counsel's failure to cal] at sentencing a witness who would have testified that Mays withdrew
from the conspiracies prior to November 1987, when statutory changes took effect that increased
the maximum penalties for those offenses from 20 years to life. Mays submitted an undated
affidavit from Jamil Wright, a former member of the El Rukn street gang, who states that Mays
“separated himself” from the organization “early in 1985) Mays claims that “1985” is a
typographical error and should read “1987,” but he has nt 8
i |

d

ubmitted an affidavit from Wright

verifying the alleged typographical error.
Even assuming, however, that Wright’s undated affidavit is proper, Mays’ cannot make
the required showing of prejudice. During his sentencing hearing, Mays argued that he withdrew
from the conspiracy when he became a fugitive from justice, an argument that the Seventh
Circuit accurately described as “border[ing] on the frivolous.” United States v. Boyd, 208 F.3d
638, 648 (7" Cir. 2000). The sentencing judge flatly rejected Mays’ argument, stating “the rule is
not that you’re out of the conspiracy when you flee from the police. The rule is that you have to
withdraw within the legal meaning of withdrawal. And running away and doing nothing is not
withdrawal.” Sentencing Hearing Transcript, April 8, 1998, at 9. The sentencing judge dismissed
the testimony of McAnderson, who “thought that Mays had withdrawn,” by pointing out that
“McAnderson’s conclusion is not a legal one and, so far as I read the testimony, does not
demonstrate that Mays had even agreed with that non-legal conclusion.” Jd, The sentencing
judge also dismissed E] Rukn leader Jeff Fort’s claim that Mays’ failure to “face the legal
proceeding before you” constituted withdrawal from the gang, holding that Fort’s statement
“seeks . . . to redefine the legal definition of withdrawal.” Id. at 10. Given the basis for the

sentencing judge’s decision, the testimony of a single E] Rukn member who would have testified



held that Knox’s sentence violated the rule of Orozco-Prada, but that Orozco-Prada errors were
subject to harmless error review. When applying harmless error review, a court must determine
whether it is “clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty [of conspiring to distribute a substance that carried a life term] absent the error.”
Neder v. United States, 521 U.S. 1, 18 (1999). As Judge Kennelly pointed out, this is exactly
what the Seventh Circuit decided on remand in Knox’s and Mays’ case. Specifically, the court
found that “the evidence shows beyond any possible doubt that [Knox and Mays] were
responsible for such a large quantity of drugs that had the jury been correctly instructed, it would
have found [them] guilty beyond a reasonable doubt of the offenses for which they were
sentenced.” United States v. Green, Nos. 98-2036, 98-2037, 98-2038, 98-2060, 2001 WL
338109, at *1 (7" Cir. Apr. 3, 2001)(unpublished decision). For this reason, this court held that
Mays had not shown the type of prejudice needed to establish his ineffective assistance claim ~a
reasonable probability that, but for counsel’s deficient performance, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984).

However, at least two circuits, the Second and the Eleventh, have held that Orozco-Prada
errors are not the subject of harmless error review. United States v. Allen, 302 F.3d 1260, 1276
(11 Cir. 2002); United:States v. Zilligit, 286 F.3d 128, 139-40 (2TM Cir. 2002). Because the
Seventh Circuit has yet to decide the issue, the court grants Mays’ motion for a COA on the
Orozco-Prada issue.’
2. The Withdrawal Issue

In Claim 6 of his § 2255 motion, Mays’ argued that his counsel was ineffective based on

"Judge Kennelly also granted Knox’s motion for a COA on this issue. See Order of March 31, 2004.

3



that Mays “told me that he was no longer a member” of the conspiracy would not have affected
the result of the proceeding. Thus, the court denies Mays’ request for a COA on the withdrawal
issue.
CONCLUSION
For the foregoing reasons, Mays’ motion for a certificate of appealability [### 18-19] is

granted as to the Orozco-Prada issue and denied as to the withdrawal issue.

ENTER: = » NA ff bor
: GAN HUMPHREY LEFKOW
Dated: August 17, 2004 United States District Judge



Minute Ores Form (0697)
a _*

»

United States District Court, Northern District of Hlinois

Name of sane dae Joan H. Lefkow Sig Sue ter

CASE NUMBER 02 C 7393 DATE 8/17/2004
CASE USA vs. Melvin Mays
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
of the motion being presented.]

