WHITE v. UNITED STATES OF AMERICA

Filing 69

ENTRY: White's motion seeking disposition of the 2255 petition 68 is granted. His 2255 motion is denied. The court therefore denies a certificate of appealability ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 9/27/2012. Copy sent to Andrew White via US Mail.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ANDREW S. WHITE,
vs.

Movant,

UNITED STATES OF AMERICA.

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1:08-cv-107-WTL-MJD
No. 1:02-cr-165-WTL-KPF-01

Entry Discussing Motion for Relief Pursuant to 28
U.S.C. ' 2255 and Denying Certificate of Appealability
For the reasons explained in this Entry, the motion of Andrew S. White for
relief pursuant to 28 U.S.C. ' 2255 must be denied and the action dismissed with
prejudice. In addition, the court finds that a certificate of appealability should not
issue.
I. The ' 2255 Motion
Background and Applicable Law
In March 2003, White was convicted in No. 1:02-cr-165-WTL-KPF-01 after
trial by jury of being a felon in possession of a firearm in violation of 18 U.S.C.
' 922(g)(1). As the result of that conviction, White was sentenced to a term of
imprisonment of 115 months, to be followed by three years of supervised release.
White appealed his conviction and his sentence to the Seventh Circuit Court of
Appeals. White=s conviction and sentence were affirmed on appeal. See United States
v. White, 368 F.3d 911 (7th Cir. 2004). White sought certiorari review of the appellate
court’s decision and, on January 24, 2005, the Supreme Court granted White=s
petition, vacated the Seventh Circuit=s decision, and remanded the case to the
appellate court for further consideration in light of United States v. Booker, 543 U.S.
220 (2005).
Pursuant to the Supreme Court=s remand, the Seventh Circuit ordered a
limited remand pursuant to United States v. Paladino, 401 F. 3d 471, 483-84 (7th Cir.
2005), to allow the court to advise whether, had it known that the Sentencing
Guidelines were not mandatory, it would have imposed the same sentence on White.
See United States v. White, 213 Fed. Appx. 488, 489 (7th Cir. 2007) (unpublished
disposition). After conducting a hearing, the court advised that it would have
imposed the same sentence on White. Id. The Seventh Circuit then determined that
White=s sentence was reasonable and affirmed the judgment of this court. Id.

White is currently on supervised release, having been released from prison on
June 10, 2011. White seeks relief pursuant to 28 U.S.C. ' 2255.
White claims that he was denied the effective assistance of counsel at
essentially every stage of his criminal case. The Supreme Court set forth the legal
principles that govern claims of ineffective assistance of counsel in Strickland v.
Washington, 466 U.S. 668 (1984). See also Wiggins v. Smith, 539 U.S. 510 (2003). An
ineffective assistance claim has two components: A petitioner must show that
counsel's performance was deficient, and that the deficiency prejudiced the defense.
Id. at 521 (citing Strickland, 466 U.S. at 687).
With respect to the first component, "[t]he proper measure of attorney
performance remains simply reasonableness under prevailing professional norms."
Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688). In addition, the
performance of counsel under Strickland should be evaluated from counsel's
perspective at that time, making every effort to "eliminate the distorting effects of
hindsight." Id. at 523 (quoting Strickland, 466 U.S. at 689).
With respect to the prejudice requirement, White Amust show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. See
also Benefiel v. Davis, 357 F.3d 655, 661 (7th Cir. 2004). It is not enough for a
petitioner to show that "the errors had some conceivable effect on the outcome of the
proceeding." Strickland, 466 U.S. at 693. A petitioner must specifically explain how
the outcome at trial would have been different absent counsel's ineffective assistance.
Berkey v. United States, 318 F. 3d 768, 773-74 (7th Cir. 2003).
Discussion
A court may grant relief from a federal conviction or sentence pursuant to
' 2255 "upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. ' 2255. The
scope of relief available under ' 2255 is narrow, limited to Aan error of law that is
jurisdictional, constitutional, or constitutes a fundamental defect which inherently
results in a complete miscarriage of justice.@ Borre v. United States, 940 F.2d 215, 217
(7th Cir. 1991) (internal citations omitted).
White first asserts that trial counsel was ineffective for failing to argue that
under Indiana law, as a non-violent felon, he could lawfully possess a weapon in his
home. He argues that the federal Gun Control Act, 18 U.S.C. '' 921, 922(g)(1), is
unconstitutional as applied for lack of fair notice and vagueness as to what conduct is
prohibited by a nonviolent felon residing in Indiana. The court finds that under
Indiana law there is a distinction between possession by a felon and by a Aserious
violent felon.@ With some exceptions not relevant in this case, it is not unlawful for a

