Cephus v. USA
Filing
1
OPINION AND ORDER: Court DENIES section 2255 motion. This civil action is DISMISSED WITH PREJUDICE. Court DECLINES to issue a certificate of appealability. Signed by Judge Rudy Lozano on 8/18/2014. cc: Cephus (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.
STANTON LANDRY CEPHUS,
Defendant/Petitioner.
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NO. 2:09-cr-43
2:13-cv-258
OPINION AND ORDER
This matter is before the Court on the: (1) Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person
in Federal Custody, filed by Petitioner, Stanton Landry Cephus, on
July 29, 2013 (DE #474); and (2) Motion for Appointment of Counsel,
filed by Petitioner, Stanton Landry Cephus, on September 23, 2013
(DE #483).
For the reasons set forth below, the motion to appoint
counsel (DE #483) is DENIED and the section 2255 motion (DE #474)
is also DENIED.
also DENIED.
Cephus’s request for an evidentiary hearing is
The Clerk is ORDERED to DISMISS this civil action
WITH PREJUDICE.
Additionally, the Court DECLINES to issue a
certificate of appealability.
The Clerk is FURTHER ORDERED to
distribute a copy of this order to Petitioner (Inmate Reg. No.
10107-27), Otisville FCI, Inmate Mail/Parcels, P.O. Box 1000,
Otisville, NY 10963, or to such other more current address that may
be on file for the Petitioner.
BACKGROUND
On July 2, 2009, Cephus was charged with four co-defendants in
a superseding indictment (DE #35).
Cephus was charged with: Count
1 - conspiracy under 18 U.S.C. § 371 to commit various violations
of 18 U.S.C. §§ 2, 1591(a)(1), (b)(2), 2421, and 2423(a); in Counts
6, 8, 10, 12, 14, 16, and 18 - substantive violations of 18 U.S.C.
§ 1591(a)(1) and (b)(1) for his role in recruiting, enticing,
harboring, transporting, providing, and obtaining victims A.H.,
A.W., B.G., C.V., J.O., L.G., and S.K., knowing that force, fraud,
or coercion would be used to cause them to engage in commercial sex
acts; in Counts 7, 9, 11, 13, 17, 20, and 21, with substantive
violations of 18 U.S.C. §§ 2, 2421, for his role in transporting
victims A.H., A.W., B.G., C.V., L.G., A.B.3, and L.E. in interstate
commerce with intent that they engage in prostitution.
(DE #35.)
Following a ten-day jury trial, Cephus was found guilty of all
charges against him.
(DE #203.)
At trial, Cephus was represented
by attorney Arlington J. Foley.
On January 4, 2011, this Court
held a sentencing hearing for Cephus, and he was sentenced to: 60
months for Count 1; 120 months for each of Counts 7, 9, 11, 13, 17,
20, and 21; and 324 months for each of Counts 6, 8, 10, 12, 14, 16,
and 18, all terms to be served concurrently.
on January 7, 2011.
2
Judgment was entered
Through appointed appellate counsel, Craig M. Sandberg, Cephus
filed a direct appeal with the Seventh Circuit on January 10, 2011.
On appeal, Cephus raised the following arguments, inter alia: (1)
insufficient evidence of his guilt was presented at trial; (2) the
Court improperly excluded evidence of a victim’s prior sexual
behavior under Federal Rule of Evidence 412; and (3) his sentence
violated the Eighth Amendment’s prohibition against cruel and
unusual punishment because it was grossly disproportionate to his
role in the offenses.
See United States v. Cephus, 684 F.3d 703
(7th Cir. 2012), cert. denied, 133 S. Ct. 588, 133 S. Ct. 807.
Regarding sufficiency of evidence, the Seventh Circuit stated:
He argues that he had just helped out his brother
from time to time, motivated by family loyalty.
But an innocent or even noble motivation for
committing a crime, as distinct from lack of intent
to commit it, is not a defense.
Cephus, 684 F.3d at 706-07 (citations omitted).
