Cephus v. USA

Filing 25

OPINION AND ORDER denying de 18 and 19 MOTION for Judicial Intervention Jury Tampering-Obstruction of Justice; DISMISSING this civil action WITH PREJUDICE. Additionally, the Court DECLINES to issue a certificate of appealability. Signed by Judge Rudy Lozano on 2/4/15. cc: Cephus(mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.
JUSTIN PHILLIP CEPHUS,
Defendant/Petitioner.

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NO. 2:09-cr-43
2:13-cv-396

OPINION AND ORDER
This matter is before the Court on the: (1) “Motion to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody,”
filed by Petitioner, Justin Phillip Cephus, on November 5, 2013 (DE
#494); (2) “Motion to Recuse Judge for Misconduct Motion to Vacate
Order of Encumbrance Motion to Stay 2255-Extension to File,” filed
by Petitioner, Justin Phillip Cephus, on June 30, 2014 (DE #567);
(3) “Motion For Judicial Intervention Jury Tampering - Obstruction
of Justice,” filed by Petitioner, Justin Phillip Cephus, on August
18, 2014 (DE #576 and in civil case no. 2:13-cv-396 DE #18); and
(4) “Motion for Judicial Intervention Jury Tampering - Obstruction
of

Justice,”

filed

by

Petitioner,

Justin

Phillip

Cephus,

on

September 8, 2014 (DE #580 and in civil case no. 2:13-cv-396 DE
#19).

For the reasons set forth below, the motion to recuse (DE

#567), and motions for judicial intervention (DE #576 and DE #580)
are DENIED.

The section 2255 motion (DE #494) is also DENIED.

Cephus’ request for an evidentiary hearing (DE #512, p. 11), is
also DENIED.

Cephus’ request for appointment of counsel (DE #569,

p. 6) is 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.
10106-27), Tucson USP, US Penitentiary, Inmate Mail/Parcels P.O.
Box 24550, Tucson, Arizona 85734, or to such other more current
address that may be on file for the Petitioner.

BACKGROUND
On July 2, 2009, Justin Cephus (“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 4, 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.C., 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 5, 7, 9, 11, 13,
15, 17, 19, 20, and 21, with substantive violations of 18 U.S.C. §§
2, 2421, for his role in transporting victims A.C., A.H., A.W.,
B.G., C.V., J.O., L.G., S.K., A.B.3, and L.E. in interstate
2

commerce with intent that they engage in prostitution; and Counts
2 and 3 for violation of 18 U.S.C. §§ 2, 2423(a), and 2423(e), for
his

role

in

transporting

minor

victims

A.B.1

and

A.B.2

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 Visvaldis Kupsis. On December 6, 2010, this Court held
a sentencing hearing for Cephus, and he was sentenced to: 60 months
for Count 1; 120 months for each of Counts 5, 7, 9, 11, 13, 15, 17,
19, 20, and 21; and life imprisonment for each of Counts 2, 3, 4,
6, 8, 10, 12, 14, 16 and 18, all terms to be served concurrently.
(DE #338.)

Judgment was entered on December 8, 2010.

(DE #344.)

Through appointed appellate counsel, Martin J. Vogelbaum,
Cephus filed a direct appeal with the Seventh Circuit on December
9, 2010 (DE #340, 373).
arguments:

(1)

The

On appeal, Cephus raised the following

Government’s

“incessant

leading”

of

its

witnesses amounted to credibility vouching, violating Defendant’s
rights to confrontation and due process; (2) this Court improperly
excluded evidence of a victim’s prior sexual behavior under Federal
Rule of Evidence 412; (3) Defendant was unfairly prejudiced by the
admission of evidence that he had beaten and hung to death a dog
and by the use of his “mug shot” in a witness identification; (4)
this Court erred by allowing a superseding indictment that was

3

duplicitous as to every count; and (5) Defendant’s life sentence
without parole violated the Eighth Amendment prohibition against
cruel and unusual punishment.

See United States v. Cephus, 684

F.3d 703 (7th Cir. 2012), cert. denied, 133 S. Ct. 588 (Nov. 5,
2012).

The Seventh Circuit rejected all of Cephus’ arguments.

