Cir. 2009), cert. denied, 130 S.Ct. 1925 (March 22, 2010). To
10

prevail on a claim of ineffective assistance, a defendant must prove two things (a)
that his attorney’s performance was objectively unreasonable and (b) that he suffered
prejudiced as a result of this constitutionally deficient performance. Wyatt, 574
F.3d at 457-58; United States v. Peleti, 576 F.3d 377, 383 (7th Cir. 2009);
Strickland v. Washington, 466 U.S. 668, 687 (1984).
This first requirement of this dual test is referred to as “the
performance prong” and the second as the “prejudice prong.” As to the performance
prong, a § 2255 petitioner must overcome a “strong presumption that [his] counsel’s
conduct falls within the wide range of reasonable professional assistance.” Wyatt,
574 F.3d at 458 (quoting Strickland, 466 U.S. at 687-88). He must establish the
specific acts or omissions he claims constitute ineffective assistance, and the Court
then assesses whether those acts/omissions are outside the scope of reasonable legal
assistance. Id. See also United States v. Acox, 595 F.3d 729, 734 (7th Cir. 2010)
(citing Williams v. Lemmon, 557 F.3d 534 (7th Cir. 2009) (Deciding “whether
counsel’s services were beneath the constitutional floor requires consideration of
what counsel did, as well as what he omitted.”)).
Evaluation of counsel’s performance is highly deferential. The reviewing
court presumes reasonable judgment by counsel and must not second-guess counsel’s
strategic choices or “tactical decisions.” Valenzuela v. United States, 261 F.3d
694, 699 (7th Cir. 2003). Moreover, the court must “consider the reasonableness of
counsel’s conduct in the context of the case as a whole, viewed at the time of the
conduct, ... [applying] a strong presumption that any decisions by counsel fall within
a wide range of reasonable trial strategies.” Id.
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As to the prejudice prong, the defendant/petitioner must demonstrate a
reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different. United States v. McKee, 598 F.3d 374, 385 (7th Cir.
2010). The inquiry focuses on whether the counsel’s errors rendered the proceedings
“fundamentally unfair or unreliable.” Valenzuela, 261 F.3d at 699.

As explained

below, Hines’s claims fail the Strickland test.
Three of Hines’s claims (numbers 1, 2 and 3) fail because they involve
appointed counsel’s refusal to file frivolous motions or to pursue frivolous defenses.
The first and second claims are related. In the first claim, Hines asserts that counsel
should have investigated a “plausible line of defense” that the Government obtained
an indictment without first filing a complaint with the magistrate judge that
established probable cause. In the second claim, Hines contends that he was seized
in violation of the Fourth Amendment because the Government did not file a
complaint establishing probable cause before his indictment and arrest.

His third

claim is that counsel failed to attack the indictment which was defective on grounds
of duplicity and multiplicity.
The first two claims reveal Hines’s misunderstanding of how the
prosecution of his criminal case was initiated. Because he was already an inmate
serving a valid sentence when he was interviewed by an FBI agent and placed in
administrative segregation, Rule 5 of the Federal Rules of Criminal Procedure does
not apply. 1

See United States v. Reid, 437 F.2d 1166, 1167 (7th Cir. 1971).

1

Rule 5(a)(1)(A) provides, “A person making an arrest within the United States must take the defendant
without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule
5(c) provides, unless a statute provides otherwise.”

12

Furthermore, Hines was not entitled to a probable cause determination.
Indictment itself sufficiently establishes probable cause.

The

United States v.

Hurtado, 779 F.2d 1467, 1477 (11th Cir. 1985) (citing Ex parte United States,
287 U.S. 241, 250 (1932); Gerstein v. Pugh, 420 U.S. 103, 117 n. 19 (1975);
Giordenello v. United States, 357 U.S. 480, 487 (1958) (“It is so well settled as to
be beyond cavil that the return of a true bill by a grand jury, resulting in
indictment, conclusively demonstrates that probable cause exists implicating a
citizen in a crime.”)). In sum, Hines was not entitled to a preliminary hearing or
other probable cause determination.
These findings negate Hines’s first two claims of ineffective assistance.
Defense counsel was barred from raising frivolous claims by his responsibility to the
Court and by the requirements of professional ethics.