Regarding his
role in the conspiracy, the Court found that:
[a]lthough
Stanton
didn’t
commit
all
the
substantive offenses charged in the indictment, he
participated in the conspiracy by driving girls and
women to their “calls” and collecting money from
the johns for his brother. He did not beat any of
the prostitutes but he watched them being beaten
and so was aware of the scope of the conspiracy he
had joined. The Pinkerton doctrine therefore made
him liable for criminal acts committed by the other
conspirators within that scope.
Pinkerton v.
United States, 328 U.S. 640; United States v.
Colon, 549 F.3d 565, 572 (7th Cir. 2008).
Id. at 707.
Regarding the exclusion of evidence pursuant to Rule
3
412, the Court found the excluded evidence “irrelevant” to the
issues being decided.
Id. at 708.
Finally, the Court found that
Cephus’s argument that his sentence was grossly disproportionate to
his role in the offenses was “frivolous.”
Id. at 709.
Cephus filed the instant motion to vacate his sentence under
section 2255 on July 29, 2013 (DE #474).
Cephus argues that his
trial counsel improperly or insufficiently counseled him regarding
his
right
assistance,
to
he
testy
at
failed
trial,
to
make
that
he
provided
objections
to
his
ineffective
sentencing
guideline range, and he failed to inform the Court that Cephus
wanted to plea guilty rather than go to trial.
Cephus also
requested to file a supplement to his 2255 motion, and this Court
granted the request and deemed his supplement (DE #481) as filed.
The Government filed a response, addressing the original 2255 and
his supplement, on November 1, 2013 (DE #493).
reply on December 6, 2013 (DE #498).
Cephus filed a
The Government then filed a
traverse on January 21, 2014 (DE #515).
Cephus asked to either
strike, or respond to the traverse (DE #524), and this Court
granted him the opportunity to respond (DE #528).
additional memorandum on March 14, 2014 (DE #535).
Cephus filed an
He then filed
a memorandum entitled “Notice of Authority,” on April 8, 2014 (DE
#542), and the Government filed a response on April 15, 2014 (DE
#550).
Cephus then moved to either strike the Government’s
response, or for leave to file a surreply, and the Court granted
4
him leave to file a surreply on or before July 14, 2014.
#565).
To date, Cephus has not filed a surreply.
(DE
As such, this
motion is fully briefed, and ripe for adjudication.
DISCUSSION
Habeas corpus relief under 28 U.S.C. section 2255 is reserved
for "extraordinary situations."
812, 816 (7th Cir. 1996).
Prewitt v. United States, 83 F.3d
In order to proceed on a habeas corpus
petition pursuant to 28 U.S.C. section 2255, a federal prisoner
must show that the district court sentenced him in violation of the
Constitution or laws of the United States, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.
A
section
2255
Id.
motion
is
recapitulation of a direct appeal.
neither
a
substitute
for
nor
Id.; Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
result:
[T]here are three types of issues that a
section 2255 motion cannot 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.
5
As a
Belford, 975 F.2d at 313.
Additionally, aside from demonstrating
"cause" and "prejudice" from the failure to raise constitutional
errors
on
direct
appeal,
a
section
2255
petitioner
may
alternatively pursue such errors after demonstrating that the
district court's refusal to consider the claims would lead to a
fundamental miscarriage of justice.
McCleese v. United States, 75
F.3d 1174, 1177 (7th Cir. 1996).
In assessing Petitioner's motion, the Court is mindful of the
well-settled
principle
that,
when
interpreting
a
pro
se
petitioner's complaint or section 2255 motion, district courts have
a "special responsibility" to construe such pleadings liberally.
Donald v. Cook Cnty. Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir.
1996); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (a "pro se
complaint, 'however inartfully pleaded' must be held to 'less
stringent standards than formal pleadings drafted by lawyers'")
(quoting Haines v. Kerner, 404 U.S. 519 (1972)); Brown v. Roe, 279
F.3d 742, 746 (9th Cir. 2002) ("pro se habeas petitioners are to be
afforded 'the benefit of any doubt'") (quoting Bretz v. Kelman, 773
F.2d 1026, 1027 n.1 (9th Cir. 1985)).
In other words:
The mandated liberal construction afforded to
pro se pleadings "means that if the court can
reasonably read the pleadings to state a valid
claim on which the [petitioner] could prevail,
it should do so despite the [petitioner's]
failure to cite proper legal authority, his
confusion of various legal theories, his poor
syntax and sentence construction, or his
unfamiliarity with pleading requirements."
