Stewart v. USA
Filing
1
OPINION AND ORDER: DENYING Motion to Vacate, Set Aside or Correct Sentence (2255). The court DECLINES to issue a certificate of appealability. Signed by Judge Rudy Lozano on 1/7/2015. (cc: Stewart)(rmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.
JOVAN DEMONT STEWART,
Defendant/Petitioner.
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NO. 2:09-cr-43
2:13-cv-454
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, Jovan Demont Stewart, on
December 9, 2013 (DE #499); and (2) Motion for Leave to Proceed In
Forma Pauperis, filed by Petitioner, Jovan Demont Stewart, on
December 9, 2013 (DE #504).
For the reasons set forth below, the
motion for leave to proceed in forma pauperis (DE #504) is DENIED
and the section 2255 motion (DE #499) is also DENIED.
Stewart’s
request for an evidentiary hearing (DE #543-1, p. 40), 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. 10105-27), 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, Stewart was charged with four co-defendants
in a superseding indictment (DE #35).
Stewart 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 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., 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, 19, 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., S.K., A.B.3, and L.E. in interstate
commerce with intent that they engage in prostitution; and Count 3
for
violation
of
18
U.S.C.
§§
2,
2423(a),
for
his
role
in
transporting minor victim A.B.2 in interstate commerce with intent
that she engage in prostitution.
(DE #35.)
Following a ten-day jury trial, Stewart was found guilty of
all charges against him.
(DE #203.)
represented by attorney Mark Psimos.
At trial, Stewart was
On December 7, 2010, this
Court held a sentencing hearing for Stewart, and he was sentenced
2
to: 60 months for Count 1; 120 months for each of Counts 7, 9, 11,
13, 20, and 21; and life imprisonment for each of Counts 3, 6, 8,
10, 12, 14, and 18, all terms to be served concurrently.
Judgment
was entered on December 8, 2010.
Through appointed appellate counsel, Christopher D. Donovan,
Stewart filed a direct appeal with the Seventh Circuit on December
9, 2010 (DE #346, 374).
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 co-defendant Justin Cephus had beaten
and hung to death a dog; (4) this Court erred by allowing a
superseding indictment that was duplicitous as to every count; (5)
Defendant’s
life
sentence
without
parole
violates
the
Eighth
Amendment prohibition against cruel and unusual punishment, and
finally (6) this case should be remanded for resentencing due to
ambiguity
in
whether
Defendant’s
separate
sentences
incarceration should run consecutive or concurrent.
of
See United
States v. Cephus, 684 F.3d 703 (7th Cir. 2012), cert. denied, 133
S. Ct. 588, 133 S. Ct. 807 (2012).
The Seventh Circuit rejected
all of Stewart’s arguments except the last claim regarding his
3
sentence.
Id.1
In response to Stewart’s 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 Stewart’s co-defendant, Justin 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.)
Regarding the allegedly “duplicitous” indictment, the
Seventh Circuit found defendants waived the issue for not having
brought it up in district court and “[a]nyway none of the counts was
likely to be thought duplicitous by the jurors.”
1
(Id. at 706.)
Following investigation into the matter, the Court
concluded that the written sentence stating Stewart’s sentences
are “to be served concurrently” was correct, and the Court misspoke during the sentencing hearing when it orally pronounced
Defendant’s sentences were “all to be served consecutively to
each other.” The Court resolved this in its September 5, 2012
(DE #433) order, finding the written judgment stating the
sentences are to be served concurrently is correct, and remains
in effect.
4
Finally, Stewart’s contention that his life sentence violated the
cruel and unusual punishment clause of the Eighth Amendment was
rejected.
(Id. at 709.)
The United States Supreme Court denied
Stewart’s petition for writ of certiorari.
See Stewart v. United
States, 133 S. Ct. 807 (2012).
Stewart filed the instant motion to vacate his sentence under
section 2255 on December 9, 2013 (DE #499).
He received an
extension of time to file his memorandum and permission to file an
oversized brief, and filed a 41-page brief on April 9, 2014 (DE
#543-1). The Government filed a response on June 30, 2014 (DE #566).
Stewart then filed a reply on September 3, 2014 (DE #578). 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
neither
recapitulation of a direct appeal.
5
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
miscarriage of justice.
claims
would
lead
to
a
fundamental
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
6
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 Stewart’s claims with these guidelines in mind.
