footnote, he blames his counsel for failing to raise the claims. A conclusory assertion that
counsel was ineffective cannot establish cause. See Williams v. United States, No. 97 C 577,
2002 WL 226861, at *3 (N.D. ILL Feb. 14, 2002) (petitioner is required to present some argument
about his counsel’s ineffectiveness before cause may be established); United States v. Chen, No.
00 C 6815, 2000 WL 1831540, at *3 (N.D. Ill. Dec. 11, 2000) (conclusory allegation that counsel
was ineffective cannot establish cause to avoid procedural default).

Even if Ray could demonstrate cause, he cannot establish prejudice. Each of his § 2255
claims lack merit. He contends the indictment was defective because it failed to allege a specific
drug quantity under Apprendi. Apprendi does not apply retroactively on collateral review. Curtis
v. United States, _ F.3d _, 2002 WL 1332817, at *1-3 (7th Cir. Jun. 19, 2002). Moreover, the
failure to allege drug quantities in the indictment is not a jurisdictional defect. United States v.
Cotton, 122 8. Ct. 1781 (2002). Ray asserts the indictment does not sufficiently state the
elements of a continuing criminal enterprise under Apprendi. See 21 U.S.C. 848(c). He was not
charged with participating in a continuing criminal enterprise in Count II. He was indicted and
convicted for murder in furtherance of a continuing criminal enterprise in Count VIII. The
elements of that crime were sufficiently pled in the indictment. Further, Apprendi is inapplicable
to Ray’s murder convictions because the statutory maximum for sentences under 18 U.S.C. §
1121 and § 848 include life imprisonment. See United States v. Williams, 238 F.3d 871, 877 (7th
Cir. 2001) (Apprendi applies only to sentences in excess of the statutory maximum).

Ray argues this court failed to instruct the jury that it must unanimously agree to the
series of narcotics offenses required for a conviction for murder in furtherance of a continuing

criminal enterprise. In Richardson v. United States, 526 U.S. 813 (1999), the Supreme Court


see also Bontkowski v. United States, 850 P2d 306, 313 (7th Cir. 1988) (“non-constitutional
errors which could have been raised on direct appeal but were not, are barred on collateral review
~ regardless of cause and prejudice”).

B. Fundamental Miscarriage of Justice

A federal court may review a defaulted claim only if a fundamental miscarriage of justice
is involved. This occurs where “a constitutional violation has probably resulted in the conviction
of one who is actually innocent.” Murray, 477 U.S. at 495-96. Ray does not assert he is
innocent of the murder and drug charges. The Seventh Circuit found the evidence was sufficient
to support Ray’s convictions. Ray, 238 F.3d at 837. Thus, no fundamental miscarriage of justice
will result by the application of the procedural default rule. Accordingly, Ray’s claims are
procedurally defaulted.
Wl. —_ Ineffective Assistance of Counsel |

Ray asserts various conclusory claims of ineffective assistance of counsel. He may
properly raise an ineffective assistance of counsel claim in a § 2255 proceeding for the first time
because he retained the same trial and appellate counsel. McCleese v. United States, 75 F.3d
1174, 1177 (7th Cir. 1996); United States v. Taglia, 922 F.2d 413, 418 (7th Cir. 1991). To
establish ineffective assistance of counsel, Ray must demonstrate his counsel’s performance was
so deficient as to fall below an objective standard of reasonableness, and the deficient
performance denied him a fair trial. Strickland, 466 U.S. at 687-88.

Ray’s ineffective assistance of counsel claims are identical to his other habeas claims.
He contends his trial counsel was ineffective because his attorney failed to argue Counts I, Vil,

and VIII were barred on double jeopardy grounds. He argues his counsel failed to object to this


VII and VII, as well as the essential elements of 18 U.S.C. § 2. Finally, he asserts various claims
of ineffective assistance of counsel.
TI. Procedural Default...

Ray failed to raise his claims on direct appeal. A § 2255 motion is "neither a
recapitulation of nor a substitute for a direct appeal." Belford v. United States, 975 F.2d 310, 313
(7th Cir. 1992). His claims are procedurally defaulted unless he can demonstrate cause for the
default and resulting actual prejudice, or that failure to consider the claims will result in a
fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Todd v.
Schomig, 283 F.3d 842, 848 (7th Cir. 2002). The cause and prejudice standard is more rigorous
than the plain error standard used on direct review. United States v. Frady, 456 U.S. 152, 170
(1982). Good cause normally requires a showing of some external objective impediment to the
petitioner’s presentation of his claim, such as unavailability of the factual or legal bases for a
claim, or interference by state officials. Murray v. Carrier, 477 U.S. 478, 485-87 (1986). A
petitioner may establish prejudice by demonstrating there is a reasonable possibility the claimed
constitutional violation adversely affected the outcome of the trial or appeal. Strickland v.
Washington, 466 U.S. 688, 695 (1984).

