United States Federal Sentencing Guidelines - under which Strawhorn
was sentenced - unconstitutional. United States v. Booker, __ F.3d
__, 2004 WL 1535858 at *1, (7th Cir. 2004). Therefore, the Court
also briefly considers what effect, if any, Blakely and Booker have
on this petition.

The Court notes that the Seventh Circuit has already rejected
extending the holding of Booker to cases up on collateral review
pursuant to § 2255. Simpson v. United States, __ F.3d, 2004
U.S. App. LEXIS 14650 at *7 (7th Cir. 2004). Simpson did, however,
dismiss its petitioner's Blakely/Booker argument without prejudice,
noting that the Supreme Court has yet to decide whether or not
Blakely applies to habeas petitions. See id. Therefore, although
Shell does not technically make a Blakely or Booker claim, any such
claim would be dismissed without prejudice within the Seventh
Circuit.

Iv. CONCLUSION
For the reasons stated above, Shell’s Motion for Default

Judgment and his Petition for Habeas Corpus are denied.

MK

Harry D. Leinenweber, Judge
United States District Court

IT IS SO ORDERED.

Dated:

- 13 -


petition on March 30, 2004. The government responded to the petition
on April 26, 2004.
Ir. sf. F

Section 2255 provides that “a prisoner in custody under sentence
of a court established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in violation
of the Constitution or Laws of the United States . . . may move the
court which imposed the sentence to vacate, set aside, or correct the
sentence.” To receive relief under § 2255, a prisoner must show a
“fundamental defect which inherently results in a _ complete
miscarriage of justice,” United States v. Addonizio, 442 U.S. 178,
185 (1979), or “an omission inconsistent with the rudimentary demands
of fair procedure,” Hill v. United States, 368 U.S. 424, 428 (1962).

III. DISCUSSION
A. Default Judgment

While the government promptly responded to Shell’s § 2255
petition after it became aware that its filing did not occur in the
time prescribed by the Court, the government missed two briefing
schedules eventually turning in its response brief nearly nine months
after the Court originally asked for it. Although a court is usually
justified in entering a default judgment against a party that fails
to respond after notice in a civil case, Bermudez v. Reid, 733 F.2d
18, 21 (2d Cir. 1984); see Fep. R. Civ. P. 55,.“a default judgment,
without full inquiry into the facts, is especially rare when entered

against a custodian in a habeas corpus proceeding,” Ruiz. v. Cady, 660

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statutory particularity requirements. This, in Shell's view, is
because they described the place to be searched as the visiting room
area at the Vienna Correctional Center, not the “bodies” of the
visitors.

Under both 18 U.S.C.§ 2518(1) (b) (ii) and the Fourth Amendment,
the particularity requirement is satisfied “by identifying [the]
location in terms of where a specified individual engages in certain
conversat:.on.” United States v. Bianco, 998 F.2d 1112, 1123-24 (2d
Cir. 1993) (quoting United States v. Ferrara, 771 F. Supp. 1266, 1291
(D. Mass. 1991)). Here, the government’s warrant application
specified that the desired conversations between Hoover and named
visitors including Shell. would take place at the prisoner visitor
area at the Vienna Correctional Center in Vienna, Illinois.

Shell argues that the placement of a transmitter in the
visitor’s badge he wore while at the prison violated this
particularity requirement because it led to conversations being
intercepted on his “body,” which neither the warrant nor the warrant
application mentioned. However, even if the Court accepted that the
government intercepted conversations on Shell’s “body,” it did so
only while Shell’s body was within the confines of the designated
prisoner visitor area. Shell does not contend that the government
used conversations that occurred outside the visitor area, nor does
the record support such a conclusion, The Supreme Court has stated
that “the Fourth Amendment does not generally extend to the means by

which warrants are executed.” Dalia, 441 U.S, at 257. Thus, it is



circumstances of this case do not warrant the extreme remedy of
granting a default judgment. When a petitioner files a motion for
default judgment alleging the government’s failure to respond to a
§ 2255 petition, and the Court subsequently accepts the government’s
late reply, the claimed grounds for default judgment are eliminated.
See Irorere v. United States, No. 01 C 332, 2002 U.S. Dist. LEXIS
18117, at *12 (N.D. Ill. September 24, 2002); United States v.
Messino, No. 97 C 2767, 1998 U.S. Dist. LEXIS 16573, at *2 (N.D. Ill.
October 13, 1998). Accordingly, the Court denies Shell’s motion for
default judgment.
B. Habeas Corpus
1. Consent