6
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas
petition from state court conviction) (alterations in original)
(quoting Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
On the other hand, "a district court should not 'assume the role of
advocate for the pro se litigant' and may 'not rewrite a petition
to include claims that were never presented.'"
Id.
Here, the
Court assessed Cephus’s claims with these guidelines in mind.
Appointment of Counsel
The Seventh Circuit has left the appointment of counsel in
section 2255 cases to the sound discretion of the lower courts, and
there is no right to counsel in section 2255 cases “unless denial
would result in fundamental fairness impinging on due process
rights.”
Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997)
(quoting LaClair v. United States, 374 F.2d 486, 489 (7th Cir.
1967)).
Upon review of the documents filed since the inception of this
case, there is no indication that Cephus’s due process right will
be impinged upon should he continue to represent himself.
In the
instant 2255 Petition and the other briefs before this Court, it is
clear that Cephus is fully capable of articulating his arguments
and presenting his case without an attorney.
He cites to case law
and sets forth cogent legal arguments. Therefore, this Court finds
that denying Cephus’s request for counsel will not impinge on his
7
due process rights, and the motion is DENIED.
Section 2255 Petition
Cephus
contends
that
his
trial
attorney
provided
constitutionally ineffective assistance of counsel.
Claims of
ineffective assistance of counsel are governed by the 2-pronged
test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
To prevail on an ineffective assistance of counsel claim, the
Defendant must first show the specific acts or omissions of his
attorney "fell below an objective standard of reasonableness" and
were
"outside
assistance."
the
wide
range
of
professionally
competent
Barker v. United States, 7 F.3d 629, 633 (7th Cir.
1993) (quoting Strickland, 466 U.S. at 690); see also Hardamon v.
United States, 319 F.3d 943, 948 (7th Cir. 2003); Anderson v.
Sternes,
243
F.3d
1049,
1057
(7th
Cir.
2001).
The
second
Strickland prong requires the Defendant to show prejudice, which
entails
showing
by
"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.
Regarding the deficient-performance prong, great deference is
given to counsel's performance and the defendant has a heavy burden
to
overcome
the
strong
presumption
of
effective
performance.
Strickland, 466 U.S. at 690; Coleman v. United States, 318 F.3d
754, 758 (7th Cir. 2003) (defendant “has a difficult burden of
8
proof
as
he
must
overcome
the
strong
attorney’s performance was effective.”).
presumption
that
his
Defendant must establish
specific acts or omissions that fell below professional norms.
Strickland, 466 U.S. at 690.
If one prong is not satisfied, it is
unnecessary to reach the merits of the second prong.
Id. at 697.
The Seventh Circuit has held that, “[o]nly those habeas
petitioners who can prove under Strickland that they have been
denied a fair trial by the gross incompetence of their attorneys
will be granted the writ.”
(7th Cir. 2005).
Canaan v. McBride, 395 F.3d 376, 385-86
Additionally, trial counsel “is entitled to a
‘strong presumption’ that his performance fell ‘within the range of
reasonable professional assistance’ and will not be judged with the
benefit of hindsight.’”
Almonacid v. United States, 476 F.3d 518,
521 (7th Cir. 2007) (citing Strickland, 466 U.S. at 689).
“Courts
are admonished not to become ‘Monday morning quaterback[s]’ in
evaluating counsel’s performance.”
Blake v. United States, 723
F.3d 870, 879 (7th Cir. 2013) (quoting Harris v. Reed, 894 F.2d
871, 877 (7th Cir. 1990)).
Not Testifying On His Own Behalf
Cephus claims his counsel was ineffective when he would “not
allow the Petitioner to testify on his own behalf.” (2255 Pet., DE
#475, p. 2.)
This assertion is belied by Cephus’s own sworn
testimony at the hearing which this Court conducted outside the
9
presence of the jury during trial.
This Court asked Cephus if he
had talked to his attorney regarding the right to testify, whether
the attorney had explained he had a right to testify if he wished
but no one could force him to testify, that if he did testify he
would be subject to cross-examination, and this is a “one-time
choice; in other words, you can’t wait for the verdict to come back
and say, Now I want to testify.