Motion for Leave to File IFP
From his motion, it appears that Stewart is indigent (DE #504).
However, there is no filing fee or service requirement for a § 2255
petition.
Here, it seems that Stewart’s request for ifp status is
intertwined with his previous requests for documents and information
in the record.
Stewart’s counsel informed the Court that he sent
Stewart copies of transcripts and records (DE ##429, 430) and
7
Stewart sought additional documents including grand jury transcripts
which this Court denied (DE ##453, 514).
As such, the instant
motion to proceed in forma pauperis (DE #504) is DENIED.
Section 2255 Petition
Stewart
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 attorney "fell
below an objective standard of reasonableness" and were "outside the
wide range of professionally competent assistance."
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
8
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
performance was effective.”).
presumption
that
his
Defendant must establish specific
acts or omissions that fell below professional norms.
466 U.S. at 690.
Seventh
Strickland,
If one prong is not satisfied, it is unnecessary
to reach the merits of the second prong.
The
attorney’s
Circuit
has
held
Id. at 697.
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
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)).
Entrapment Defense
First, Stewart argues his counsel was ineffective because he
9
failed to present an entrapment defense.
(DE #543-1, pp. 1-8.)
To
prove entrapment, a defendant must show both an improper government
inducement and a lack of predisposition to commit the crime.
See
Mathews v. United States, 485 U.S. 58, 63 (1988); United States v.
Bek, 493 F.3d 790, 800 (7th Cir. 2007).
“extraordinary.”
Cir. 2006).
The inducement must be
United States v. Haddad, 462 F.3d 783, 790 (7th
When a defendant takes a “simple, ordinary opportunity
to commit a crime,” he cannot make an entrapment defense.
Id.
The
Seventh Circuit recently analyzed this doctrine finding:
We hold that inducement means more than mere
government solicitation of the crime; the fact that
government agents initiated contact with the
defendant, suggested the crime, or furnished the
ordinary opportunity to commit it is insufficient to
show
inducement.
Instead,
inducement
means
government solicitation of the crime plus some other
government conduct that creates a risk that a person
who would not commit the crime if left to his own
devices will do so in response to the government’s
efforts.
The “other conduct” may be repeated
attempts at persuasion, fraudulent representations,
threats, coercive tactics, harassment, promises of
reward beyond that inherent in the customary
execution of the crime, pleas based on need,
sympathy, or friendship, or any other conduct by
government agents that creates a risk that a person
who otherwise would not commit the crime if left
alone will do so in response to the government’s
efforts.
United States v. Mayfield, 771 F.3d 417, 434-35 (7th Cir. 2014).
Regarding predisposition, “a defendant is predisposed to commit the
charged crime if he was ready and willing to do so and likely would
have committed it without the government’s intervention, or actively
wanted to but hadn’t yet found the means.”
10
Id. at 438.
In this case, there is no evidence to support an entrapment
defense.
There was no extraordinary offer, or “other conduct” as
required by Mayfield.
The law enforcement agents called the escort
service, ordered two girls for “full service” at a quoted price of
$350 per girl, and when the girls arrived, they agreed to perform
oral and genital sex in exchange for $700 total.
Transcript, DE #294, pp. 347-53, 444-59.)
(Vol. II, Tr.
Stewart’s argument about
the women potentially receiving tips is convoluted and irrelevant.
(DE #578, pp. 1-4.)
There was testimony at trial that typically,
after the money was collected, the women would tell the John their
performance was based on tips, to get them to pay more money.
(DE
#297, pp. 869, 877-78.) However, no evidence was put forth at trial
(and Stewart has not produced any) that there was ever a discussion
of any possible tip involved during the sting operation at issue.
Even assuming, arguendo, a tip was possible, that does not rise to
the level of an extraordinary offer.
Finally, there was trial
testimony that the girls who went to the hotel that day (C.V., L.E.
and B.G.) had previously participated in prostitution acts as a part
of Defendants’ business.
(Vol. IV, Tr. Transcript, DE #297, pp.
848-924.)
Stewart seems to argue that the Government would have to prove
that he personally was predisposed to commit prostitution offenses.
(DE #543-1, p. 9.)
However, he has the burden of showing both an
improper government inducement and a lack of predisposition to
11
commit the crime.
