IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

KENNETH ROYCE LENOIR, )

)

Petitioner, )

)

vs. ) NO. 2:04-CV-392

) (2:00-CR-44)

UNITED STATES OF AMERICA, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Motion Under 28 U.S.C. §

2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal

Custody, filed by Petitioner, Kenneth Royce Lenoir, on September 22,

2004. For the reasons set forth below, this motion is DENIED and the

Clerk is ORDERED to DISMISS this case WITH PREJUDICE. The Clerk is

FURTHER ORDERED to distribute a copy of this order to Petitioner at

the Federal Correctional Facility in Pekin, Illinois.

BACKGROUND

Petitioner, Kenneth Royce Lenoir, was charged in a 1-count

indictment of being a felon in possession of a firearm, in violation

of Title 18 U.S.C. section 922(g)(1). Petitioner subsequently filed

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a motion to suppress, which was denied following a hearing. After a

jury trial, Petitioner was convicted of being a felon in possession

of a firearm. Petitioner then discharged his trial counsel and was

appointed new counsel for sentencing. Shortly thereafter, Petitioner

discharged his appointed counsel and proceeded pro se through

sentencing. After being sentenced to a 270-month term of

imprisonment, Petitioner appealed his conviction to the Seventh

Circuit Court of Appeals. The Seventh Circuit appointed Petitioner

appellate counsel. Ultimately, the court of appeals affirmed the

jury’s verdict. Petitioner then filed a writ of certiorari with the

United States Supreme Court, which was denied on October 6, 2003. The

instant collateral attack followed wherein Petitioner alleges his

trial counsel, stand-by counsel at sentencing and appellate counsel

all rendered ineffective assistance. Aside from the ineffective

assistance claims, Petitioner also alleges this Court abused its

discretion in several respects. Each of these arguments will be

addressed in turn.

DISCUSSION

Facts

The facts of this case are relatively simple and a detailed

account was set out in United States v. Lenoir, 318 F.3d 725 (7th Cir.

2003). The Court assumes familiarity with that opinion. 

On January 4, 2000, Officer Branson, of the Gary Police

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Department, overheard a radio dispatch about a disturbance involving

an unidentified male with a gun near 2153 Carolina Street. Shortly

thereafter, Officer Branson arrived near the scene and observed

Petitioner walking down an alley close to 2153 Carolina. Petitioner

appeared to be intoxicated and seemed to be carrying something under

his coat. Officer Branson then noticed two guns and an ammunition

magazine protruding from Petitioner’s coat. Consequently, Officer

Branson radioed for back-up. Police cars arrived and, according to

Officer Branson, Lenoir then fled into a home located at 2125 Vermont.

Officer Jolly pursued Petitioner into the house and, after a brief

struggle, apprehended him at the bottom of the basement staircase.

The officers recovered an SKS assault rifle with a magazine and a

Mossberg 12-gauge shotgun. When Petitioner was brought outside

another officer recognized Petitioner as being a convicted felon.

Police arrested Petitioner for being a felon in possession of a

firearm, resisting arrest and for battering an officer.

Habeas Corpus

Habeas corpus relief under 28 U.S.C. section 2255 is reserved for

"extraordinary situations." Prewitt v. United States, 83 F.3d 812,

816 (7th Cir. 1996). 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

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maximum authorized by law, or is otherwise subject to collateral

attack. Id. 

A section 2255 motion is neither a substitute for nor

recapitulation of a direct appeal. Id.; see also 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

County Sheriff's Dep't., 95 F.3d 548, 555 (7th Cir. 1996); Estelle v.

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Gamble, 429 U.S. 97, 106 (1976) (a "pro se complaint, 'however

inartfully pleaded' must be held to 'less stringent standards than

formal pleadings drafted by lawyers'") (quoting Haines v. Kerner, 404

U.S. 519 (1972)); Brown v. Roe, 279 F.3d 742, 746 (9th Cir. 2002)

("pro se habeas petitioners are to be afforded 'the benefit of any

doubt'") (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.

1985)). In other words:

The mandated liberal construction afforded to pro

se pleadings "means that if the court can

reasonably read the pleadings to state a valid

claim on which the [petitioner] could prevail, it

should do so despite the [petitioner's] failure

to cite proper legal authority, his confusion of

various legal theories, his poor syntax and

sentence construction, or his unfamiliarity with

pleading requirements."

