Cc. “Statutory Maximum Penalty” - Failure to Challenge the Statutory Maximum
Penalties of Life in Prison

As stated earlier, a maximum statutory life sentence under 21 U.S.C. § 841 (b)(1) was
clearly supported by the evidence for the narcotics conspiracy, Count Three of the second
superseding indictment. A statutory maximum life sentence for the racketeering conspiracy
under 18 U.S.C. § 1962(d) is authorized when the maximum statutory penalty for an underlying
racketeering activity is life imprisonment under, 18 U.S.C. § 1963(a).’ Since the narcotics
conspiracy, for which the statutory maximum was life, was an underlying racketeering act
charged in the RICO conspiracy, Count One of the second superseding indictment, the RICO
conspiracy’s statutory maximum was life. It certainly could not be considered to fall below the
minimum level of competence required by the Sixth Amendment for a lawyer not to argue
contrary to the clear statutory authority of 18 U.S.C. § 1963(a). No reasonable jurist would find
this determination to be wrong or debatable.

D. “Sentencing Guidelines Misapplication” - Failure to Challenge the Use of the
1989 Manual as Opposed to the 1987 Manual

This attack by Robinson relates to the underlying racketeering act of the murder of a
Mr. Barber. Robinson can establish no prejudice under this claim because the statutory
maximum sentence of life in prison for Count One, the racketeering conspiracy, is supported
independent of this issue, as discussed in the previous section, by 18 U.S.C, § 1963(a) because
of the statutory maximum of life in prison for the underlying drug conspiracy racketeering act.
Therefore, no matter which sentencing guideline manual was used, the 1989 or the 1987,

the statutory maximum sentence of life was appropriate for Count One, the racketeering

"Title 18 U.S.C. § 1963(a) states in pertinent part that:

(a) Whoever violates any provision of section 1962 of this chapter shall be
fined under this title or imprisoned not more than 20 years (or for life if the
violation is based on a racketeering activity for which the maximum penalty
includes life imprisonment), or both, . . . .

13


_ Reasonable jurists would find the determination made in the Seventh Circuit’s April 3, 2001
order to be neither wrong nor debatable.

Robinson, in his “Exhibit B” of his “Proffer of Proof. . .,” attacks the Seventh Circuit’s
ruling with what he calls “{F)ive (5) sample illustrations” which he contends “is a representative
sampling of what the Seventh Circuit mistakenly relied upon in making its drug quantity
determination.” (Dkt. #60; Exhibit B, pg. 3.)

First of all, 1 am confident that the Seventh Circuit, in reaching the conclusion articulated
in its April 3, 2001 unpublished order, relied on the whole 1996 retrial record, not merely the
government’s Circuit Rule 54 representations. However, to determine that the correctness of
the Seventh Circuit’s ruling is not debatable, I reviewed, once again, the record with special
focus on what Robinson calls his “Illustrations.”

The first three of what Robinson labels in bold type to be his “Illustrations of Circuit
Rule 54, False Statements” pertain to page 5, paragraph 8 of the ““Government’s Circuit Rule 54

Statement.” * The first of the initial three “I}lustrations” of which Robinson complains is the

*Paragraph 8 of the Government’ s Circuit Rule 54 Statements states in full as follows:

8. The evidence regarding quantity was also overwhelming. The
conspiracy spanned period of over 20 years, and defendants’ participation in it
ranged from about 20 years (Green, Knox and Mays) to about six years
(Robinson). It included daily drug dealing over a wide area of Chicago’s south
side involving hundreds of distributors. The proceeds of this enterprise allowed
the E] Rukns to acquire entire apartment buildings, which they fortified and used
to house gang members and their families, and from which they sold drugs. Tr.
1845-65, 3858-62, 5510-14. They paid mortgages and utilities on these
buildings, and legal fees for gang members who got arrested, all with drug
proceeds. Tr. 5593-98. In the mid-1980's, through Robinson’s connections
alone, the E} Rukns were receiving at least two kilograms of cocaine per month.
Tr. 4817-21 [sic]. Beginning in 1985 and continuing until the indictment was
returned in 1989, the El Rukns sold heroin through an offshoot of the gang called
the gorilla family (Tr. 1925-33, 2954-57, 5536-40), and their heroin sales grossed
between $5,000 and $7,000 per day. Robinson introduced gang members to
heroin suppliers who supplied the gorilla family with some of the heroin that was
distributed. Tr. 1993-97. The district court noted that its finding that defendants
were responsible for at least 10 kilograms of heroin or 50 kilograms of cocaine
was a conservative estimate. 10/22/97 Green Tr. 31-32. Based on this record,