You have to make your decision
right
2229-2230.)
now.”
(DE
#493-1,
pp.
affirmatively to all those questions.
Id.
Cephus
answered
Then, this Court
specifically asked Cephus, “[i]s it your desire not to testify in
this case?” and he answered, “Yes, sir.”
(Id., p. 2230.)
When
asked if he was doing this knowingly and voluntarily, he replied,
“[y]es, Judge” and stated that no one forced him to not testify.
(Id., pp. 2230-31.)
Clearly, Cephus was properly advised of his right to testify
and the Court found that Petitioner was making a knowing and
voluntary decision not to testify.
attorney
improperly
convinced
contradicted by the record.
Petitioner’s claim that his
him
not
to
testify
is
thus
He is bound by that testimony.
See
United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987)
(“Rational conduct requires that voluntary responses made by a
defendant under oath before an examining judge be binding.
requirement
is
consistent
with
reason
and
common
Such a
sense.”).
Furthermore, Cephus has given no indication how his testimony
could possibly have affected the outcome of the trial, and he
10
therefore cannot demonstrate prejudice. Cephus suggests that if he
was allowed to testify, he would have shown that he was just a
“small-time drug dealer” (DE #475, p. 4), but he also admits “that
he was present once that he recalls concerning a fight between his
brother and his girlfriend . . .”
Id.
This evidence would have
corroborated other witnesses’ testimony, and certainly does not
indicate it could have lead to an acquittal.
Lack of a Competency Hearing
Cephus also claims that his trial counsel was ineffective for
not requesting a competency hearing.
(DE #475, pp. 6-7.)
Cephus
claims in his memorandum that he has a history of medical problems,
including schizophrenia and depression, and he was never afforded
a pre-trial mental examination.
obligation
to
seek
a
mental
(Id., p. 6.)
competency
An attorney has an
exam
where
there
is
reasonable cause to believe that the defendant was suffering from
a mental disease or defect rendering him incompetent to the extent
that he could not understand the nature and consequences of the
proceedings against him or assist in his defense. United States v.
Grimes, 173 F.3d 634, 635-36 (7th Cir. 1999).
The only evidence in the record that arguably could support
Cephus’s claim of possessing a mental illness did not surface until
after Cephus was convicted.
Cephus cites to information in his
Presentence Report and states that his counsel was “well aware of
these conditions as well as the U.S. Attorney” (DE #475, p. 6), but
11
Cephus himself was the source of this information during the
sentencing phase after he was convicted at trial.
The Probation
office requested medical documents to verify Cephus’s allegation
that he was diagnosed with schizophrenia and depression, but
Probation never received any records. (PSR, ¶¶ 209-10.) Moreover,
Probation noted that Cephus believes he may also be bi-polar, but
that illness has not been diagnosed.
(Id. ¶ 209.)
Cephus fails to
provide any medical records to the Court to substantiate his
claimed diagnoses of schizophrenia or depression.
Even assuming,
arguendo, as he suggested during the sentencing phase, he was
prescribed medication at some point (PSR ¶ 210), and even if Cephus
could show his trial counsel was aware of that fact prior to trial,
his claim still would not succeed.
F.2d
556,
564
(7th
Cir.
1989)
See, e.g., Balfour v. Haws, 892
(“If
trial
counsel
knew
[the
defendant] was taking medication to stabilize his mood or thought,
he would not necessarily have been remiss in proceeding to trial.”)
(citing Illinois v. Marshall, 448 N.E.2d 969, 977 (Ill. App. Ct.
1983)
(“defendant’s
use
of
medication
to
maintain
mental
capabilities in itself [is] irrelevant to [the] determination of
[his] competency to stand trial)).
In sum, Cephus fails to
overcome the strong presumption of effectiveness set forth in
Strickland.
Alleged Misconduct With Jurors
Cephus claims his trial counsel was ineffective for not
challenging alleged improper juror contact.
12
(DE #475, p. 4.)