Shell argues that the Fourth Amendment required the government
to obtain his consent before requiring him to wear a badge containing
a transm:tter that intercepted his conversations with Hoover at the
prison. However, the Fourth Amendment only protects citizens from
secret electronic surveillance in the absence of both a warrant and
the consent of a participant in the monitored activity. See United
States v. Nerber, 222 F.3d 597, 606 (9th Cir. 2000). Here, pursuant
to 18 U.S.C. § 2518(3), the government obtained a court order from a
United States District Judge authorizing it to monitor and record
Hoover’s conversations with particular visitors including Shell.
Shell does not contend that the government lacked probable cause for
this warrant. Therefore, Shell’s consent was not required. The Court
notes that it has reached the identical conclusion in previous

-6-



F.2d 337, 340 (7th Cir. 1981), Courts are reluctant to grant default
judgments without reaching the merits of the claim in habeas corpus
cases because such judgments would cause the public at large to
suffer by bearing either the risk of releasing prisoners that were
duly convicted or the costly and difficult process of retrying them
rather than impose hardship on the defaulting party. See id.
(acknowledging that default judgments in habeas corpus proceedings
might compromise the public’s right to protection). Although default
judgment. in a habeas corpus proceeding is an extreme remedy, the
Seventh Circuit permits. a trial court to employ it as a sanction
against a respondent’s unwarranted delay. See id. Delays that are
both long and inadequately explained are presumed to be unwarranted.
See id. Under this framework, the trial court has discretion in
determining whether a default judgment for the petitioner is the
appropriate remedy for the government’s delay in a habeas corpus
proceeding. See id, at 341.

The government’s response to Shell’s § 2255 petition asserts
that the counsel for the government assigned to the § 2255 petition
was not the counsel of record for the trial or direct appeal and had
no record of the briefing schedule until Shell filed the motion for
default judgment. While the Court concludes that this explanation
for the delay is not adequate, this finding does not require the
Court to grant a default judgment for Shell. See id. Given the
strong policy reasons against granting a default judgment for the

petitioner in a habeas corpus proceeding, the Court finds that the

-5-


In addition, Shell argues that the surveillance in this case
violated his statutory rights under 18 U.S.C. § 2511(2) (c) because he
did not consent to it. Section 2511(2)(c) states that “it shall not
be unlawful... for a person acting under color of law to intercept
a wire, oral, or electronic communication . . . where one of the
parties to the communication has given prior consent to such
interception.” This Court has held that “simply because consent
makes it Lawful to intercept a communication does not by analogy mean
that it is always unlawful for the government to intercept a
communication without consent of the parties involved in the
communication.” Jackson, 2004 U.S. Dist. LEXIS 6929, at *9.
Therefore, Shell’s argument that the surveillance violated his
statutory rights under § 2511(2)(c) also fails.

2. Particularity

The Fourth Amendment prohibits general and open-ended search
warrants and requires that a search warrant particularly describe
both the :lace to be searched and the persons or things to be seized.
See Dalie v. United States, 441 U.S. 238, 255 (1979). To reflect
this particularity requirement, 18 U.S.C. § 2518(1) (b) (ii) requires
that the application and order to intercept oral communications state
the “place where the communication is to be intercepted.” Shell
contends that the government’s application to intercept oral
communications between Hoover and his visitors, and the. resulting
court order permitting them, did not sufficiently specify where the

communications would be intercepted to satisfy Fourth Amendment and

-~8-



‘Mimute Order Form (0697)

TSS ome States District Court, Northern District of Mlinois
f

CIFRCP4(m) Local Rule 41.1 CIFRCP41(a)(1) 0 FRCP41(a)(2).

Default Judgment and his Petition for Habeas Corpus are denied.

(il) @ [For further detail see order attached to the original minute order.]

NMocMagotratetudge | Harry D.Leinenweber | “a Aaigned Judge
CASE NUMBER 03 C 3182 DATE 8/13/2004
CASE Gregory Shell 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
MOTION: of the motion being presented.) ‘
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due ‘
(3) im) Answer brief to motion due__...Reply to answer briefdue___.
(4) Oo Ruling/Hearingon__set for_._at
(5) Qa Status hearing[held/continued to] [set for/re-set for]on___setfor___——sat__—.
(6) oO Pretrial conference[held/continued to] (set for/re-set for]on__—_setfor____s at__
) oO Trial[set for/re-set for}on___at
(8) QO [Bench/Jury trial] [Hearing] held/continued to__—_at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to] ~

ao [Other docket entry] _ ENTER MEMORANDUM OPINION AND ORDER: Shell’s Motion for

t

No notices required, advised in open court.

No notices required. : uber of zties
Notices mailed by judge's staff. dug 16 2004
Notified counsel by telephone, : date docketed

wv | Docketing to mail notices.

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government in procuring the warrant. Franks v. Delaware, 438 U.S.
154, 155-56 (1978).