A Cause and Prejudice

Ray fails to address procedural default. His claims are based entirely on the trial record
that was available during his direct appeal. He does not explain his failure to raise these
arguments on direct appeal. Indeed, he raised other double jeopardy arguments and challenged
this court’s jury instructions on direct appeal. Ray, 238 F.3d at 834-35, A § 2255 petition is not

a means to advance arguments that were excluded at trial or on direct appeal. Ina single


held each predicate violation within the series of offenses is an element of the continuing
criminal enterprise offense, and the jury must unanimously agree on the series of violations.
Nevertheless, the Seventh Circuit has rejected challenges to jury instructions under Richardson
where a defendant was convicted of narcotics violations, including drug conspiracy. United
States v. Jackson, 207 F.3d 910, 919 (7th Cir. 2000) (failure to instruct jury that they must
unanimously agree on series of offenses is harmless error when defendant is convicted of other
narcotics violations), vacated on other gds., 531 U.S. 953, jud’g reinstated, 236 F.3d 886 (2001);
see also United States v. Yates, No. 01 C 8331, 2002 WL 1489620, at *4 (N.D. Ill. July 11, 2002)
(rejecting challenge to jury instructions under Richardson). Ray was charged and convicted of
participating in a drug conspiracy under 21 U.S.C. § 846 and distributing cocaine under 21
U.S.C. § 848(a)(1). Consequently, Ray’s challenge to the jury instructions under Richardson
lacks merit.

Ray asserts his convictions for murder in furtherance of a continuing criminal enterprise
and drug conspiracy violated the double jeopardy clause pursuant to Rutledge v. U.S., 517 U.S.
292 (1996). Rutledge held a drug conspiracy was a lesser included offense of participating in a
continuing criminal enterprise, and a conviction for both crimes constituted double jeopardy. 517
US. at 300. Rutledge is inapplicable because Ray was not charged or convicted for engaging in
a continuing criminal enterprise. Further, he contends Counts VI and VIII are multiplicitous.
Multiplicity is the charging of a single offense in separate counts of an indictment. Unites States
v. Allender, 62 F.3d 909, 912 (7th Cir. 1995). Multiplicity does not occur when a count requires
proof of an element that is unnecessary in other counts. United States v. Marquardt, 786 F.2d

771, 778 (7th Cir. 1986). Count VII required proof that Ray killed an individual assisting in a


court’s jury instruction on the murder charge because it did not contain the essential elements of
first degree murder in 18 U.S.C. § 1111. He asserts his counsel failed to move for dismissal of
the indictment based on the failure to allege elements of 18 U.S.C. § 2 in Counts VII, VIII, and
x.

In discussing the prejudice prong of procedural default, the court rejected Ray’s claims
for habeas relief. For the same reasons, he cannot demonstrate his counsel’s failure to raise the
asserted claims adversely affected the outcome of his trial. See Hough v. Anderson, 272 F.3d
878, 890 (7th Cir. 2001). Counsel is not ineffective for failing to raise an argument with no
chance of success. United States v. Davenport, 986 F.2d 1047, 1049 (7th Cir. 1992); United
States v. Yates, No. 01 C 8331, 2002 WL 1489620, at *5 (N.D. Ill. July 11, 2002). Consequently,
the ineffective assistance of counsel claims fail.

CONCLUSION

The petition for a writ of habeas corpus under 28 U.S.C. § 2255 is denied.

August 1, 2002 ENTER:

Cpu , 3 (8 Dodo

United States District Judge


Minute Order Form (06/97)

JQ (lo United States District Court, Northern District of Illinois

Nam ign jut Sitting Judge if Oth

woe Magistrate Judge Suzanne B. Conlon than Assigned Judge

CASENUMBER | 02.3743 (96 CR 379) DATE 8/1/2002
CASE QUAN JOHN RAY vs. UNITED STATES OF AMERICA
TITLE

of the motion being presented.]

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

MOTION:

DOCKET ENTRY:

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

(2) i) Brief in support of motion due

(3) oa Answer brief to motiondue___. Reply to answer briefduc____

(4) o Ruling/Hearingon__setfor__at

(8) Bb Status hearing[held/continued to] [set for/re-set for]on____—_setfor___— at

(6) Oo Pretrial conference[held/continued to] [set for/re-set forlon__——ssetfor__—— at.
(ep) im] Trial[set for/re-set for]on_at_—

(8) Oo [Bench/Jury trial] [Hearing] held/continued to__at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (General Rule21 ( FRCP41(a)(1) [4 FRCP41(a)(2).

denied. ENTER MEMORANDUM OPINION AND ORDER.

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

ao [Other docket entry] The petition for a writ of habeas corpus under 28 U.S.C. § 2255 [1-1] is

Queene) °3. Conk

No notices required, advised in open court.

No notices required.

number of notices
Y | Notices mailed by judge’s staff.
i AUG 02 2002
Notified counsel by telephone. date deta

Docketing to mail notices
¥ | Mail AO 450 form.
Copy to judge/magistrate judge.

docketing deputy infials

8/1/2002

courtroom OZ: Hd 1+ ony ZO date muited notice
cB deputy’s ow
initials

OY CS paledlinid rebeived in

central Clerk’s Office mailing deputy initials



federal criminal investigation. Count VIII charged that Ray killed an individual in furtherance of
a continuing criminal enterprise. The two murder charges contain different elements, even
though the victim was identical. See 21 U.S.C. § 848(e)(1)(A); 18 U.S.C. § 1121(a)(2).
Accordingly, Counts VII and VIII are not multiplicitous.