The reasonably competent

assistance standard does not mean that counsel, in order to protect himself from
allegations of inadequacy, must “waste the court’s time with futile or frivolous
motions.” United States v. Bosch, 584 F.2d 1113, 1122 (1st Cir. 1978) (citation
omitted); see also United States v. Rezin, 322 F.3d 443, 446 (7th Cir. 2003) (A
defendant's lawyer has, it is certainly true, no duty to make a frivolous
argument….”) (emphasis in original). While the Court does not seek to constrain
attorneys in their vigorous advocacy of their clients interests, “as officers of the
Court, they have both an ethical and a legal duty to screen the claims of their clients
for factual veracity and legal sufficiency.” Lepucki v. Van Wormer, 765 F.2d 86,
87 (7th Cir. 1985).

Under Rule 3.1 of the Model Rules of Professional Conduct, “A

13

lawyer shall not ... assert or controvert an issue ... unless there is a basis for doing so
that is not frivolous.…” Hines’s counsel acted as a competent attorney in screening
Hines’s requests and was not ineffective for refusing to pursue frivolous arguments.
Hines’s third ground fails for the same reason – that his counsel had a
duty not to raise a frivolous issue – although the analysis is somewhat more complex.
Hines contends that the Superseding Indictment was duplicitous or multiplicitous
because the Counts involve the same criminal conduct.
In United States v. Starks, 472 F.3d 466 (7th Cir. 2006), the Seventh
Circuit explained “multiplicity” as follows:
Multiplicity is the charging of a single offense in separate counts of an
indictment. Multiplicity in an indictment exposes a defendant to the
threat of receiving multiple punishments for the same offense in
violation of the Double Jeopardy Clause of the Fifth Amendment. The
traditional test of multiplicity determines whether each count requires
proof of a fact which the other does not. If one element is required to
prove the offense in one count which is not required to prove the
offense in the second count, there is no multiplicity. We focus on the
statutory elements of the charged offenses, not the overlap in the proof
offered to establish them, because a single act may violate several
statutes without rendering those statutes identical. Starks, 472 F.3d at
468-69 (citations omitted) (internal quotation marks omitted).
Accordingly, the Court focuses on the statutory elements of the charged
offenses – Count 1, possession of a prohibited object (marijuana) in federal prison in
violation of 18 U.S.C. § 1791(a)(2); Count 2, possession of marijuana with intent to
distribute in violation of 21 U.S.C. § 841(a)(1); and Count 3, conspiracy to distribute
and possess with intent to distribute marijuana and heroin in violation of 21 U.S.C. §
846 (Crim Doc. 22). The elements for these offenses are as follows.

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Count 1 (18 U.S.C. § 1791(a)(2)) 2:
First: the defendant knowingly or intentionally possessed a prohibited
object in a federal prison;
Second: the prohibited object was marijuana; and
Third: the defendant was an inmate.
Count 2 (21 U.S.C. § 841(a)(1)) 3; (7th Cir. Pattern Jury Instruction)
First: the defendant knowingly possessed marijuana;
Second: the defendant intended to distribute the substance to another
person; and
Third: the defendant knew the substance was or contained some kind of
a controlled substance.
Count 3 (21 U.S.C. § 846)) 4; (7th Cir. Pattern Jury Instruction 5.08(B)):
First: the conspiracy as charged in Count 3 existed; and
Second: the defendant knowingly became a member of the conspiracy
with an intent to advance the conspiracy.
From the above recitation of the elements that must be proven as to
each Count, it is clear that each charged offense required proof of a fact that the
others did not. Count 1 requires proof that Hines was an inmate. Count 2 requires
proof that Hines intended to distribute the marijuana he possessed. Count 3 requires
proof that Hines conspired with at least one other individual. As a result, Hines’s

2

(a) Offense.--Whoever--

Offense. - Whoever - being an inmate of a prison, makes, possesses, or obtains, or attempts to make
or obtain, a prohibited object;… 18 U.S.C. § 1791(a)(2).
3

(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or
intentionally-(1) to manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance;… 21 U.S.C. § 841(a)(1).
4

Attempt and conspiracy
Any person who attempts or conspires to commit any offense defined in this subchapter shall be
subject to the same penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy. 21 U.S.C. § 846.