In response to Cephus’ arguments that the prosecution asked
too many leading questions, the Seventh Circuit found some of those
questions were leading and some were not, but regardless, “the
leading questions in this case could not have affected the verdict
of a reasonable jury, given the overwhelming evidence of the
defendants’ guilt.” (Id. at 708.) Regarding the Rule 412 evidence
Defendant sought to offer that the victim engaged in other sexual
behavior, the Court found that “testimony sought to be elicited by
the cross-examination would have been irrelevant.”

Id.

Likewise,

admission of evidence that Cephus beat and hung a dog was affirmed
because it was “relevant to show a method by which Cephus coerced
his recruits into obeying his illegal commands and was not unduly
prejudicial in light of the extensive evidence that Cephus beat
women who worked for him.” (Id. at 709.)

Similarly, the Court

found no error in allowing a head and shoulders photograph of
Cephus, which was never identified for the jury as a “mug shot,” to
be used for a witness identification.

(Id. at 709.)

Regarding the allegedly “duplicitous” indictment, the Seventh
Circuit found defendants waived the issue for not having brought it
4

up in district court and “[a]nyway none of the counts was likely to
be thought duplicitous by the jurors.”

(Id. at 706.)

Although

Counts 2-21 incorporated by reference the allegations in Count 1,
“[a]

normal

reader

would

understand

each

subsequent

count’s

invocation of the first count to mean that the substantive offense
alleged . . . in the subsequent count was one of the offenses the
defendants had conspired to commit.”

Id.

Finally, Cephus’

contention that his life sentence violated the cruel and unusual
punishment clause of the Eighth Amendment was rejected.
709.)

(Id. at

The United States Supreme Court denied Cephus’ petition for

writ of certiorari.

Cephus v. United States, 133 S. Ct. 588 (Nov.

5, 2012).
Cephus filed the instant motion to vacate his sentence under
section 2255 on November 5, 2013 (DE #494).

He received an

extension of time to file his memorandum in support, and filed the
brief on January 13, 2014 (DE #512). The Government filed a
response on June 11, 2014 (DE #564).
July 7, 2014 (DE #569).1

Cephus then filed a reply on

As such, this motion is fully briefed,

and ripe for adjudication.
In addition to the current section 2255 Petition, Cephus has
filed additional related motions.

1

On June 30, 2014, he filed a

In his reply memorandum, Cephus also made the argument that
a juror at trial knew him through a former girlfriend with whom
he had “domestic squabbles” with, thus he was denied an impartial
judge and jury. (DE #569, p. 2.)
5

“Motion to Recuse Judge for Misconduct” (DE #567); on August 18,
2014, he filed a “Motion for Judicial Intervention Jury Tampering Obstruction of Justice” (DE #576); and on September 8, 2014, he
filed another “Motion for Judicial Intervention Jury Tampering Obstruction of Justice” (DE #580).

These motions all relate to

Cephus’ claim that when he was reviewing his file, he discovered
new information - that he actually knew a member of the jury (whom
he allegedly did not recognize during trial), and that the juror
knew his “former girlfriend that [he] had a ‘violent domestic
incident’ with.” (DE #576, pp. 2-3.) These motions have also been
fully briefed and will be addressed and ruled upon in this order as
well.

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.

6

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).

As a

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.
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'")

7

(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."
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’ claims with these guidelines in mind.

Section 2255 Petition
Cephus

contends

that

his

trial

attorney

constitutionally ineffective assistance of counsel.

provided
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

8

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
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.”

Rodriguez v. United States, 286 F.3d
9

972, 983 (7th Cir. 2002) (quoting Kimmelman v. Morrison, 47 U.S.
365, 382 (1986)).

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)).
Alleged Duplicitous Indictment
First,

Cephus

argues

that

“[t]rial

counsel

allowed

the

petitioner to be tried on a Duplicitous Indictment, where he never
objected to and because of such the claim being waived.” (DE #512,
p. 4.)