non-violent felon to possess a firearm in his home. See IND. CODE ' 35-47-4-5(c) (Aa
serious violent felon who knowingly or intentionally possesses a firearm commits
unlawful possession of a firearm by a serious violent felon, a Class B felony@).
Nonetheless, the court finds White=s claim of unconstitutionality unpersuasive. The
fact that state firearm possession laws differ from the provisions contained in the
Federal Gun Control Act does not render the federal statute unconstitutional. See
District of Columbia v. Heller, 128 S. Ct. 2783, 2816-17 (2008)(Anothing in our opinion
should be taken to cast doubt on longstanding prohibitions on the possession of
firearms by felons . . . .@); United States v. Skoien, o United States v. Skoien, 614 F.3d
638 (7th Cir. 2010)(en banc)(federal firearms prohibitions in section 922(g) are
constitutional, even when as applied to persons convicted of misdemeanors).
Counsel=s failure to challenge the constitutionality of section 922(g)(1) did not
constitute ineffective assistance. Moreover, any reliance on a constitutional claim
ignores the fact that in this case, White was on probation at the time he was charged
with possession, a status that White concedes prohibited him from possessing a
firearm.
White also asserts counsel was ineffective for failing to assert defenses of
justification or duress. White argues that he was justified in possessing the gun in
his home because he had given helpful testimony against an individual charged with
murder, Kunta Gray, who then placed White in fear for his life. Counsel and White
did, in fact, make such an argument at the limited remand hearing on September 28,
2005, and the court concluded that there was no credible evidence that White was
advised that he could have firearms in his possession at the time relevant to this
case. White was on probation at the time and he was aware that possession of guns
would violate his probation. Moreover, any ignorance of state versus federal law
would have no bearing on his guilt or innocence. Had counsel argued any defense
which assumed that White possessed the weapons, a contention directly at odds with
White=s position that he took throughout the trial that he did not possess any
firearms, it would have assured a finding of guilt on the charge of possession. The
court allowed White to explain his theory at length at the limited remand hearing.
The court concluded that any defense related to any alleged statements made by
state authorities would not justify his possession and would be unavailing and that
any defense that White was somehow justified in having the guns for his protection
was meritless and would not have changed his sentence. No matter how many times
or in what manner White presses this position, the court=s conclusion otherwise was
reasonable and justified and was not erroneous. Counsel was not ineffective on this
basis.
White argues that counsel should have argued that his substantial assistance
with the Gray case could be considered as a factor pursuant to 18 U.S.C. ' 3553(a) on
remand. Contrary to White=s claim, the court did discuss during the limited remand
hearing whether White=s assistance with the Gray prosecution should or could be
considered as a factor to lower his sentence. The court explained at length the reason
for deciding that such assistance would not be taken into account. The court noted
that the assistance occurred prior to the conduct for which White was charged in this
case. The court noted other reasons, including White=s motivation for providing the