MOTION:

DOCKET ENTRY:

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

(2) g Brief in support of motion due

3) Oo Answer brief to motion due, . Reply to answer briefdue____—.

(4) o Ruling/Hearing on setfor at

(5) a Status hearing[held/continued to] [set for/re-set for]on___setfor__—_at

(6) o Pretrial conference[held/continued to] [set for/re-setfor]on__setfor__—at__—.

() a Trial[set for/re-set for]on___at

(8) Qo [Bench/Jury trial] [Hearing] held/continuedto saat

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)
OFRCP4(m) CO Local Rule 41.1 OFRCP41(aX(1) OFRCP41(a)(2).

qo) ff [Other docket entry] Enter Memorandum Opinion and Order. For the reasons stated in the

Memorandum Opinion and Order, Melvin Mays’ motion for certificate of appealability [#18-19] is
granted as to the Orozco-Prada issue and denied as to the withdrawal issue.

(11) @ [For further detail see order attached to the original minute order.)
No notices required, advised in open court.
No notices required.

o | Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

wesia “sa

1HA33 !

Copy to judge/magistrate judge.
25:5 kd LI SMV AOU
courtroom
MD deputy’ onersee
DaiSie received in
central Clerk's Office ‘

soe eta eh



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA ) D
)
v. ) No. 02 C7393 OCKE TED
) Judge Joan H. Lefkow Aug 18 2
MELVIN MAYS ) 004
)
MEMORANDUM OPINION AND ORDER

Melvin Mays (“Mays”) has moved for a certificate of appealability (“COA”) from the
April 20, 2004 denial of his motion to vacate his sentence brought pursuant to 28 U.S.C. § 2255.
Mays raised six claims in his § 2255 motion. He seeks a COA on two of those claims: his claim
of ineffective assistance of counsel based on counsel's failure to raise the multiple-object
conspiracy maximum-sentence issue (the Orozco-Prada issue) and his claim of ineffective
assistance of counsel based on counsel’s failure to call a witness who would have testified that
Mays withdrew from the narcotics and racketeering conspiracies prior to legislative reforms that
increased the maximum penalty for those offenses from twenty years to life (the withdrawal
issue). Mays’ motion is granted as to the Orozco-Prada issue and denied as to the withdrawal

issue.



DISCUSSION

Mays is entitled to a COA only if he can make a substantial showing of a denial of a
constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Under this standard
Mays must demonstrate that reasonable jurists would find this court’s assessment of his claims
debatable or wrong. See id.
1. The Orozco-Prada Issue

Mays was charged and convicted of a conspiracy to distribute multiple drugs: heroin,
cocaine, marijuana, amphetamines, codeine syrup, and Talwin and Triplenamine. The jury
retumed a general verdict of guilty on that charge without making any findings as to the type and
quantity of drugs involved in the conspiracy. He was sentenced to life. In his § 2255 motion,
Mays argued that under United States v. Orozco-Prada, 732 F.2d 1076 (2TM Cir. 1984), and its
progeny, the trial judge was precluded from imposing a sentence for narcotics conspiracy greater
than the two-year maximum sentence that could have been imposed for conspiracy to distribute
the least serious drug involved in the charged conspiracy: codeine syrup, a Schedule V controlled
substance (Claim 2). Mays also argued that a life sentence for the racketeering conspiracy was
improper because RICO permits a life sentence only if the penalty for one of the underlying
racketeering acts is life imprisonment, which would not be the case had he been sentenced at the
two-year maximum for conspiracy to distribute codeine syrup (Claim 3). Mays argued that his
trial and appellate counsel were ineffective for failing to raise these issues (Claim 5).

In denying Mays’ § 2255 motion, this court relied on Judge Kennelly’s opinion in United
States v. Knox, No. 03 C 7392, 2004 WL 442629 (N.D. Dl. March 9, 2004), a ruling on an

identical § 2255 motion by one of Mays’ co-defendants, Sammy Knox. In Knox, Judge Kennelly