It is true that the Seventh Circuit deemed the argument

waived on appeal, but the Court still addressed it, and found that:
[N]one of the counts was likely to be thought
duplicitous by the jurors. The first alleged the
conspiracy and described as acts in furtherance of
it the acts charged as substantive violations in
the 20 subsequent counts.
Each of those counts
first ‘incorporate by reference’ the allegations in
the first count and then alleged a substantive
violation of the federal criminal code. Only if
read literally would each count be alleging two
offenses: conspiracy and a substantive offense. No
reasonable person would read them literally. None
of them mentions conspiracy. A normal reader would
understand each subsequent count’s invocation of
the first count to mean that the substantive
offense alleged (identified in the count by the
section of the federal criminal code that created
10

the offense) in the subsequent count was one of the
offenses the defendants had conspired to commit.
The jury was instructed that a ‘verdict of guilty
or not guilty of an offense charged in one count
should not control your decision as to that
defendant in any other count.’ A reasonable juror
would not understand this to mean that having
decided that the defendants were guilty of count
one he would have to decide they were guilty of the
other 20 counts as well because each of those
counts mentioned the charge of conspiracy. So much
for duplicity.
Cephus, 684 F.3d at 706.
As

such,

Cephus

has

not

satisfied

either

prong

of

the

Strickland test - he cannot show that trial counsel provided
ineffective assistance by failing to object to the indictment
language, and he cannot establish that the outcome would have been
different had the objection been made.

Alleged Multiplicitous Indictment
Next, Cephus argues that trial counsel provided ineffective
assistance by not arguing that the superseding indictment was
multiplicitous, which he claims resulted in a double jeopardy
violation.

(DE #512, p. 6.)

The Seventh Circuit explained

multiplicitous indictments in United States v. Starks, 472 F.3d 466
(7th Cir. 2006):
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
11

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.
Id. at 468-69 (internal quotations and citations omitted).

“The

cardinal rule for reading multi-count indictments is that each
count must stand on its own two feet; each count is regarded as if
it was a separate indictment.”
464,

471

(7th

Cir.

2002)

United States v. Conley, 291 F.3d

(internal

quotations

and

citations

omitted).
In this case, Cephus does not identify which counts of the
superseding indictment are allegedly multiplicitous. The Court has
reviewed the superseding indictment, and it is proper.

Counts 4,

6, 8, 10, 12, 14, 16, and 18 all charge Cephus with violating 18
U.S.C. §§ 2 and 1591(a)(1) and (b)(2); however, each count makes
the allegation as to a different individual who is specifically
identified in each count as the victim.

The same is true of the

other counts (Counts 2 and 3 allege violations of 18 U.S.C. §§ 2
and 2423(a) and (e) and Counts 5, 7, 9, 11, 13, 15, 17, 19, 20, and
21, allege violations of 18 U.S.C. §§ 2 and 2421), which allege
violations of statutory provisions as to specific victims.

No two

counts in the superseding indictment charge Cephus with committing
the exact same criminal offense against the same victim.

“The

Double Jeopardy Clause is not implicated when multiple separate
violations of the same provision are charged in multiple counts.”
United States v. Snyder, 189 F.3d 640, 647 (7th Cir. 1999).
12

While Cephus suggests the allegations were all part of the
same general “crime spree,” (DE #512, p. 10), and that the charges
should have been brought in a single count, Count 1 does allege a
conspiracy under 18 U.S.C. § 371, and the other counts violations
of 18 U.S.C. §§ 1591, 2421, and 2423(a).

The Court finds there was

nothing at all improper about the Government alleging both a
conspiracy under section 371 and the substantive violations that
were the overt acts of that conspiracy.

Indeed, the commission of

a substantive offense and conspiring to commit that offense are two
separate crimes.

As the Seventh Circuit explained:

A complete answer to defendant’s averment of double
jeopardy is found in Pinkerton v. United States,
328 U.S. 640 (1946), in which the Supreme Court
held that conspiracy to commit a substantive
offense and the actual commission of such offense
are separate and distinct offenses, and that a plea
of double jeopardy is of no avail.
We need not
repeat what the Court there said, except to quote
from its opinion, 328 U.S. at 644: ‘Moreover, it is
not material that overt acts charged in the
conspiracy counts were also charged and proved as
substantive offenses. . . If the overt act be the
offense which was the object of the conspiracy, and
is also punished, there is not a double punishment
of it. The agreement to do an unlawful act is even
then distinct from the doing of the act.’
Bocock v. United States, 216 F.2d 465, 466 (7th Cir. 1954).

The

Court

the

finds

that

Cephus

has

failed

to

establish

that

superseding indictment was multiplicitous or that Cephus’ trial
counsel provided constitutionally ineffective assistance of counsel
for failing to raise such a claim with this Court.