4


_- to Robinson’s Proffer (Dkt. #60; Exhibit B), is based on the second sentence of paragraph 7, on
page 4, of that Circuit Rule 54 Statement, which states:

There was evidence regarding the distribution of drugs other than heroin and

cocaine — T’s and Blues, marijuana and codeine syrup — but the evidence

overwhelmingly established that in the 1980's heroin and cocaine were the
dominant drugs being distributed, and that these defendants participated directly

in such distribution. Tr. 1925-57, 2954-61, 4014-16, 4817-21 [sic], 5536-40.

Robinson again complains on page 9 of his Exhibit B about what was, as shown earlier
in this opinion, a typographical error by the government which erroneously cited trial transcript
pages 4817 through 4821 and the Daniel Brannigan testimony, when it is clear that the
Earl Hawkins’ testimony, at pages 4017 through 4021, is what was intended.

Earl Hawkins’ testimony at pages 4014 through 4016 related to Robinson, code name
“Local,” who in the middle 1980's made arrangements to provide, or as Hawkins’ testified, “to
hook us [El Rukns] up with some connects” (Tr. 4015, line 25), drug suppliers for the E] Rukn
drug distribution conspiracy. The drug suppliers, whose nicknames were “Blue” and “Cody”
(Tr. 4016, line 2), to which Hawkins in his testimony referred, were Thomas “Blue” Burnside
and Codell “Cody” Griffin. They, among others, as Robinson arranged, supplied more than 24
kilograms of cocaine annually to be distributed as part of the El Rukn drug conspiracy beginning
in about 1983. (Tr. 4018-19.) Beginning in 1985, “heroin” or “dope,” as it was referred on
occasion by certain witnesses during their trial testimony (Tr. 4023, line 6; 3143), was supplied
by these suppliers as arranged by Robinson to a group of 25 or 30 El Rukn conspirators
(Tr. 5540) called the “Gorilla family.” (Tr. 4022-24.) There is no doubt cocaine and heroin
were the dominant drugs distributed by the narcotics conspiracy of which Robinson was
convicted and sentenced, (Dkt. # 5178, 89 CR 908, October 22, 1997, 3:00 p.m.)

Finally, I address Robinson’s fifth “Illustration”:

E. Government’s Circuit Rule 54 Statement, Page 3, Point 4:
“All four [retrial] defendants {including Noah Robinson] were

found by the district court (Judge Zagel) to be responsible for
in excess of 10 Kilograms of heroin or 50 kilograms of cocaine.”

9


_ Security personnel also sold cocaine “anytime of the day or night” (Tr. 1864), “24 hours a day”
(Tr. 3863), at several El Rukn-owned buildings in 1984, (Tr. 1864-82.) Among the sources of
the cocaine to the El Rukns were cocaine suppliers provided by Noah Robinson. (Tr. 1883-
1994; 3858-62.)

Based on the full record, the quantity of cocaine distributed by the members of the
conspiracy reasonably foreseeable to Robinson was beyond any possible doubt much more than
five kilograms, the amount necessary to establish the statutory maximum sentence of life in
prison under 21 U.S.C. § 84 1(b)(1). The evidence established that Robinson’s involvement with
the El Rukns’ cocaine sales from Robinson’s cocaine supply sources began sometime in 1983,
and by 1984 was well underway.’ Robinson never withdrew from the conspiracy until it ended
in 1989 when Robinson was charged with the crimes of which he was ultimately convicted and
sentenced. The Seventh Circuit’s April 3, 2001 determination that Robinson and his co-
defendants “were responsible for such a vast quantity of drugs” that the offenses for which
Robinson and his co-defendants were sentenced would have been found by the jury beyond a
reasonable doubt is without doubt correct and not debatable based on the quantity of cocaine
alone distributed by the conspiracy.

