Ill. CONCLUSION
For the foregoing reasons, the court denies Meeks’ petition to vacate, set aside, or correct his
sentence brought pursuant to 28 U.S.C. § 2255.
IT IS SO ORDERED.
ENTER: ;
Lfeudle KA

CHARLES RONALD NORGLE, SR. Judg

United States Distrigt Court
DATED: S lf - a5

13


28 U.S.C. § 2255 § 1. If the court determines that any of these grounds exists, it “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 § 2.

Section 2255 petitions are subject to various bars, including that of procedural default.
Section 2255 petitions are “‘neither a recapitulation of nor a substitute for a direct appeal.’””

McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (citations omitted). Thus, a § 2255

motion cannot raise: (1) issues that were raised on direct appeal, unless there is a showing of changed
circumstances; (2) non-Constitutional issues that could have been raised on direct appeal, but were
not; and (3) Constitutional issues that were not raised on direct appeal. See Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992) (overruled on other grounds by Castellanos v. United States, 26
F.3d 717 (7th Cir.1994)).

There are two exceptions to the procedural default rule: (1) if the movant demonstrates cause
for failing to raise the issue and actual prejudice resulting therefrom; or (2) the court’s refusal to
consider the Constitutional issue would result in a fundamental miscarriage of justice, which requires
a showing of actual innocence. See Belford, 975 F.2d at 313 (collecting authority); see also
McCleese, 75 F.3d at 1177-78 (discussing fundamental miscarriage ofjustice). With these principles
in mind, the court examines Meeks’ petition.

B. Petitioner’s Arguments for Issuance of the Writ of Habeas Corpus:
1. Whether Meeks’ sentence calculation was proper:
Meeks claims that the court erred in calculating his sentence. This issue was the subject of

extensive litigation at sentencing in the district court, on appeal, on remand to the district court, and



prongs of the Strickland test in order to demonstrate ineffective assistance of counsel. See Ashford
vy. Gilmore, 167 F.3d 1130, 1135 (7th Cir. 1999), First, there must be evidence that counsel’s
performance was deficient, meaning that it fell below objective standards for reasonably effective
representation. See Strickland, 466 U.S. at 687-88. Courts are deferential to counsel’s performance,
and the court is to presume that counsel’s performance “falls within the wide range of reasonable
professional assistance.” Id. at 689; see also Drake v. Clark, 14 F.3d 351, 355-57 (7th Cir. 1994).

Second, the deficient performance must have prejudiced the defense, meaning that but for
the deficient representation, there is a reasonable probability that the proceedings would have had
a different outcome. See Strickland, 466 U.S. at 694. The level of prejudice required to succeed
under Strickland is high. See Ashford, 167 F.3d at 1134-35. “[A] criminal defendant alleging
prejudice must show ‘that counsel’s errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.” Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)) (in
turn quoting Strickland, 466 U.S. at 687). Strickland prejudice will only be found if the court’s
confidence in the outcome is undermined as a result of counsel’s performance. See Brown v.
Sternes, 304 F.3d 677, 691 (7th Cir. 2002); Morris v. United States, 264 F.3d 726, 727 (7th Cir.
2001).

a. Severance:

First, Meeks claims that he was denied effective assistance of counsel since neither of his
attorneys, at trial and on appeal, raised the issue that his trial should have been severed from his Co-
Defendants. However, the Seventh Circuit addressed this issue, stating:

Joinder was proper under the standards of Zafiro v. United States, 506 U.S. 534, 113
S.Ct. 933, 122 L.Ed.2d 317 (1993). That there was some tension and finger-pointing



As indicated, this issue was also the subject of extensive litigation at trial and on appeal, and
is not proper for § 2255 relief. See Belford, 975 F.2d at 313. Yet Meeks, like his other Co-
Defendants in their respective § 2255 petitions, argues that the United States Supreme Court
decisions in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S.
598 (2000) have altered the interstate commerce element of the Hobbs Act, and thus constitute a
changed circumstance warranting consideration on habeas review. However, this argument must fail
for two reasons. First, Lopez was decided prior to Meeks’ conviction, and is not to be considered
a changed circumstance, and thus provides no basis for this court to address that issue. Second,
Morrison, while decided after Meeks’ conviction, does not alter Lopez, nor does Morrison alter the
interstate commerce element of the Hobbs Act. See United States v. Peterson, 236 F.3d 848, 852
(7th Cir. 2001) (holding: “[W]e do not believe Morrison undermines our prior holdings that a
showing of a de minimus effect {on interstate commerce] is constitutionally satisfactory”). In
conclusion, the evidence against Meeks and his Co-Defendants established a connection between
their conduct and interstate commerce sufficient to justify a conviction under the Hobbs Act. See
id.; United States v. Bailey, 227 F.3d 792, 797-99 (7th Cir. 2000).