13

Failure To Move For Severance
Cephus next argues that his counsel was ineffective because he
failed to move for a severance from his co-defendants. 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 engaged 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.

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 (7th Cir. 1994) (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 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. (DE #214, p. 20.)

14

Thus, the Court cannot say that failure to seek a severance
resulted in a different result of the proceedings.
To the extent that Cephus points to specific testimony that he
believes the jury should not have heard, and was highly prejudicial
to him, his argument still fails.

(DE #512, p. 7.)

Cephus points

out that his co-defendant brother, Stanton Cephus, testified that
“he had just helped out his brother from time to time motivated by
family loyalty, and [] he watched his brother beat prostitutes and
he would drive them to meet their calls.”
United

States,

391

U.S.

123

(1968),

(Id.)

the

Court

In Bruton v.
held

“that

introducing a nontestifying codefendant’s out-of-court confession
violates

the

Confrontation

Clause

if

the

confession

directly

incriminates the defendant on trial.” Thomas v. United States, 530
Fed. Appx. 584, 586 (7th Cir. 2013) (citing Bruton, 391 U.S. at
127-28).

However,

“It is clear that a redacted confession of a

nontestifying co-defendant may be admitted as long as the redaction
does not ‘obviously’ refer to the defendant.”

United States v.

Green, 648 F.3d 569, 575 (7th Cir. 2011).
In this case, Stanton Cephus’ confession (Justin Cephus’
brother) was redacted to remove reference to Justin Cephus or his
“brother.”

The redacted statement was read aloud to the jury but

not admitted into evidence and reads as follows (“Cephus” refers to
the declarant, Stanton Cephus):
Cephus stated that females are constantly staying
at the house. Cephus stated that he was doing a
15

favor tonight when a person called him and asked
him to bring some girls to a call. Cephus stated
that he has driven girls in the past, however, it
isn’t something he normally does. Cephus has never
been paid to drive girls around.
Cephus stated
that this other person has been running an escort
business for some time. A girl named Loh, known to
law enforcement as S.K., started in the escort
business with this other person and then left him.
Cephus stated that this other person runs the
business now along with that Ashley girl, known to
law enforcement as C.V. Ashley took Loh’s spot.
This other person used to beat Loh up real bad and
he used to do it a lot. Cephus stated that he feels
like he cannot turn on this other person, but he
knows what he is doing is wrong.
Cephus stated
that at times he feels obligated to give the girls
rides when this other person calls him, but he
knows he shouldn’t.
Cephus stated that his
girlfriend, N.C., who resides in Gary, Indiana,
gets really upset when he even goes over to this
other person’s house.
Cephus stated that he
doesn’t know how he is involved in this now, and
this is bullshit. What this other person does is
wrong. He beats up women. Cephus admitted that
this other person is a pimp.
Cephus identified
cellular telephone number . . . and . . . . Cephus
also identified the following additional telephone
numbers: . . . .
(DE #564-1, Govt. Ex. A, Tr. Tran. Vol. VIII, pp. 1886-888.)
Additionally, this Court gave Jury Instruction No. 10 to the jury:
You have received evidence of statements said to be
made by defendants. You must decide whether the
defendants did in fact make the statements. If you
find that the defendants did make the statements,
then you must decide what weight, if any, you feel
the statements deserve. In making this decision,
you should consider all matters in evidence having
to do with the statements, including those
concerning the defendants and the circumstances
under which the statements were made. You may not
consider this statement as evidence against any
defendant other than the one who made it.

16

(DE #214, p. 11.)

In this case, the altered statement did not

incriminate the nontestifying defendant, Justin Cephus, by itself,
and the Court does not believe there was any Bruton violation.

See

United States v. Strickland, 935 F.2d 822, 826 (7th Cir. 1991)
(finding “the replacement of [co-defendants’] names with references
such as ‘another person,’ combined with an instruction to consider
the confession against only the declarant, satisfies Bruton.”);
United States v. Gio, 7 F.3d 1279, 1287 (7th Cir. 1993) (finding
district court did not err in allowing into evidence redacted
statement combined with a limiting instruction to the jury).