The above-described quantities of cocaine were, however, not the only illegal drugs
proved to have been reasonably foreseeable to Robinson in support of the Seventh Circuit’s

April 3, 2001 determination on remand, Robinson arranged for heroin to be supplied to the

“The 1984 sales rate of two kilograms of cocaine per month, which was proven to have
later increased (Tr. 4019), calculates to 24 kilograms of cocaine a year. Robinson’s involvement
in the conspiracy spanned approximately five years, which results in a total cocaine distribution
foreseeable to him of 120 kilograms. Judge Zagel calculated for sentencing of Robinson’s co-
defendant Charles Green the amount of cocaine distributed in furtherance of the conspiracy to be
“at the 150-kilogram range.” (Dkt. #5179, 89 CR 908, October 22, 1997, 4:00 p.m., pgs 3 1-32.)
Consequently, the amount of cocaine distributed by the conspiracy that was reasonably
foreseeable to Robinson was proven to well exceed the 50 kilograms the government sought to
have attributed to Robinson, which is ten times the five kilogram amount of cocaine necessary to
result in a statutory maximum sentence of life for Robinson under 21 U.S.C. § 841(b)(1).

6



_ Sixth sentence and the accompanying citation contained in paragraph 8 of the Circuit Rule 54
Statement filed by the government which states:

In the mid-1980's, through Robinson’s connections alone, the EJ Rukns were
receiving at least two kilograms of cocaine per month. Tr. 4817-21.

The citation accompanying the government’s statement is clearly a typographical error,
because the citation should have been to transcript pages 4017-21, the testimony of
Earl Hawkins which supports the government’s statement, not pages 4817-21, the testimony of
Daniel Brannigan.

Earl Hawkins was a general in the El Rukn organization and a co-conspirator of
Robinson’s who testified for the government. Hawkins testified about certain conversations
with Jeff Fort, the El Rukn leader, and other E] Rukns at the E} Rukn Fort headquarters between
1983 and 1985. Hawkins further testified that he saw “Kilos” (Tr. 4019, line 3), kilogram
quantities, of cocaine distributed at the El Rukn Fort headquarters during the period between
1983 to 1985 and that the frequency of Hawkins seeing these kilogram quantities distributed
was “First; once, about two times a month, then it increased.” (Tr. 4019.) Other government
witnesses, such as Jackie Clay, corroborated the conspiracy’s cocaine sales in the mid-1980's.
By 1984, the El Rukns had a “program” devised by Jeff Fort for the selling of cocaine by the
El Rukn generals and officers in which the cocaine was provided on consignment (Tr. 1882) to
them without the El] Rukn generals and officers having to first pay for it, and after they sold the
cocaine they would return to the El Rukn headquarters with the drug money. (Tr. 1873-81.)

During the conspiracy, and foreseeable to Robinson beginning in 1983, the El Rukns’ building

any jury that found defendants guilty would also have found that the narcotics
conspiracy involved in excess of one kilogram of heroin or five kilograms of
cocaine.

>This typographical error was first made in the government’s brief on direct appeal,
page 7, first full paragraph, eighth line, and apparently never corrected.

5


_ Robinson’s primary compiaint about this sentence in paragraph 8 of the Circuit Rule 54
Statement is set forth in the last sentence of each of the last two paragraphs on page 5 and the
first paragraph on page 6 of Robinson’s Exhibit B to his Proffer and stated in bold: “No drug
quantity testimony.” (Dkt. #60; Exhibit B, pgs. 5-6.)