3. Whether the Government sufficiently alleged the requisite mens rea to the grand jury

in seeking Meeks’ indictment:

Meeks argues that the Hobbs Act counts are jurisdictionally deficient because the
Government did not allege the requisite mens rea to the grand jury in seeking his indictment. The
parties, and the appellate record in this case, fail to indicate whether this issue was raised on appeal.

Assuming that this issue was not raised on appeal, Meeks fails to show cause for first raising this


again on appeal, and is not proper for § 2255 relief. See Belford, 975 F.2d at 313. Further, Meeks
offers no evidence of changed circumstances or proof of a fundamental miscarriage of justice, and
therefore he is entitled to no relief on this ground. See id.

2. Whether the evidence presented at trial established a sufficient connection between

the acts of the Defendants and interstate commerce, as required by the Hobbs Act:

Meeks argues that the evidence presented at trial did not establish a sufficient connection
between the acts of his Co-Defendants (and thus the acts of Meeks as an aider and abettor) and
interstate commerce, as required by the Hobbs Act.

In support of the argument that the Defendants’ conduct affected interstate commerce, the
Government presented evidence at trial showing that: (1) the Defendants’ purpose in the attempted
robberies was to take drug purchase money from traffickers of cocaine, which is produced outside
of Illinois; (2) the Defendants’ use of Chicago Police Department vehicles during the attempted
robberies would have caused the Chicago Police Department to replace the vehicles through
interstate commerce at some point earlier than otherwise necessary; (3) the Defendants made
interstate telephone calls while planning the attempted robberies; and (4) the money which the
Defendants stole should have been forfeited to the Chicago Police Department, which transacts
business in interstate commerce. On appeal, the Defendants, including Meeks, challenged the
sufficiency of the evidence supporting the effect on interstate commerce. The Seventh Circuit
rejected this challenge, indicating: “The evidence of a connection between the robberies and
interstate commerce was at least as strong here as in United States v. Thomas, 159 F.3d 296 (7th Cir.
1998) and United States v. Staszcuk, 517 F.2d 53 (7th Cir. 1975) (en banc).” Meachum, 182 F.3d

923, 1999 WL 511431, at * 1.



argument to the contrary is without merit based on a long line of jurisprudence including Price and
its progeny.

5. Whether Meeks received ineffective assistance of counsel:

Meeks raises numerous instances of alleged ineffective assistance of counsel. Once again,
as to this argument, the parties, and the appellate record in this case, fail to indicate whether this
issue was raised on appeal. The court assumes that this issue was not raised on appeal', in keeping
with the Seventh Circuit’s “oft-repeated admonition that ‘[t]he preferred method for raising a claim
of ineffective assistance of counsel is either by bringing a motion for new trial or a request for
collateral relief under 28 U.S.C. § 2255.’” United States v. Woolley, 123 F.3d 627, 634 (7th Cir.
1997 (quoting United States v. Wiman, 77 F.3d 981, 988 (7th Cir.1996)) (footnote omitted).
Therefore, a petitioner may properly raise an ineffective assistance of counsel claim for the first time
in a § 2255 petition. In fact, the United States Supreme Court recently pronounced: “We hold that
an ineffective assistance of counsel claim may be brought in a collateral proceeding under 2255,
whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United
States, - S.Ct, 2003 WL 1916677 (April 23, 2003) (abrogating Guinan v. United States, 6 F.3d 468
(7th Cir. 1993)). The court now addresses Meeks’ ineffective assistance of counsel claim. In order
to clarify the analysis, the court will consider each alleged instance of ineffective assistance of
counsel separately.