Appellate Counsel
Cephus also contends in his section 2255 Petition that he
received ineffective assistance of appellate counsel because his
appellate counsel failed to raise each of the above referenced
arguments in the direct appeal.

(DE #494, pp. 7-8, 10.)

However,

the Seventh Circuit has explained that ineffective assistance of
counsel claims should not be raised on direct appeal, but rather in
petitions under 28 U.S.C. § 2255.

See United States v. Wilson, 240

Fed. Appx. 139, 143 (7th Cir. 2007) (quoting Massaro v. United
States, 538 U.S. 500 (2003), explaining “it is better to present an
ineffective-assistance

claim

on

collateral

review,

when

the

district court can develop ‘the facts necessary to determining the
adequacy of representation during an entire trial’ . . . than on

17

direct appeal, when ‘appellate counsel and the court must proceed
on a trial record not developed precisely for the object of
litigating or preserving the claim . . .”).

For this reason, plus

the additional reasoning set forth in this Order ruling that the
ineffective assistance of trial counsel arguments made by Cephus
lack merit, appellate counsel was not ineffective for not raising
them on direct appeal.

Motions Regarding “Jury Tampering”
Cephus first raised this issue in a Motion entitled “Motion to
Recuse Judge for Misconduct Motion to Vacate Order of Encumbrance,”
filed on June 30, 2014

(DE #567, p. 1).

In that motion, Cephus

claims the following:
Recently the Defendant learned of newly discovered
information concerning judicial misconduct of Judge
Lozano pertaining, but not limited to, a juror that
was a personal acquaintance of a girlfriend of the
defendant who was involved in a domestic dispute
with the defendant, that Judge Lozano allowed to
sit on the jury and is now covering.
(DE #567, p. 2.)

He requests that this Judge recuse himself, stay

the pending section 2255 motion, and grant an extension.
3.)

(Id., p.

The Court took the matter under advisement and ordered the

Government to file a response.

(DE #579.)

Then, in his reply brief in support of his section 2255, filed
on July 7, 2014, Cephus argued:
This case resolves [sic.] around the simple
undisputed fact that a group of women, chose to
18

voluntarily become involved in prostitution and to
seek out numerous men to provide them assistance
for their chosen profession, that once caught
claimed they were “victims”, that the court and its
minions all allowed a ‘domestic squabble’ to be
incorporated into the criminal case, one should not
be surprised when the matter is covered up to all
extremes by those same individuals.
(DE #569, pp. 5-6.)
Next, Cephus filed a “Motion for Judicial Intervention Jury
Tampering- Obstruction of Justice,” on August 18, 2014 (DE #576).
In it, he listed an “affidavit in support” which was not a sworn or
signed statement, which reads as follows:
I was recently in a meeting with my A1 team case
manager county and discovered after a review of my
records of the following type of information that I
did not know; Melissa Wilson was a member of my
jury. I did not recognize her as someone that I
knew at the time of jury selection. She worked at
“the Peoples Bank”, Route 30 in ShervilleMerriville [sic.]. She knew me through a former
girlfriend that I had a violent ‘domestic incident’
with. My girlfriends name was “Liz”. On several
occasions, I went to the “Peoples Bank” where both
“Liz” and “Melissa” worked and “Melissa” refused to
cash my checks and forced me to leave the bank.
She stated that I was not “welcome there” due to
the domestic disputes with “Liz”. She swore she
“would get even.”
(DE #576, pp. 2-3.) This motion was taken under advisement as well
and the Government was ordered to respond.

(DE #579.)

Then, Cephus filed another “Motion for Judicial Intervention
Jury Tampering-Obstruction of Justice,” on September 8, 2014 (DE
#580).

He asks for the FBI to conduct an investigation.

In the

motion, he lists another “affidavit in support,” which again is not

19

a signed or sworn statement, which reads in pertinent part as
follows:
In the pre sentence investigation report, their
[sic.] is a referance [sic.] to the defendants
arrest for possession of marijuana in Ocono County,
Wisconsin. “Liz” - Melissa in fact posted “bond”
in that case.
This is evidence of the
“association” in the prior motion and withheld by
the juror in question, before this Court. A record
of this bond being posted exists within the county
records. The defendant will obtain that record and
provide it to the Court.
(DE #580, p. 2.)2

This Court took this motion under advisement as

well, and ordered the Government to file a response brief.