The conspiracy’s daily heroin sales figures of $5,000 to $7,000 were proven through the
testimony of former El Rukn general Edgar Cooksey (Tr. 2961) and were derived from the sale
of $10 bags of heroin in two 12-hour shifts, twenty-four hours a day. (Tr. 2956-61.) The exact
quantity of heroin that those daily sales represented, however, was not stated by any witness.
Daily heroin sales of $5,000 in “dime,” i.e., $10 bags, represents the sale of 500 $10 bags, which
calculates to more than $1.5 million per year in money acquired by the conspiracy through
heroin sales.*

Even without specific testimony regarding specific quantities of heroin being distributed
over specific periods of time, the evidence established that a vast quantity of heroin was
distributed by 25 to 30 El Rukn conspirators (Tr. 5540) who were a part of the “Gorilla Family”
from 1985 to 1989 (Tr. 4022-24) as foreseeable by Robinson who had arranged for the supply
of heroin to the conspiracy. (Tr. 1994-97.) As stated earlier, even without specific testimony
as to specific quantities of heroin, the specific quantity of cocaine the conspiracy distributed as
reasonably foreseen by Robinson proven by the evidence presented to the jury more than
established, beyond any possible doubt, the facts necessary for the statutory maximum sentence
of life in prison under 21 U.S.C. § 841(b)(1) which Robinson received.

The fourth of Robinson’s “Illustrations” of purported misrepresentation in the

government’s Circuit Rule 54 Statement, as argued by Robinson on pages 9 and 10 of Exhibit B

‘If each $10 bag contained the user quantity of 1/10 gram of heroin, the conspiracy was
selling at least 50 grams a day, which calculates to 350 grams a week or 18.2 kilograms per year
(350 grams per week x 52 weeks per year + 1000 grams per kilogram) which over the 4 years the
conspiracy sold heroin calculates to well over the 30 kilograms, that Judge Zagel found had been
proven. (Dkt. #5179, 89 CR 908, October 22, 1997, 4:00 p.m., pages 31-32.)

8


”
Mimuty Order Form (06/97),

United States District Court, Northern District of Illinois

Name of Assigned Judge James F. Holderman Sitting Judge if Other
or Magistrate Judge ‘ than Assigned Judge
CASE NUMBER 02 C 7324 DATE March 19, 2004
CASE USA -v- NOAH ROBINSON 89 CR 908-31
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
MOTION: of the motion being presented.)
DOCKET ENTRY:
(ap) oO Filed motion of [ use listing in “Motion” box above.]
(2) a) Brief in support of motion due
(3) Oo Answer brief to motion due. Reply to answer brief due
(4) Qa Ruling/Hearing on set for _ at
(5) o Status hearing[held/continued to] (set for/re-set for] on___set for at
(6) Qa Pretrial conference[held/continued to] (set for/re-set for] on set for at .
(7) oO Trial{set for/re-set for} on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
QOFRCP4(m) CLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
qo) =o [Other docket entry] Enter Memorandum Opinion and Order denying certificate of appealability.
di) oa [For further detail see order (on reverse side of/attached to) the original minute order.]

No notices required, advised in open court.

No notices required mmber of notices

Nolices mailed by judge's staff.

se O04

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge. we

JS a

i date mailed notice
courtroom

deputy's
initials

Date/time received in

‘mailing deputy initials

central Clerk's Office


_(Dkt. #5179, 89 CR 908, October 22, 1997, 4:00 p.m., pages 31-32.)

The Seventh Circuit’s standard, as stated in its April 3, 2001 ruling, for its evaluation of
the evidence presented to the jury at the 1996 retrial of Robinson and his co-defendants, was not
merely a preponderance of the evidence as used by Judge Zagel in sentencing Robinson and his
co-defendants, and not merely proof beyond a reasonable doubt as used by the jury in convicting
Robinson and his co-defendants, but proof “beyond any possible doubt.” United States v.

Green, 6 Fed. Appx. 377, 2001 WL 338109 (7th Cir. 2001). The evidence regarding the

magnitude of the cocaine distributed by the conspiracy reasonably foreseeable to Robinson was
so overwhelming that no reasonable jury which found Robinson guilty of the offenses for which
he was sentenced could not have also found that Robinson was responsible for more than five
kilograms of cocaine, the statutory minimum cocaine quantity under 21 U.S.C. § 841(b)(1)
necessary for the statutory maximum to be a life sentence. Therefore, based upon that
April 3, 2001 ruling by the Seventh Circuit, the jury’s general verdicts were harmless error
beyond any possible doubt.