Ineffective assistance of counsel claims are governed by the familiar two prong test of

Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). A criminal defendant must satisfy both

‘The court notes that during Meeks’ first appeal, he filed a motion to remove appellate
counsel for ineffective assistance on July 9, 1998. The Seventh Circuit granted this motion on
July 14, 1998.


+ Minute Order por (06797)

United States District Court, Northern District of Illinois

fame of Assigned Judge *harl Sitting Judge if Other
/ Or Magistrate Judge Charles Norgle than Assigned Judge
CASE NUMBER 01 C 3156 DATE 4/28/2003
CASE Meeks vs. United States of America
L TITLE
[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented]

Petition to Vacate, Set asside, or Correct Sentence Pursuant to 28 U.S.C. § 2255

DOCKET ENTRY:

qd) im} Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

G3) Oo Answer brief to motion due___. Reply to answer brief due____.

(4) Oo Ruling/Hearingon___set for___—_att

(5) im) Status hearing[held/continued to] {set for/re-set for] on___—_sset for___at

(6) im Pretrial conference[held/continued to] [set for/re-set for]on__—s set for at,
(7) oO Trial[set for/re-set for] on__at

(8) Qo [Bench/Jury trial] [Hearing] held/continued to at

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

OFRCP4(m) CO Local Rule 41.1 OI FRCP4!(a)(1) O FRCP41(a)(2).

qo) [Other docket entry] Before the court is Robert Meeks’ petition to vacate, set aside, or correct his
sentence brought pursuant to 28 U.S.C. § 2255. For the reasons stated on the attached order, the petition

is denied.

gl oa [For further detail see order (on reverse side offattached to) the original minute order.]

No notices required, advised in open court. Document

Number

No notices required tof nt
umber o notices

Notices mailed by judge's statf. APR 3 0 2003

Notified counsel by telephone :

due docketed

X_ | Docketing to mail notices
Ns
Mail AO 450 form.

docketing deputy ip

Copy to judge/magistrate judge

courtroom date mailed notice

deputy’s
initials

Date/time received in
central Clerk's Office mailing deputy initiats



prejudice, the court need not consider the first prong of the Strickland test, and this claim cannot
succeed. See United States v. Fudge, —F.3d—, 2003 WL 1844629, at * 11 (7th Cir. April 10, 2003)
(citing Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001)) (“If we find that counsel’s
alleged deficiency did not prejudice the defendant, we need not consider the first prong of the
Strickland test.”).

b. Sentencing Calculations

Second, Meeks claims that he was denied effective assistance of counsel since his attorney
for the first appeal failed to convince the Seventh Circuit that the district court relied on the Kudaisi
robbery in its sentence calculation, and that his attorney for the second appeal improperly conceded
that the guideline sentence was correct.

Other than his unsubstantiated assertion, and subjective disagreement, that the guidelines
were not properly calculated, Meeks does not show how his appellate attorneys’ conduct was
deficient. In fact, the advocacy of Meeks’ attorney for the first appeal was effective in obtaining a
remand in order to clarify the issue. Regardless, the record in this case is overwhelming that the

district court did not consider the Kudaisi robbery in calculating Meeks’ sentence. See Meeks, 215

F.3d 1331, 2000 WL 748116, at * 1 (affirming the district court’s sentence as imposed). In light of
the Seventh Circuit’s approval of the sentence as imposed, it cannot be argued that Meeks’ attorneys’
conduct was “outside the wide range of professionally competent assistance,” Strickland, 466 U.S.
at 690, or that but for the allegedly deficient representation, there is a reasonable probability that the

proceedings would have had a different outcome. See id. at 694.



in the defenses did not require the judge to grant a severance; having all defendants
tried together enables the jury to assess whether the blame-shifting was well founded.

Meachum, 182 F.3d 923, 1999 WL 511431, at * 1.

In the instant petition, Meeks does not challenge the court’s jury instructions, nor does he
indicate any testimony that was so prejudicial to him so as to warrant the granting of a severance;
and without such a showing he cannot indicate that his attorneys’ performance was ineffective.
Furthermore, Meeks does not show how he was prejudiced; and in order to establish that a severance
ought to have been granted, he must demonstrate that the joint trial resulted in actual prejudice,

meaning that he “‘could not have a fair trial without severance, not merely that a separate trial would
offer him a better chance of acquittal.’” United States v. Hughes, 310 F.3d 557, 563 (7 th Cir. 2002)
(citing United States v. Mohammad, 53 F.3d 1426, 1431 (7th Cir.1995)).