assistance. More importantly, the court proceeded to explain that even if it had taken
White=s assistance into account, it would not have offset the findings that White had
orchestrated an elaborate attempt to suborn perjury, orchestrated an attempt to
obstruct justice, and had been less than candid with the court as to his role in the
offense. The court concluded that this type of person should not be rewarded under
3553(a) for his past assistance. On appeal of the imposition of the same sentence, the
Court of Appeals noted that A[t]he district court thoroughly considered the factors
listed in 18 U.S.C. ' 3553(a) and all of the arguments raised by White in pro se
submissions and by his counsel.@ United States v. White, 213 Fed.Appx. 488, 2007 WL
173809 (7th Cir. Jan. 22, 2007). No prejudice has been shown.
White asserts that counsel was ineffective for failing to move to suppress the
seizure of the Indianapolis Star invoices which were found in his bedroom dresser
along with the two firearms that formed the basis of the prosecution. White also
argues that counsel was ineffective for failing to interview witnesses who could have
rebutted evidence that White had access to the Star invoices. The prosecution used
the Star invoices to suggest the inference that if the documents were White’s,
because they were found in the bedroom dresser, then the other items in the dresser
were also White's, including the two weapons. Counsel did object at trial to the
admission of the Star invoices on the basis of unfair prejudice, arguing that White’s
possession of them raised the inference that he was involved in identify theft. United
States v. White, 368 F.3d 911, 914 (7th Cir. 2004). The court overruled White’s
objection and ultimately allowed the evidence, with limiting and cautionary
instructions. Id. A motion to suppress would have failed in light of the foregoing
circumstances. With respect to White’s argument that counsel failed to interview
witnesses, even if another witness would have stated that although White did work
the graveyard shift at the Star with very few employees in the building at that time,
he did not have access to the Fourth floor of the building where invoices were kept,
White has not shown any reasonable probability that with such testimony the jury
would have concluded that the customer invoices from the Star found in his dresser
were not his. In addition, the government showed that no other guests in White=s
home had an opportunity to obtain customer invoices from the Star. There was no
ineffective assistance of counsel in relation to this evidence.
White claims that counsel was ineffective for failing to move to suppress
the statements of police officer Michael Elder based on a violation of White=s
Miranda rights. White concedes that he was given his Miranda rights. He now
contends, however, that Elder refused to contact state prosecutor Karen Jensen per
White=s request and that Elder initiated an interrogation after White asserted his
right to remain silent. Elder was under no obligation to summon a state prosecutor,
one who clearly could not act as White=s attorney. White does not allege that he
informed his counsel before trial that when Elder appeared, White asserted his right
to remain silent. White also has not presented evidence showing the specific
circumstances surrounding how he allegedly asserted that right, what Elder did to
force him to talk and what statements White alleges were made at such time. There
was no ineffective assistance in relation to any claim relating to White and his
Miranda rights.

White argues that counsel was ineffective for failing to locate Akey@ witness
Anthony ATed@ Harris. White alleges that counsel and his defense investigator made
a Ahalf-hearted@ attempt to locate the witness and declined to accept White=s
brother=s invitation to take them to interview Harris. Counsel had a duty to make
reasonable investigations and to make reasonable decisions in determining whether
a particular investigation is necessary. Wiggins, 539 U.S. at 521-22 (citing
Strickland, 466 U.S. at 690-91). White=s claim that counsel=s investigations were
half-hearted is not supported by anything but his own speculation. The court noted
during the proceedings that as far as Anthony Harris is concerned, none of the
witnesses knew his name other than ATed.@ Testimony showed that witnesses that
counsel attempted to find could have remained unreachable if they had not
themselves decided to contact counsel. There has been no credible showing that
counsel did not make reasonable efforts to investigate the facts in this case.
White argues that counsel was ineffective for failing to question potential
jurors as to whether they knew any of the names on the Star invoices to ascertain
potential prejudice. Counsel acted quite reasonably by not highlighting evidence
even before it was offered at trial, evidence that the defense had already attempted to
exclude on the basis of prejudice. To do otherwise could have been viewed as contrary
to White’s best interest. Moreover, the basis of this claim is pure speculation and does
not rise to the level of ineffective assistance of counsel.
White asserts that counsel was ineffective for failing to interview a potentially
biased juror after it was brought to the attention of counsel that a juror was an
ex-school teacher of White and defense witness Dewayne Lane. White alleges that
Lane recognized the juror, not that he (White) did. He argues that the teacher Acould
have recognized@ either of them and Abeen potentially prejudiced from past
recollection of youthful misbehavior@ by them at school. He asserts nothing that he
and Lane did that would have prompted such a recollection, nor does he offer
anything but remote speculation. More importantly, during the hearing conducted on
May 30, 2003, counsel reported to the court that after trial, White notified counsel
that witness Lane recognized a juror as a former teacher and that counsel promptly
investigated the possibility of a biased juror and found nothing worthy of presenting
to the court. Counsel did not ignore this potential issue. Rather, counsel investigated
and reported his findings to the court. White=s claim of ineffective assistance of
counsel is meritless.
White claims that counsel was ineffective for agreeing with the government to
remove a footnote in a government exhibit stating ADeposit Paid by Marion County
Prosecutor.@ White suggests that such footnote would have led to further inquiry
about him being in the witness relocation program after having provided substantial
assistance to the State and he was under duress. This suggestion is tenuous at best,
and is another way of arguing that counsel should have asserted a duress or
justification defense, an issue the court clearly and correctly rejected. White=s
contention that counsel and the government worked together to Ahide@ relevant and
material evidence is pure speculation. White has not shown that counsel=s action fell