(DE

#581.)
The Government filed a response to these motions on September
30, 2014 (DE #585).
(DE #592).

Cephus then filed a reply on October 27, 2014

He continued to file duplicative motions after that.

The Court entered a final order on October 29, 2014, allowing in an
abundance

of

caution

Cephus’

memorandum

entitled

“Motion

for

Schedule Order Permission to File,” which included arguments in
support of his section 2255 motion and continued arguments about
the alleged tainted juror (DE #597), and notifying the parties that
the voluminous briefing on the section 2255 petition and the
associated motions to recuse and for jury tampering was complete.
(DE #598).
Motion to Recuse
2

No such record of the alleged bond posting was ever
provided to this Court.
20

28 U.S.C. section 144 provides that whenever a party files a
“timely and sufficient affidavit” that the judge of the party’s
case has a “personal bias or prejudice,” the case shall be assigned
to a different judge.

28 U.S.C. § 144.

The bias must be personal

rather than judicial, and “the facts averred must be sufficiently
definite and particular to convince a reasonable person that bias
exists; simple conclusions, opinions, or rumors are insufficient.”
United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (citation
omitted).

The affidavit must show a personal bias “and that it

stems from an extrajudicial source- some source other than what the
judge has learned through participation in the case.”
States

v.

(citation

Balistrieri,
omitted).

779

F.2d

“[J]udicial

1191,

1199

rulings

(7th

alone

United

Cir.

1985)

almost

never

constitute a valid basis for a bias or partiality recusal motion.”
Liteky v. United States, 510 U.S. 540, 541 (1994).
Cephus has not met the statutory requirements.

First, Cephus

did not file a proper affidavit - it was neither sworn nor signed.
Second, Cephus has not shown that any alleged personal bias stems
from an extrajudicial source.

Regarding Cephus’ assertion that

this Court should have excused a juror who Cephus claims was an
acquaintance of his, Cephus has provided no evidence whatsoever
that this Court knew this alleged information (and indeed, it did
not). To the extent Cephus complains about some of this Court’s
rulings, that does not, in itself, constitute a reason to recuse.

21

Adverse judicial rulings alone do not establish the type of
impermissible bias that would warrant recusal.
455; Liteky, 510 U.S. at 555.

See 28 U.S.C. §

Therefore, the Motion to Recuse (DE

#567) is DENIED.

Motions For Jury Tampering - Obstruction of Justice
Cephus claims that when reading through the trial transcript,
he discovered that he knew a member of the jury, Melissa Wilson,
who worked at the Peoples Bank, and was friends with his former
girlfriend “Liz,” whom he had a “domestic squabble” with.
#597, p. 597, p. 2; DE #580, p. 2.)

(DE

He also claims Melissa Wilson

hated him, and swore she would “get even” with him (DE #576, pp. 34).

Cephus also suggests that there was prosecutorial misconduct

because of this incident, and hints that Ms. Wilson inflamed the
jury and “manipulate[ed] the system in conspiracy-conjection with
the prosecutor.”

(DE #569, p. 4.)

A woman by the name of Melissa Wilson was on the jury (a fact
anyone can read in the transcript).

During jury selection in this

case, the prospective jurors were read the defendants’ names (Tr.
Trans. Vol. I, DE #306, p. 26), and were introduced individually to
each defendant by their counsel (id., p. 29). The jurors were then
asked: “Ladies and Gentlemen, earlier today I had the attorneys
introduce themselves and introduce their clients. First of all, do
any of you know any of the defendants in this case?

22

Ever have any

contact with them? Meet with them?

Socialize with them?

contact of any kind?” and Ms. Wilson remained silent.
57.)

Any

(Id., p.

This Court asked potential juror, Melissa Wilson, if she was

currently employed and she replied no, but she was last employed as
“a teller at People’s Bank in Dyer, Indiana.

Bank teller.”

(DE

#306, pp. 94-95.)

Later during questioning, Ms. Wilson disclosed

that

knew

someone

she

had

been

murdered

but

in

response

to

questioning by this Court, she said she would be able to “wipe that
incident out of [her] mind for purposes of this trial and decide
this case only on the evidence introduced during [the] trial and
the law.”

(Id., p. 110.)