15

counsel was not ineffective for refusing to pursue a multiplicity challenge to the
Superseding Indictment, and Hines was not prejudiced thereby.
Hines’s duplicity argument fails by a similar standard. He asserts that
Count 2 is duplicitous because the jury could be confused and not decide separately
his guilt or innocence with respect to possession of marihuana and possession with
intent to distribute it or to use it. And, although difficult to distinguish, Hines may
also be asserting that Count 3 is duplicitous because it alleges a conspiracy in two
ways – to distribute and to possess with intent to distribute.
Counts 2 and 3 are not duplicitous. “A duplicitous charge is not one that
simply alleges a single offense committed by multiple means but rather one that joins
two or more distinct crimes in a single count.” United States v. Vallone, 698 F.3d
416, 461 (7th Cir. 2012) (internal citations and citations omitted).
It is well-established that “possession with intent to distribute and
distribution, alleged in the conjunctive, was statutory language drawn from the same
sentence of subsection (a)(1).”

United States v. Orzechowski, 547 F.2d 978,

987 (7th Cir. 1976). As such, Count 2 is not duplicitous. Id.
Count 3 does not allege two different crimes. Instead, it alleges a
conspiracy with two goals—(1) to distribute marijuana and (2) to possess with intent
to distribute marijuana. This is a permissible charge. See Vallone, 698 F.3d at 461.
As explained by the United States Supreme Court, “A conspiracy is not the commission
of the crime which it contemplates, and neither violates nor ‘arises under’ the
statute whose violation is its object.... The single agreement is the prohibited
conspiracy, and however diverse its objects it violates but a single statute.”
16

Id.

(quoting Braverman v. United States, 317 U.S. 49, 54 (1942)). Consistent with
that reasoning, the Court concludes that Count 3 is not duplicitous.
Because Counts 2 and 3 are not duplicitous, Hines’s counsel was not
ineffective for refusing to pursue a duplicity challenge to the Superseding Indictment,
and Hines was not prejudiced thereby.
Hines’s next ineffective assistance claim (number 4) is that appointed
counsel (AFPD Daniel Cronin) refused to advocate his cause, in that counsel would not
assist him in mounting his in personam jurisdiction defense.
During the period from March 21, 2008, to September 11, 2009, Hines
was proceeding pro se, and Mr. Cronin was acting as standby counsel rather than fully
representing Hines (Crim. Docs. 9, 128). As the Seventh Circuit observed in United
States v. Windsor, 981 F.2d 943 (7th Cir. 1992), “This court knows of no
constitutional right to effective assistance of standby counsel.” 981 F.2d at 947.
The Court continued,
As the word “standby” implies, standby counsel is merely to be available
in case the court determines that the defendant is no longer able to
represent himself or in case the defendant chooses to consult an
attorney. A defendant who has elected to represent himself “cannot
thereafter complain that the quality of his own defense amounted to a
denial of ‘effective assistance of counsel.” Id. (quoting Faretta, 422
U.S. at 834-35 n. 46) (citation omitted)).
Even if Hines was entitled to effective assistance throughout the course of this
proceeding, he has not shown – nor does the Court find – that the assistance he
received was constitutionally deficient as to Mr. Cronin’s refusal to assist him in
mounting his in personam jurisdiction defense.

