singular transaction occurred in late 1993, but later stated that
it happened in October 1994, Since a specific transaction can
occur only once, Hughes contends that Nixon’s testimony regarding
one of these dates must be false. Second, Hughes argues that Nixon
falsely testified that he chose to testify only because Hughes
signed a statement implicating him. As both Hughes and the
government acknowledge, na such statement exists. Ergo, Hughes
notes that Nixon’s testimony concerning this alleged statement must

also be false.

Given the above evidence, Hughes fails even the first part of
this test. While it is true that Nixon may have incorrectly
recounted the details of specific events, it is not true that “the
jury was likely to understand the witness to have said something
that was... false,” After all, the prosecution did not hide the
minor inconsistencies within Nixon’s testimony. Tt was the
prosecution that elicited Nixon’s inconsistent testimony regarding
the transaction that occurred in either 1993 or 1994 -- thereby
placing both versions of the story before the jury. Similarly,
Hughes’ expansive discovery revealed that Hughes never signed a
statement implicating Nixon -- and Hughes’ counsel used the
statement’s nonexistence when attempting to impeach Nixon on cross-
examination. Consequently, Hughes’ claims concerning prosecutorial

use of false testimony must therefore be denied.



sentence. Since Hughes has not attacked any of his previous
convictions, the Court finds this claim moot.

As the Court rejects petitioner’s claims concerning the
§ 851(b) colloquy, it similarly denies petitioner’s claim for

ineffective assistance of counsel regarding the colloguy.

CONCLUSION

For the reasons stated herein, Pet

tioner’s #Metition under

28 U.S.C. § 2255 to Vacate, Set Asidé, or Coyrect Sentence is

denied.

IT IS SO ORDERED.

Date:


Hughes’ drug quantities, in violation of the Apprendi rule; 6)
Hughes’ appellate counsel! proved constitutionally ineffective in
failing to raise Apprendi upon direct appeal; 7) the Court erred by

not. conducting a 21 U.S.C. § 851(b) colloquy prior to enhancing

sentence and 8) trial counsel proved ineffective by not objecting
to the defective § 851 inquiry.
II. DISCUSSION
A. Joseph Nixon’s allegedly false testimony

To obtain habeas corpus relief based on perjured testimony, a
petitioner must show: 1) that the prosecution presented per jured
testimony, (2) that the prosecution knew or should have known of
the perjury, and (3) that some likelihood exists that the false
testimony impacted the jury's verdict. Harding v. Walls, 300 F.3d
824, 828 (7th Cir. 2002). The Court “does not employ the term of
perjury in its technical, legal sense in these types of cases.”
Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir. 2001). Rather, it
is “enough that the jury was likely to understand the witness to
have said something that was, as the prosecution knew, false.” Id.
(internal citations omitted). However, “mere inconsistencies in
testimony by government witnesses do not establish the government's
knowing use of false testimony.” Id. (internal citations omitted).

Hughes cites two instances in which he claims the prosecution
knowingly and willfully used false testimony by witness Nixon.

First, Hughes points out that Nixon initially testified that a


Since Nixon’s testimony did not reach a problematic level of
falsity, neither Hughes’ trial nor appeal counsel can be faulted in
their handling of this testimony. Accordingly, Hughes’ ineffective
assistance of counsel claims concerning this allegedly false
testimony also fail,

B. Apprendi

Upon remand from the Supreme Court, the Seventh Circuit
conducted an Apprendi-based review of Hughes’ sentence. With
respect to Counts One, Two, and Five, the Seventh Circuit found
that, although this Court committed clear error in sentencing
Hughes, its error failed to prejudice the defendant. Conversely,
the Seventh Circuit found reversible error concerning Hughes
sentence under Counts Three and Four, and remanded for re~
sentencing (those counts were later dismissed).

Therefore, Hughes has now received every right Apprendi
entitles him to, This renders moot Hughes’ claim concerning this
Court's use of the preponderance of the evidence standard in the
original sentencing, and his claim that appellate counsel was
ineffective by not raising Apprendi.

C. Tha 21 U.S.C. § 851(b) colloquy

Hughes also challenges his sentence on the grounds that the
Court failed adequately to engage in a 21 U.S.C. § 851(b) colloquy.
Additionally, Hughes insists that his lawyer’s supposed failure to

object to this inadequate colloquy constitutes ineffective


AO 450 Rev. 5/8: aLina Civil Case,

United States District Court
Northern District of Illinois

Eastern Division

United States of America JUDGMENT IN A CIVIL CASE
v. Case Number: 03 C 1958
Ruben D. Hughes

Q Jury Verdict. This action came before the Count fora trial by jury. The issues have been
tried and the jury rendered its verdict.

a Decision by Court. This action came before the Court. ‘The issues have been tried or
heard and a decision bas been rendered.

frTS HEREBY ORDERLD AND ADJUDGED that Ruben D. Hughes’ Petition to vacate, set
aside, or correct sentence is denied.

Michael W. Dobbins, Clerk of Court

Date: 1/12/2004

Wanda Parker, Deputy Clerk - ~~


Minuit Ouaer orm 106979

’
- \ Ny United States District Court, Northern District of Lllinois
PY
Namie of Assizned didze arty i 7 Age if Othe!
[ versione | Haney. Loinenseober | “tami yore
CASE NUMBER 03 € 1958 DATE V/12/200+4
CASE United States of America vs. Ruben D. Hughes
TITLE

MOTION:

[In the following box (a) indicate the party filing Ue motion, e.g.. plaintiff, defendant, 3rd party plaintifl. anid (h) stale briefly the nature

of the motion being presented.)

DOCKET ENTRY:

(1)
Q)
QB)
4
(5)
(6)
(7)
(8)
(9)

(10)

ay

im} Filed motion of | use listing in “Motion” box above.}

tl Brief in support of motion due __

a Answer brief lo motion due, ___. Reply to answer bricfdue ___

u) Ruling/Uearing on set for all

Oo Status hearing|held/continued tof [set for/re-set for]on set for_ at.
Qo Pretrial conferencefheld/continucd to] [set for/re-sct for}on set for at
Q Triul|set forfre-set for}on_ at

a) [Bench/Jury tial] [Hearing] held/continued to at.

im) This case is dismissed [with/without] prejudice and without costs]by/agreement/pursuant 10]

COFRCP4(m) OC Local Rule 41.1 OFROP4(a)) 0 FRCP41(a)(2),

i] {Other docket entry} ENTER MEMORANDUM OPINION AND ORDER: Petitioner's Petition

under 28:2255 to Vacate, Set Aside, or Correct Sentence is denied.

| [Por further detail see order attached to the original minute order.}

No nntices roqnired, advised in wpen court

No notices required. tarot ot

Document
Number

Notices mailed by judge's staf JAN 1 32004 .

Notified counsel by wlephone. ute dacketed

Y | Docketing 60 mail notices
av | Mail AQ 450 form, Litne = ay spy nly
Copy lw judge/magi strate judge. ‘
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4



assistance of counsel. Section 851 (b) requires that the
prosecuting United States attorney and the Court comply with
certain procedures prior to enhancing a defendant’s sentence due to
previous convictions. Specifically, the statute demands that, “Jf
the United States attorney files an information under this section,
the court shall after conviction but before pronouncement of
sentence inquire of the person with respect to whom the information
was filed whether he affirms or denies that he has been previously
convicted as alleged jin the information, and shall inform him that
any challenge to a prior conviction which is not made before
sentence is imposed may not thereafter be raised to attack the
sentence.” 21 U.S.C. § 851(b).

Here, Hughes alleges two infractions that he feels warrants a
re-sentencing. first, he claims that the Court failed to inquire

as to whether he affirmed or denied his previous listed

convictions. However, as the transcript amply demonstrates, the
Court did engage in such an inquiry. In fact, during this

questioning, Hughes claimed that he failed to remember two of the
listed convictions, though he did not specifically dispute their
existence. (Tr. 1/13/99 p.m., pg. 24-26.) Thus, the Court finds
that it complied with this requirement.

Second, Hughes argues that the Court failed to inform him that
any challenge to a prior conviction which is not made before

sentence is imposed may not thereafter be raised to attack the


IN THE UNITED STATES DISTRICT COURT FE i {. EF F)
FOR THE NORTHERN DISTRICT OF ILLINOIS mr
EASTERN DIVISION

JAN 1 & 2008
UNITED STATES OF AMERICA, WUDGE HAIRY D.C
US. Distiigy oon MEN WEBER
RICT COURT sup
Plaintiff, GE
Case No. 03 C 1958
Vv.
Hon, Harry D. Leinenweber
RUBEN D. HUGHES,
Defendant.
yee ten
MEMORANDUM OPINION AND ORDER yan 1.3 2004

Petitioner Reuben Hughes (“Hughes”), pro se, petitions the
Court under 28 U.S.C, § 2255 to Vacate, Set Aside, or Correct
Sentence. For the following reasons, his petition is denied,

I. CASE HISTORY

In June 1998, Hughes was convicted on five counts of
trafficking cocaine and cocaine base, and one count of illegal
firearms possession. Following an evidentiary hearing concerning
the amount of cocaine base processed by Hughes’ organization, the
Court sentenced him to life imprisonment on each of the five drug
trafficking charges (Counts One through Five). The Court also
sentenced Hughes to 10 years on the firearms violation (Count Six).

On appeal, the Seventh Circuit affirmed Hughes’ conviction and
sentence, Hughes petitioned the United States Supreme Court for a
Writ of Certiorari. On November 6, 2000, the Supreme Court granted

his petition and remanded to the Seventh Circuit “for further

~~


consideration in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Hughes v. United States, 531 U.S. 975 (2000).

In February 2001, the Seventh Circuit affirmed Hughes’
conviction and sentence on all Counts except Counts Three and Four,
and remanded to this Court for re-sentencing. As Hughes still
faced life sentences stemming from Counts One, Two, and Five, the
government moved to dismiss Counts Three and Four, and this Court
granted the government’s motion. On June 14, 2001, the Seventh
Circuit dismissed Hughes’ appeal for lack of jurisdiction. On
March 18, 2002, the Supreme Court denied Hughes’ petition for Writ
of Certiorari.

On March 18, 2003, Hughes filed his § 2225 petition. on
June 27, 2003, Hughes filed for permission to amend his petition,
and the Court granted his request.

Hughes’ amended petition asserts eight claims which Hughes
believes entitles him to relief under § 2255; 1) the government
relied on false testimony by witness Joseph Nixon (“Nixon”); 2)
Hughes’ trial counsel proved constitutionally ineffective in his
handling of the allegedly false testimony; 3) Hughes’ trial counsel
proved constitutionally ineffective by not raising the issue of the
allegedly false testimony in a post~trial motion; 4) Hughes’
appellate counsel provided ineffective assistance of counsel] by not
vaising trial counsei’s ineffectiveness; 5) the Court erred by

using the preponderance of the evidence standard to determine