his attorney’s ineffective assistance. Dikeocha’s complaint is frivolous.

Dikeocha’s attorney was responsible for providing an effective defense to the criminal
charges. The possible collateral consequences of a conviction were not an issue in the case nor
was there anything that Dikeocha’s criminal attorney should or could have been expected to do in
the context of the criminal prosecution to ward off possible collateral consequences. Assuming,
‘as the record reflects, that Dikeocha received competent counsel in his criminal trial, whatever
collateral consequences may arise from his conviction are a subject for some other forum and
possibly some other attorney. Dikeocha’s criminal attorney is not accountable or responsible for
any such collateral consequences.

Conclusion

For the foregoing reasons petitioner’s motion for writ of habeas corpus is denied.

Enter:

David H. Coar

United States District Judge

Dated: September 3, 2002


reliance on Palmer’s testimony as part of the sentencing process. After finding that Palmer’s
prior testimony contained sufficient indicia of reliability, this Court considered the testimony in
determining relevant conduct. Dikeocha’s attorney pursued this issue on appeal and the Seventh
Circuit rejected his argument, affirming this Court. 218 F.3d at 711.

Consequently, there was no prejudice to Dikeocha during the trial since the government
did not use Palmer’s transcript. Further, with respect to the sentencing, Palmer’s testimony was
relied on by the Court, but Dikeocha’s attorney contested that reliance both in this Court and on

_ appeal. Given the ruling of the Court of Appeals that this Court’s reliance was appropriate,
Dikeocha’s complaint against his attorney is without merit.

Cc. Ground 3

Dikeocha argues that his counsel failed to object to the use of the 1998 Sentencing
Guidelines. Dikeocha claims that he was prejudiced by his attorney’s failure because he would
not have received a two-level enhancement for obstruction if the earlier edition of the Guidelines
had been used. This court disagrees.

Dikeocha received a two-level increase in his base offense level under USSG § 3C1 .1 for
obstruction of justice. 3C1.1 provides, in pertinent part, that if a defendant “willfully obstructed
or impeded, or attempted to obstruct or impede the administration of justice during the course of
the investigation, prosecution, or sentencing,” his offense level is increased by two levels.
Application Note 3 gives a “nonexhaustive” list of examples of the types of conduct to which the
adjustment applies, including “providing materially false information to a judge or magistrate.”
App. Note 3(f).

Dikeocha’s whereabouts and activities during the period from 1990 until his 1997 arrest


The speedy trial analysis is a balancing test. Barker, 407 U.S. at 533. In Jackson, the court

pointed out that “[a]lthough defendant’s pretrial incarceration for approximately one year
supports a presumption of prejudice, such prejudice ‘unenhanced by tangible impairment of the
defense function and unsupported by a better showing on the other factors than was made here,
does not alone make out a deprivation of the right to [a] speedy trial.”” 542 F.2d at 409 (quoting
United States v. DeTienne, 468 F.2d 151, 158 (7th Cir. 1972), cert. denied, 410 U.S. 911(1973)),

Under the balancing analysis of Barker, the pivotal factors here are that the pre-trial delay
was due, in significant part, to Dikeocha and secondly, that he has identified no prejudice that he
sustained as a result of the delay. Under these circumstances, in this Court’s view there was no
Sixth Amendment violation in the pre-trial delay in this case.

E. Ground 5

Dikeocha contends that, based on Apprendi v. New Jersey, 530 U.S. 466 (2000), this
Court erred in making findings for purposes of sentencing regarding the quantity of drugs for
which he was held accountable. He further contends that his counsel was ineffective for having
failed to raise this argument at sentencing and on direct appeal. The Court lacks jurisdiction to
entertain Dikeocha’s arguments based on the Apprendi decision.

Dikeocha claims that the Supreme Court’s decision in Apprendi provides grounds for his
collateral attack to vacate or set aside his conviction and sentence. Apprendi, however, is not a
“watershed” decision that is made applicable to collateral attacks. Under Teague v. Lane, 489
U.S. 288 (1989), a petitioner may only benefit from a “‘new rule’’ that was adopted after the
petitioner’s conviction became final for purposes of direct appeal if the new rule places “certain

kinds of primary, private individual conduct beyond the power of the criminal law-making


same: the defendant would have received the two-level enhancement.

Finally, Dikeocha’s reliance on the Ex Post Facto Clause is misplaced. He mistakenly
assumes that in receiving a two-level enhancement, he is being punished for conduct he
committed in 1989 or 1990 and to do so, after the fact, is unconstitutional. Yet, in receiving the
enhancement, Dikeocha was punished for conduct he committed long after the enactment of the
amended Guidelines. Dikeocha submitted his perjurious affidavit to the Court in March of 1998
in connection with his effort to have the charges dismissed. At that time, the amended guideline
had been in effect for over seven years and Dikeocha (and all other defendants) were on notice of
the consequences of lying to a Court vis-a-vis the obstruction enhancement.

In this court’s view, the application of the obstruction enhancement to Dikeocha was
appropriate under either the earlier or later version of the Guidelines. There was no Ex Post Facto
Clause violation in applying the enhancement and Dikeocha’s attorney was not ineffective in
failing to argue that the earlier guideline should have been used.

D. Ground 4

Dikeocha argues that his statutory and Sixth Amendment right to a speedy trial were
violated by the nineteen month pre-trial delay following his arraignment. He contends that both
the government and his counsel delayed the proceedings in violation of his rights. This court
diagrees.

First, the underlying premise of his argument - that his counsel failed to object to the
alleged violation of the Speedy Trial Act is wrong. Following the trial, on March 25, 1999,
Dikeocha’s counsel filed a motion for a Judgment of Acquittal or a New Trial, in which he

asserted that “[t]he court erred in granting the government’s repeated motions to continue the



were the subject of pretrial hearings held by Magistrate Judge Keys in connection with
Dikeocha’s motion to dismiss the indictment. In support of a Motion to Dismiss the indictment,
Dikeocha filed a one-page affidavit following his arrest in 1997 in which he asserted that he had
not been aware of his 1990 indictment until his arrest in 1997. Dikeocha also claimed in his
affidavit that he had lived in Chicago from late 1990 until either late 1995 or early 1996. After
evidentiary hearings on Dikeocha’ s motion, Magistrate Judge Keys found that Dikeocha had
been aware of the arrest warrant for him beginning in 1990. Report and Recommendation,
attached hereto as Exhibit 4, at 12. At the time of sentencing, this Court agreed with Magistrate
Judge Keys’ finding and, on that basis, increased the defendant’s offense level by two levels for
obstructing justice under USSG 3C1 .1.

Dikeocha argues that his two-level enhancement for obstruction was based on an
amendment to the Application Note to the Guidelines that did not become effective until
November 1, 1990.

While it is true that Application Note 3(f) (“providing materially false information to a
judge or magistrate”) was not added to the Guidelines until November 1, 1990, it did not alter or
expand the previous obstruction guideline. Rather, it was merely part of an illustrative (and non-
exhaustive) list of the types of conduct that constitute obstruction. The underlying guideline (3 Cl
-1) did not change in any material way. Even prior to its amendment, the Application Notes had

_ Set forth a non- exhaustive list of obstructive conduct that included, “testifying untruthfully or
suborning untruthful testimony concerning a material fact ... during a preliminary or grand jury
proceeding .... or any other judicial proceeding.” Thus, even had this Court applied the guideline

and Application Notes prior to the November 1, 1990 amendment, the result would have been the



F.3d 854, 86 1-62 (7th Cir. 1999)(560 day delay between arraignment and trial not violation of

Sixth Amendment), cert. denied, 529 U.S. 1081 (2000); Koller, 956 F.2d at 1414 (eight and a

half months); United States v. Infelise, 934 F. 2d 103,104 (7th Cir. 1991) (two year period of
pretrial detention not per se unconstitutional).
The petitioner, however, does not satisfy the second and fourth requirements of the

Barker analysis, The reasons for the delay, as discussed earlier, were in part due to motions filed

by Dikeocha or the need to give his successive attorneys adequate time to prepare for trial.
Consequently, Dikeocha is not entitled to relief for delay occasioned by his Sixth Amendment
motions as well as his other motions.
Finally, Dikeocha does not provide evidence that that he sustained any prejudice by the
seventeen month delay following his arraignment. The issue of prejudice usually concems the
_ following interests of the defendant: “(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concer of the accused; and (iii) to limit the possibility that the defense

will be impaired.” United States v. Jackson, 542 F.2d 403, 408 (7th Cir. 1976) (citing Barker,

407 U.S. at 532). The possibility that the defense will be impaired is the most serious of the
three. Id. “With respect to the impairment to his defense, the defendant cannot merely allege
possible prejudice, he must show that his defense was impaired such that he suffered actual and

substantial prejudice as a result of the delay.” Koller, 956 F.2d at 1414.

Dikeocha makes only conclusory assertions as to the prejudice he suffered by virtue of the
delay in this case. He claims that the delay “interfered with [his] liberty, disrupted his
employment and financial resources.” He fails, however, to specify any aspect of his trial strategy

_ or presentation that was adversely affected by the seventeen month delay.


yn Oder Form (0697)
=

yf?

3

United States District Court, Northern District of Mlinois

Name of Assigned Judge
or Magistrate Judge

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 01 C 4894 DATE SEP 37,2002
CASE Ebenezer Dikeocha vs. United States of America
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) oa Brief in support of motion due

QB) o Answer brief to motiondue___. Reply to answer briefdue___.

(4) 0 Ruling/Hearing on___setfor__at

(5) o Status hearing[held/continued to] [set for/re-set for] on setfor at.

(6) Oo Pretrial conference[held/continued to] (set for/re-set for] on setfor at.

(7) Qo Trial[set for/re-set for] on __at

«) O [Bench/Jury trial] [Hearing] held/continued to____at

(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OCOFRCP4(m) Local Rule 41.1. CUFRCP41(a)(1)  FRCP41(a)(2).

ao [Other docket entry] For the reasons stated in the attached Memorandum Opinion and Order, the

petitioner’s motion is denied. [Doc. # 1].

(di) i

(For further detail see order attached to the original minute order.]

Oeil Ibo.

No notices required.

Notices mailed by judge’s staff.

Notified counset by telephone.

Docketing to mait notices.

Mail AO 450 form.

AWAY

Copy to judge/magistrate judge.

courtroom
deputy’s
initiats

vg(ic)

No notices required, advised in open court.

Document

~ | 0
A Number.

umber of notices

SEP 9

date docketed

date mailed notice

Date/time received in.
centrat Clerk's Office

mating depuly initials



125 F. Supp.2d 700, 707 (E.D. Pa. 2000); but see Darity v. United States, 124 F. Supp. 2d 355,
359 (W.D.N.C.2000)(announcing that Apprendi is both a “new rule” and “a substantive
decision”)

Additionaily, in In Re Lambertv. United States, 2001 WL 686814, *3 (N.D. Ill. June 15,

2001) (Kocoras, J), a district court case in the Northern District of Illinois squarely addressed this
issue. In Lamberty the defendant contended in his § 2255 petition that he was injured because the
questions of quantity and type of drug were not submitted to the jury, based on the decision in
Apprendi. The district court judge, in refusing to apply Apprendi to the defendant’s § 2255
petition, noted that
every indication from higher courts establishes that Apprendi does not apply retroactively
to cases on collateral review. Until the United States Supreme Court rules on the

question, the Seventh circuit has declined to deem Apprendi to apply retroactively.

1 Id. Accord Collins y. United States, 2001 WL 699058, * 1 (D. Kan. June 11, 2001).

Accordingly, since the Apprendi decision is not retroactively applicable to cases on
collateral review, Dikeocha’s petition at Ground Five is dismissed for lack of jurisdiction.

F. Ground 6

Dikeocha argues that his counsel was ineffective in failing to object to the late
fingerprinting of evidence and in failing to argue that the late fingerprinting demonstrated that the
prosecution had “reasonable doubt” about the defendant’s guilt. Dikeocha’s argument is
frivolous. The petitioner’s argument is frivolous.

In the Dikeocha’s case, his attorney read two stipulations regarding fingerprint evidence.
The first stipulation referenced a 1990 fingerprint examination of various items of physical

evidence on which the fingerprint examiner found one latent fingerprint, which did not match the

11


authority to proscribe [or] requires the observance of those procedures that are implicit in the

concept of ordered liberty.” Id. at 307 (citations and quotations omitted). A rule is a “new rule”

unless “a... court considering the petitioner’s claim at the time his conviction became final would

have felt compelled by existing precedent to conclude that the rule [he} seeks was required by the
" Constitution.” Gray v. Netherland, 518 U.S. 152, 166 (1996)(quoting Saffle v. Parks, 494 U.S.

484, 488 (1990)).

Apprendi does not meet either of the two Teague exceptions that would allow application
of the “new rule” to collateral attacks, and no appellate court has held that the “new rule” of

Apprendi applies retroactively on collateral attack under Teague. See Garrott v. United States,

238 F.3d 903, 906 th Cir.), cert. denied, 121 S.Ct. 2230 (2001). See Talbott v. Indiana, 226 F.3d
866 (7th Cir. 2000); Hernandez v. United States, 226 F.3d 839, 841 (7" Cir. 2000); Jones v.
Smith, 231 F.3d 1227, 1236 (9th Cir. 2000).

The first Teague exception does not apply in this instance since Dikeocha’s illegal
conduct is the type that may be proscribed by statute. Under the second Teague exception, the
defendant must show that failure to apply Apprendi on collateral review will create an
impermissible risk that innocent people will be convicted and will make trials fundamentally
unfair. Teague, 489 US. at 312. Since failure to have a jury determine quantity of a drug
implicates neither innocence nor fundamental fairness, Apprendi should not be applied on
collateral review. See Smith, 231 F.3d at 123 6-37 (finding Apprendi did not meet Teague
standard and would not be applied to petitioner’s collateral attack of charging document and jury
instmetions); United States v. Goode, 143 F.Supp.2d 817, 823 (E.D. Mich. 2001)(Apprendi does

not apply retroactively to cases on collateral review - collecting cases); United States v. Gibbs

10



trial date and in excluding time under the Speedy Trial Act.” That motion was denied by this
Court on April 23, 1999.
Further, there are exceptions to the general rule that a trial commence within seventy days
of arraignment. In particular, 18 U.S.C. § 3 161(h)(1)(F).
In the seventeen month period between his arraignment and the trial, Dikeocha had three
| different attorneys and filed a motion to dismiss the indictment for pre-arrest delay that required
an evidentiary hearing by a Magistrate Judge. During this pre-trial period, Dikeocha filed a
number of other motions including a motion to reopen his motion to dismiss the indictment.
Thus, a large portion of the time excluded prior to trial was due either to motions filed by
Dikeocha or to allow his successive counsel adequate time to prepare for the trial. While there
was a period of time that was excluded due to the unavailability of an essential government
witness, a portion of that time overlapped with exclusions due either to defense motions and/or
continuity of defense counsel. Consequently, the petitioner’s argument that the government is to
“blame” for the pre-trial delay is therefore misguided.
Dikeocha also contends that his Sixth Amendment right to a speedy trial was violated.
There are four factors in determining whether the Sixth Amendment right to a speedy trial has
, been violated: “(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s
assertion of his speedy trial right, and (4) the prejudice to the defendant caused by the delay.”
United States v. Koller, 956 F.2d 1408, 1413 (7th Cir. 1992), It is “impossible to determine with
precision when the right has been denied” and “none of the four factors [are regarded] .. . as
_ either a necessary or sufficient condition to the finding of a deprivation of the right of speedy

trial.” Barker v. Wingo, 407 U.S. 514, 521, 533 (1972). See also United States v. Taylor, 196


reasonableness" guaranteed under the Sixth Amendment. Barker v, United States, 7 F.3d 629,
633 (7th Cir.1993) (quoting Strickland v. Washington, 466 U .S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984)). To satisfy the second prong, the petitioners must show that because of
counsel's errors, the outcome of their trial or sentencing was fundamentally unreliable or unfair.
Id. Because counsel is presumed to have been effective, the petitioners bears a heavy burden in
proving that counsel was ineffective and that their defense was prejudiced. Jd.

A. Ground 1

Petitioner argues that his counsel was deficient in failing to move for a dismissal of the
charges based on a violation of the states of limitations. Dikeocha’s argument is frivolous.

The acts alleged in the indictment occurred between January of 1989 and September of
1990. The defendant was indicted on October 10, 1990, well within the five year period of
limitations applicable under 18 U.S.C. § 3282. Moreover, the defendant raised his statute of
limitations argument to this Court on several occasions before, during and after the trial. The
motion has already been rejected by this Court. Defendant’s counsel was not ineffective in failing
to advance this meritless argument to the Court of Appeals.

B. Ground 2

Dikeocha complains that his counsel was deficient in failing to object to the use of the
transcript of Larry Palmer (“Palmer”), a witness who had testified in the 1991 trial of Dikeocha’
s co-defendants. Dikeocha’s argument misstates the record.