17

As stated above, Hines’s challenge to this Court’s personal jurisdiction is
frivolous. See above, pp. 7-8. Hines argues that he is not a citizen of the United
States (although born in St. Louis, Missouri). This argument was soundly rejected
both in this District Court and by the Seventh Circuit. Mr. Cronin’s obligation, as
explained above, was to refrain from wasting the Court’s time with frivolous and
futile arguments.
In summary, when Mr. Cronin acted as standby counsel, no constitutional
right to effective assistance attached. And to the extent that the issue relates to the
time when Mr. Cronin fully represented Hines, Mr. Cronin rightly refused to pursue the
frivolous claim urged on him by Hines.

Hines was not prejudiced by Mr. Cronin’s

refusal to pursue a frivolous argument.
Hines’s next ineffective assistance claim (number 5) involves Mr.
Cronin’s refusal to withdraw from representing him even though he had a conflict of
interest.

Hines asserts that he has demonstrated that Mr. Cronin had a personal

conflict with him from the outset of these proceedings.

Hines contends that Mr.

Cronin failed to advocate his cause in the pretrial phase, did not “ideally” investigate
his line of defense, failed to communicate with Hines and refused to withdraw when
instructed by Hines to do so.
In Hall v. United States, 371 F.3d 969 (7th Cir. 2004), the Seventh
Circuit set out the two grounds upon which a petitioner may assert a claim based on
counsel's conflict of interest: (1) showing that his attorney had a potential conflict of
interest and that the potential conflict prejudiced his defense (Strickland, 466 U.S.
668), or (2) establishing a violation “by showing that ‘an actual conflict of interest
18

adversely affected his lawyer's performance’” (Cuyler v. Sullivan, 446 U.S. 335
(1980)).

Hall, 371 F.3d at 973 (emphasis in original) (additional citations

omitted).

A conflict of interest arises in instances such as where an attorney

previously represented (or presently represents) another party on a related matter or
where an attorney is faced with a choice between advancing his own interests above
those of his client. Id.
First, the Court will not consider any claims that arose during the period
that Mr. Cronin acted as standby counsel (March 21, 2008, to September 11, 2009). As
stated above, there is no constitutional right to effective assistance of standby
counsel. Windsor, 981 F.2d at 947. Second, Hines appears to misunderstand the
legal meaning of a conflict of interest.

He has identified no instance where Mr.

Cronin breached his responsibility to Hines.
Mr. Cronin’s refusal to renew the motions Hines filed while he acted pro
se does not show any conflict of interest or establish ineffective assistance of counsel.
The motions were frivolous, and Mr. Cronin, again, had an obligation to refrain from
subjecting the Court to futile, time-wasting arguments. For example, the motion at
Doc. 100 sought copies of Hines’s birth certificate and Social Security record so he
could pursue his frivolous lack of in personam jurisdiction argument. In the motion at
Doc. 102, Hines contends that he was unable to obtain a copy of his detainer arrest
warrant from the correctional institution at which he was incarcerated and that the
Clerk of Court for this District refused to provide him with copies at no charge. No
possible prejudice could arise from Hines’s inability to obtain a copy of this warrant.
In the motion at Doc. 109, Hines seeks a “mandatory injunction,” referencing,
19

variously, arbitrary disciplinary actions, the lack of an appropriate bed and being
placed in disciplinary segregation.

These complaints could be appropriate in an

action brought pursuant to 42 U.S.C. § 1983 but have no bearing on Hines’s criminal
case. Moreover, his assertion that Mr. Cronin’s motion in limine (Doc. 120) was a
direct breach of his responsibility to Hines is meritless because the motion was filed
by Government counsel and not Mr. Cronin.
In summary, Hines has identified no evidence of a conflict of interest
that would require Mr. Cronin to withdraw and appears to misapprehend the term.
Mr. Cronin’s representation of Hines was not ineffective because he failed or refused
to refile motions that the Court had denied as moot when Mr. Cronin was appointed to
represent Hines. Rather, Mr. Cronin’s obligation was to refrain from subjecting the
Court to futile motions.