Cephus alleges the United States Attorney in this case, Jill
Trumbull-Harris, “acknowledge[d] a juror as if they had prior
knowledge of each other” and then hours after the trial concluded,
Ms.
Trumbull-Harris
contacted
the
juror
on
Facebook.
Id.1
Cephus’s account is incorrect.
On November 24, 2009, four days after the conclusion of trial,
the Government filed a notice of contact from a juror which
occurred after the jury verdict.
(DE ##213, 219.)
A second notice
of contact was filed by the Government regarding another juror
about contact after the verdict.
(DE #218.)
The Defendants
jointly moved to have an evidentiary hearing on this matter (DE
#219), this Court considered the request, and because it found no
claim
that
misconduct
occurred
during
the
trial,
extensive order and declined to hold a hearing.
entered
an
(DE #228.)
The Court’s ruling on this issue was not challenged by Cephus,
or any of his co-defendants, on direct appeal.
“An issue not
raised on direct appeal is barred from collateral review absent a
showing of both good cause for the failure to raise the claims on
direct appeal and actual prejudice from the failure to raise those
claims, or if a refusal to consider the issue would lead to a
fundamental miscarriage of justice.”
1
Prewitt, 83 F.3d at 816 (7th
Cephus also claims the AUSA wrote a book entitled “how to
win a trial and obtain a conviction by any cost.” (DE #475, p.
5.) Even assuming, arguendo, she did (and there is no evidence
of this whatsoever before the Court), Cephus totally fails to
show how a book would entitle him to relief under section 2255.
13
Cir. 1996) (emphasis in original) (citations omitted).
Cephus has
not satisfied those requirements here.
Pretrial
In his supplemental memorandum, Cephus also argues his counsel
was ineffective because he did not file a motion to sever the
defendants. (DE #481, p. 3.) The Seventh Circuit has stated there
is a “strong public interest” in having persons “jointly indicted
tried together.”
United States v. Neely, 980 F.2d 1074, 1090 (7th
Cir. 1992) (quoting United States v. Percival, 756 F.2d 600, 610
(7th Cir. 1985)).
That is especially true in cases where multiple
defendants are charged with engaging in a common enterprise.
See
United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir. 1987)
(“[t]here is a strong interest in joint trials for those who engage
in a common enterprise.”).
Joint trials are economical for the
courts and prosecutors, reduce the stress on witnesses, and “give[]
the jury the best perspective on all of the evidence and therefore
increase[] the likelihood of a correct outcome.” Id. Thus, Cephus
has not shown that if he made this motion, it likely would have
been granted and would have changed the outcome of the trial.
See,
e.g., United States v. Jackson, 33 F.3d 866, 875-76 (denying claim
of ineffective assistance of counsel where counsel failed to make
a severance motion, reasoning it could have been a tactical
decision, and that in any event, “we think it highly unlikely that
14
a motion for severance would have been granted.”). Moreover, as in
Jackson, the Court notes that this Court did admonish the jury that
it was obligated to separately consider each defendant.
p. 20.)
(DE #214,
Thus, the Court cannot say that failure to seek a
severance resulted in a different result of the proceedings.
Similarly, Cephus’s argument that his attorney should have
taken action regarding pretrial publicity in the case also fails.
(DE #475, p. 5.)
Cephus does not contend, and there is no evidence
in the record, that any of the jurors were actually exposed to any
pretrial publicity in this case or that any particular article
biased or prejudiced any jurors. See United States v. Philpot, 733
F.3d 734, 740-41 (7th Cir. 2013) (explaining how defendant must
establish at least one of those factors to justify a venue transfer
pursuant to Federal Rule of Criminal Procedure 21).
Thus, defense
counsel was not ineffective for failing to move for a change of
venue as that motion would not likely have been granted.
Sentencing Guidelines
To the extent Cephus specifically argues that his counsel was
ineffective for not objecting to application of the enhancement in
Guideline § 2A3.1(b)(1) at the sentencing phase (DE #498, p. 5, 8),
the record reflects that his counsel did indeed object to that
enhancement.
(PSR Addendum, Section VII.)
This Court ultimately
overruled the objection, finding under Guideline § 1B1.3(a)(1)(B),
15
Cephus could be held responsible for the reasonably foreseeable
acts of his co-conspirator.