As stated earlier, no reasonable jurist would find the April 3, 2001 ruling by the Seventh
Circuit to be wrong or even debatable based upon the full record in the case. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000).

I. Ineffective Assistance of Appellate Counsel

Robinson, in addition to his contention of error as to the jury’s general verdicts, asserted
on page 6 of his Motion (Dkt. #1) that the conduct of attorney John Beal, his appellate counsel,
violated Robinson’s Sixth Amendment right to the effective assistance of counsel and

summarized his claims as follows:

1]


which is on page 10 of Exhibit B of Robinson’s “Proffer” (Dkt. #60; Exhibit B). Robinson
complains that this, the last sentence in paragraph 4 of the Circuit Rule 54 Statement’ regarding
Judge Zagel’s finding, “was a bold-faced lie.” (Dkt. #60; Exhibit B, page 11.)

Judge Zagel, at the sentencing of Robinson’s co-defendant Charles Green at 4:00 p.m.
on October 22, 1997 (Dkt. #5179, 89 CR 908), made the rulings regarding the base offense level
under the U.S. Sentencing Guidelines and made findings based upon a preponderance of the
evidence as to the drug quantities involved in the conspiracy. Judge Zagel stated in open court
at line 17 of page 31 and continuing through line 6 on page 32 of the transcript:

In all honesty, based on the evidence, I would arrive, not at level 36, but
at level 38. Ten kilograms of heroin in the context of the amount of time this
took and the size of the operation seems to me to be alittle low. 50 kilograms of
cocaine also seems to me to be a little low. Cocaine, of course, turns over much
more quickly because one who uses cocaine has to use it more often than one
who uses heroin.

My finding would be, were I left to my own devices, that you are into the
30-kilogram range of heroin, and I would think by preponderance you’re at the
150-kilogram range of cocaine, and it is preponderance that I have to follow.

But the government has asked for 36. I don’t really feel comfortable

upping the government's estimate, but I actually think by asking for 36, they’re
on the low end. So I sustain the drug quantity, I sustain that finding. . . .

6The full text, with citations, of paragraph 4 of the government’s Circuit Rule 54
Statement is:

4. The statutory maximum penalties for engaging in a narcotics conspiracy
are set out in 21 U.S.C. § 841(b), and they are graduated according drug type and
quantity. This Court has held, in the wake of Apprendi, that drug type and quantity
are elements to the extent that they effect the statutory maximum penalties. United
States v. Nance, 236 F.3d. 820, 824 (7th Cir. 2000). If the defendant does not have
a prior drug felony conviction ~ and none of these defendants did — the statutory
maximum where any amount of heroin or cocaine is involved is 20 years. 21 U.S.C.
§ 841(b)(1)(C). It goes up to 40 years if the offense involves at least 100 grams of
heroin or 500 grams of cocaine, and life if the offense involves at least one kilogram
of heroin or five kilograms of cocaine. §§ 841 (b)(1)(A) and (B). All four defendants
were found by the district court to be responsible for in excess of 10 kilograms of
heroin or 50 kilograms of cocaine. 10/8/97 Knox Tr. 6-7; 10/22/97 Green Tr. 30-33;
10/22/97 Robinson Tr, 18-20; Mays PSR at 8-9.

10


El Rukns’ conspiracy members. Yet, Robinson complains that further misrepresentations were
made in the Circuit Rule 54 statement filed by the government. The second of Robinson’s
purported “Illustrations” is on page 4 of his “Exhibit B” to his “Proffer of Proof” (Dkt. #60;
Exhibit B, pg. 4) the eighth sentence, which states:

Robinson introduced gang members to heroin suppliers who supplied the Gorilla
family with some of the cocaine that was distributed. Tr. 1993-97.

