by analogy mean that it is always unlawful for the government to
intercept a communication without consent of the parties involved in
the communication.”).
Cc. Particularity

The second claim is that the warrant application to monitor
Hoover’s conversations while at Vienna did not meet the Fourth
Amendment’s particularity requirement. This claim is yet another
version of the admissibility argument presented at both his trial and
on his direct appeal. See Hoover, 246 F.3d at 1057. Therefore, for
the same reasons as stated in Part III.B supra, Hoover is
procedurally barred. Shell also observed that the on the “body”
issue involved the methods by which the monitoring took place, not
the place in which it occurred. Shell, 2004 U.S. Dist. LEXIS 16382,
at *12. Because “the Fourth Amendment does not generally extend to
the means by which warrants are executed” and there is no evidence
that any of the monitored conversations were beyond Vienna’s visitor
area specified in the order authorizing the monitoring, Hoover’s
claim fails. Dalia v. United States, 441 U.S. 238, 257 (1979).

D. Omission of Material Information and
Ineffective Assistance of Counsel Claim

Hoover’s omission of material information claim is a new, non-
constitutional claim that was not presented at trial or on appeal.
This claim is procedurally defaulted unless Hoover can provide an

appropriate reason as to why it was not raised at trial or on appeal.


judgment final and began the running of the one-year period. See
Clay v. United States, 537 U.S. 522, 527 (2003). Hoover had until
June 28, 2003 to file his Petition. Because Hoover filed his
Petition in May 2003, it is within the one-year statutory period of
limitation and he is not time-barred.

B. Consent

Hoover’s first claim is that under the Fourth Amendment or 18
U.S.C. § 2511(2) (c), the government needed to obtain either Hoover's
or his visitors’ consent for admissible recordings. The Seventh
Circuit already decided that the tapes were properly admitted at
trial. See Hoover, 246 F.3d at 1057. The circumstances surrounding
Hoover’s case have not changed and both stare decisis and res
judicata apply to bar this claim. Belford, 975 F.2d at 313; see also
Shell v. United States, No. 03 C 3182, 2004 U.S. Dist. LEXIS 16382,
at *8-10 (N.D. Ill. Aug. 10, 2004).

In any event, the consent claim also fails on review of the
merits. In Hoover’s case, as in Shell, the government obtained a
court order for the monitoring, and therefore no consent was required
to satisfy the Fourth Amendment. See United States v. Nerber, 222
F.3d 507, 606 (9th Cir. 2000). Additionally, Hoover’s 18 U.S.C.
2511(2) (C) challenge fails for the same reasons set out in Shell,
2004 U.S. Dist. LEXIS 16382, at *10-11, and Jackson, No. 03 C 2119
2004 U.S. Dist. LEXIS 6929, at *9 (N.D. Ill. Apr. 22, 2004) (“[S]imply

because consent makes it lawful to intercept a communication does not


Belford, 975 F.2d at 313. The cause that Hoover asserts is his
ineffective assistance of counsel claim.

The Supreme Court has acknowledged “that in certain
circumstances counsel's ineffectiveness in failing properly to
preserve the claim” will avoid the procedural default. Murray v.
Carrier, 477 U.S. 478, 488-89 (1986). However, in order to be a
sufficient cause, “the assistance must have been so ineffective as to
violate the Federal Constitution.” Id. His ineffective assistance
of counsel claim is based on the fact that his attorney did not raise
any of the other three issues in Hoover’s § 2255 motion. Since
Hoover’s first two claims fail, his ineffective assistance claim
rests on the success of this third issue. The Court will therefore
consider both issues together.

In Strickland v. Washington, 466 U.S. 668, 687 (1984), the
Supreme Court established a two-prong test to determine when someone
received ineffective assistance of counsel. First, the petitioner
must demonstrate “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. Second, a petitioner must show “that
counsel’s errors were so serious as to deprive the defendant of a
fair trial.” Id. Thus, Hoover must demonstrate both that the action
of not presenting the material omission claim was both deficient and
substantial enough to have deprived him of a fair trial.

Hoover asserts that because the government did not specify the

use of the “body” of visitors for recording purposes in their warrant

-6-


Cy”

IN THE UNITED STATES DISTRICT COURT L E D
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION YUN 7 2005
JUDGE Harp
YD,
US. DISTRICT oaENWeBER
LARRY HOOVER, UDGE
Plaintiff,

Case No. 03 C 3181
v.