below an objective standard of reasonable professional conduct in this regard.
White alleges that counsel conducted an Aobjectively unreasonable trial
strategy@ that, in effect, solicited evidence of a prior possession of the firearms at
issue without clarifying that the previous possession occurred prior to the date of the
charged conduct. Evidence at trial was that a witness had seen guns in the house one
time about a week prior to October 18, 2002. The guns had been brought there by
someone other than White. The record is clear on those points. Evidence was
admitted that on October 18, 2002, two guns were found in the house during the
search, White admitted that his fingerprints might be found on the guns. White told
officers that he was permitted to have firearms in the house. White=s claim that it
was constituted ineffective trial strategy to allow testimony about someone else
bringing guns to the house a week earlier is meritless. In addition, contrary to
White=s argument that the limiting instructions created a presumption that equated
Aownership@ with Apossession,@ the instructions clearly informed the jury that
A[p]ossession is not the equivalent of ownership.@ The conviction was not made on an
improper basis.
White argues that trial and appellate counsel were ineffective by failing to
request or challenge the lack of a jury instruction for Ajoint occupancy@ of possession.
He makes a related argument that appellate counsel erred in failing to challenge the
validity of the jury instructions that omitted the element of Aintent@ in the definition
of possession. White does not set forth a proposed instruction that would have been
supported by the evidence. Moreover, he has shown no fundamental error or defect in
the instructions given by the court. The court gave proper and accurate instructions
to the jury, including the definitions of Aknowingly@ and Apossess.@ The instructions
informed the jury that possession could be actual or constructive as well as sole or
joint, and those terms were defined. White=s claim to the contrary is baseless.
White claims that counsel was ineffective at sentencing when he did not argue
that the term Asupervised release@ was not permissible as it amounted to Double
Jeopardy and a separate invalid sentence and Bill of Attainder. White concedes that
this is a Anovel@ argument that would invoke a case of first impression. If counsel
declined to argue that the court ignore or change well-established law and contend
that the imposition of a period of supervised release constituted an additional or
somehow impermissible Aterm of imprisonment,@ his decision would be reasonable in
all respects.
White claims that appellate counsel failed to raise a sufficiency of the evidence
challenge on direct appeal even though the right to assert such a claim had been
preserved. To determine whether appellate counsel was ineffective, the court must
find first that counsel's performance was deficient, and second, that the deficiency
prejudiced the defense. Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986).
Had appellate counsel failed to raise a significant and obvious issue, the
failure could be viewed as deficient performance. If an issue which was
not raised may have resulted in a reversal of the conviction, or an order

for a new trial, the failure was prejudicial. When a claim of ineffective
assistance of counsel is based on failure to raise viable issues, the
district court must examine the trial court record to determine whether
appellate counsel failed to present significant and obvious issues on
appeal. Significant issues which could have been raised should then be
compared to those which were raised. Generally, only when ignored
issues are clearly stronger than those presented, will the presumption
of effective assistance of counsel be overcome. The issue at trial was
whether White possessed the firearms.
Id.
Here, White was charged with being a felon in possession of a firearm. There
was ample evidence of this at trial. Counsel was not ineffective for not asserting a
claim as to sufficiency of the evidence on appeal because it was not a viable claim.
White asserts that his appellate counsel failed to challenge the admission of
certain evidence pursuant to Federal Rule of Evidence 404(b). He argues that this
evidence allowed the government to have a lower burden of proof and thus obtain his
conviction on an improper basis. White does not elaborate on what this evidence was
or how it prejudiced his defense. To the extent White’s claim here is based on the
admission of the Indianapolis Star invoices, appellate counsel did raise this issue
and the Court of Appeals held that the court did not abuse its discretion in admitting
the invoices with a limiting instruction. White, 368 F.3d at 916.
White argues that his appellate counsel, like trial counsel, failed to argue that
under Indiana law, as a non-violent felon, he could lawfully possess a weapon in his
home, and also that the federal Gun Control Act, 18 U.S.C. '' 921, 922(g)(1), is
unconstitutional as applied for lack of fair notice and vagueness as to what conduct is
prohibited by a nonviolent felon residing in Indiana. For the same reasons discussed
in above, this claim does not amount to a showing of ineffective assistance.
White asserts that counsel failed to move for mistrial and failed to assert on
direct appeal that a question the government posed to a witness created an incurable
prejudice despite a curative instruction. That question was: AAnd do you recall Mr.
White saying to words to the effect of, you=re going to have to testify about certain
things that I can=t testify about?@ Counsel objected to the question, the government
withdrew the question, and the jurors were told to give the question no attention at
all and were instructed that the defendant had an absolute right not to testify and
the fact that he did not testify could not be considered in any way. White has
presented no evidence in support of this claim and has provided no basis on which the
court can find any prejudice.
White asserts that counsel was ineffective during the hearing on limited
remand by failing to argue that White=s substantial assistance provided to the State
of Indiana in the prosecution of Kunta Gray should have been considered as a factor
in sentencing. As discussed in a related claim above, the court did consider White=s