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 Petitioner's claims with those guidelines in mind.

Ineffective Assistance of Counsel

Counsel in a criminal case must perform according to the

standards of a reasonably competent attorney. Strickland v.

Washington, 466 U.S. 668, 687-91 (1984). The test for ineffective

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assistance of counsel under Strickland is exacting. To successfully

assert such a claim, a Defendant must show that his attorney's

representation "fell below an objective standard of reasonableness"

and that, but for counsel's lapses, "the result of the proceeding

would have been different." Porter v. Gramley, 112 F.3d 1308 (7th

Cir. 1987) (quoting Strickland, 466 U.S. at 688, 694). "In sum,

counsel's errors must result in a proceeding that is 'fundamentally

unfair or unreliable.'" Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir.

1996) (quoting Lockhart v. Fretwell, 506 U.S. 364, 368 (1993)). The

Strickland test is highly deferential to counsel, "presuming

reasonable judgment and declining to second guess strategic choices."

United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997)

(citations omitted). For example, trial strategy is not a viable

subject for review by this or any other court. Williams v. McVicar,

918 F. Supp. 1226, 1233 (N.D. Ill. 1996). Thus, when examining the

performance prong of the test, a court must "indulg[e] a strong a

presumption that counsel's conduct falls within the wide range of

reasonable assistance." Galowski v. Berge, 78 F.3d 1176, 1180 (7th

Cir. 1996) (internal quotes omitted). Similarly, when examining the

prejudice prong, a court must attach a "strong presumption of

reliability" to the original verdict. Kavanagh, 73 F.3d at 735

(citation omitted). Unless a defendant satisfies both parts of the

test, "it cannot be said that the conviction . . . resulted from a

breakdown in the adversary process that renders the result

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unreliable." United States v. Fish, 34 F.3d 488, 492 (7th Cir. 1994).

With those principles in mind, the Court will review Petitioner's

specific claims.

Ineffective Assistance Claims Against Trial Counsel

Petitioner claims that his trial counsel rendered ineffective

assistance for several reasons. First, Petitioner claims trial

counsel rendered ineffective assistance of counsel by refusing to

investigate whether or not Petitioner’s possession of guns constituted

"a crime of violence" before the bail hearing. Such a failure by his

counsel, Petitioner asserts, resulted in the magistrate judge not

being informed that Petitioner's possession of firearms was not a

crime of violence. Consequently, Petitioner claims, he was denied

bail. Petitioner asserts that being denied bail was prejudicial

because, if he were released on bail pending trial, he would have been

able to seek out witnesses “that was around and across the street at

the liquer [sic] store to verify the petitioners’ version of his

arrest.” (Pet.’s Mem. P. 5). Petitioner’s mere conclusory

allegations that he could locate some favorable unidentified witnesses

is insufficient to satisfy the prejudice prong of Strickland. United

States v. Asubonteng, 895 F.2d 424, 429 (7th Cir. 1990). Thus, trial

counsel's performance in this regard is immaterial.

Petitioner’s second argument is that trial counsel rendered

ineffective assistance when he failed to investigate the Petitioner’s

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claim of collusion and ruse between state and federal agencies.

Petitioner claims that state and federal agencies were somehow

plotting against him. However, Petitioner does not explain how this

alleged deficiency of counsel could satisfy the second prong of

Strickland. Consequently, this claim must fail. See Rutledge v.

United States, 230 F.3d 1041, 1050 (7th Cir. 2000)(noting that a

“defendant must show that counsel’s deficient performance rendered the

jury’s verdict unreliable or the proceeding fundamentally unfair . .

.”).

Third, Petitioner argues that trial counsel rendered ineffective

assistance of counsel when he failed to investigate the possible

defense of justification. Petitioner claims that if his counsel would

have interviewed Elaine Riveria, counsel would have learned that

Petitioner was possessing weapons to protect Elaine and her children.

This, Petitioner argues, would have entitled him to a defense against

the charge of being a felon in possession of a firearm. Notably,

however, the Seventh Circuit rarely permits a felon to possess a gun

lawfully. See United States v. Perez, 86 F.3d 735, 737 (7th Cir.