(DE #371, Transcript from Sentencing
Hrg., pp. 39-50); United States v. Salem, 657 F.3d 560, 564 (7th
Cir. 2011) (“None of our cases requires that a defendant at the
bottom of a conspiratorial hierarchy or pyramid engage in some
affirmative conduct to help a co-conspirator commit each of his or
her criminal acts before the defendant may be held accountable for
such acts.”)).
Cephus also seems to claim that trial counsel was ineffective
for allowing a miscalculation of the sentencing guidelines and for
failing to make other objections to the Court’s calculation.
(DE
#475, pp. 7-8.) Generally, the Seventh Circuit has stated that, “a
habeas corpus petition is rarely if ever the proper vehicle by
which to challenge the application of a Sentencing Guideline
provision where the sentence has become final and the petitioner
did not directly appeal the issue.”
Prewitt, 83 F.3d at 816.
In
fact, “[a]n issue not raised on direct appeal is barred from
collateral review absent a showing of both good cause for the
failure to raise the claims on direct appeal and actual prejudice
from the failure to raise those claims, or if a refusal to consider
the issue would lead to a fundamental miscarriage of justice.” Id.
(emphasis in original) (citations omitted).
Cephus had separate
appellate counsel who did not raise this issue in the direct
appeal, therefore, he cannot establish good cause for failure to
16
raise the claims.
Moreover, he does not claim in the instant
motion that his appellate counsel was ineffective for failing to
raise the issue in the direct appeal.
guideline
claims
are
barred
from
Therefore, these sentencing
review
in
this
collateral
proceeding.
Failure to Plead Guilty
Cephus claims his trial counsel was ineffective because “he
wanted to plead guilty, but was told by his counsel that the
Government would not let him.”
(DE #498, p. 2.)
Cephus claims his
attorney told him the only way he could plead guilty was to testify
for the Government. (Id.; DE #481, p. 3.) Even assuming, arguendo,
that
this
assertion
is
true,
it
does
not
prove
ineffective
assistance of counsel.
Cephus does not dispute that he was never offered a plea
agreement by the Government in this case.
(DE #493, p. 12, n. 1.)
Because there is no evidence that the Government attempted to enter
into plea negotiations with Cephus, his counsel cannot be deemed
ineffective with regard to plea negotiations that never took place.
See e.g., Maddox v. United States, No. 1:08-CR-90, 2013 WL 3878736,
at *7 (N.D. W.Va. July 25, 2013)(concluding that because there was
no plea agreement offered to counsel, counsel could not be deemed
ineffective
for
failing
to
communicate
defendant).
17
a
plea
agreement
to
The Government only learned of Cephus’s desire to plead guilty
during trial.
(DE #515, p. 3.)
The Government still declined to
offer Cephus a plea agreement.
At that point, Cephus could have
opted to plead guilty in the blind, but the only prejudice a
defendant can suffer from standing trial rather than pleading
guilty in the blind is the possible loss of credit given at
sentencing for acceptance of responsibility. To receive acceptance
credit, a defendant must “truthfully admit[]the conduct comprising
the offense[s] of conviction.”
U.S.S.G. § 3E1.1, Note 1(A).
In this case, Cephus has only denied his guilt, and continues
to deny it.
(See DE #372, Cephus Sentencing Hrg. Vol. II, pp. 24-
37, where Cephus testified that the other witnesses lied on the
stand, he didn’t know what the girls were doing, that he wasn’t
responsible for bringing drugs into the house, and he didn’t take
them to appointments.)
The Government argued at sentencing that
“as soon as this defendant began speaking today, it was clear that
he lacks - - he lacks any real remorse for his involvement in this
case. He’s in complete denial about the role that he played, which
was a significant, important role to make this conspiracy run.”
(Id., p. 48.)
sentencing
This Court agreed, finding Cephus lied during his
hearing,
there
was
overwhelming
evidence
of
his
involvement in the conspiracy, that he provided drugs, and Cephus
showed “no remorse at all.”
(Id., pp. 61-63.)
After listening to
Cephus at sentencing, the Court found “it more credible . . . that
18
when these girls were getting beaten, you probably were in that
kitchen with these other individuals, as was testified under oath
during trial, laughing.”