claim of substantial assistance and found that none of the circumstances presented
warranted a change in White=s sentence. There was no error by counsel in this
regard.
White argues that counsel was ineffective by not arguing that the
government=s refusal to file a ' 5K1.1 motion to reduce White=s sentence for
substantial assistance was based on the government=s failure to interpret ' 5K1.1 as
including Ainvestigations@ as well as Aprosecutions@ of another person who has
engaged in crime. Suffice it to say that White has not shown that the government
lacked at least a Arational basis@ for not filing ' 5K1.1 motion. See In re United States,
503 F.3d 638, 641 (7th Cir. 2007). White has no absolute entitlement to the filing of
such motion. The prosecutor has discretion as to whether to file a ' 5K1.1 motion and
White has failed to show any constitutional violation under these circumstances. Id.
at 642.
White claims that counsel was ineffective for refusing to seek a Asecondary
petition for writ of certiorari@ to the United States Supreme Court. White wanted the
high court to consider the issue of whether this court was required to consider any
circumstances that occurred after the original sentencing date but prior to the date of
the hearing on limited remand during which the court addressed the question
post-Booker whether the court would have issued a different sentence if he had
known that the Sentencing Guidelines were not mandatory. When the court
explained its ruling on limited remand, the court stated that White=s post-sentence
behavior in prison was simply not relevant to his decision on re-sentencing. The task
on limited remand was to determine whether the court Awould have imposed the
same sentence with the knowledge that the guidelines are not mandatory.@ United
States v. White, 213 Fed.Appx. 488, 2007 WL 173809 (7th Cir. Jan. 22. 2007). The
remand was not in any way an invitation to consider factors that had not even
occurred when White was originally sentenced. Counsel was not ineffective even if he
did, indeed, refuse to attempt to raise this claim on appeal or on a second petition to
the Supreme Court.
Finally, White Arequests@ an adjustment/downward variance pursuant to the
Criminal History Amendment (Nov. 1, 2007) to eliminate any misdemeanor where
the sentence was one year or less of probation. This request, however, is not properly
made in this motion and instead must be brought separately. Accordingly, this court
expresses no judgment on the merits of this “request”.
Conclusion
To warrant relief under ' 2255, the errors of which the movant complains must
amount to a fundamental miscarriage of justice. Davis v. United States, 417 U.S. 333
(1974); Hill v. United States, 368 U.S. 424, 428 (1962). White has failed to show
either deficient performance or prejudice in his attorneys= representation. See United
States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006) (“The requirement that a
defendant show prejudice in effective representation cases arises from the very
nature of the specific element of the right to counsel at issue thereBeffective (not

mistake-free) representation. Counsel cannot be 'ineffective' unless his mistakes
have harmed the defense (or, at least, unless it is reasonably likely that they have)@).
His attorneys were constitutionally sufficient throughout all proceedings. For the
reasons explained above, therefore, White is not entitled to relief pursuant to 28
U.S.C. ' 2255. White’s motion seeking disposition of the ' 2255 petition [68] is
granted. His ' 2255 motion is denied.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the court finds that White
has failed to show that reasonable jurists would find “it debatable whether the
petition states a valid claim of the denial of a constitutional right.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a certificate of
appealability.
IT IS SO ORDERED.

Date:

09/27/2012

Distribution:
Gerald A. Coraz
[e-mail]
Andrew White
8347 Glenside Ct.
Indianapolis, IN 46263

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana