instructions that “[a]s to each of the five or more people, the government must prove that the
defendant you are then considering organized and supervised or managed them in accomplishing
the activities that contribute to the continuing enterprise.” (T.T. at 2758-59.) This instruction
contrasts with those in the principal cases cited by Crenshaw. In United States v. Barona, 56 F.3d
1087, 1097-98 (9th Cir. 1995), for example, the court not only failed to instruct the jury that
individuals qualified as supervisees only if they were those over whom the defendant exercised
managerial responsibility, but also presented the jury with a list of persons who could qualify as
“five or more” supervisees; included on that list were the names of several individuals who did not
qualify as supervisees as a matter of law. Likewise in United States v. Lindsey, 123 F.3d 978 (7th
Cir. 1997), the trial court failed to instruct the jury as to the managerial requirement under the CCE
statute, even after the government had suggested in its closing that a CCE conviction could be
premised on a buyer-seller relationship. Despite this error, the court, applying a plain error
standard, upheld the CCE conviction in Lindsey. /d. at 985-86. Here, the trial court did not give
animproper instruction, nor did the Government suggest that a mere buyer-seller relationship could
serve a predicate for the CCE charge. Rather, Crenshaw merely asserts that he was prejudiced
by the court's failure to give, and his attorney's failure to request, an additional instruction clarifying
those persons who can and cannot qualify as supervisees under § 848(c)(2){A).

Moreover, the jurors heard an overwhelming amount of evidence about the Gangster
Disciple’s drug trafficking operation and Petitioner Crenshaw’s leadership position in the
organization. Given the vast array of evidence linking Crenshaw to the Gangster Disciple’s drug
operations, the court is confident that Crenshaw suffered no actual prejudice and that, even had
the proposed instruction been given, the jury would have had no trouble identifying five or more
persons organized, managed, or supervised by Crenshaw within the context of the continuing
criminal enterprise.

Finally, Crenshaw argues that he is entitled to habeas relief with regard to his conviction for

20


CONCLUSION

For the foregoing reasons, in Case No. 02 C 6988, the court denies Gholson’s motion for
relief (Doc. No. 17-1), motion for partial summary judgment (29-1), motion in traverse (30-1),
motion for judgment on the pleadings (30-2), motion pursuant to Rule 60(b) (32-1), and motion for
order to reimburse assessment fee (33-1). In Case No. 02 C 7076, the court also denies
Crenshaw's motion to vacate his sentence (26-2), motion to set aside the judgment (26-3), and
motion to correct his sentence (26-4). In Case No. 02 C 7077, the court denies Jones and Tetteh's
motions for partial summary judgment (0-1 and 5-1). In Case No. 02 C 6988, the court grants
Gholson’s motion to supplement his sentencing reduction motion (21-1), motions for leave to file
supplemental pleading (31-1, 34-1, 37-1, 38-1, 39-1, and 40-1), and motion to supplement his §
2255 petition (39-1). In Case No. 02 C 7076, the court also grants Crenshaw’s motion to amend
(26-1). In Case No. 02 C 7077, Tetteh’s motions for leave to amend (9-1, 10-1, 10-2) are also
granted.

On March 31, 2004, the court granted in part, denied in part, and in part dismissed
Petitioner Crenshaw’s motion for return of property. Crenshaw's motion for discovery in Case No.
96 CR 553 (688-1), motion to compel (701-1) and motion for miscellaneous relief (701-2) all related
to the matter of his property; each of these motions is stricken without prejudice as moot.

The petitions for relief under 28 U.S.C. § 2255 filed by Petitioners Gholson, Jones, Tetteh,
Crenshaw, and Wilson are denied in their entirety.

ENTER:

Dated: February 14, 2005

REBECCA R. PAL

United States District Judge

37


B. Wilson

As an initial matter, the court is not convinced that the failure of Wilson's appellate counsel
to raise Apprendi was unreasonable and constitutionally deficient under Strickland. Unlike Jones
and Tetteh, for whom the jury returned a general verdict of guilty on the conspiracy charge, Wilson
pleaded guilty to the conspiracy charge. Thus, Apprendi would not be implicated because the
conclusion that the conspiracy involved all four controlled substances (crack, cocaine, heroin and
marijuana) was not improperly determined by the judge on a preponderance standard, but rather
by Wilson’s own admissions in the plea agreement and colloquy. In the signed plea agreement,
Wilson admitted that as a member of the Gangster Disciples he “conspired and agreed with other
members of the Gangster Disciples, to sell powder and crack cocaine, heroin and marijuana to
individuals in areas on the south side of Chicago. Often times, the defendant distributed wholesale
quantities of power and crack cocaine to other Gangster Disciples, knowing that these drugs would
ultimately be sold by members of the gang to drug users at ‘drug spots’ in territories controlled by
the Gangster Disciples.” (R. 397 (emphasis added).) Although the plea agreement states the
government and Wilson disagreed “as to the quantity of narcotics involved in the offense,” it does
not indicate that there was any disagreement over the types of narcotics involved. (Plea
Agreement, at 3.); cf. United States v. Bush, 70 F.3d 557 (10th Cir. 1995) (defendant's guilty plea
to indictment for conspiracy to distribute cocaine and/or cocaine base created ambiguity as to
which drug was involved). Notably, Wilson did not dispute that the conspiracy involved the
distribution of all four drugs - cocaine base (crack), cocaine, heroin, and marijuana. Nor does
Wilson suggest that his guilty plea was involuntary or untruthful. Prior to his plea, Wilson was
placed under oath and found fully competent to enter a guilty plea. (Plea Transcripts, at 4-6, 18.)

Wilson was fully advised as to what exactly he was pleading guilty to, as well as the
possible consequences. Prior to entering his plea, the government advised Wilson that the charge

to which he was pleading guilty carried with it a mandatory minimum term of imprisonment of ten

14


Supplemental Pleadings, at 1-2.) Although this juror was excused, he alleges that she “continued
having relations with two of the jurors on Gholson's case, that was an ‘intrusion’ into the province
of the jury. An ‘outside’ intrusion that had a ‘prejudicial impact.” (/d. at 2.) He further alleges that
“the alternate juror had literally stolen Petitioner's income real estate property, during the time of
trial proceedings.” (/d.)

Although Gholson has styled these successive petitions as “supplemental,” his inexplicable
failure to include all issues in his original petition frustrates the judicial system’s interest in finality
and burdens its scarce resources to the same extent as a new petition would. Allowing endless
supplemental petitions enables litigants “to withhold claims for manipulative purposes and may
establish disincentives to present claims when evidence is fresh.” McCleskey v. Zant, 499 U.S.
467, 491-92 (1991). These numerous additional submissions surely qualify as abusive.
Nevertheless, the government has not argued that this and other subsequent amendments to
Gholson’s petition constitute abuse of the writ and the court will not dismiss a petition on that basis
sua sponte. Id. at 477 (“government has the burden of pleading abuse of the writ.”).

Although the court will not dismiss this supplemental petition as abuse of the writ, Gholson
still faces procedural default for failing to raise this “intrusion” claim on direct appeal. Setting aside
the issue of cause, for which Gholson again cites ineffective assistance of counsel, the court
cannot discern any prejudice to Gholson stemming from this claim that is arguably fantastic and
delusional on its face. Gholson fails to explain how a juror who did not participate in the
deliberations could have affected the outcome of the trial. In the lone cited case, Remmerv. United
States, 347 U.S. 227 (1954), a juror was approached by an unidentified man and told that he could
profit by returning a verdict favorable to the defendant. The Court held that the defendant was
entitled to a hearing examining whether these comments and subsequent investigation and
questioning of the jurors by FBI agents were harmful to the defendant, entitling him to a new trial.

Id, at 451-52. Clearly, Gholson has not shown any similar events likely to prejudice a jury against

24


supplemental petitions alleging, inter alia, that: (1) the court's imposition of a life sentence pursuant
to the CCE statute violated Blakely; (2) outside “intrusion” into the province of the jury had a
prejudicial impact on his trial; (3) the United States Attorney engaged in prosecutorial misconduct
during his trial. Petitioner Tetteh has also filed a supplemental petition raising the Blakely issue.
Because the government has not argued that these supplemental petitions constitute abuse of the
writ, the court will consider these additional claims along with those brought by Petitioners
Crenshaw and Wilson and those previously reserved by the court.
DISCUSSION

Section 2255 permits a prisoner to “move the court which imposed the sentence to vacate,
set aside, or correct the sentence” on the grounds that the sentence was imposed in violation of
the Constitution or laws of the United States. 28 U.S.C. § 2255. Such collateral relief is only
available, however, where there was “an error of law that is jurisdictional, constitutional, or
constitutes a ‘fundamental defect which inherently results in a complete miscarriage of justice.”
Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994) (quoting Borre v. United States, 940 F.2d
215, 217 (7th Cir, 1991)). Where the court finds that there has been such a “fundamental defect”
resulting in a “complete miscarriage of justice,” Arango-Alvarez v. United States, 134 F.3d 888, 891
(7th Cir. 1998) (quoting Davis v. United States, 417 U.S. 333, 346 (1974)), the court “shall vacate
and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255.

Before a district court will review a claim on its merits, the issue must have “been raised in
a procedurally appropriate manner.” Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir.
1989). A section 2255 motion is not a substitute for a direct appeal, and thus the “failure to raise
constitutional issues to a conviction on direct appeal bars a petitioner from raising the same issue
in a section 2255 proceeding -- absent a showing of good cause for and prejudice from the failure

to appeal.” /d. (citing Norris v. United States, 687 F.2d 899 (7th Cir. 1982)). Thus, as this court


IX, Miscellaneous Motions

A. Gholson’s Motion for Order to Reimburse Assessment Fee

In a motion filed on November 12, 2003, Gholson correctly observes that this court reduced
the amount of the special assessment imposed on him from $400 to $100. Gholson is not correct,
however, that this court's ruling requires the United States Attorney to return funds to him. Judge
Marovich imposed a $15,000.00 fine at the time of sentencing, in addition to the special
assessment. Unless Gholson has paid his fine in full, in addition to the $400 special assessment,
he is not entitled to a refund. This motion is denied.

B. Gholson’s Motion Pursuant to Rule 60(b)

Gholson argues that the court did not address his earlier argument, that his CCE conviction
was unsupported by evidence of a predicate offense. The jury convicted Gholson of a predicate
offense, however, 21 U.S.C. § 861, and the evidence was presumably sufficient to support that
Conviction. In any event, it appears that Gholson did not raise this matter on direct appeal, and the
court concludes it is procedurally defaulted. Gholson’s remaining arguments in support of this
motion appear to relate to ineffective assistance of counsel and are discussed elsewhere in this
opinion. His Rule 60(b) motion is denied.

Cc. Gholson’s Motion for Judgment on the Pleadings

Allof the arguments Gholson makes in support of this motion relate to ineffective assistance
and are discussed elsewhere in this opinion. The motion is denied.

D. Tetteh’s Motion for Partial Summary Judgment

In this motion, Petitioner Tetteh demands an explanation for the United States Attorney's
Office's assertion that “file-stamped copies” of certain documents were never returned to
government's counsel. Tetteh asserts that his jailhouse lawyer, John Gregory Lambros, does not

understand how this could be so. Mr. Lambros’s confusion about the court's file-stamping practices

35


employing and using juveniles in connection with a drug trafficking conspiracy under 18 U.S.C.
§§ 861(a)(1) and (2). Specifically, he argues that the government failed to prove that he was
responsible for some active use of juveniles. As an initial matter, this issue might be moot as the
Government has voluntarily dismissed Crenshaw’s convictions under §§ 861(a)(1) and (2). (Doc.
No. 511-3, Jan. 14, 1999.) Moreover, even if these offenses were used as predicates for his CCE
conviction, his argument has no merit. A co-conspirator is responsible for the acts or crimes of
other members of the conspiracy “if he was a member of the conspiracy when the act was
committed, and if the act was committed in furtherance of or as a natural consequence of the
conspiracy.” United States v. Smith, 223 F.3d 554, 567 (7th Cir. 2000). Moreover, a CCE
conviction does not require the predicate acts to have been committed by the defendant with five
or more supervisees; rather, it is sufficient that the predicate acts be attributable to the defendant
on a co-conspirator liability theory. See, e.g., United States v. Souffront, 338 F.3d 809, 837 (7th
Cir. 2003); Haywood v. United States, 216 F. Supp. 2d 725, 733 (N.D. Ill. 2002).

As discussed above, former members of the Gangster Disciples testified as to the
widespread use of “shorties”— that is, juvenile members of the gangs who served as security for
the gang to avoid the risk to adult members of the gang of being caught armed. (T.T. at 235-36.)
The Seventh Circuit has held that use of a minor as a “look-out” is sufficient “use” for purposes of
section 861(a)(2). United States v. Stevenson, 6 F.3d 1262, 1269 (7th Cir. 1993). In addition,
Derrick Wiltz and Robert Ford both testified that they sold drugs for the Gangster Disciples while
juvenile members of the gang. (T.T. at 1730, 1834.) This evidence is sufficient to uphold
Crenshaw's conviction under §§ 861(a)(1) and (2).

Vv. Gholson’s Fourth Amendment Claims

In his original habeas petition, Gholson raised a claim for relief based on an alleged

violation of his Fourth Amendment rights, stemming from his false arrest and malicious prosecution.

Specifically, he claimed that he was arrested without probable cause by a police officer who had

21


have accepted the plea.” Toro, 940 F.2d at 1068.

As the court concludes these claims had no merit, it likewise concludes Petitioner did not
suffer any prejudice from the failure to raise these claims on direct appeal.

B. Wilson’s Additional Ineffective Assistance of Counsel Claims

Petitioner Wilson raises claims of ineffective assistance of counsel with regard to the
calculation of his sentence under the sentencing guidelines. Specifically, he argues that his
counsel was ineffective for failing to argue that he should have been sentenced under criminal
history category Il, rather than category VI, because Wilson was a late comer to the conspiracy,
not entering until late 1995. Despite his late entry, Wilson argues that the court incorrectly
assigned criminal history points to certain prior convictions that occurred before the applicable ten
and fifteen-year time limits under § 4A1.2(e) of the sentencing guidelines. U.S.S.G. § 4A1.2(e).

There is some confusion in the record concerning the final calculation of Wilson's criminal
history. Count one of the superseding indictment, to which Wilson pleaded guilty, charged Wilson
with conspiring to distribute, crack, powder cocaine, heroin and marijuana from “approximately the
mid-1980s until on or about May 22, 1997.” (Record at 23.) Although in his plea agreement Wilson
purports to plead guilty to this Count One, the factual basis set forth in the plea agreement
indicates that Wilson's involvementin the conspiracy spanned the period from “the early 1990s and
May of 1997.” (Plea Agreement, at 2.) The plea agreement also contains a reference to Wilson's
involvement in a conspiracy to distribute heroin “between approximately the winter of 1995-1996
and early 1997." (/d. at 2-3.)

In any event, the court need not wade through the confusion. Even if the court assumes
that Wilson is correct in his assertion that he did not join the conspiracy until late 1995, Petitioner
has not suffered any prejudice. The career offender guideline applies if: (1) the defendant is at
least eighteen at the time of the instant offense; (2) the instant offense is a felony and either a

crime of violence of controlled substance offense; and (3) defendant had at least two prior felony

27


appellate attorney was ineffective for failing to raise this issue at trial or on appeal, nor that he was
prejudiced by his failure to raise the issue. Notably, the defense did raise the issue of police
perjury and an alleged vendetta against Gholson: On cross examination of the alleged rogue police
officer, Gholson's trial counsel asked several times whether the officer had “promised . . . to get
him [Gholson] off the street.” (T.T. at 619-20.) The jury was clearly not persuaded by the
defense’s unsupported allegations of a police plot to falsely imprison Gholson. Given the weakness
of this claim, appellate counsel's decision not to press this issue on direct appeal is
understandable. “Good advocates do not raise every non-frivolous legal issue,” United States v.
Knox, 287 F.3d 667 (7th Cir. 2002), let alone frivolous ones. Certainly, Petitioner Gholson has not
produced nearly enough evidence to show that there is a “reasonable probability” that had his trial
or appellate counsel raised the issue, the result of his tria! or appeal would have been different.
Strickland, 466 U.S. at 694.

Given Gholson’s failure to present evidence supporting his claim that he was set up by the
Chicago Police Department, and his failure to show cause for or prejudice from his failure to raise
the issue in his direct appeal, the court denies Gholson’s claim for habeas relief on the grounds of
prosecutorial misconduct and Fourth Amendment violations.

Vi. Gholson’s Jury “Intrusion” Claim

On December 8, 2003, Petitioner Gholson filed “supplemental pleadings” to his original
§ 2255 petition.> In this supplemental document, Gholson raised a new basis for habeas relief:
outside intrusion into the jury deliberations. Specifically, Gholson alleges that he previously had

a “personal affair/relationship” with an alternate juror, prior to the trial. (Gholson’s Dec. 9, 2003

5 As far as the court can tell, Gholson has filed no less than eight “supplemental”
petitions. Since filing his original petition on September 30, 2002, he has filed supplements on
October 22, 2002 (Doc. No. 3), April 14, 2003 (Doc. No. 5), November 10, 2003 (Doc. No. 31),
December 8, 2003 (Doc. No. 34), February 20, 2004 (Doc. No. 37), March 16, 2004 (Doc. No. 38),
July 21, 2004 (Doc. No. 39), and January 21, 2005 (Doc. No. 40). Many of these petitions have
been duplicative and clearly meritless.

23


(and any inadvertent failures to provide appropriate copies) are not a basis for relief. This motion
is denied.

Mr. Tetteh also asks that Petitioner Jones be assigned a civil filing number. The court notes
that Mr. Jones did file his own § 2255 petition, under Docket Number 02 C 4784. The court will
ensure that Mr. Jones receives notices of this court's action in his petition.

E. Jones’s Objections/Response to the Government’s Submissions

Petitioner Jones, like Mr. Tetteh, asks that the court devote attention to the case numbers
assigned to these petitions. The court will double-check the filing numbers to be sure that Mr.
Jones and other Petitioners have received appropriate notices. Further, as Jones requests, the
court will deem him to have adopted other Petitioners’ arguments by reference.

Finally, Jones argues that the United States Attorneys’ Office has “concealed facts” by
failing to cite to Judge Kennelly’s opinion in United States v. Knox, No. 02 C 7392, 2003 WL
22012680 (N.D. Ill. Aug. 26, 2003). In Knox, as here, the jury had returned a general verdict on
drug distribution conspiracy charges, without specifying the type and quantity of drugs involved.
The § 2255 petitioner argued, as here, that the sentencing court acted improperly in imposing a
sentence greater than the two-year maximum that could have been imposed for a conspiracy to
distribute the least serious drug involved (in that case, codeine syrup; in our case, marijuana). 2003
WL 22012680, *3.'°

In the case before this court, as discussed earlier, Mr. Jones was not sentenced in excess
of the maximum for which he would have been eligible, had all of the narcotics at issue been
marijuana. The government's failure to cite Judge Kennelly's opinion made no difference, and

Petitioner Jones's objections to the government's submissions are overruled.

On reconsideration, Judge Kennelly concluded the sentencing error was subject to

harmless-error review, and that the petitioner had not established cause and prejudice sufficient
to explain his failure to raise the matter on direct appeal. See United States v. Knox, No. 02 C
7392, 2004 WL 442629 (N.D. Ill. Mar. 9, 2004).

36


habeas review.

Crenshaw also raises several issues related to his CCE conviction that he did not raise on
his direct appeal. First, he claims that the court failed to instruct the jury that certain individuals
who had been cooperating with the government could not be included in the CCE counts.
Specifically, he claims that the jury should have been instructed that the drug transactions charged
in Counts Seven, Eight, and Nine could not serve as CCE predicates because the buyer
Charmagne Johnson was cooperating with the government at the time of the sale, and thus could
not be a coconspirator, and that Johnson's purchase from Crenshaw was an isolated incident, not
part of the continuing criminal enterprise. In addition, Crenshaw claims that, as to the CCE element
that he acted in concert with five or more persons, 21 U.S.C. § 848(c)(2)(A), the jury should have
been instructed that certain individuals could not be included because of their cooperation with the
government. Third, Crenshaw argues that the jury was improperly led to believe that he acted as
the organizer of five or more persons under § 848(c)(2)(A), despite testimony of a number of
witnesses that they had no agreement and/or drug dealings with him. Finally, Crenshaw argues
that the government failed to prove the requisite element that he was responsible for the active use
of juveniles under the §§ 861(a)(1) and (2).

The government argues that these claims are procedurally defaulted. As discussed above,
in order to raise an issue for the first time in a § 2255 petition, a petitioner must meet the “cause
and prejudice test” by showing cause for his failure to raise the claim on direct appeal and
demonstrating that he was prejudiced by the failure to raise the issue. Barker v. United States,
7 F.3d 629, 631 (7th Cir. 1993). The only available “cause” in this case is ineffective assistance
of counsel for failure to raise these issues at trial and on direct appeal. Under the two-pronged
Strickland test, outlined above, a defendant claiming ineffective assistance of counsel must
demonstrate both: (1) deficient performance by counsel; and (2) prejudice stemming from the

deficiency. Strickland, 466 U.S. at 687-88, 694.

18


must be sentenced as if the organization distributed only the drug carrying the lower penalty.”).
Since Apprendi, the Seventh Circuit has held that “all facts (other than prior convictions) that set
the maximum possible punishment . . . must be established beyond a reasonable doubt to the
same body that determines culpability . . .” United States v. Brough, 243 F.3d 1078, 1079 (7th Cir.
2001).

Jones and Tetteh raised the Apprendi issue for the first time in their § 2255 petitions, and
Wilson likewise failed to raise the issue on direct appeal. Rather than raising Apprendi on direct
appeal, Petitioners instead unsuccessfully challenged the trial court's conclusion that the substance
being bought and sold was crack cocaine. Wilson, 237 F.3d at 831. As discussed in the court's
previous opinion, in order to raise a constitutional issue for the first time in a § 2255 petition, a
petitioner must demonstrate cause for the failure to raise the claim on direct appeal and
demonstrate that he was prejudiced by the failure. Gholson, 2003 WL 21466954, at “6; see also
Melvin v. United States, 78 F.3d 327, 329 (7th Cir. 1996) (citing Barker v. United States, 7 F.3d
629, 631 (7th Cir. 1993)).

In Petitioners’ case, the sole “cause” cited for the failure to raise this issue earlier is the
ineffective assistance of appellate counsel. Edwards v. Carpenter, 529 U.S. 446, 451 2000)
{ineffective assistance can serve as a cause for purposes of procedural default). Under the two-
pronged Strickland test, a party asserting ineffective assistance of counsel must demonstrate both:
(1) that counsel's performance was deficient; and (2) that the deficiency performance prejudiced
the defendant. Strickland v. Washington, 466 U.S. 668 (1984). The deficiency prong requires a
defendant to demonstrate that “counsel’s representation fell below an objective standard of
reasonableness.” /d. at 688. During this inquiry, however, a court “must be highly deferential,”
indulging “a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance... .” /d. at689. The prejudice prong of Strickland requires a showing that

“but for counsel's unprofessional errors, the result of the proceeding would have been different.”

10


“new evidence” concerning Peck's lies. To the contrary, as early as the time of trial, Gholson
believed Peck was “out to get him.” Having failed to raise this matter on direct appeal, the court
deems it procedurally defaulted.

B. Ineffective Assistance

The second claim in Ghotson's February 2004 submission relates to Peck’s alleged perjury,
as well, and fares no better. Specifically, Gholson argues his trial counsel was ineffective for failure
to uncover Peck's bias. The trial transcript demonstrates, to the contrary, that trial counsel did
pursue this alleged bias in his cross-examination of Peck:

BY MR. FALCONER (Gholson’s trial counsel):

Q. You told me you had a lot of street encounters with Jimmie Gholson. You promised

Jimmie Gholson that you were going to get him; didn’t you?

A. No.

Q. You promised him you were going to get him off the street; didn’t you?

A. No.

Q. He has filed an Office of Professional Responsibility charge against you; hasn't he?

[Objection to this question overruled.)

A. Yes, he did.

Q. And in line with your promise to get him, you brought him into court on this gun
charge; didn’t you?

A. No. That charge was filed after the case, the gun case.
(Trial Transcript at 619-20.)

Gholson now suggests that trial counsel was ineffective for failing to pursue this matter
further, but as the prosecutor suggested, that effort might well have opened the door for Officer
Peck to testify concerning “all of the many arrests he knows about Mr. Gholson.” (id. at 625.)

There is no basis for a conclusion that trial counsel was ineffective in this regard.

33


was presiding over the case prior to trial, expressed confidence in the reputations of the appointed
attorneys, and explained that disagreements between lawyers and their clients commonly arise.®
(Id. at 11.) The court stressed, however, that the Defendants need to trust their attorneys’
judgment in matters such as the filing of motions. (/d. at 11, 15.) As to the amount of time spent
with their clients, the judge noted the logistical difficulties and time limits presented by the
Defendants’ incarceration, but requested counsel to communicate with their clients on a “more
frequent basis.” (/d. at 11, 13.) Nevertheless, the judge concluded that it was too late to appoint
new counsel,’ and that he was “satisfied on a personal level that all of these lawyers are competent
and able; and, at the time the trial commences, they are going to be equipped to defend these
charges.” (/d. at 26.)

Crenshaw presents no evidence showing that there had been a “total lack of communication
[between him and his attorney] preventing an adequate defense,” United States v. Bjorkman, 270
F.3d 482, 500 (7th Cir. 2001) (citations omitted), nor that he was deprived his Sixth Amendment
right to effective counsel. Given the absence of such a showing, Crenshaw cannot assert that the
trail court's denial of his motion for appointment of new counsel violated his Sixth Amendment
rights.

Vill. Gholson’s Supplemental Pleadings

Finally, the court turns to Petitioner Gholson’s most recent supplemental pleadings. In
supplemental pleading filed on February 20, 2004, Gholson argues (a) that he has new evidence
that will show that Officer Peck, who testified for the prosecution, perjured himself, (b) that

Gholson's trial counsel was ineffective for failing to investigate and uncover Officer Peck’s perjury;

8 Crenshaw brought his motion for new counsel on January 13, 1998. On May 13,

1998, the Seventh Circuit ordered Judge Kocoras to recuse himself from the case, due to his son's
involvement in an earlier Gangster Disciple prosecution while serving as an intern at the United
States Attorney's Office. See Matter of Hatcher, 150 F.3d 631 (7th Cir. 1998).

8 At the time of this hearing, on January 13, 1998, the trial was scheduled to begin
on February 9, 1998. (Status Hearing Transcript, Jan. 13, 1998, at 26.)

30


entails proof that another offense occurred, rendering the latter a lesser included offense of the
former, the two offenses are deemed to be the ‘same’ for purposes of Blockburger.” United
States v. Hatchett, 245 F.3d 625, 632 (7th Cir. 2001) (citing Rutledge v. United States, 517 U.S.
292, 297 (1996); Brown v. Ohio, 432 U.S. 161, 168-69 (1977)). The court considered this issue in
its previous opinion, noting that although Petitioners failed to cite any case law holding that
§ 861(a)(2) is a lesser included offense of § 861(a)(1), “it might well be possible to interpret the
statute this way... .” Gholson, 2003 WL 21466954, at *10. For this reason, the court reserved
judgment on the issue and directed the government address the issue in a supplemental
response.”

In its supplemental response, the government argues that the two offenses are both
factually and legally distinct. The government contends that Petitioners Jones and Tetteh were
convicted under § 861(a)(1), for using minors to actually sell drugs as a part of the Gangster
Disciple conspiracy. Section 861(a)(1) declares it unlawful to “knowingly and intentionally . . .
employ, hire, use, persuade, induce, entice, or coerce a person under eighteen years of age to
violate any provision of this subchapter or subchapter II of this chapter,”> 21 U.S.C. § 861(a)(1).
In support of Jones and Tetteh’s convictions under this provision, the government cites the
testimony of Derrick Wiltz and Robert Ford, who both testified that they sold drugs for the Gangster
Disciples as juvenile members of the gang. (Government's Response to the Court's Order of June
25, 2003, hereinafter Gov't Res., at 7 (citing Trial Transcript, hereinafter T.T., at 1730, 1834).)
Section 861(a)(2) makes it unlawful to use a minor “to assist in avoiding detection or apprehension”

for any drug offense. 21 U.S.C. § 861(a)(2). Jones and Tetteh were properly convicted under that

2 The government has not argued that the double jeopardy issue has been defaulted,

although the issue does not appear in the Seventh Circuit's opinion on direct appeal. See Wilson,
237 F.3d 827.

3 The Chapter is that dealing with drug abuse prevention and control. 21 U.S.C.
§§ 801-971 (2003).


noted in its previous opinion, 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, un/ess the section 2255 petitioner demonstrates cause for the procedural
default as well as actual prejudice from the failure to appeal.” Gholson, 2003 WL 21466954, at *4
(quoting Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds,
Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994)).

Crenshaw and Wilson raise a number of issues in pursuit of relief under section 2255.
Several of these arguments are similar to, if not the same as, those raised by Petitioners Gholson,
Jones, and Tetteh in their supplemental petitions or upon which the court has reserved judgment.
Although Petitioners raise a number of issues that often overlap one another, the court recognizes
five main issues: (1) double jeopardy claims; (2) Apprendi issues; (3) claims arising out of the
Supreme Court's recent Blakely decision; (4) Fourth Amendment claims; and (5) ineffective
assistance of counsel claims. To the extent possible, the court will address those issues common
to one or more Petitioners before addressing those claims unique to a particular Petitioner. The
court will liberally construe the pro se petitioners under Haines v. Kerner, 404 U.S. 519, 520 (1972),
Petitioners nevertheless still bear the burden of demonstrating their entitlement to habeas relief.
lL Double Jeopardy

Petitioners Jones and Tetteh argue that they were punished twice for the same conduct in
violation of the Fifth Amendment's double jeopardy clause. Specifically, they argue that 21 U.S.C.
§ 861(a)(1) is a lesser included offense of § 861(a)(2) and that they cannot be punished under both
statutes. The Supreme Court has stated that “multiple punishments cannot be imposed for two
offenses arising out of the same criminal transaction unless each offense ‘requires proof of a fact
which the other does not.” Whalen v. United States, 445 U.S. 684, 691 (1980) (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932)). “Where proof of one offense necessarily


Crenshaw cannot demonstrate that counsel's performance was deficient, let alone that he
was prejudiced by any deficiency, as these claims have no merit. Crenshaw was not entitled to a
jury instruction directing the jury not to consider evidence of his drug transactions with Johnson in
the context of the CCE charge. As the government correctly notes, the charged conspiracy did not
accuse Crenshaw of conspiring with his purchasers, such as Johnson, but rather of conspiring as
amember of the Gangster Disciples to distribute narcotics. (Government's Response to Defendant
Bryan Crenshaw's Motion under Title 28, United States Code, Section 2255, at 14.) The
government did not allege that Johnson was a coconspirator, but rather that Crenshaw's drug sales
to her constituted a part of a series of drug-related offenses committed by Crenshaw in the course
of his conspiracy with the Gangster Disciples and encompassed by the CCE statute.

Crenshaw claims that he merely had a buyer/seller relationship with Johnson, and that the
drug sales were isolated incidents unrelated to the Gangster Disciple conspiracy. These assertions
are belied by evidence that Crenshaw’'s sales to Johnson occurred in the shop where he conducted
his gang-related business and were consistent with the Gangster Disciples’ practice of selling
narcotics to non-gang members. (T.T. at 1560-64.) Johnson also testified that Crenshaw spoke
of his involvement with the Gangster Disciples during these transactions. (/d. at 1588-97.) In any
event, the trial court did specifically instruct the jury that (1) “A person cannot conspire with a
government informer” and (2) “Evidence of a buyer-seller relationship, standing alone, is insufficient
to support a narcotics conspiracy conviction.” (/d. at 2755.)

Crenshaw challenges his attorney's failure to request an instruction that certain persons
could not be considered part of the “five or more persons” necessary to support a CCE conviction,
because the persons at issue were, at the time of their contact with Crenshaw, government
informants or persons with whom he had a mere buyer-seller relationship. Even if the court were
to find that Crenshaw’s counsel was deficient in failing to propose such a jury instruction, Petitioner

Crenshaw has not demonstrated any resulting prejudice. Judge Marovich advised the jury in his

19


under §§ 861(a)(1) and (2) for the separate incidents discussed above. Petitioners’ double
jeopardy claims are dismissed.
I. Apprendi Claims

After having pleaded guilty to a charge of conspiring to distribute crack cocaine, powder
cocaine, heroin, and marijuana, Petitioner Wilson now argues that his constitutional right to due
process was violated when he was sentenced under the Sentencing Guidelines as though the
conspiracy definitely involved powder and crack cocaine. !n addition, this court has previously
reserved judgment on similar claims of Petitioners Jones and Tetteh. Both Jones and Tetteh were
charged with conspiracy to distribute marijuana, crack cocaine, powder cocaine, and heroin, a
charge for which the jury returned a general verdict of guilty. Absent a specific finding by the jury,
they argue that the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000),
required the judge to sentence them according to the drug type and quantity that yields the most
lenient maximum sentence consistent with this verdict, in this case less than 50 kilograms of
marijuana.

In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. As the court
discussed in its prior opinion, Petitioners have cited cases from the Second and Sixth Circuits
discussing the applicability of Apprendi in the current situation and requiring courts to assess the
most lenient statutory sentence where a jury returns only a general verdict. See United States v.
Dale, 178 F.3d 429, 431-32 (6th Cir. 1999) (holding that where a jury returns a general verdict on
a conspiracy charge involving marijuana and crack, the court must sentence the defendant “as if
he distributed only the drug carrying the lower penalty”); United States v. Barnes, 158 F.3d 662,
667-68 (2d Cir. 1998) (agreeing with several other Courts of Appeals that “when the jury returns

ageneral verdict to a charge that a conspiratorial agreement covered multiple drugs, the defendant


him. The mere removal of a juror prior to deliberations does nothing to prejudice the defendant or
taint the jury. Moreover, the claim that the dismissed juror “continued having relations with two of
the jurors” on the case is unsupported. (Gholson’s Dec. 8, 2003 Petition, at 2); see United States
v. Ward, No. 02 C 1405, 2002 WL 31834897, *4 (N.D. Ill. Dec. 16, 2002) (Kocoras, J.) (refusing
to entertain a § 2255 petitioner's “outrageous claim” that the court improperly dismissed a juror
inclined to acquit him because she had been sleeping, where the affidavit he offered in support of
his claim “lacks the requisite specificity and contains nothing more than a recitation of simple
conclusions, rumors, and speculative opinions.”). Finally, Gholson makes the implausible allegation
that the dismissed juror stole his property during the trial. He has not explained, however, how this
theft, assuming it occurred, is relevant to his criminal conviction.

Having identified no cause or prejudice for failing to raise the intrusion claim on direct
appeal, Petitioner Gholson cannot now raise the claim in a § 2255 petition.

Vi. Ineffective Assistance of Counsel Claims

In addition to the numerous ineffective assistance of counsel claims discussed and decided
above, Petitioners Gholson and Wilson raise several more specific ineffective assistance of claims.
Applying the Strickland standard, the court considers these claims briefly.

A. Gholson’s Additional Ineffective Assistance of Counsel Claims*

In alleging ineffective assistance of trial counsel, Petitioner Gholson cites a laundry list of
deficiencies in his trial counsel's performance: (1) failing to interview and subpoena individuals who
could have provided favorable evidence on Gholson’s behalf; (2) failing to interview government
witnesses; (3) failing to discuss the presentence report with Gholson or object to the report; (4)
failing to familiarize himself with the facts and law relevant to Gholson’s case; (5) failing to inform

Gholson that his prior criminal convictions would be used to enhance his sentence; (6) discouraging

8 In its earlier opinion, the court reserved judgment on Gholson’s ineffective

assistance of counsel claims pending a supplemental response by the government. Gholson, 2003
WL 21466954, at **13-14.

25


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA )
)
Plaintiff )
Vv. ) No. 96CR 553
) 02 C 6988, 02 C 4784, 02 C 7077,
) 02 C 7076, 02 C 2074
)
JIMMIE GHOLSON, COMPTON JONES, ) Judge Rebecca R. Pallmeyer
ROLAND TETTEH, BRYAN CRENSHAW, )
NAZARETH WILSON, )
)
Defendants. }

MEMORANDUM OPINION AND ORDER

On August 21, 1998, Petitioners Jimmie Gholson, Compton Jones, Roland Tetteh, Bryan
Crenshaw, and Nazareth Wilson were convicted in federal court, following a six week jury trial, for
their involvement in a drug distribution conspiracy operated by the Gangster Disciples street gang
in Chicago. Following their convictions, Judge Marovich sentenced Gholson to a term of life
imprisonment, Jones to a 420-month term of imprisonment, Tetteh to a 292-month term of
imprisonment, Crenshaw to a term of life imprisonment, and Wilson to a term of 235 months in
prison. The Seventh Circuit upheld their convictions and sentences on direct appeal. United
States v. Wilson, 237 F.3d 827 (7th Cir.), cert. denied, 534 U.S. 840 (2001). Petitioners
subsequently filed separate pro se petitions for habeas relief pursuant to 28 U.S.C. § 2255 (Wilson
filed on March 20, 2002, Jones on June 3, 2002, Gholson on September 20, 2002, Crenshaw on
October 1, 2002, and Tetteh on October 2, 2002). United States v. Gholson, No. 02-C-6988, 2003
WL 21466954 (N.D. IIl., June 25, 2003). This court previously consolidated three of these petitions
(Gholson, Jones, and Tetteh) and issued an opinion on the merits of several of the claims on
June 26, 2003. In its opinion, the court reserved judgment on a number of issues pending further
response from the government. The court now considers these issues along with the petitions of

Crenshaw and Wilson, which raise similar legal issues.


conspiracy conviction relating to this drug distribution exposed him to an additional twenty years.
21 U.S.C. § 846. The default statutory penalty under §§ 861(a)(1) and (2) is “twice the maximum
punishment otherwise authorized” for the underlying narcotics violation, in this case forty years. 21
U.S.C. § 861(b). An additional conviction under § 861(a)(2), if upheld, would expose Jones to the
possibility of an additional forty years of imprisonment. /d.

Tetteh similarly faced a maximum of twenty years in prison under § 846 for the distribution
of any detectable amount of a Schedule | or f! drug (including heroin, cocaine, and marijuana). 21
U.S.C. §§ 841(b)(1)(C); 846. In addition, his convictions under §§ 861(a)(1) and (2) rendered him
subject him to the same forty-year maximum sentences for involving a minor in a drug operation.
21 U.S.C. § 861(b). Thus, Tetteh faces a possible default statutory maximum penalty of 100 years
of imprisonment.

Neither Jones nor Tetteh received the maximum statutory penalties of 120 or 100 years,
respectively. Jones was sentenced to 420 months of imprisonment, followed by ten years of
supervised release, while Tetteh received 292 months of imprisonment and a five-year period of
supervised release. Wilson, 237 F.3d at 830. Since the jury's general verdict did not specify the
drug types or quantities involved in their convictions, Petitioners argue that the court is required to
assume that they distributed the drug that “carries the most lenient statutorily prescribed sentence.”
Barnes, 158 F.3d at 668; see also United States v. Orozco-Prada, 732 F.2d 1076, 1083-84 (2d Cir.
1984) (court may not sentence defendant under statutory penalties for cocaine conspiracy when
jury may have found only marijuana conspiracy). Yet, even if the court accepts Petitioners’
argument that they were only subject to five-year maximum sentences under 21 USC.
§ 841(b)(1)(D), which applies in lieu of the twenty-year maximum sentenced under § 841(b)(1)(A)
for the distribution of “less than 50 kilograms of marihuana,” their possible default statutory
maximums would still exceed their actual sentences. Even if the jury had convicted Petitioners for

conspiracy to distribute less than 50 kilograms of marijuana, Jones would have faced a maximum

12


Id, at 694. With these standards in mind, the court addresses, first, Jones and Tetteh’s Apprendi
argument and then turns to Wilson's claim, which differs slightly due to the fact that his conviction
arose out of a guilty plea.

A. Jones and Tetteh

For purposes of their current petitions, the court has assumed that the performance of
Jones and Tetteh’s appellate counsel was deficient under Strickland for failing to raise the Apprendi
issue on direct appeal. Gho/son, 2003 WL 21466954, at *6. The Supreme Court decided and
issued Apprendi three months prior to the date of Petitioner's oral argument. Given this length of
time, the prominence of the decision, and its clear applicability to their case, the court will assume
that appellate counsel's failure to address the issue was objectively unreasonable. Mason v.
Hanks, 97 F.3d 887, 893 (7th Cir. 1996) (Effective advocacy does not require the appellate
attorney to raise every non-frivolous issue under the sun . . . But when appellate counsel omits
(without legitimate strategic purpose) ‘a significant and obvious issue,’ we will deem his
performance deficient . . . .”) (internal citations omitted).

The more difficult question is whether Petitioners were prejudiced by the deficiency. The
government argues that Apprendi is not applicable in this case, and that Petitioners were thus not
prejudiced by their appellate counsel's failure to raise the issue, because neither Jones nor Tetteh
received a sentence in excess of the default statutory maximum applicable to their convictions.
After being convicted on one conspiracy charge, § 846, two counts relating to the use of a minor
in drug operations, §§ 861(a)(1) and (2), and one count of possession with intent to distribute a
controlled substance, § 841(a)(1), Jones faced a possible maximum sentence of 120 years in
prison. Section 841 authorizes a maximum sentence of twenty years for the distribution of any
detectable quantity of any Schedule | or II controlled substance (including heroin, cocaine, and
marijuana), even where the jury does not find a particular quantity. 21 U.S.C. § 841(b)(1)(C); see
also, e.g., United States v. Brough, 243 F.3d 1078, 1079-80 (7th Cir. 2001). In addition, his

1


Was he convicted?
As to your defendant, yes.

Yes.

> p > oO

But the case was not thrown out.

(Trial Transcript at 620.) A “cold” record is often susceptible of more than one interpretation; but
as the court reads this exchange, including particularly Mr. Falconer's own word “yes"—suggesting
a response to Officer Peck’s request for clarification—the testimony was truthful. Specifically, it
appears to the court that Peck’s answer, “As to your defendant, yes,” was given not in response
fo the preceding question, but to the question whether “the gun case was thrown out.” Under that
interpretation of his testimony, Officer Peck acknowledged that the charges were “thrown out” due
to a finding of no probable cause as to Gholson, though Peck testified that the case as a whole
(presumably, involving another defendant) was not dismissed. Other portions of Peck's testimony
are inconsistent with the theory that he was motivated to manufacture charges against Gholson.
It was Officer Peck who concluded the voice heard on a critical taped conversation was not that
of Gholson, and accordingly, that four counts of the federal indictment against Mr. Gholson should
be dismissed. (/d. at 624.) Peck’s testimony establishes, further, that his reason for wanting
Gholson “off the streets” was Peck's suspicion that other Gangster Disciple members had planned
to murder Gholson. (/d. at 627.)

Even if the jury understood the quoted testimony as a false denial that the gun charge was
dismissed, Gholson offers no basis for the court to conclude it had any significance in the jury's
verdict on drug conspiracy charges. The transcript portions cited by Gholson demonstrate that his
attorney did cross-examine Peck concerning his animus toward Gholson. Moreover, if counsel
understood Peck’s testimony as Gholson now argues he should have, the court presumes that
records reflecting the dismissal of those charges were available and could have been used to

cross-examine Peck. Most significantly, Gholson offers no support for his assertion that he has

32


(c) that Gholson’s conviction constituted double jeopardy; and (d) that there was no basis in the
evidence for the sentencing judge's determination that 1.5 kilograms of crack cocaine were
involved in the conspiracy. These claims require only brief consideration.

A. Alleged Perjury

First, the matter of Officer's Peck’s alleged perjury: Gholson contends that Peck gave false
testimony against him “out of a general dislike for the petitioner and in retaliation for the petitioner
having filed a complaint with the OFFICES OF PROFESSIONAL STANDARDS against OFFICER
PECK.” Motion to Supplement, Jan. 21, 2005, at 3. From a review of the exhibits he has attached
to his January 2005 submission, the court understands that on December 19, 1992, Officer Peck
approached Gholson’s apartment, investigating a sexual assault charge that had been lodged
against him. A woman answered the door, holding a revolver. Officer Peck pursued her into the
apartment, where he recovered a tan handbag containing several weapons and a quantity of
cannabis. As arresting officers left the apartment with the woman in custody, they observed
Gholson in a car, stopped him, and arrested him as well. (Arrest Report, Motion to Supplement,
Exhibit B-1; see also Trial Transcript, at 608-611.)

Anotation that appears on the arrest report indicates that the alleged sexual assault victim
recanted the charges, and a court record reflects that on January 19, 1993, drug and weapons
charges against Gholson were dismissed. (Motion to Supplement, Exhibits B-1, B-2.) tn Exhibit 5
to his Motion to Supplement, Gholson has submitted excerpts of Officer Peck’s trial testimony in
which, Gholson contends, Peck falsely denied that a state court weapons charge against Gholson
had been dismissed. To examine that claim, the court obtained the full trial transcript and reviewed
Officer Peck’s testimony as a whole. The relevant testimony reads:

BY MR. FALCONER (Gholson's trial counsel):

Q. Well, the gun case was thrown out as no probable cause; wasn't it?

A. No.

31


statute, as well, the government urges, because they used minors as gun-toting gang security
guards. The government cites testimony of gang members who describe the intentional use of
“shorties,” i.e. juvenile gang members, to provide security because shorties “could go to jail and
get out with the gun easier” than older members of the gang, who often had extensive criminal
histories. (Gov't Res., at 7-8 (citing T.T. at 235-36).)

Under the Blockburgertest, double jeopardy is implicated only when punishment is imposed
for multiple “offenses arising out of the same criminal transaction.” Whalen, 445 U.S. at 691 (citing
Blockburger, 284 U.S. at 304). Here, the events leading to the convictions under §§ 861(a)(1) and
(2) did not arise out of the same transaction. Rather, as discussed above, the charges and
convictions under each statute were rooted in different factual circumstances. Before submitting
the case to the jury, Judge Marovich took pains to point out the distinction between the two juvenile
charges during his instructions, noting that “they are different in one regard”: namely the focus on
using a minor to further the conspiracy under § 861(a)(1) versus the use of juveniles to “avoid
detection and apprehension for violation of the narcotics law.” (T.T. at 2760-61.) Apprising the
jurors of these different elements, the judge remarked, “That's the distinction between the two
counts.” (/d. at 2761.) The law presumes that jurors understand and follow the instructions given
to them. United States v. Linwood, 142 F.3d 418, 426 (7th Cir. 1998) (“the law assumes that they
{jurors} can and do follow the limiting instructions issued to them.”), Francis v. Franklin, 471 U.S.
307, 324 n.9 (1985) (“The Court presumes that jurors, conscious of the gravity of their task, attend
closely the particular language of the trial court's instructions in a criminal case and strive to
understand, make sense of, and follow the instructions given them.”).

The government indicted Petitioners under both §§ 861(a)(1) and (2) and presented
evidence of separate violations of both statutes. After the judge instructed them as to the
distinctions between the two statutes, the jury returned guilty verdicts on both charges, against all

defendants. The court will presume that the jury followed the instructions, and convicted Petitioners


a grudge against him. He also alleged that the evidence against him was concocted as part of a
“formulated plan” by the Chicago Police Department, which involved planting drugs on him and
presenting perjured testimony to the grand jury. (Gholson’s § 2255 Petition, at 4.) Because the
government failed to respond to this claim in Gholson’s original petition, the court reserved
judgment on the issue and requested that the government specifically address the issue in its
supplemental response. Gholson, 2003 WL 21466954, at *11. In a supplemental petition filed on
March 16, 2004, Gholson raises similar issues, alleging prosecutorial misconduct on the part of the
United States Attorney for “allowing the known use of perjured testimony” by a Chicago police
officer.

Although the government again failed to address this matter in its supplemental response,
the court concludes the claim is barred by Gholson’s failure to raise the matter on direct appeal.
The court has already laid out the cause and prejudice hurdle facing Gholson. Melvin, 78 F.3d at
329 (To overcome procedural default, petitioner must show good cause for and prejudice from his
failure to appeal). Petitioner cannot make such a showing. Although the court will liberally
construe a prisoner's pro se petition under Haines v. Kerner, 404 U.S. 519, 520 (1972), the burden
still rests with Petitioner to show that he is entitled to habeas relief. Petitioner here offers no
evidence in support of his claims that a “formulated plan” to unlawfully imprison him existed.
Although his arrest followed a drug transaction in which Gholson purchased narcotics from a
government informant, Gholson presents nothing more than his mere assertion that the “officer's
know this never happen, but still they continue their malicious prosecution.” (Gholson’s § 2255
Petition, at 2.) In the absence of hard evidence, Gholson merely declares: “I will not linger on this
point, I’m sure that this Honorable Court will see that the defendant had a false criminal case filed
against him, and that there was no probable cause for this arrest.” (Gholson’s § 2255 motion, at
3.) Given Petitioner's failure to cite any evidence suggesting that his arrest and ultimate conviction

in this case were the result of some nefarious government plot, the court cannot find that his

22


convictions that are either a crime of violence or a controlled substance violation. U.S.S.G.
§ 4B1.1. There is no dispute that Wilson was eighteen years old as of 1995 and that the instant
offense is a controlled substance offense. The only argument Wilson can make is that he did not
have at least two prior felony drug convictions; but if, as he now argues, he did not join the
narcotics conspiracy until 1995, then the court may fairly count his June 1992 and October 1993
felony drug convictions as part of his criminal history, qualifying him as a career offender under
§ 4B1.1. If, contrary to his argument, he joined the conspiracy earlier than 1995, then those 1992
and 1993 convictions might be viewed as part of the instant offense, meaning that they do not
count as part of his criminal history. That conclusion would, however, permit the court to look back
further in time, to count other convictions that would not be part of the calculus if he joined the
conspiracy later.’ Either way, the court properly determined that Wilson's record supports a
conclusion that he is a career offender.

Wilson also raises an ineffective assistance of counsel claim regarding the imposition of a
two-level sentencing enhancement under § 2D1.1(b)(1) for possession of a dangerous weapon or
firearm. U.S.S.G. § 2D1.1(b)(1). Wilson argues that the enhancement was inappropriate because
the record does not indicate that either (1) Wilson personally possessed a firearm in relation to the
conspiracy, or (2) it was reasonably foreseeable to Wilson that one of his coconspirators would
possess a firearm in relation to the conspiracy. Wilson's claim here must fail because his trial
counsel did argue, albeit unsuccessfully, against the enhancement and the record contains
evidence sufficient to uphold the enhancement.

The § 2D1.1 sentencing enhancement for possession of a dangerous weapon applies to

all drug trafficking offenses. Under Seventh Circuit law, “a defendant convicted of conspiracy need

7 These convictions occurred on July 27, 1979, September 21, 1981, June 2, 1982,

June 27, 1982, August 23, 1983, February 1, 1984, April 3, 1984, June 27, 1984, September 19,
1984, and August 20, 1985. (Government's Response In Opposition to Petition for Writ of Habeas
Corpus, at 31-32.)

28


assessment imposed on him under 18 U.S.C. § 3572(c). /d. at **22-24.

As noted, the court reserved judgment as to a handful of remaining claims pending further
government response. Specifically, the court reserved judgment as to: (1) Jones and Tetteh’s
Apprendi claims; (2) the double jeopardy claim raised by Jones and Tetteh relating to section
861(a)(1) and (2); (3) Gholson’s Fourth Amendment claim; (4) the ineffective assistance of
appellate counsel claims raised by all three Petitioners; and (5) Gholson’s ineffective assistance
of trial counsel claim. In addition to these claims, the separate § 2255 petitions of their original co-
defendants Bryan Crenshaw and Nazareth Wilson are before this court.

In his petition, Crenshaw claims that his trial counsel was ineffective and that the trial judge
violated his Sixth Amendment right by refusing his pre-trial requests for appointment of a new
attorney. Crenshaw also argues that the court erred in failing to instruct the jury that they must
unanimously agree on the predicate acts supporting the continuing criminal enterprise (CCE)
charge. Similarly, he argues that the jury should have been instructed that certain incidents
involving persons who were cooperating with the government at the time of the offense could not
qualify as predicate acts for the CCE charge. In addition, Crenshaw claims that the government
failed to show that he was responsible for the use of a minor in connection with drug trafficking
under §§ 861(a)(1) and (2). In a supplemental petition filed on July 26, 2004, Crenshaw argues
that the court's imposition of a life sentence under the CCE statute violated his Sixth Amendment
rights under Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004).

Wilson also raises ineffective assistance claims: Specifically, he argues that both his trial
and appellate counsel were ineffective for failing to: (1) raise Apprendi issues relating to his
sentencing; (2) present his claim that several of his prior convictions were improperly assigned
criminal history points; and (3) argue against the two-level enhancement of his offense level under
§ 2D1.1(b)(1) of the United States Sentencing Guidelines.

Since the court's first opinion on this matter, Petitioner Gholson has filed a number of


years, followed by a minimum of five years of supervised release. (Plea Transcript, at 12.) This
mandatory minimum sentence corresponds to, among other things, the distribution of 1 kilogram
or more of heroin, 5 kilograms of cocaine, 50 grams or more of crack, or 1000 kilograms or more
of marijuana. 21 U.S.C. § 841(b)(1)(A). When Judge Marovich asked Petitioner Wilson if he
understood that this mandatory minimum sentence would be imposed, he responded in the
affirmative. (Plea Transcript, at 12.)

Even if one disregards the mandatory minimum, having admitted to conspiring to distribute
and distributing any detectable amount heroin, marijuana, crack and powder cocaine, Wilson faced
a default statutory maximum sentence of 40 years of imprisonment. Section 841 authorizes a
maximum sentence of twenty years for the distribution of any detectable quantity of any Schedule
! or Il controlled substance (including heroin, cocaine, and marijuana), even where the jury does
not find a particular quantity. 21 U.S.C. § 841(b)(1)(C); see also, e.g., United States v. Brough, 243
F.3d 1078, 1079-80 (7th Cir. 2001) (20-year maximum authorized for a “smidgen” of any Schedule
lor li drug). Judge Marovich sentenced Wilson to a 235-month term of imprisonment. Because
this sentence is well within the 40-year statutory maximum, Wilson’s 235-month sentence did not
violate Apprendi.

I. Gholson, Crenshaw, and Tetteh's Blakely Claims

In supplemental petitions filed on June 21, and July 26, 2004 Petitioners Gholson and
Crenshaw‘ raise a similar claim challenging the court's imposition of a life sentence under
21 U.S.C. § 848(b), relying on the Supreme Court's recent decision in Blakely v. Washington, 542
U.S. __, 124 S.Ct. 2531 (2004). Not to be outdone, Petitioner Tetteh filed his own supplemental
petition on July 27, 2004 raising a Blakely challenge to the sentencing enhancements imposed

under §§ 2D1.2(a)(3) and 2D1.1(b)(1) of the sentencing guidelines for his use of a minor and

4 Petitioner Crenshaw titles his supplemental motion “Motion to Amend, Motion to

Vacate, Set Aside or Correct Sentence Filed Pursuant to 28 U.S.C. § 2255 Motion.”

15


Supreme Court has made clear that “new constitutional rules of criminal procedure do not apply
to cases that are final before the new rules are announced.” Lambert v. McBride, 365 F.3d 557,
562 (7th Cir. 2004) (citing Teague v. Lane, 489 U.S. 288 (1989)). Furthermore, the Seventh Circuit
has held that Apprendi is not retroactive, Curtis v. United States, 294 F.3d 841 (7th Cir.), cert.
denied, 537 U.S. 976 (2002), and thus it would follow that Blakely, an extension of Apprendi, does
not apply retroactively. More recent decisions confirm this: In United States v. Booker, 542 U.S.
__, 125 S.Ct. 738 (2005), the Court reiterated that defendants have a right to jury trial on any
disputed factual subject that increases the maximum punishment, and that the federal Sentencing
Guidelines fall within this rule to the extent they are mandatory. In McReynolds v. United States,
No. 04-2520, 04-2632, 04-2844, __ F.3d__, 2005 WL 237642, at *2 (7th Cir. Feb. 2, 2005), the
Seventh Circuit concluded that the Booker holding has no retroactive application.

Until and if the Supreme Court holds otherwise, Petitioners’ claim under Blakely must fail.
Vv. Crenshaw’s Continuing Criminal Enterprise Claims

Crenshaw raises a number of other issues related to his conviction under § 848 for
engaging in a continuing criminal enterprise. 21 U.S.C. § 848. As an initial matter, Crenshaw
argues that the conviction was improper in light of United States v. Richardson, 526 U.S. 813
(1999), in which the Supreme Court held “that a CCE conviction can be sustained only if the jury
unanimously agreed on each of the specific predicate acts required to show the existence of the
CCE.” Wilson, 237 F.3d at 833. The Seventh Circuit rejected this claim when Crenshaw and
Gholson raised it on direct appeal. As this court has previously explained, the Seventh Circuit held
that the trial court's failure to instruct the jury that they must unanimously agree on the predicate
offenses underlying a CCE conviction was harmless, since the jury unanimously agreed that
Crenshaw (and his co-defendants Gholson and Hatcher) had committed two of the related
predicate offenses. Gholson, 2003 WL 21466954, at “12 (citing Wilson, 237 F.3d at 830). At this

point, the Seventh Circuit's holding on this issue remains binding on this court as it conducts

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connection with a drug conspiracy, under §§ 861(a)(1) and (2). Id. The court sentenced him to 292
months of imprisonment, followed by 5 years of supervised release. /d. The jury found Crenshaw
guilty of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848, possession of
a firearm in violation of 18 U.S.C. § 922(g), possession with intent to distribute cocaine, 21 U.S.C.
§ 841(a)(1), and use of a communication facility in the commission of a narcotics conspiracy in
violation of 21 U.S.C. § 843(b). /d. The judge sentenced Crenshaw to a term of life imprisonment
on the CCE charge, followed by supervised release for 10 years. /d.

Following their convictions and sentencing, each Petitioner filed a separate appeal raising
a number of issues. The Seventh Circuit consolidated the various appeals and rejected each of
them. Wilson, 237 F.3d at 830. Petitioners then filed separate pro se habeas petitions under 28
U.S.C. § 2255. This court has previously consolidated and addressed the petitions of Gholson,
Jones, and Tetteh. Wilson, 2003 WL 21466954. Although the court denied a number of
Petitioners’ claims, it reserved judgment on some of the claims pending further response from the
government. Specifically, the court denied: (1) Gholson’s Apprendi claim relating to his sentence
under 21 U.S.C. § 848(b); (2) Jones and Tetteh’s claims that their convictions under both 21 U.S.C.
§ 846 as well as §§ 861(a)(1) and (2) violated double jeopardy; (3) Jones claim that the trial court's
consideration of his prior convictions during sentencing violated 21 U.S.C. § 851(a); (4) Gholson's
claim that his conviction under 21 U.S.C. § 848 was improper in light of the court's failure fo instruct
the jury that they must agree on the specific predicate acts underlying the continuing criminal
enterprise charge; (5) Gholson’s claim relating to the court's calculation of the quantity of drugs
involved during sentencing; (6) Jones and Tetteh’s ineffective assistance of counsel claims
pertaining to their trial attorney's failure to raise the Apprendi issue, (7) Gholson’s motion under 18
U.S.C. § 3582 for a sentence reduction; and (8) Gholson’s motion under Federal Rule of Criminal
Procedure 12(b)(2) attacking the sufficiency of his indictment. Gholson, 2003 WL 21466954, at

*16. Finally, the court granted in part and denied in part Ghotson’s motion to reduce the special


Gholson from entering a plea agreement that would have allowed Gholson to plead guilty in
exchange for a 20-year sentence; (7) telling Gholson that the maximum sentence he could get was
20 years; (8) failing to argue that Gholson was not the person on audio and videotapes presented
by the government; (9) calling Gholson a “thug” in front of the jury; (10) preventing Gholson from
testifying at trial because he was not prepared to conduct a direct examination; (11) failing to object
during the direct examination of a police officer who, Gholson claims, planted evidence on him.
In addition, he claims that his appellate counsel was ineffective because his attorney failed to speak
with him while preparing the direct appeal.

In its supplemental response, the government argues that Petitioner has failed to
demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Matheny v. Anderson, 253 F.3d 1025, 1039-
40 (7th Cir. 2001), cert. denied, 504 U.S. 962 (2002). “Conclusory allegations” of poor performance
do not satisfy this prejudice component of the Strickland test. United States v. Farr, 297 F.3d 651,
657 (7th Cir. 2002). Yet conclusory allegations are all that Petitioner offers. At no point does
Gholson explain how any of the many claimed deficiencies in his counsels’ performance would
have resulted in a different outcome. In the absence of such evidence, trial counsel is “strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Strickland, 466 U.S. at 690.

As for Gholson’s claims of the rejection of a possible plea bargain, the government correctly
notes that such an ineffective assistance claim must be established “(1) through objective evidence
that (2) there is a reasonable probability that he would have accepted the alleged proposed plea
agreement absent defense counsel's advice.” Peters v. United States, 159 F.3d 1043, 1046 (7th
Cir. 1998) (citing Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991)). Without objective
evidence, Petitioner's mere statement that he would have accepted the plea absent counsel's

advice “is self-serving and alone, insufficient to establish . . .a reasonable probability that he would

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BACKGROUND

As discussed in the court's previous opinion, Petitioners were indicted in May 1997 for
crimes relating to their involvement in a drug conspiracy organized and operated by the Gangster
Disciples.' The Gangster Disciples are a Chicago street gang that operated a highly organized
drug operation primarily involving the sale of “crack” and powder cocaine. During the early 1990s,
the gang had 6,000 members and annual revenues totaling approximately $100 million. Petitioners
Gholson, Jones, Tetteh, and Crenshaw were tried together in federal court on these charges,
along with a sixth co-defendant, Jeffery Hatcher. Prior to trial, Wilson pleaded guilty to participation
in the drug conspiracy in violation of 21 U.S.C. § 846 and was sentenced to 235 months of
imprisonment. Wilson, 237 F.3d at 830. The five-week trial ended on August 21, 1998, and
resulted in guilty verdicts against each of the remaining Petitioners on a variety of drug offenses.
Specifically, the jury found Gholson guilty of engaging in a continuing criminal enterprise (“CCE”)
in violation of 21 U.S.C. § 848, conspiracy to distribute drugs in violation of 21 U.S.C. § 846, and
use of a minor in a drug distribution operation in violation of 21 U.S.C. §§ 861(a)(1) and (2).
Wilson, 237 F.3d at 830. He was sentenced to a term of life imprisonment on the CCE charge,
followed by a 10-year term of supervised release. /d. The jury found Jones guilty of conspiracy
to distribute a controlled substance under 21 U.S.C. § 846, possession with intent to distribute a
controlled substance under 21 U.S.C. § 841(a)(1), and two counts involving the use of a minor in
drug sales, under 21 U.S.C. §§ 861(a)(1) and (2). Jd. Judge George Marovich sentenced Jones
to 420 months imprisonment, followed by 10 years of supervised release. /d. Tetteh was convicted

of a conspiracy charge under section 846 and on two counts related to the use of minors in

‘ The Seventh Circuit has discussed in detail the Gangster Disciple conspiracy and

the background facts of this case. For amore complete discussion of the factual background, see
United States v. Wilson, 237 F.3d 827 (7th Cir. 2001), United States v. Smith, 223 F.3d 554 (7th
Cir. 2000) (discussing the history of the Gangster Disciples’ drug distribution business), and United
States v. Jackson, 207 F.3d 910 (7th Cir. 2000), vacated by 531 U.S. 953 (2000) (discussing the
government's prosecution of members of the Gangster Disciples).

2


Cc. Double Jeopardy

Gholson'’s third argument is that he was subjected to double jeopardy in being convicted
under 21 U.S.C. § 846 (conspiracy to distribute drugs), 21 U.S.C. § 861(a)(1) and (2) (use of a
minor in a drug distribution operation) and 21 U.S.C. § 848 (continuing criminal enterprise). In its
earlier opinion, this court noted that the jury returned guilty verdicts on these charges, but
neglected to observe that all charges other than the CCE charge were dismissed, on the
government's motion, at the time of sentencing. (See Judgment and Commitment Order, Jan. 14,
1999, at 1.) Judge Marovich sentenced Mr. Gholson on Count Il, the CCE charge, only. There is
no double jeopardy violation here.

D. Weight of Crack Cocaine

Gholson’s final argument is wholly undeveloped. He suggests that his sentence is “invalid
and unconstitutional” because the court had no basis in the record for its determination that the
offense conduct involved 1.5 kilograms of crack cocaine. To the contrary, at sentencing Judge
Marovich described a variety of calculations he used to determine that the amount of drugs
involved in the charged conspiracy were well in excess of that amount. Judge Marovich recognized
that plans voiced by Gangster Disciples leader Larry Hoover were likely hyperbolic, but even a
fraction of Hoover's estimates more than satisfied the sentencing requirement. On direct appeal,
the Seventh Circuit approved Judge Marovich's methodology: “[T]he district court's method for
determining the drug quantity involved in the conspiracy was in line with our decision in [United
States v.] Smith,[223 F.3d 554, 568-69 (7th Cir. 2000)] and not clearly erroneous.” United States v.
Wilson, 237 F.3d 827, 831 (7th Cir. 2001). Gholson offers nothing that suggests this court should

revisit the matter.


not have possessed a firearm himself for the enhancement to apply, so long as his co-conspirators’
possession of firearms in furtherance of the conspiracy was reasonably foreseeable to him.”
United States v. Mansoori, 304 F.3d 635, 670-71 (7th Cir. 2002), cert. denied, 538 U.S. 967 (citing
United States v. Cavender, 228 F.3d 792, 801 (7th Cir. 2000), cert. denied, 532 U.S. 1023 (2001).
The government presented an overwhelming amount of evidence detailing the use of firearms by
the Gangster Disciples, as well as statements by Wilson reflecting his own willingness to use guns
and violence to enforce Gangster Disciple control of the drug trade. In a memorandum objecting
to the Presentencing Report, Wilson's trial counsel argued that these statements were “mere
puffing;” but the court ultimately rejected this argument: “I think guns were widely used in
furtherance of this conspiracy, and I believe Mr. Wilson had every reason to know that that was the
case... .” (Sentencing Transcript, at 7-8.)

Petitioner cannot establish ineffective assistance of trial counsel on these grounds. Despite
the fact that his attorney argued against the imposition of the firearm enhancement, there is an
overwhelming amount of evidence in the record that the Gangster Disciples used firearms and
violent tactics to maintain contro! of the narcotics trade, and that Petitioner Wilson was aware of
the gang's violent tactics.

c. Crenshaw’s Sixth Amendment Claim

Crenshaw brings a similar claim that his Sixth Amendment rights were violated by the trial
judge’s denial of his motion for appointment of new counsel. As the Government notes,
Crenshaw's motion was just one of many brought by the various Defendants in the Gangster
Disciple case for appointment of new counsel. (Government's Response to Crenshaw’s Motion,
at 25.) In each of these motions, the Defendants raised a litany of complaints about their counsel’s
conduct, including that their counsel were not adequately representing them, did not file all
requested motions, and did not visit their clients at the Metropolitan Correctional Center to discuss

the case. (Status Hearing Transcript, Jan. 13, 1998, at 7-26.) In response, Judge Kocoras, who

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sentences of 480 months (5 years under both §§ 846 and 841(b)(1)(D),10 years under both §§
861(a)(1) and (2)) and Tetteh would have been eligible for a 300 month sentence (5 years under
§ 846 and 10 years for both §§ 861(a)(1) and (2)).

In order to establish these default statutory maximums, the government argues that it was
required only to establish that the drug distribution conspiracy involved “a detectable quantity of any
Schedule | or Il controlled substance.” Brough, 243 F.3d at 1080. Although the jury returned a
general verdict which did not specify the quantity of each type of drug involved in the conspiracy,
each of the four drug types which Petitioners were charged with distributing and conspiring to
distribute is a Schedule | or I! drug (heroin, crack, powder cocaine, and marijuana). As a result,
the jury necessarily found Petitioners guilty of conspiring to distribute, and in the case of Jones, of
distributing, a Schedule | or I! controlled substance, subjecting them to, at the very least, the above
480- and 300-month default statutory maximum penalties even if the conspiracy involved less than
50 kilograms of marijuana. After the jury verdict established these maximum penalties, Apprendi
no longer applied. “Once the maximum penalty has been established in a constitutional manner,
the judge selects the punishment using the preponderance standard.” Brough, 243 F.3d at 1079
(citing Edwards v. United States, 523 U.S. 511, 514-15 (1998)); see also United States v.
Hernandez, 330 F.3d 964, 980 (7th Cir. 2003) (“The Apprendi decision makes clear that its
application does not extend to situations where a defendant's sentence does not exceed a
prescribed statutory maximum.”), cert. denied,__U.S. __, 124 S.Ct. 1599 (2004); Apprendi, 530
U.S. at 481 (“We should be clear that nothing in this history suggests that it is impermissible for
judges to exercise discretion-taking into consideration various factors relating both to offense and
offender—in imposing a judgment within the range prescribed by statute.”). Thus, Petitioners’
argument that Apprendi either (1) required the jury to make a finding beyond a reasonable doubt
as to the type of drug involved in the conspiracy or (2) required the court to sentence defendants

as if they had distributed only the drug carrying the lower penalty is of no avail.

13


possession of a firearm during the offense. U.S.S.G., §§ 2D1.1(b)(1) (use of a firearm);
2D1.2(a)(3) (use of a minor). In Blakely, the Court held that “the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant. Id. at 2537 (emphasis in original) (citations
omitted). Thus, the Sixth Amendment is violated when a judge imposes a punishment that the
jury’s verdict alone does not allow or for which “the jury has not found all the facts ‘which the law
makes essential to the punishment’. ...” /d. (quoting 1 J. Bishop, Criminal Procedure § 87, p. 55
(2d ed. 1872)).

Gholson and Crenshaw allege that the judge violated the Sixth Amendment, as interpreted
in Blakely, when he imposed a sentence of life imprisonment under § 848(b). That provision
authorizes the imposition of a life sentence as the result of a conviction for engaging in a continuing
criminal enterprise (CCE) if the defendant is a principal administrator, organizer, or leader of the
enterprise and (1) the violation involved “at least 300 times the quantity” of a drug described in
§ 841(b)(1)(B) or (2) the enterprise received $10 million in gross receipts during any twelve-month
period. 21 U.S.C. § 848(b). Petitioners rightly note that the jury returned only a general guilty
verdict; Judge Marovich himself determined that these drug quantities were involved, employing
a preponderance standard, based on the Presentencing Report presented by the Government.

Similarly, Tetteh alleges that the jury verdict corresponded to an initial base offense level
of 36 under the sentencing guidelines, but that the judge then imposed a 3-level sentencing
enhancement for the use of a minor and possession of a firearm during the offense, facts upon
which the jury had not ruled. According to Tetteh, as a result of these enhancements, his
sentencing range increased from 210-262 months to 292-365 months, and he was ultimately
sentenced to a 292-month term.

Petitioners appear to present valid Blakely concerns; however, the Supreme Court decided

Blakely on June 24, 2004, more than five years after Crenshaw was convicted and sentenced. The

16