Prior to trial, the government moved unsuccessfully to admit the prior trial testimony of
Larry Palmer. In fact, Palmer’s transcript was not used during the trial. The government,

however, did rely on the transcript of Palmer’s testimony. Dikeocha’s attorney objected to any


1997. Dikeocha was tried before this Court and convicted on March 24, 1999 on all three counts.
On March 25, 1999, the defendant moved for a judgment of acquittal, or, in the alternative, for a
new trial. The defendant’s post-trial motions were denied on April 23, 1999. R.322. On July 19,
1999, the defendant was sentenced to 188 months incarceration, 5 years supervised release, a fine
of $2500, $2500 in community restitution and $150 in special assessments.

Dikeocha appealed his conviction and sentence. His conviction was affirmed on June 27,
2000. 218 F.3d 706.

Habeas Corpus Standard of Review

Under 28 U.S.C. § 2255, federal prisoners can challenge the imposition or length of their
detention if their conviction or sentence has been founded on an error that is "jurisdictional,
constitutional, or is a fundamental defect which inherently results in a complete miscarriage of
justice." Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir.1995); 28 U.S.C. § 2255. If the
court determines that any of these errors infected the judgment or sentence, the petitioner's
conviction will be vacated or set aside, and the petitioner will be discharged, resentenced, or
granted a new trial. Key v. U.S., 2002 WL 483418, *1 (N.D.II.).

Analysis

I. Ineffective Assistance of Counsel

Ebenezer argues that her counsel was ineffective on the basis of several grounds.

To establish that counsel provided ineffective assistance, the petitioners must

demonstrate: (1) that their attorney's performance was deficient; and (2) that such representation
prejudiced his or her case. Precin v. United States, 23 F.3d 1215, 1218 (7th Cir.1994). The first

prong is satisfied by a showing that counsel's performance fell below the "objective standard of


IN THE UNITED STATES DISTRICT COURT See dubz
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
Ebenezer Dikeocha,, )
)
) cp t
Petitioner, ) SEP 5 ugg
) No. 01 C 4894
v. )
) HONORABLE DAVID H. COAR
United States of America )
)
Respondent )

MEMORANDUM OPINION AND ORDER

Before this court is petitioner’s, Ebenezer Dikeocha (“Dikeocha”), writ of habeas corpus
pursuant to 28 U.S.C. § 2255. The petitioner’s motion is denied.
Background
On October 10, 1990, Ebenezer Dikeocha and three other individuals -- Charles
Emenogha, Vincent Nwafor and Gibson Nwafor, were charged in a superseding indictment with
conspiracy to distribute heroin and numerous substantive counts of heroin distribution. Dikeocha
was charged in the superseding indictment with one count of conspiracy (Count One) and two
substantive counts of heroin distribution (Count 6 and 7). Defendants Emenogha, Vincent
Nwafor and Gibson Nwafor were convicted after a jury trial in 1991 before the Hon. James F.
_Holderman. The Seventh Circuit affirmed their convictions in a published decision on July 12,
1993. 1 F.3d 473.

Dikeocha eluded arrest from 1990 until his apprehension in Chicago on October 16,

7

1 | .)



fingerprints of Dikeocha or any of his known co-conspirators. The second stipulation referenced
a 1998 fingerprint examination of the plastic wrappings of the narcotics in which no latent
fingerprints were found.

Dikeocha contends that his attorney did not object to the “late” fingerprinting of the drug
evidence and that his attorney did not argue that the “late” fingerprinting demonstrated the
prosecution’s reasonable doubt about Dikeocha’s guilt.

The government, however, had the right to conduct a fingerprint comparison whenever it
chose, as long as Dikeocha was given sufficient notice of the results. Dikeocha does not contend

that he received inadequate notice of the fingerprint evidence or that it took him by surprise. In
addition, Dikeocha’s attorney was the one who read the stipulation to the jury because it was, at
least, arguably consistent with Dikeocha’s defense.

Dikeocha, however, wanted his attorney to go further and to argue that the 1998

: fingerprint examination showed that the prosecutors had reasonable doubts about Dikeocha’s
guilt. Such an argument would, of course, have been improper, since it would have brought into

" issue the personal beliefs of the attorneys. The government raised the issue before closing

arguments and the Court agreed that it would be inappropriate for Dikeocha’s attorney to argue
that the government had doubts about its case. Dickeocha’s attorney agreed that he was not
going to make that sort of argument.

Dikeocha can not contest his attorney’s failure to make an argument that was deemed
improper by this Court.

G. Ground 7

Dikeocha argues that he faces deportation and other collateral consequences as a result of

12