No prejudice arose from Mr. Cronin’s refusal to follow

Hines’s instructions in this regard.
In Hines’s next ineffective assistance claim (number 6), he contends that
Mr. Cronin failed to consult with him. He submits that Mr. Cronin did not discuss trial
strategy with him, refused to put on evidence that the Court lacked personal
jurisdiction over him and pursued a course at trial that was “his own line of defense”
without Hines’s consenting to such a strategy.
Again, the Court will not consider any claims that arose during the
period that Mr. Cronin acted as standby counsel (March 21, 2008, to September 11,
2009) because there is no constitutional right to effective assistance of standby
counsel. Windsor, 981 F.2d at 947.

20

Given Hines’s adamant rejection of any attempt by Mr. Cronin to
communicate with him, he can scarcely be heard to complain about that lack of
communication.

The Court is struck by Hines’s temerity in complaining that Mr.

Cronin failed to communicate with him where Hines threatened to spit on him.
Hines insisted that no attorney attempting to represent him be present
in the courtroom during trial. Hines also repeatedly challenged the Court's authority,
refused to answer the Court’s questions and refused to cooperate in proceedings (See
Doc. 128). Hines refused to leave his cell for the competency phase of the September
11, 2009, hearing and also refused to participate in the Faretta colloquy. At that
hearing, Mr. Cronin, acting as standby counsel, reported that Hines would not
communicate with him. Throughout the course of this proceeding, Hines continued to
insist that he would proceed pro se and continued to file motions on his own behalf
(See Crim. Docs. 138, 139, 148 and 152). At the commencement of the September 24,
2009, status hearing, Federal Public Defender Phillip J. Kavanaugh reported that he
and Mr. Cronin had gone to the holdover cell, but Hines refused to come to the
holdover cell to meet with them (Crim Doc. 157, 9/24/09 Trans., 2:22-24).

Mr.

Kavanaugh stated that he passed some materials to a deputy who delivered them to
Hines, but Hines still refused to come out (Id. at 2:24-3:1).
The underlying criminal case is replete with instances of Hines’s
obdurate, recalcitrant behavior and refusal to communicate with counsel and the
Court.

The record shows that Hines rebuffed with silence, threats or insults Mr.

Cronin’s every attempt to communicate with him. In short, Hines cannot show that
counsel’s performance was deficient or that he was prejudiced in this regard.
21

In Hines’s next ineffective assistance claim (number 7), he contends that
Mr. Cronin failed to bring to bear such skill and knowledge as would have rendered
the trial a reliable adversarial testing process. His contentions in this regard are a
rehash of ineffective assistance claims already rejected by this Court:

failure to

assist him at the outset of the proceedings; failure to file pretrial motions; failure to
attack defects in instituting the prosecution; failure to prosecute the speedy trial
violation; failure to consult with Hines on trial strategy; and failure to investigate
Hines’s plausible line of defense (lack of in personam jurisdiction). The Court will not
tarry over this argument. Suffice it to say that for the reasons set forth above, these
claims are procedurally barred and completely meritless.
As the Court acknowledged at the sentencing hearing, Mr. Cronin
zealously and effectively represented Hines. The Court observed With respect to the seriousness of the offense, the Court notes, first of
all, that the evidence of Mr. Hines' guilt was overwhelming. A video was
shown that clearly established his guilt beyond a reasonable doubt
consistent with the jury findings. It was good lawyering and probably a
lot of luck that saved him from being found guilty of the more serious
count in this case.
Hines cannot show that Mr. Cronin’s assistance was ineffective or that he
was prejudiced by any failure on Mr. Cronin’s part to bring to bear his skill and
knowledge in testing the Government’s case.
In Hines’s final ineffective assistance claim (number 8), he contends that
Mr. Cronin failed to defend him at sentencing. Hines submits that he filed, pro se,
objections to the Presentence Investigation Report (PSR) and a motion to stay
sentencing which Mr. Cronin failed to investigate or renew at sentencing. First, Hines
22

contends that his prior convictions were not final because they were on appeal and,
as a result, could not be counted as criminal history under the guidelines. Second,
Hines asserts that he had several prior sentences that were the result of uncounseled
misdemeanors where imprisonment was imposed. According to Hines, if Mr. Cronin
had investigated, he would have found that there was no valid waiver of counsel as to
these misdemeanors, which mandated their exclusion from his criminal history.
The prior felony drug convicted cited and used under 21 U.S.C. § 851 to
increase the statutory maximum possible sentence to 10 years was a 1991 Missouri
state court conviction for distribution of a controlled substance near a school (Count
1) and possession of a controlled substance (cocaine) (Count 2) (Crim. Doc. 217, PSR
at ¶ 35).

Hines pleaded guilty on June 4, 1991, and was sentenced to 10 years’

imprisonment on Count 1 and 7 years’ on Count 2, to be served concurrently. Id.
After numerous violations of probation and revocations of probation and parole,
Hines’s full term of imprisonment was reimposed.

Id.

He was released and

discharged from the Missouri Department of Corrections on August 26, 2002. Id.
For Hines to assert that his conviction had not become final for purposes
of §§ 841 and 851 more than 19 years after he pleaded guilty and more than 7 years
after he was discharged strains credulity beyond the breaking point. Hines has not
provided any evidence, nor even asserted, that he filed a belated collateral challenge
in state court or that any action remains pending as to this conviction.
Stated simply, Mr. Cronin’s representation was not ineffective for failing
to file this frivolous challenge, and Hines has demonstrated no prejudice that accrued
to him.
23

As to Hines’s second challenge, the PSR shows that Hines waived counsel
and pleaded guilty to each of the countable misdemeanor convictions (Crim. Doc.
217, PSR at ¶¶ 36, 38, 39, 40, 43).

Other than Hines’s current self-serving

declarations, he offers no evidence to controvert the PSR. If Hines had wished to
challenge the PSR, he had an opportunity during sentencing, but he instead refused to
communicate with Mr. Cronin, with the probation officer who prepared the report and
with the Court (See Crim. Doc. 217, ¶ 71 (“The defendant declined to be interviewed
by the probation officer.”); Doc. 245, Sentencing Hearing Trans.).
At sentencing, the Court inquired,
Mr. Hines, have you reviewed the Presentence Investigation Report in
your case? Are you just going to refuse to speak, sir? That is certainly
your right. I want to have it clear if there is anything you want to say
about the Presentence Investigation Report, any conclusions regarding
it, now is the time to do that or they are going to be considered waived.
All right, you have nothing to say. The Court accepts the Presentence
Investigation Report which was disclosed March 5th of 2010. (Doc. 245,
Trans. at 2:25-3:8).
Accordingly, in open court, Hines waived his right to challenge the PSR.
As a result, Hines cannot now show that Mr. Cronin was deficient in representing him
at sentencing.
Lastly, “[w]hen the alleged deficiency is a failure to investigate, the
movant must provide ‘the court 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) (citing Hardamon
v. United States, 319 F.3d 943, 951 (7th Cir. 2003)). Hines offers no reason to
believe that the PSR was inaccurate in any respect. See id. (citing United States v.
Fudge, 325 F.3d 910, 924 (7th Cir. 2003) (movant did not “offer[ ] a shred of
24

evidence that supports his claim”) (additional citation omitted)).

Without any

evidence that the PSR was inaccurate, Hines cannot show that he was prejudiced by
Mr. Cronin’s alleged failure to investigate the information provided in the PSR.
D.

Supplement (Doc. 20)
On August 7, 2012, Hines submitted a supplement to his § 2255 petition

in which he asserts the following sentencing errors: (1) he did not read and discuss
the PSR with counsel; (2) the sentencing court erred in considering the relevant
conduct drug quantities charged in Count 3, of which Hines was acquitted; (3) the
sentencing court erred in failing to give reasons for imposing consecutive sentences.
As to this latter ground, Hines asserts that the Court sentenced him to a total of 144
months’ imprisonment where the maximum possible sentence was 120 months.
As to the first ground, that Hines did not read and discuss the PSR with
counsel, the Court considered this matter in detail, supra. The undersigned Judge
asked Hines if he had read the PSR and had any objections to it. Hines refused to
respond even though given an opportunity in open court and even though he was
warned that a failure to object would result in waiver of claims. Consequently, he
cannot complain of error in this regard.
As to the second and third grounds, the issues are both procedurally
barred and wholly without merit. Hines raises nonconstitutional claims involving a
violation of statutory or procedural rules that he could have asserted in his direct
appeal but did not. As the Court stated, supra, these claims are not cognizable in a §
2255 petition.

Belford, 975 F.2d at 313 (A § 2255 petition cannot raise

nonconstitutional issues that could have been but were not raised on direct
25

appeal.). Furthermore, “non-constitutional errors which could have been raised on
appeal but were not, are barred on collateral review - regardless of cause and
prejudice.” Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir. 1988) (citing
Kaufman v. United States, 394 U.S. 217 (1969)). Even if his claim that he was
sentenced in excess of the statutory maximum is considered as a constitutional claim,
it is still procedurally barred because Hines did not raise it on direct appeal or show
cause for the procedural fault and actual prejudice from the failure to appeal.
Belford, 975 F.2d at 313.
The Government cites Scott v. United States, 997 F.2d 340 (7th Cir.
1993) for the proposition that sentencing guideline errors are generally not
cognizable in a § 2255 proceeding. The Court notes with interest Judge Rovner’s
dissent in Hawkins v. United States, 2013 WL 452441 (7th Cir. February 7, 2013).
Therein, Judge Rovner noted that the Seventh Circuit had only posed the issue as an
unresolved question, but its query has since crept into the Circuit’s case law as an
accepted premise.

Hawkins, 2013 WL 452441 at *9 (citation omitted). Judge

Rovner then observed that the United States Supreme Court “has stated only that if
an error is neither jurisdictional nor constitutional, in order to be cognizable on
collateral review, it must present ‘exceptional circumstances’ in which a fundamental
defect inherently results in a complete miscarriage of justice.” Id. (citing Hill v.
United States, 368 U.S. 424, 428 (1962)). Judge Rovner then noted that, in Scott,
the Court “surmised, without deciding, that Guidelines errors should not be
redressable upon § 2255 review because, given their status, ‘[o]ne full and fair

26

opportunity to make arguments under the Guidelines - at sentencing and on direct
appeal - is enough.’” Id. (citing Scott, 997 F.2d at 342).
Redressable or not on § 2255 review, It is patently clear that Hines had a
“full and fair opportunity” to make his arguments under the guidelines at sentencing
and on direct appeal – and failed to make those arguments. Furthermore, he has
presented no “exceptional circumstances” showing a fundamental defect that
inherently resulted in a complete miscarriage of justice. In short, as presented here,
collateral relief under § 2255 is not justified.
Hines’s claim that the Court erred in considering conduct concerning
Count 3 (possession of heroin and other amounts of marijuana), of which Hines was
acquitted, is also meritless. The United States Supreme Court addressing a similar
argument - that it is unconstitutional to consider acquitted conduct at sentencing –
stressed “that a person whose acquitted conduct is considered at sentencing is not
punished for a crime of which he has not been convicted. Rather, he is punished for
the crime he did commit: and because the sentencing guidelines direct judges to look
at the characteristics of the offense, relevant conduct proved by a preponderance
standard can include acquitted conduct.”