The government’s omission of its method of intercepting
conversations did not constitute a misrepresentation. The government
is neither required to include the specific means by which a warrant
for electronic surveillance is executed in its application, Dalia,
441 U.S. at 257, nor required to identify the precise location within
a building where electronic surveillance will take place to the judge
approving the surveillance. See United States v. Lambert, 771 F.2d
83, 91 (6th Cir. 1985). Furthermore, the government’s warrant
permitted it to make “all necessary surreptitious entries .
including but not limited to entries to install, maintain, and remove
electron:.c listening devices within the Visitation Area located at
the Vienna Correctional Facility.” (Tibbetts Aff. at 46.) This
Court has: held that “based on this language, the scope of the warrant
does not preclude the use of wiretaps inside visitors’ name-tags for
the purpose of intercepting the oral communications occurring in the
Visitor Areas of the Vienna Correctional Center.” Branch, 2004 U.S.
Dist. LEXIS 5836, at *8; see Jackson, 2004 U.S. Dist. LEXIS 6929, at
*8. Thus, as the government’s surveillance was within the scope of
the warrant authorizing the surveillance, no misrepresentation as to
the method of surveillance occurred, and Shell’s assertion that the
issuing judge would not have issued the warrant had the application
describe the means of surveillance is erroneous. Therefore, Shell’s

claim that the warrant was void for omission of material information

-il1l-


not necessary or practical that a judicial order approving electronic
surveillance specifically approve of the particular means by which
the surveillance is accomplished. See id. As the monitored
conversations took place within the prisoner visitor area at the
Vienna Correctional Center, the placement of transmitters in the
visitor’s badge worn by Shell to accomplish the surveillance did not
violate the particularity requirement.
3. Omission of Material Information

Shell also contends that the government’s decision to place
listing devices on his “body,” without being specified in the
warrant, voided the warrant itself by constituting a material
omission in the government’s warrant application. Shell contends
that, had the government specified the method of intercepting the
conversations, the issuing judge’s would never have authorized a
warrant.

In seeking a search warrant, “the government may not
intentionally or recklessly misrepresent material information to
magistrate judges, and misrepresentations encompass omissions.”
Supreme Video, Inc. v. Schauz, 15 F.3d 1435, 1441 (7th Cir. 1994).
A defendent must make “a substantial preliminary showing that a false
statement: knowingly and intentionally, or with reckless disregard for
the truth” was made by the government in seeking the warrant in order
to demonstrate that a search warrant is void due to the use of

alleged intentionally or recklessly false information by the

- 10 -



litigation involving other members of the Gangster Disciples. United
States v. Jackson, No. 2004 U.S. Dist. LEXIS 6929, at *7 (N.D. Ill.
April 21, 2004). Branch v. United States, 2004 U.S. Dist. LEXIS
5836, at *8 (N.D. Ill. April 6, 2004).

Shell also appears to contend that method of surveillance, the
covert placement of a transmitter on a visitor’s badge worn on his
person, was a severe intrusion on his privacy such that consent was
required irrespective of judicial authorization. While a method of
surveillance may be banned outright if it intrudes on parsonal
privacy to an extent disproportionate to the likely benefits from
obtaining fuller compliance with the law, see United States v.
Torres, 751 F.2d 875, 882-83 (7th Cir. 1984), this is not the case
here. Shell’s conversations with Hoover at the prison directly
involvecl and facilitated the operation of a vicious street gang’s
extensive drug operation. As the Fourth Amendment permits electronic
surveillance of conversations, the incremental increase in invasion
of privacy in placing the transmitter on a badge worn by a visitor as
opposed to elsewhere in the visiting area is minuscule. See id. at
878. A visitor has no right to be let alone while visiting a
prisoner to conduct the business of a violent street gang. See id.
at 883. Thus, the social gain from monitoring the conversations
between Hoover and Shell outweighs the intrusion of privacy in this
case. Accordingly, the Court finds that Shell’s argument that the
Fourth Amendment required his consent to the surveillance in this

case is without merit.


conversations because the government’s placement of “listening bugs”
on Shell’s person, without Shell’s consent, violated his rights under
both the Fourth Amendment to the United States Constitution and
18 U.S.C. § 2511(2) (c)s (2) the trial court erred in admitting the
intercepted conversation because the government’s application to
intercept oral communications between Hoover and Shell, and the
resulting court order permitting them, did not sufficiently specify
where the communications would be intercepted creating both statutory
violations and violations of the Fourth Amendment; (3) the court
erder authorizing the interception of conversations between Hoover
and Shell was void because the government deliberately omitted
material information as to the method of interception from its
application seeking authorization, such that the issuing judges would
not have authorized the surveillance in the absence of the omission;
and (4) Shell’s trial and appellate counsel were constitutionally
ineffective because they failed to pursue the above issues concerning
the validity of the government’s placement of “listening bugs” on
Shell’s person under the Fourth Amendment and § 2511(2)(c).