1996)(noting that the necessity defense can only be asserted if the

ex-felon, not being engaged in criminal activity, does nothing more

than grab a gun with which he or another is being threatened or when

the ex-felon first seeks protection from the authorities without

success and is in serious danger of deadly harm). Even if

Petitioner’s counsel would have interviewed Elaine and she would have

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simply stated that Petitioner was in possession of the firearms to

protect her, Petitioner would not be entitled to any justification

instruction in support of his defense. Indeed, such a cursory

statement, without more, would not satisfy this Circuit's standard for

a defendant to be entitled to a jury instruction predicated on

justification. Nevertheless, this argument is foreclosed by

Petitioner’s own testimony. During the June 8, 2000, suppression

hearing, Petitioner testified that he was transporting the guns from

Elaine Rivera’s house to his mother’s house so that Elaine would not

sell the guns while he was gone. (June 8, 2000, Tr. P. 35-37) Thus,

Petitioner’s own version of events, given under oath, would not

support any necessity or justification jury instruction. United

States v. Martinez, 169 F.3d 1049, 1054 (7th Cir. 1999) ("Because of

the great weight we place on these in-court statements, we credit them

over [Petitioner's] later claims."). Therefore, it can not be said

that trial counsel’s failure to interview Elaine was prejudicial under

Strickland.

Fourth, Petitioner asserts his trial counsel rendered ineffective

assistance of counsel when he failed to depose or get affidavits from

witnesses regarding Petitioner’s now-desired justification defense.

However, as Petitioner was not entitled to the justification defense,

such an alleged failure by trial counsel cannot be deemed prejudicial

under Strickland.

Fifth, Petitioner argues that trial counsel rendered ineffective

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assistance by failing to investigate the location of Petitioner’s

arrest. Petitioner claims that, if his counsel would have

investigated the scene of the arrest, then counsel could have argued

that the officer’s account of the scene was incorrect. This,

Petitioner argues, would weigh against the officers’ credibility.

Again, however, Petitioner fails to establish the required prejudice

under Strickland. Spreitzer v. Peters, 114 F.3d 1435, 1455 (7th Cir.

1997) (noting that counsel’s failure to challenge a witnesses

credibility, without more, is insufficient to establish the requisite

prejudice).

Sixth, Petitioner claims his trial counsel rendered ineffective

assistance by failing to address inconsistencies in Officer Branson

and Officer Jolly’s witness testimony. Again, counsel’s failure to

challenge a witnesses’ credibility, in and of itself, does not satisfy

the prejudice prong in Strickland. Id.

Seventh, Petitioner asserts trial counsel provided ineffective

assistance by not objecting to the Government’s use of the term

“assault weapons.” Petitioner claims that the term “assault” was

prejudicial, as was the Government showing the guns at issue to the

jury. Whatever affect using the term “assault” or showing the jury

the weapons at issue may have had, they could not reasonably have,

either individually or in the aggregate, “rendered the jury’s verdict

unreliable or the proceeding fundamentally unfair . . . .” Rutledge,

230 F.3d at 1050. Therefore, Petitioner again fails to establish the

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requisite prejudice.

Eighth, Petitioner argues trial counsel provided ineffective

assistance of counsel because he did not share the discovery material

to Petitioner. Petitioner fails to crystallize how this alleged

deficiency caused him any prejudice, which is fatal to Petitioner’s

claim. Id.

Finally, Petitioner claims his trial counsel provided ineffective

assistance in failing to inform the Court or Government of

Petitioner’s self-defense theory. Because Petitioner was not entitled

to a self-defense theory, as set forth above, this Court cannot say

that his counsel’s failure to inform the Government or the Court of

it is prejudicial.

Ineffective Assistance of Counsel Claims

Against Sentencing Counsel

After being convicted, Petitioner discharged his trial counsel

and was appointed new counsel for sentencing. Petitioner then

knowingly and voluntarily discharged his court-appointed counsel and

proceeded through sentencing pro se, with his discharged appointed

counsel as stand-by counsel. Because Petitioner knowingly and

voluntarily proceeded pro se, he cannot maintain any ineffective

assistance of counsel claims during sentencing. ”One who exercises

the right of self representation cannot contend that he received

ineffective assistance of counsel.” Peoples v. United States, 403

F.3d 844, 849 (7th Cir. 2005).