Ms. Wilson was specifically asked by

this Court: “As you sit here today, do you feel you can be fair and
impartial both as to the government and as to the defendants?” and
she responded, “[y]es, sir.”

(Id., p. 111.)

Additionally, this

Court asked the jurors whether there was “any reason whatsoever,
whether I have asked you about it or not, which would in any way,
even in the slightest degree, prevent you from giving both the
government and the defendant in this case a completely fair and
impartial trial?” and no juror responded. (Id., p. 128.)

Finally,

at the close of evidence, this Court instructed the jury that
“anything that you may have seen or heard outside the courtroom is
not evidence and must be entirely disregarded.”

(DE #214, p. 8

(Court’s Instruction No. 7.)).
Although Cephus’ multiple motions are muddled procedurally,

23

the Court interprets them as requesting a new trial under Federal
Rule of Criminal Procedure Rule 33 based upon alleged juror bias.
A trial court has wide discretion when deciding such a motion.
See, e.g., United States v. Jones, 707 F.2d 1169, 1173 (10th Cir.
1983).

Additionally, the trial judge’s response to such a motion

“must be guided by the content of the allegations, including the
seriousness and likelihood of the alleged bias, and the credibility
of the source.”

United States v. Perez, 841 F.Supp. 250, 253 (N.D.

Ind. 1993) (citing United States v. Jones, 707 F.2d 1169, 1173
(10th Cir. 1983)). The Perez Court went on stating the appropriate
standards:
Something more than an unverified conjecture is
necessary to justify the grant of a new trial where
only potentially suspicious circumstances are
shown.
Furthermore, post-verdict orders for new
trials based upon unproven juror bias should be
granted only where the probability of juror bias is
so great that in fairness it cannot be ignored.
Finally, even where juror bias has been shown, not
every incident requires a new trial.
The court
must determine if the bias or prejudice amounted to
a deprivation of Fifth Amendment (due process) or
Sixth Amendment (impartial jury) guarantees. The
test is whether or not the misconduct has
prejudiced the defendant to the extent that he has
not received a fair trial.
Perez, 841 F. Supp. at 253 (citations and quotations omitted).
First is the issue of waiver.
selection

and

during

the

trial.

Cephus was present during jury
He

heard

the

juror’s

name

repeatedly, and had the opportunity over days (it was a 10 day jury
trial) to recognize the juror.

It is undisputed that neither he

24

nor his attorney ever made any comments to the Court about this
juror or voiced any concerns whatsoever. If what Cephus alleges is
true - that Melissa Wilson was friends with his former girlfriend,
“on several occasions” at the bank refused to cash Cephus’ check
because of a violent domestic dispute between Cephus and his
girlfriend and promised revenge (DE #567, p. 3), and that Ms.
Wilson also posted bond for Cephus for a previous drug charge (DE
#580, p. 2), then the Court is at a loss as to how Cephus could not
recognize her at trial (but then allegedly recognized her name in
a written transcript almost 5 years after the jury trial).

By not

bringing his alleged knowledge of this possible juror bias to the
attention of this Court before the verdict, the Court believes
Cephus has waived his right to a new trial.

See, e.g., United

States v. Delatorre, 572 F.Supp.2d 967, 987 (N.D. Ill. 2008) (“A
defendant

waives

a

claim

of

juror

misconduct

if

he

had

the

information underlying the claim prior to the verdict and failed to
raise it with the Court.”); United States v. Bolinger, 837 F.2d
436, 438-39 (11th Cir. 1988); United States v. Dean, 667 F.2d 729,
730 (8th Cir. 1982); United States v. Jones, 597 F.2d 485, 488 n.3
(5th Cir. 1979).
Even if this claim of juror misconduct was not waived, Cephus
still cannot prevail.

To justify a new trial based on newly

discovered evidence, he must satisfy the following test:
He must show that the evidence: (1) came to his
knowledge only after trial; (2) could not have been
25

discovered sooner through the exercise of due
diligence; (3) is material, and not merely
impeaching or cumulative; and (4) would probably
lead to an acquittal in the event of a new trial.
United States v. Gootee, 34 F.3d 475, 479 (7th Cir. 1994).

Here,

the Court does not believe Cephus satisfies the first prong of the
test, because he observed the juror during trial and heard her name
during jury selection - at the time the trial began, he had all the
necessary information (he just claims he didn’t recognize the juror
at the time).