Ray claims the indictment was defective because it failed to state the elements of murder
in Counts VII and VIII. This assertion is frivolous. The indictment sufficiently stated the
elements of the crimes charged under 18 U.S.C. §1121(a)(2) and 32 U.S.C. § 848(e)(1)(A). Even
if Ray’s assertion were true, he cannot establish prejudice because his trial was not adversely
affected. See United States v. Brumley, 217 F.3d 905, 913 (7th Cir. 2000). The jury instructions
properly included the necessary elements of murder. See Resp. Br., Ex. A, Tr. at 1520-27. Ray
contests the sufficiency of the evidence to support his murder convictions. The Seventh Circuit
summarily dismissed this challenge on direct appeal, and Ray cannot reassert the claim. See Ray,
238 F.3d at 837. Ray claims the indictment cited to 18 U.S.C. § 2, but failed to allege the
elements of aiding and abetting. References to 18 U.S.C. § 2 in the indictment are permissible,
and the elements of aiding and abetting do not need to be detailed in the indictment. See United
States v. Moya-Gomez, 860 F.2d 706, 756 (7th Cir. 1988) (aiding and abetting need not be
separately charged from the substantive offense in the indictment); United States v. Lim, No. 99
CR 689, 2000 WL 33155617, at *3 (N.D. Ill. Dec. 20, 2000) (rejecting motion to strike reference
to 18 U.S.C. § 2 in the indictment).

Finally, Ray asserts this court incorrectly applied the United States Sentencing Guidelines
in determining his sentence. A § 2255 challenge to the application of the sentencing guidelines is

not cognizable on collateral review. Scott v. United States, 997 F.2d 340, 341 (7th Cir. 1993);


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

EASTERN DIVISION
QUAN JOHN RAY, )
)
Plaintiff, ) No. 02 C 3743 (96 CR 379)
)
v. )
) Suzanne B. Conlon, Judge

UNITED STATES OF AMERICA, )

DOCKETED
Defendant. )

AUG 0d cuuZ
MEMORANDUM OPINION AND ORDER

Petitioner Quan John Ray, pro se, seeks a writ of habeas corpus to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255.
BACKGROUND

In a 1996 jury trial, Ray was convicted of conspiracy to possess with intent to distribute
cocaine, crack cocaine, heroin and marijuana, 21 U.S.C. § 846 (Count I), murder of a person
assisting a federal criminal investigation, 18 U.S.C. § 1121(a)(2) (Count VII), murder in
furtherance of a continuing criminal enterprise, 21 U.S.C. § 848(e)(1)(A) (Count VIID, and
distribution of cocaine, 21 U.S.C. § 848(a)(1) (Count IX). This court sentenced Ray to life
imprisonment on Counts I, VII and VIII, and twelve months imprisonment on Count XI. On
direct appeal, Ray argued: (1) he could not be convicted for murder in furtherance of a continuing
criminal enterprise unless he was charged with membership in the enterprise; (2) the evidence
was insufficient to convict him of the murder charges; (3) the jury was erroneously instructed
they “should” acquit if the government failed to meet its burden of proof; (4) his narcotics

distribution conviction violated the double jeopardy clause; and (5) the trial court erred when it


refused to dismiss a juror for cause. The Seventh Circuit rejected Ray’s arguments and affirmed.
See United States v. Ray, 238 F.3d 828 (7th Cir. 2001). Ray timely filed his § 2255 petition on
May 15, 2002, within one year of the denial of his petition for a writ of certiorari to the United
States Supreme Court. 28 U.S.C. § 2255, {| 6; Ray v. United States, 532 U.S. 1045 (2001); Jones
v. Bertrand, 171 F.3d 499 (7th Cir. 1999) (pro se prisoner’s § 2255 motion deemed filed upon
delivery to prison officials).
DISCUSSION

I. Standard of Review

Relief under § 2255 is limited to an error of law that is “jurisdictional, constitutional, or is
a fundamental defect which inherently results in a complete miscarriage of justice." Oliver v.
United States, 961 F.2d 1339, 1341 (7th Cir. 1995); Carreon v. United States, 578 F.2d 176, 179
(7th Cir. 1978); 28 U.S.C. § 2255. Before reaching the merits of the petition, the court must
determine whether the asserted claims are procedurally barred. Theodorou v. United States, 887
F.2d 1336, 1339 (7th Cir. 1989).
IL. Ray’s § 2255 Claims

Ray presents an extraordinary number of claims in his pro se petition, none of which were
raised on direct appeal. He argues the indictment failed to allege a specific drug quantity in
accordance with Apprendi v. New Jersey, 530 U.S. 466 (2000). He contends his conviction for
murder in furtherance of a continuing criminal enterprise violated Apprendi because the
indictment failed to allege the essential elements of the crime, and this court’s jury instructions
on Count VIII were flawed. He contends his convictions for Counts I, VII, and VIII violated the

double jeopardy clause. He argues the indictment failed to allege the elements charged in Counts