The court’s instructions, as given to the jury, were those provided by the Pattern Criminal
Federal Jury Instructions for the Seventh Circuit, Instruction 7.04, entitled “Separate Consideration
of Charges - Multiple Defendants - Multiple Counts,” which states:

Each count of the indictment charges each defendant named in that count with having

committed a separate offense.

You must give separate consideration both to each count and to each defendant. You

must consider each and the evidence relating to it separate and apart form every other
count.

You should return a separate verdict as to each defendant and as to each count. Your
verdict of guilty or not guilty of an offense charged in one count should not control
your decision as to that defendant under any other count.
Even accepting Meeks’ claim that his attorneys failed to raise the issue of severance, these
instructions covered any issue that may have been raised as to severance. Further, he has suffered

no prejudice in so far as the Seventh Circuit addressed the joinder issue and found joinder to have

been proper. See Meachum, 182 F.3d 923, 1999 WL 51 1431, at * 1. Since Meeks has suffered no

10


issue in the instant petition nor proof of a fundamental miscarriage of justice, and therefore he is
entitled to no relief on this ground. See Belford, 975 F.2d at 313.

Further, the court has reviewed the sealed transcript of the grand jury proceedings and is
satisfied that the Government sufficiently alleged the requisite mens rea to the grand jury in seeking
Meeks’ indictment. Therefore, this argument is without merit, and Meeks suffered no prejudice as
a result of failing to raise the issue in his prior appeals.

4, Whether Meeks, as a private citizen, can be found to have conspired to deprive

others of their civil rights, under color of law, in violation of 18 U.S.C. § 241:

Meeks argues that, as a private citizen, he cannot be found to have conspired to deprive
others of their civil rights, under color of law, in violation of 18 U.S.C. § 241. Once again, as to this
argument, the parties, and the appellate record in this case, fail to indicate whether this issue was
raised on appeal. Assuming that this issue was not raised on appeal, Meeks fails to show cause for
first raising this issue in the instant petition nor proof of a fundamental miscarriage of justice, and

therefore he is entitled to no relief on this ground. See Belford, 975 F.2d at 313.

Meeks, a civilian, and his Co-Defendants, members of the Chicago Police Department,
concocted and carried out a scheme of tracking down drug dealers and robbing them of money and
drugs, rather than arresting them. In this scheme, Meeks helped identify and set up drug dealers for
his Co-Defendants to rob, abusing their positions as law enforcement officers. As indicated by the
United States Supreme Court: “To act ‘under color’ of law does not require that the accused be an
officer of the State. It is enough that he is a willful participant in joint activity with the State or its
agents.” United States v. Price, 383 U.S. 787, 794 (1966). Thus, based on Meeks’ role in this

scheme, he is deemed to have acted under color of law to deprive others of their civil rights, and his



as defined by habeas corpus jurisprudence. See generally McCleskey v. Zant, 499 U.S. 467, 470
(1991) (clarifying the “abuse of the writ” doctrine). Thus, the court will consider these supplements
along with the original petition.

The court consolidates and interprets Meeks’ arguments as: (1) his sentence was improperly
calculated; (2) the evidence at trial did not establish a sufficient connection between the acts of the
Defendants and interstate commerce, as required by the Hobbs Act; (3) the Hobbs Act counts are
jurisdictionally deficient because the Government did not allege the requisite mens rea to the grand
jury in seeking his indictment; (4) as a private citizen, he cannot be found to have conspired to
deprive others of their civil rights, under color of law, in violation of 18 U.S.C. § 241; and (5)
multiple allegations of ineffective assistance of counsel.

The Government argues, and the court agrees, that all of these claims, except select
ineffective assistance of counsel claims, are procedurally defaulted, and that the ineffective
assistance of counsel claims are without merit.

II. DISCUSSION
A. Standards Under 28 U.S.C. § 2255:

Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct his
sentence. The relief is available only in limited circumstances, such as where an error is
jurisdictional or of Constitutional magnitude. The statute states:

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, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of

the maximum authorized by law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate, set aside or correct the
sentence.