See, e.g., United States v. Ellison, 557 F.2d 128,

133 (7th Cir. 1977) (concluding the “facts alleged in support of a
motion for a new trial were within the defendant’s knowledge at the
time of trial” and thus not “newly discovered”). Regarding whether
this information is material, the Court turns back to Perez which
encourages
allegations,

the

trial

including

judge
the

to

review

seriousness

the
and

content

likelihood

of

the

of

the

allegations, and the credibility of the source. Perez, 841 F.Supp.
at 253.

Here, the Court is very doubtful of Cephus’ credibility.

His claims are unsigned and unsworn, not supported by anything
external to the transcript, and Cephus continues to proclaim his
innocence3 (DE #569, p. 5) and criticize the prosecutor and this
judge despite the overwhelming evidence presented at trial of his
guilt.

Moreover, the juror claim is unfounded and incredible.

Finally, even assuming, arguendo, that a new trial was to be
3

For example, Cephus argues the “alleged victims ‘gamed’ the
system financially.” (DE #569, p. 6.)
26

granted, the Court does not believe a different jury would lead to
an acquittal given the large quantity of evidence presented and the
graphic and compelling testimony at trial in this case.

As the

Seventh Circuit found on appeal, the facts were “incontestable” and
there

was

“overwhelming

evidence

Cephus, 684 F.3d at 705, 708.

of

the

defendants’

guilt.”

And finally, as pointed out by the

Government, a motion for a new trial based upon “newly discovered
evidence” must be filed within 3 years of the verdict, and Cephus
has missed that deadline.

See Fed. R. Crim. P. 33(b)(1).

As such,

the Court denies Cephus’ request for a new trial based upon juror
misconduct.

Evidentiary Hearing
Cephus requests an evidentiary hearing on his section 2255 (DE
#512, p. 11), as well as an investigation and hearing on the
alleged juror misconduct issue.

Regarding the juror, the Seventh

Circuit has ruled that due process “requires a post-trial hearing
when there has been extraneous contacts that may have affected the
jury’s ability to be fair, but that no post-trial hearing is
required when the issue is preexisting juror bias.”

Perez, 841 F.

Supp. at 253 (citing, inter alia, Artis v. Hitachi Zosen Clearing,
Inc., 967 F.2d 1132 (7th Cir. 1992)).

This Court concurs with the

following analysis in United States v. Piccarreto, 718 F.Supp.
1088, 1091 (W.D.N.Y. 1989) (citations omitted):

27

Courts should be reluctant to haul jurors in after
they have rendered a verdict and probe for
potential
instances
of
bias,
misconduct
or
extraneous influences.
These unnecessary postverdict inquiries may lead to evil consequences:
subjecting juries to harassment, inhibiting jury
room deliberation, burdening courts with meritless
applications, increasing temptations for jury
tampering
and
creating
uncertainty
in
jury
verdicts.
In sum, this Court has exercised its discretion and not ordered a
post-trial hearing.
With regard to the requested hearing on the section 2255
generally, 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

28

hearing where defendant was not entitled to 2255 relief, and given
lack of additional evidence from defendant).

Appointment of Counsel
Although Cephus has not filed a separate motion requesting
counsel, he does ask for “appointment of counsel in his reply
memorandum.

(DE #569, p. 6.)

appointment

of

counsel

in

The Seventh Circuit has left the

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’ 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 counsel.
sets forth coherent legal arguments.

He cites to case law and

Therefore, this Court finds

that denying Cephus’ request for counsel will not impinge on his
due process rights, and the request is DENIED.

Certificate of Appealability

29

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
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 reasons set forth below, the motion to recuse (DE
#567), and motions for judicial intervention (DE #576 and DE #580)
are DENIED.

The section 2255 motion (DE #494) is also DENIED.

Cephus’ request for an evidentiary hearing (DE #512, p. 11), is

30

also DENIED.
DENIED.

Cephus’ request for counsel (DE #569, p. 6), 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. 10106-27), Tucson
USP, US Penitentiary, Inmate Mail/Parcels P.O. Box 24550, Tucson,
Arizona 85734, or to such other more current address that may be on
file for the Petitioner.

DATED: February 4, 2015

/s/ RUDY LOZANO, Judge
United States District Court

31