In August 2003, this Court ordered the government to respond to
Shell’s petition pursuant to 28 U.S.C. § 2255 by October 15, 2003.
The government failed to do so. This court subsequently ordered the
government to respond by January 5, 2004. The government again
failed to respond. Shell filed his motion for default judgment

premised on the government’s failure to respond to his § 2255


of the conspiracy in violation of 21 U.S.C. §§ 861(a) (1), 861(a) (2)?
use of telephones in furtherance of the conspiracy in violation of 21
U.S.C. § 843(b); and use of firearms during and in relation to the
conspiracy in violation of 21 U.S.C. § 924(c). For these
convictions, Shell received a sentence of life imprisonment. Shell’s
convictions were affirmed on direct appeal. United States v. Hoover,
246 F.3d 1054 (7th Cir. 2001).

The government’s main evidence against Shell came from
recordings of intercepted conversations between Shell and Larry
Hoover (“Hoover”), the leader and “chairman of the board” of the
Gangster Disciples, who was incarcerated at the Vienna Correctional
Center in Vienna, Illinois. Pursuant to 18 U.S.C. § 2518(3), the
government obtained court authorization to monitor and record
Hoover’s conversations with certain prison visitors, including Shell.
As Vienna inmates received visitors in an outdoor picnic area, the
government. accomplished this monitoring by concealing a transmitter
in the badge a visitor was required to wear while in the institution.
Since Shell frequently visited Hoover at the Vienna Correctional
Center, the government used this concealed transmitter to record
numerous conversations between Shell and Hoover discussing the gang’s
drug conspiracy.

In May 2003, Shell filed this petition for post-conviction
relief pursuant to 28 U.S.C. § 2255. Shell’s petition alleges four
discernable claims which Shell believes entitle him to relief under

§ 2255: (1) the trial court erred in admitting the intercepted


IN THE UNITED STATES DISTRICT COURT F | L E D
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION 4
AUG 1 3 200

GREGORY SHELL, syOGE HARRY 0. LEINENWERER

8. DISTRICT COURT
Petitioner,
Case No. 03 C 3182
v.
Hon. Harry D. Leinenweber
UNITED STATES OF AMERICA,

Respondent.

DOCKETED

MEMORANDUM OPINION AND ORDER AUG 1 6 2004

Petitioner Gregory Shell (hereinafter, “Shell”) filed a petition
to vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 (“§ 2255”), and a motion for default judgment on that
petition,

I. IN D' Bx

In 1998, Shell was convicted of numerous offenses relating to
his participation in activities of the Gangster Disciples, a large
and vicious street gang that sold large quantities of cocaine,
heroin, and other drugs in Chicago. Shell served on the gang’s so-
called “board of directors,” and was the gang’s second-in-command.
He was the highest-ranking non-incarcerated gang officer, and
orchestrated the gang’s day-to-day operations.

Shell was convicted of engaging in a continuing criminal
enterprise in violation of 21 U.S.C. § 848; conspiracy to possess
with intent to distribute ‘cocaine, cocaine base, heroin, and
marijuana in violation of 21 U.S.C. § 846; distribution of narcotics

in violation of 21 U.S.C. § 841(a) (1); use of minors in furtherance

\o



constituting a misrepresentation from the application is without
merit.
4. Ineffective Assistance of Counsel

Shell alleges ineffective assistance of counsel at both the
trial and appellate levels because his attorneys failed to pursue the
issues concerning the validity of the government’s placement of
“listening bugs” on Shell's person under the Fourth Amendment and
§ 2511(2)(c) that he has raised in this petition at trial or on
direct appeal. The Court notes that Shell’s counsel at trial and on
direct appeal did challenge the electronic surveillance evidence,
albeit cn somewhat different grounds than Shell asserts in his § 2255
petition, and lost. In any event, if Shell had argued the meritless
claims he put forth in his habeas petition at trial or on appeal,
they would have been rejected at that time. Therefore, Shell's
counsel’s failure to raise them did not compromise the fairness of
his trial. See Strickland v. Washington, 466 U.S. 668 at 691-92
(1984). Accordingly, Shell’s argument that his counsel was
ineffective for failing to present these claims at trial or on appeal
fails.

5, Effect of Blakely and Booker on Shell’s Sentence

While Shell’s petition was pending, but after briefing on his
petition was complete, the Supreme Court declared that Washington’s
state sentencing guidelines violated defendants’ Sixth Amendment’s
right to a trial by jury. Blakely v. Washington, ____ U.S. ___,_- 124

S, Ct. 2531 (2004). Following, Blakely, the Seventh Circuit held the

-12-