After a lengthy trial, a jury convicted Meeks and his Co-Defendants on all counts. Meeks
appealed his conviction, arguing, inter alia : (1) an order granting severance should have been
entered by the district court; (2) the evidence at trial did not establish a sufficient connection between
the acts of the Defendants and interstate commerce, as required by the Hobbs Act; and (3) his
sentence was improperly calculated. The Seventh Circuit affirmed the conviction, but remanded the
case for the limited purpose of recalculating Meeks’ sentence, as the Seventh Circuit was uncertain
from the record whether one robbery, the Kudaisi robbery, was considered in the calculation of
Meeks’ sentence. See United States v. Meachum, 182 F.3d 923, 1999 WL 511431, at * 7 (7th Cir.
1999) (unpublished opinion), On remand, the court clarified that the Kudaisi robbery was not
considered in the calculation of Meeks’ sentence, thus the sentence remained. Meeks filed a second
appeal, again arguing that his sentence was improperly calculated. The Seventh Circuit affirmed
Meeks’ conviction and sentence, indicating: “The district court did exactly as instructed. Itreviewed
all appropriate sentencing factors while disregarding the Kudaisi robbery, concluded that the
sentencing ranges were not affected, and ordered Meeks’ sentence to stand.” United States v. Meeks,
215 F.3d 1331, 2000 WL 748116, at * 1 (7th Cir. 2000) (unpublished opinion).

Meeks now seeks § 2255 relief, raising numerous issues that overlap each other, and that
generally recapitulate arguments made on his appeals. The court is to liberally construe a prisoner’s
pro se petition, see Haines v. Kerner, 404 U.S. 519, 520 (1972), but the burden remains with the
petitioner to demonstrate entitlement to the extraordinary writ of habeas corpus. Aside from Meeks’
original § 2255 petition, he has submitted numerous other motions to the court seeking to
supplement that original petition. The court will not treat these motions as consecutive § 2255

petitions, as the Government has not argued that these supplements constitute an abuse of the writ


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION P

Robert Meeks, ) APR © 0 2003
) No. 01 C 3156
Petitioner, )
)
)
v. ) Judge Charles R. Norgle, Sr.
)
United States of America, )
)
Respondent. )
OPINION AND ORDER

CHARLES RONALD NORGLE, Judge.

Before the court is Robert Meeks’ petition to vacate, set aside, or correct his sentence brought
pursuant to 28 U.S.C. § 2255. For the following reasons, the petition is denied.

I. BACKGROUND

In the criminal matter underlying the present § 2255 petition, Meeks, a civilian, and his
Co-Defendants, members of the Chicago Police Department, concocted and carried out a scheme of
tracking down drug dealers and robbing them of money and drugs, rather than arresting them. Mecks
was indicted on numerous charges arising out of this criminal enterprise, including violations of the
Hobbs Act, 18 U.S.C. § 1951, charges relating to the use of a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c), a charge of conspiring to deprive others of civil rights under color
of law in violation of 18 U.S.C. § 241, and a charge of possession of drugs with intent to deliver in

violation of 21 U.S.C. § 841(a)(1).



c. Hobbs Act - commerce clause issue

Third, Meeks claims that he was denied effective assistance of counsel since none of his
attorneys, at trial or on appeal, argued that the Government failed to establish a sufficient connection
between the acts of the Defendants and interstate commerce as required by the Hobbs Act.

Once again, Meeks’ subjective disagreement with his attorneys as to the requirements of the
law does not show that the attorneys’ performance fell below that guaranteed by the Sixth
Amendment, as announced by Strickland and its progeny. The record in this case clearly supports
a connection between the acts of the Defendants and interstate commerce as required by the Hobbs
Act. The Seventh Circuit indicated: “The evidence of a connection between the robberies and
interstate commerce was at least as strong here as in United States v. Thomas, 159 F.3d 296 (7th Cir.
1998) and United States v. Staszcuk, $17 F.2d 53 (7th Cir. 1975) (en banc).” Meachum, 182 F.3d
923, 1999 WL 511431, at * 1. In light of the Seventh Circuit’s ruling, it cannot be argued that
Meeks’ attorneys’ conduct was “outside the wide range of professionally competent assistance,”
Strickland, 466 U.S. at 690, or that but for the allegedly deficient representation, there is a reasonable

probability that the proceedings would have had a different outcome. See id. at 694.

12