Hon. Harry D. Leinenweber
UNITED STATES OF AMERICA,

Defendant.

MEMORANDUM OPINION AND ORDER

Petitioner Larry Hoover (hereinafter “Hoover”) requests the
Court to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255. For the reasons set forth below, the Court
declines to do so.

I. INTRODUCTION

In 1998, Hoover was convicted of a number of offenses related to
his involvement with a notorious Chicago narcotics group, the
Gangster Disciples. Hoover served on the gang’s “Board of Directors”
as its highest ranking member with the title of “Chairman of the
Board.” His convictions included: engaging in a continuing criminal
enterprise, 21 U.S.C. § 848(a); using minors to further a drug
conspiracy, § 861({a); possession and distribution of narcotics,
§ 841(a)(1}; using a telephone to facilitate a drug offense,
§ 843(b); and using a firearm during and in relation to a drug
offense, 18 U.S.C. § 924(c). The convictions were affirmed on direct

appeal. See United States v. Hoover, 246 F.3d 1054 (7th Cir. 2001).


application, the omission would have changed the authorizing court’s
decision on the warrant. The Court rejects this argument for the
same reasons as in Shell. See supra Part III.C; 2004 U.S. Dist.
LEXIS 16382, at *14-15. In Shell, the Court determined that the
warrant was broad enough in scope to include the method selected by
the government and the “body” was appropriate. Id. at *14. Because
Hoover’s material omission claim fails, Hoover’s counsel was not
ineffective by choosing not to raise an meritless claim.
Iv. CONCLUSION

For the reasons stated above, Hoover’s Petition for Habeas

Corpus is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Dated: /. A000. ~~


Subsequent filings for a Seventh Circuit en banc rehearing and a Writ
of Certiorari to the Supreme Court were denied. See United States v.
Hoover, No. 98-2600, 2001 U.S. App. LEXIS 10566 (7th Cir. May 14,
2001); Hoover v. United States, 536 U.S. 958 (2002).

At trial, the government’s key evidence against Hoover came from
recordings of intercepted conversations (the “tapes”) between Hoover
and other individuals who visited him while he was incarcerated at
the Vienna Correctional Center, many of whom where later convicted as
co-conspirators. Pursuant to 18 U.S.C. § 2518(3), the government
obtained warrant authorization for the tapes from a district court.
The government concealed listening devices inside visitor badges
which all visitors were required to wear during their time at Vienna.
A number of the tapes yielded evidence regarding the gang’s drug
related activities in Chicago.

In May 2003, Hoover filed this § 2255 Motion for post-conviction
relief. Hoover’s petition asserts three claims, which more
discernibly represent four claims related to the tapes: (1) the
tapes violated the Fourth Amendment and 18 U.S.C. § 2511l(c) because
the listening devices were on the “body” of another, which required
the consent of either the person upon whose body the device was
placed or Hoover himself; (2) the government’s original application
to intercept oral communications did not meet the Fourth Amendment’s
particularity requirement because it did not clearly state the place
where the communications would be intercepted; (3) the court order

authorizing the tapes was void because the government omitted


material information as to the method of interception in its
application for authorization; and (4) Hoover’s counsel was
ineffective because they failed to pursue any of the above issues
concerning the tapes and authorization thereof.
II. STANDARD OF REVIEW

In order to gain relief under § 2255, the moving party must show
either 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).
In addition, there are three claims that a § 2255 motion cannot
raise: (1) issues that were raised on direct appeal, absent a
showing of changed circumstances; (2) non-constitutional issues that
could have been, but were not raised on direct appeal; and (3)
constitutional issues that were not raised on direct appeal, unless
the petitioner demonstrates cause for the procedural default as well
as actual prejudice from the failure to appeal. Belford v. United
States, 975 F.2d 310, 313 (7th Cir. 1992).

III. DISCUSSION
A. Timeliness

The government asserts that Hoover’s § 2255 motion is time-
barred. “A l-year period of limitation shall apply to a motion under
this section.” § 2255. In this case, the Supreme Court denied

Hoover’s petition for certiorari on June 28, 2002, which made the