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Ineffective Assistance of Counsel Claims

Against Appellate Counsel

On appeal, the Seventh Circuit appointed Petitioner counsel.

Petitioner has brought three ineffective claims against his appellate

counsel. First, Petitioner claims appellate counsel rendered

ineffective assistance of counsel by refusing to point out conflicts

in testimony to show Petitioner is innocent based upon the fact that

he had a justifiable reason to carry the firearms. As set forth

above, Petitioner has failed to point to any specific facts that would

justify him being a felon in possession of a firearm. Thus, as it was

not prejudicial for trial counsel to avoid raising the issue, it can

not be said to be prejudicial for appellate counsel to avoid raising

the issue. Spreitzer, 114 F.3d at 1455

Second, Petitioner claims appellate counsel rendered ineffective

assistance by applying incorrect legal authorities to the issues

presented. It again seems as though Petitioner complains about his

counsel not raising the credibility of Officer Branson. This is

simply not enough to establish prejudice under Strickland.

Third, Petitioner complains that appellate counsel rendered

ineffective assistance by refusing to present an Eighth Amendment

claim on appeal. Basically, Petitioner claims that his appellate

counsel should have argued that the Court’s finding of a armed career

offender enhancement and the imposition of a twenty-five year sentence

is cruel and unusual punishment. As the court of appeals found the

armed career criminal enhancement appropriate, however, this claim is

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simply without merit. This is especially true as the sentence of a

270 month term of imprisonment was within the statutory maximum and

the appropriate sentencing guideline range. 

Alleged Abuses of Discretion

Petitioner claims this Court abused its discretion by: (1)

denying his motion to suppress; (2) enhancing his sentence with the

armed career offender enhancement; (3) allowing the government to look

beyond the charging papers of the petitioner’s prior convictions; (4)

sentencing him beyond the maximum term of imprisonment under 18 U.S.C.

section 924(e)(1); and (5) denying to appoint counsel for the

sentencing hearing. These arguments are each without merit.

To start, Petitioner’s claim regarding the motion to suppress and

the armed career offender enhancement is simply an attempt by

Petitioner to revisit issues decided by the Seventh Circuit on direct

appeal. The Seventh Circuit has already determined that this Court

properly denied Petitioner’s motion to suppress and properly enhanced

Petitioner’s sentence pursuant to his armed career criminal status.

See Lenoir, 318 F.3d at 728-733. Petitioner’s attempt to have these

claims heard in this forum is improper as the Court will not now

address issues that have already been decided by the Seventh Circuit

in Petitioner’s direct appeal. Belford v. United States, 975 F.2d

310, 313 (7th Cir. 1992).

Petitioner’s remaining claims should have been raised in his

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direct appeal but were not. As noted earlier, Petitioner is barred

from raising constitutional issues in his section 2255 motion that

were not raised on direct appeal unless he demonstrates either: (1)

both good cause for his failure to raise those claims on direct appeal

and actual prejudice from the failure to raise those claims; or (2)

that the district court’s refusal to consider the claims would lead

to a fundamental miscarriage of justice. McCleese, 75 F.3d at 1177.

Petitioner does not even begin to meet either of these tests. Thus,

Petitioner is procedurally barred from pursuing these issues now. Id.

As a final note, Petitioner attempts to find solace in Blakely

v. Washington, 124 S. Ct. 2531 (2004). However, Blakely, and its

counterpart Booker, “do[] not apply retroactively to criminal cases

that became final before its release on January 12, 2005.” McReynolds

v. United States, 397 F.3d 479, 481 (7th Cir. 2005). Because

Petitioner’s case became final before January 12, 2005, he is unable

to pursue this line of reasoning.

CONCLUSION

For the reasons set forth above, the Petitioner’s Motion Under

28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person

in Federal Custody is DENIED. The Clerk is ORDERED to DISMISS this

case WITH PREJUDICE. The Clerk is FURTHER ORDERED to distribute a

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copy of this order to Petitioner at the Federal Correctional Facility

in Pekin, Illinois.

DATED: November 8, 2005 /s/RUDY LOZANO, Judge

United States District Court

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