See Mathews, 485 U.S. at 63; Bek, 493 F.3d at
800. The evidence at trial showed Stewart was a willing participant
in the crimes with which he was charged.
Thus, any entrapment
defense would have failed, and his trial counsel was not ineffective
for failing to assert an entrapment defense.
Similarly, it was not
ineffective assistance to fail to suppress evidence Stewart alleges
was “tainted by entrapment.”
(DE #543-1, p. 15.)
Finally, along the same vein, Stewart argues his counsel should
have raised a defense based upon alleged Government misconduct. (DE
#541-3, p. 17; Reply, DE #578, p.7) (citing United States v.
Russell, 411 U.S. 423 (1973).)
However, the Seventh Circuit has
explicitly denied the existence of such a defense based upon the
Russell dicta.
See, e.g., United States v. Westmoreland, 712 F.3d
1066, 1071-72 (7th Cir. 2013); United States v. Stallworth, 656 F.3d
721, 730 (7th Cir. 2011) (“[o]utrageous government conduct is not
a defense in this circuit.”).
Even if it were, as pointed out by
the Seventh Circuit in Stallworth, “there is nothing inherently
outrageous about conducting a sting operation.”
Stallworth, 656
F.3d at 730 (citing United States v. Murphy, 768 F.2d 1518, 1528-29
(7th Cir. 1985)).
Severance
Next, Stewart argues his trial counsel was ineffective for not
moving for a severance of trials. Specifically, he claims the “vast
12
majority of the evidence would be focused on Domestic relations
between purported victims and co-defendants and other conduct not
related to Stewart, and a separate trial would have resulted in an
acquittal.”
(DE #543-1, p. 13.)
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.
Thus, Stewart 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
13
it was obligated to separately consider each defendant.
(DE #214,
p. 20.) Thus, the Court cannot say that failure to seek a severance
resulted in a different result of the proceedings.
Alleged Failure to Investigate
Stewart
contends
his
trial
counsel
investigate the facts of the case.
Br., DE #578, pp. 5-6.)
burden
of
making
a
failed
to
adequately
(DE #543-1, pp. 15, 22; Reply
With this assertion, Stewart bears the
“comprehensive
investigation would have produced.”
showing
as
to
what
the
Richardson v. United States,
379 F.3d 485, 488 (7th Cir. 2004) (quoting Hardamon v. United
States, 319 F.3d 943, 951 (7th Cir. 2003)).
Stewart has not done
so, and has failed to provide the Court with any information that,
had it been presented at trial, would likely have changed the
outcome of the proceedings.
He argues his attorney should have
pulled certain documents from the files like Stewart’s lease, his
social
security/disability
checks,
bankruptcy
documents
and
insurance coverage, but there is nothing implicit in the titles of
these documents to show the Court what more investigation would have
uncovered, and how it could have affected the outcome of the trial.
Moreover, there is nothing in the record at all to support Stewart’s
bald assertion that further investigation would have shown “that
Stewart’s conviction rests on perjured testimony of Law enforcement
entrapping escort girls into illicit acts, and inducing the girls
14
by force and promise to implicate Stewart.”
(DE #578, p. 6.)
Grand Jury Testimony
Stewart has several arguments relating to the grand jury, which
he believes heard perjurious testimony and other inappropriate
evidence.
(DE #543-1, pp. 16, 18, 27-28.)
Stewart has filed a
previous request for the grand jury transcripts, which this Court
denied (DE #453).
In the order, this Court recognized the typical
secrecy of the grand jury proceedings, and recognized the need for
a “compelling necessity” or “particularized need” to obtain such
materials.
Matter of Grand Jury Proceedings, Special Sept., 1986,
942 F.2d 1195, 1198 (7th Cir. 1991).
Moreover, as this Court noted
in the previous order, Stewart’s conviction at trial moots any
attack he now may be trying to make on the sufficiency of the
evidence presented to the grand jury. See United States v. Rosario,
234 F.3d 347, 352 (7th Cir. 2000) (noting any such error in the
presentation of evidence before the grand jury would be harmless
given the jury conviction at trial which indicates a proper grand
jury proceeding would have still yielded an indictment).
Not Testifying at Trial
Stewart also criticizes trial counsel for not putting him on
the stand to testify at trial.
(DE #543-1, pp. 19, 21, see also DE
#559, Ex. 3 (Aff. Of Defendant)).
15
Stewart contends Mr. Psimos
“refused to allow me to testify.” (DE #559-3, p.1.) This assertion
is directly contradicted by Stewart’s own sworn testimony at the
hearing which this Court conducted outside the presence of the jury
during trial.
This Court asked Stewart 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 crossexamination, 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 now.”
(DE #304, pp.
2229-2230.) Stewart answered affirmatively to all these questions.
Id.
Then, this Court specifically asked Stewart, “[i]s it your
desire not to testify in this case?” and he answered, “Yes, Judge.”
(Id., p. 2230.)
When asked if he was doing this knowingly and
voluntarily, he replied, “[y]es, Your Honor” and stated that no one
forced him to not testify.
(Id., pp. 2230-31.)
Stewart was properly advised of his right to testify and the
Court found that he was making a knowing and voluntary decision not
to testify.
Stewart’s claim that his attorney improperly convinced
him or forced him to not testify is thus contradicted by the record.
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.
Such a requirement is consistent with
16
reason and common sense.”).
Furthermore, Stewart did list proposed testimony for the Court
(DE #559, Ex. 3), but much of that proposed testimony was directly
contradicted by the overwhelming evidence presented at trial, making
it likely to be perceived as perjurious.
See United States v.
Curtis, 742 F.2d 1070, 1076 (7th Cir. 1984) (finding although
criminal defendant has a constitutional right to testify truthfully
on his own behalf, he “has no constitutional right to testify
perjuriously in his own behalf”).
As such, the proposed testimony
does not indicate it could have lead to an acquittal.
Batson Challenge
Stewart also argues “that statistical disparities resulted in
Jury strikes, causing an unequal Jury of his peers, in violation of
Batson v. Kentucky, 476 U.S. 79, 96-98 (1986).” (DE #543-1, p. 20.)
Stewart contends that at trial, there was only one African American
on the jury and one African American alternate juror.2
During jury selection in this case, both the Government3 and
defense counsel raised Batson challenges.
(DE #306, Vol. I, Tr.
Transcript, pp. 89-91, 138-140). Counsel for co-defendant, JacksonBey (who was later severed from trial due to contraction of MERSA),
2
The Court does not maintain records that can verify or
refute this statement. The Government does not contest this
point, and the Court’s independent recollection is the same.
3
The Government first raised a Batson challenge, arguing the
Defendants were improperly challenging female jurors based upon
their sex. (DE #306, p. 85.) The Court denied that challenge.
(Id., p. 87.)
17
raised a Batson challenge following the Government’s peremptory
strike of an African American female.
Under
Batson,
the
prosecution
(Id. at 138.)4
may
not
use
a
peremptory
challenge to strike a potential juror on the basis of his or her
race.
Batson, 476 U.S. at 89.
When claiming a Batson violation,
the defendant must first make a prima facie case that a challenge
was used to exclude a juror based on race.
United States v. Brown,
289 F.3d 989, 993 (7th Cir. 2002). If the prosecution comes forward
with a race-neutral explanation, the trial court will allow the
challenge unless the defendant establishes the explanation is
pretextual.
Id.
At trial, AUSA Benson explained the African
American juror he struck worked for a lawyer whom he personally
prosecuted and convicted, and her brother was convicted of rape (a
crime related to the issues in this case). (DE #306, pp. 138-140).
Based
upon
the
Government’s
race-neutral
explanation
peremptory strike, this Court found no Batson violation.
for
the
(Id., p.
140.)
Despite quoting Batson in his section 2255 motion, Stewart has
failed to point to any specific jurors he believes were challenged
based upon racial grounds.
In his reply memorandum, he seems to
4
The Court notes that the Government makes the argument that
Stewart is albino, and his appearance could have been perceived
as Caucasian by the jury. (DE #566, p. 13 n. 4.) In his reply,
Stewart states he “is albino, but any person can see he is a
black man with a blond Afro.” and the jury was told his two black
co-defendants were his cousins. (DE #578, p. 8.) Regardless of
any possible perceptions by the jury, because Stewart states he
is African American, this Court will analyze his Batson challenge
accordingly.
18
generally challenge the “unequal ethnical” jury composition, quoting
Campbell v. Louisiana, 523 U.S. 392 (1998).
p. 8.)