(Id., p. 64.)
As such, Cephus’s current
claim that he wished to plead guilty is contradicted by evidence in
the record, specifically, his own words to the Court at sentencing.
Even assuming, arguendo, that Cephus had given his counsel
notice earlier that he wished to plead guilty, his counsel was not
ineffective for advising Cephus that he could be called to testify
by the Government.
Indeed, the Government avers that “[i]f
Defendant had given timely notice of his desire to plead guilty and
while under oath he had provided a sufficient factual basis to
support his guilty plea to each of the federal criminal charges he
was facing, the government likely would have subpoenaed him to
testify as a witness at trial.”
(DE #515, p. 2.)
Thus, Cephus’s
attorney was correct to warn Cephus that by pleading guilty he
would open himself up to being subpoenaed by the Government to
testify against his co-defendants.
Cephus concedes he “told his
counsel that he could not testify because he feared for his life
‘once he was sent to prison.’”2 (DE #481, p. 3.)
Thus, because
Cephus told his counsel he would not testify against his co-
2
Had Cephus pled guilty, but refused to testify against his
co-conspirators, or had he testified falsely at trial, the
Government would have objected to him receiving credit for
acceptance of responsibility under Guideline § 3E1.1, and likely
would have sought an obstruction of justice enhancement at
sentencing as well under Guideline § 3C1.1.
19
conspirators, he cannot establish the result of the proceeding
would have been different were it not for defense counsel advising
him to go to trial.
In his “Notice of Authority” (DE #542), Cephus cites to a
recent Fifth Circuit decision, arguing this Court must hold an
evidentiary hearing to explore the allegations of ineffective
assistance of counsel.
(5th Cir. 2013).
See United States v. Reed, 719 F.3d 369
In Reed, the petitioner alleged his counsel had
wrongly informed him he would receive a sentence of thirty-six
months if he were to plead guilty.
Id. at 371.
Based on this
advice, the petitioner went to trial, he was convicted by a jury,
and sentenced to forty-eight months in prison.
Id. at 372.
The
petitioner argued he would have pled guilty had his counsel
properly advised him of his possible sentence.
Id. at 374-75. The
Reed Court granted an evidentiary hearing because the petitioner’s
affidavit made a specific factual claim and “was sufficient to
prove his allegation and was not speculative, conclusory, plainly
false, or contradicted by the record. . . .”
Id. at 374.
In
making this finding, Reed cautioned that a defendant must present
“independent indicia of the likely merit of his allegations” to be
entitled to an evidentiary hearing on a section 2255 motion.
Id.
at 373 (citing Untied States v. Cavitt, 550 F.3d 430, 442 (5th Cir.
2008)).
This case differs from Reed because Cephus has not shown
any independent indicia of the likely merit of his allegations. To
20
the
contrary,
responsibility
the
for
record
his
shows
actions,
Cephus
and
there
refused
is
no
to
accept
indicia
of
reliability that he indeed would have pled guilty in the blind were
it not for the alleged ineffective assistance of his counsel.
Cephus has presented only conclusory and speculative allegations
without evidentiary support - a situation which Reed makes clear is
not entitled to an evidentiary hearing.
Id. at 373-74.
Alleyne-Related Claims
In his “Request to File a Supplement to 2255 Motions,” (DE
#481), Cephus brings to this Court’s attention the Supreme Court’s
ruling in Alleyne v. United States, 133 S. Ct. 2151 (2013).
His
exact argument is difficult to understand, but Cephus seems to
believe Alleyne conflicts with the Pinkerton doctrine.
v. United States, 328 U.S. 640, 646-47 (1946).
Pinkerton
In his direct
appeal, the Seventh Circuit found:
Although Stanton didn’t commit all the substantive
offenses charged in the indictment, he participated
in the conspiracy by driving girls and women to
their “calls” and collecting money from the johns
for his brother.
He did not beat any of the
prostitutes but he watched them being beaten and so
was aware of the scope of the conspiracy he had
joined. The Pinkerton doctrine therefore made him
liable for criminal acts committed by the other
conspirators within that scope.