United States v. Waltower, 643 F.3d

572, 574 (7th Cir. 2011) (quoting United States v. Watts, 519 U.S. 148, 156–57
(1997) (per curiam) (sentence informed by acquitted conduct violates neither the
Fifth Amendment's prohibition on double jeopardy nor its due-process guarantee);
see also Alabama v. Shelton, 535 U.S. 654, 665 (2002) (“Thus, in accord with due
process, [a defendant] could have been sentenced more severely based simply on
evidence of the underlying conduct ... even if he had been acquitted of the
27

misdemeanor with the aid of appointed counsel.”) (citations and quotation marks
omitted) (emphasis in original)).
The PSR described the FBI interview, to which Hines had agreed, at
which Hines admitted possession of marijuana as well as introducing tobacco and
heroin into the prison (Crim. Doc. 217, PSR, at ¶ 11). Hines described receiving fourto-five “bullets,” containing contraband each weekend over an eight-week period (Id.
at ¶¶ 11-12). FBI Agent Joe Shevlin testified at trial that Hines admitted to his role in
the scheme that introduced drugs and contraband into USP Marion (Crim. Doc. 244,
Trans. at p. 9 et seq). A bullet of marijuana contained about an ounce, with a value
in the institution between $1,300.00 and $1,500.00, and a bullet of heroin contained
about five grams, with a value in the institution between $15,000.00 and $20,000.00
(Id. at pp. 18-:24-20:2). Shevlin’s testimony supported the amounts of heroin and
marijuana found as relevant conduct in the PSR.
The Court did not err in finding that Agent Shevlin’s testimony at trial,
tested on cross-examination, was sufficiently reliable to establish relevant conduct
under the guidelines.
Lastly, Hines’s argument regarding the length of his sentence is
mertiless. The PSR concluded that the term of imprisonment for Count 1 was not
more than 60 months, and the term of imprisonment for Count 2 was not more than
120 months (Crim. Doc. 217, PSR, ¶ 98). Under 18 U.S.C. § 3584(a), the Court had
discretion to impose terms of imprisonment to run concurrently or consecutively.
Since the statutory maximum sentence was 180 months, the Court’s imposition of a

28

144-month sentence was well below that maximum. Hines cannot establish that the
Court abused its discretion in deciding his sentence.
Moreover, Hines’s assertion that the undersigned Judge failed to comply
with the requirements of § 3553(c) in stating its reasons for the sentence imposed is
patently untrue (See Crim Doc. 245, Sentencing Trans, p. 21 et seq).

The Court

engaged in a lengthy analysis of the § 3553(a) factors as applied to Hines and, in light
of those factors, gave its reasons for “stacking” Counts 1 and 2 and running the terms
of imprisonment consecutively (See id.).
E.

Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the

Court “must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” An appeal from a final order in a § 2255 proceeding may
not be taken to the Court of Appeals unless the petitioner obtains a certificate of
appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only
where the petitioner “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, 529 U.S. 473 (2000), the
Supreme Court interpreted this requirement to mean that an applicant must show
that “reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. as 484. And, where the
court denies a petition on procedural grounds, a petitioner must show that reasonable
jurists “would find it debatable whether the district court was correct in its
procedural ruling.” Id. A petitioner need not show that his appeal will succeed, but
he must show “something more than the absence of frivolity” or the existence of
29

mere “good faith.” Miller-El v. Cockrell, 537 U.S. 322, 337-38 (2003) (quoting
Barefoot v. Estelle 463 U.S. 880, 893 (1983)). Furthermore, where the district
court denies the request, a petitioner may request that a circuit judge issue the
certificate. Fed. R. App. P. 22(b)(1).
Based upon the record before it, which the Court has exhaustively
reviewed, the Court concludes that reasonable jurists would not find it debatable
whether the Petition should be dismissed. HInes has not made a substantial showing
that his sentence “was imposed in violation of the Constitution or laws of the United
States.” Shell v. United States, 448 F.3d 951, 954 (7th Cir. 2006) (citing Fountain
v. United States, 211 F.3d 429, 433 (7th Cir. 2000) (quoting 28 U.S.C. § 2255)).
Accordingly, the Court DENIES a certificate of appealability.
F.

Conclusion
For the foregoing reasons, the Court DISMISSES with prejudice Petitioner

Hines’s motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255
and DENIES a certificate of appealability.
IT IS SO ORDERED.
DATED this 18th day of March, 2013

s/Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge

30