(Reply Br., DE #578,
Stewart also contends, without providing more support, that
“[t]he racial ethnicity of the State of Indiana, Hammond Division
area, is at or above nuteral [sic.] in the black and white races,
thus, out of Stewart’s jury pool, the systematic selection process
would question black as minority for his trial.”
(Reply Br., DE
#578, p. 8.)
In essence, Stewart is making a fair cross-section argument.
However, he has failed to establish a prima facie case that his
Sixth Amendment right to a venire drawn from a fair cross-section
of
the
community
was
violated.
As
the
Seventh
Circuit
has
explained:
[S]uch a showing requires the defendant to
demonstrate that the group allegedly excluded is a
distinctive part of the community; that the
representation of this group in venires from which
juries are selected is not fair and reasonable in
relation to the number of such persons in the
community; and that this underrepresentation is due
to systematic exclusion of the group in the jury
selection process.
United States v. Cooke, 110 F.3d 1288, 1301 (7th Cir. 1997) (quoting
United States v. Ashley, 54 F.3d 311, 313 (7th Cir. 1995)). Stewart
has
failed
whatsoever.
to
provide
the
Court
with
any
facts
or
numbers
He has not established the racial make-up of the
counties providing jurors for this district or the racial make-up
of the jury venire.
Additionally, he has not demonstrated that any
purported under-representation of African Americans resulted from
any type of systematic exclusion.
19
As such, he has not met his
burden of establishing a prima facie showing of a Sixth Amendment
violation based upon the composition of his jury venire. Cooke, 110
F.3d at 1301.
Moreover, the Seventh Circuit has upheld the use of
voter rolls to select a venire, which was the same process used in
this case.
United States v. Smith, 223 F.3d 554, 569 (7th Cir.
2000) (citing Cooke, 110 F.3d at 1302).
Insufficiency of Evidence
Stewart claims his appellate counsel was insufficient for not
supplementing the insufficient evidence claim on appeal to include
himself.
Stanton
(Section 2255 Pet., pp. 35-37.)
Cephus
alone
argued
the
On appeal, co-defendant
evidence
of
his
guilt
was
insufficient to convict him; however, the Seventh Circuit rejected
that argument, finding he did participate in the conspiracy and
“[t]he Pinkerton doctrine therefore made him liable for criminal
acts
committed
by
the
other
conspirators
within
that
scope.”
Cephus, 684 F.3d at 707 (citing Pinkerton v. United States, 328 U.S.
640, 646-47 (1946); United States v. Colon, 549 F.3d 565, 572 (7th
Cir. 2008)).
The same result would have been reached if Stewart’s
counsel had raised such a claim - there was ample evidence produced
at trial that Defendant Stewart recruited girls, drove girls on
calls, collected the money earned, acted as a pimp to and hit at
least one girl, told other girls they could not leave the house
while working for the business, and the Government referred to him
as “Justin Cephus’s right-hand man.”
53.)
(Sent. Tr., DE #370, pp. 21,
Based upon the overwhelming weight of evidence produced at
20
trial, Stewart’s appellate counsel was not ineffective for failing
to present an insufficiency of evidence argument, and even if
presented, any such argument would have failed.
Request For An Evidentiary Hearing
Stewart
requests
an
evidentiary
hearing,
stating
“an
Evidentiary hearing is feasible and thus, requested.” (2255 Pet.,
DE #543-1, p. 40.)
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
motion
if
the
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).
Stewart 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 Stewart 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).
21
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
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 adequate to deserve encouragement to proceed further.”
Slack
v. McDaniel, 529 U.S. 473, 475 (U.S. 2000) (internal quotation marks
and citation omitted).
For the reasons set forth above, Stewart has not stated any
grounds for relief under section 2255. The Court finds no basis for
a determination that reasonable jurists would find this decision
debatable or incorrect or that the issues deserve encouragement to
proceed further. Therefore, a certificate of appealability will not
be issued.
CONCLUSION
For the aforementioned reasons, the motion for leave to proceed
in forma pauperis (DE #504) is DENIED and the section 2255 motion
(DE #499) is also DENIED.
Stewart’s request for an evidentiary
22
hearing (DE #543-1, p. 40), 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. 10105-27), 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: January 7, 2015
/s/ RUDY LOZANO, Judge
United States District Court
23
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