Cephus, 684 F.3d at 707 (citations omitted).
Cephus also argues
that it was improper not to include in the jury instructions that
he was “motivated by family loyalty.”
21
(DE #481, p. 1.)
The
Seventh Circuit dismissed this argument as well, finding “an
innocent or even noble motivation for committing a crime, as
distinct from lack of intent to commit it, is not a defense.”
Id.
at 706-07.
Cephus’s Alleyne claims fail.
First, Alleyne has not been
made retroactively applicable to cases on collateral review.
See
Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013).
Second, even assuming, arguendo, that Cephus could raise Alleyne in
this proceeding, it only holds that facts that increase the minimum
statutory punishment must be admitted or proven beyond a reasonable
doubt.
fact
Alleyne, 133 S. Ct. at 2155.
at
issue
punishment
he
in
this
faced,
case
but
reasonable doubt at trial.
Cephus has not indicated what
increased
allegedly
was
the
not
mandatory
proven
minimum
beyond
a
Moreover, Alleyne does not affect
factual findings to calculate a defendant’s advisory Guidelines
range.
See United States v. Hernandez, 731 F.3d 666, 672 (7th Cir.
2013); United States v. Claybrooks, 729 F.3d 699, 708 (7th Cir.
2013).
Thus, Cephus is not entitled to relief under Alleyne.
Request For An Evidentiary Hearing
Cephus requests that the Court hold an “[e]videntiary hearing
concerning the issues that the U.S. Attorney contacted juror’s
[sic.] within hours after the jury reached verdict, competency
hearing, miscalculation of guidelines.” (2255 Pet., DE #474, pp.
22
11-12.)
An evidentiary hearing need not be held for every section
2255 motion.
Liss v. United States, 915 F.2d 287, 290 (7th Cir.
1990). “No hearing is required in a section 2255 proceeding if the
motion raises no cognizable claim, if the allegations in the motion
are unreasonably vague, conclusory, or incredible, or if the
factual matters raised by the motion may be resolved on the record
before the district court."
Oliver v. United States, 961 F.2d
1339, 1343 n.5 (7th Cir. 1992) (citation omitted).
Cephus has failed to offer the Court any objective facts
outside the trial record that would warrant an evidentiary hearing.
Moreover, the Court has concluded that the record and history of
this case demonstrate that Cephus is not entitled to relief.
Therefore, an evidentiary hearing is not warranted.
See Cooper v.
United States, 378 F.3d 638, 641-42 (7th Cir. 2004) (holding
district court did not abuse its discretion in denying evidentiary
hearing where defendant was not entitled to 2255 relief, and given
lack of additional evidence from defendant).
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
appealability
applicant.”
when
it
enters
a
final
order
adverse
to
the
A certificate of appealability may issue only if the
applicant “has made a substantial showing of the denial of a
23
constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such a
showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should
have been resolved in a different manner or that the issues
presented
were
further.”
adequate
to
deserve
encouragement
to
proceed
Slack v. McDaniel, 529 U.S. 473, 475 (U.S. 2000)
(internal quotation marks and citation omitted).
For the reasons set forth above, Cephus has not stated any
grounds for relief under section 2255.
for
a
determination
decision
debatable
that
or
reasonable
incorrect
encouragement to proceed further.
or
The Court finds no basis
jurists
that
the
would
find
issues
this
deserve
Therefore, a certificate of
appealability will not be issued.
CONCLUSION
For the aforementioned reasons, the motion to appoint counsel
(DE #483) is DENIED and the section 2255 motion (DE #474) is also
DENIED.
Cephus’s request for an evidentiary hearing is also
DENIED.
The Clerk is ORDERED to DISMISS this civil action WITH
PREJUDICE. Additionally, the Court DECLINES to issue a certificate
of appealability.
The Clerk is FURTHER ORDERED to distribute a
copy of this order to Petitioner (Inmate Reg. No. 10107-27),
Otisville FCI, Inmate Mail/Parcels, P.O. Box 1000, Otisville, NY
24
10963, or to such other more current address that may be on file
for the Petitioner.
DATED: August 18, 2014
/s/ RUDY LOZANO, Judge
United States District Court
25
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