Robinson implores, in his usual style of underlining for emphasis and bold type:

Now read the referenced Jackie Clay testimony cited by the government:
There are no references to heroin, or to the Gorilla Family, or to any of the Clay-
referenced persons being suppliers of heroin to anybody. Again, does this court
suppose the Seventh Circuit folk actually read Clay’s testimony, before they
concluded that it supports a “beyond any possible doubt” finding that Noah
Robinson was either involved in or facilitated “such a large quantity of drugs
(heroin)” trafficking?

(Dkt. #60; Exhibit B, pgs. 4-5.)

Robinson, not the Seventh Circuit, is wrong. Clay, throughout his testimony,
interchangeably used the words “dope” and “heroin” (Tr. 1775-2689) as did other witnesses
who were former El Rukns, such as Earl Hawkins (Tr. 4023, line 6) and others (Tr. 3143).
Clay’s references to “dope” on transcript page 1994, line 12; transcript page 1995, line 2; and
transcript page 1995, line 23 were each references to heroin. Clay also testified that Robinson
told Clay about Robinson’s connections with heroin suppliers, including Thomas “Blue”
Burnside and Codell “Cody” Griffin, who supplied both cocaine and heroin to and during the
conspiracy. (Tr. 1994-97.)

Robinson’s third alleged “Illustration” relates to the seventh sentence of paragraph 8 of
the Circuit Rule 54 Statement which states:

Beginning in 1985 and continuing until the indictment was returned in 1989, the

El Rukns sold heroin through an offshoot of the gang called the gorilla family

(Tr. 1925-33, 2954-57, 5536-40), and their heroin sales grossed between $5,000
and $7,000 per day.


_1. _ The General Verdicts

Turning first to Robinson’s claim as to the inadequacy of the general verdicts, Robinson
contends that the concurrent life sentences he received on Count One (RICO conspiracy under
18 U.S.C. § 1962 (d)) and on Count Three (narcotics conspiracy under 21 U.S.C. § 846) of the
second superseding indictment were not properly supported by specific jury findings. The
Seventh Circuit, on April 3, 2001, on remand from the Supreme Court in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), in an unpublished order which reinstated the concurrent life
sentences received by Robinson, along with sentences received by his co-defendants, stated that:

[T]he evidence shows beyond any possible doubt that the defendants,

whose vast drug conspiracy is detailed in the opinion that the Court remanded,

United States v. Boyd, 208 F.3d 638 (7th Cir. 2000), 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, We agree, therefore, with the government’s suggestion that the

original judgments be, and they hereby are, reinstated. United States v. Jackson,

236 F.3d 886 (7th Cir. 2001) (per curiam).
United States v. Green, 6 Fed. Appx. 377, 2001 WL 338109 (7th Cir. 2001) (unpublished order).

The record in this case fully supports the Seventh Circuit’s determination on this point
in its April 3, 2001 order on remand. The drug quantities, especially the drug quantity of
cocaine, that Robinson reasonably foresaw being distributed, as a part of and in furtherance of
the conspiracy of which Robinson was a member, were “beyond any possible doubt,” id.,
substantially more than the 5 kilograms of cocaine and 1 kilogram of heroin necessary under
21 U.S.C. § 841(b)(1)(A)@) and (ii) for the imposition of a life sentence.

Robinson, on page 2 of “Robinson’s Exhibit B” to “Defendant Robinson’s Proffer of
Proof...” (Dkt. #60), vehemently asserts, using bold and underlining for emphasis, that:

The Seventh Circuit’s drug quantity calculation was wrong, period, in

their April 3, 2001 order after remand from the Supreme Court only because it
was based on undetected fraudulent information.



conspiracy, of which Robinson was convicted. No reasonable jurist would find this
determination to be wrong or debatable.

E. “Rule 54 Statement Fiasco” - Failure to Challenge the Government’s Circuit
Rule 54 Statement on Remand from the Supreme Court

Because it is clear that the Seventh Circuit did not forsake the record and rely solely on
the government’s Circuit Rule 54 statement, after the remand from the Supreme Court, to make
its April 3, 2001 ruling, which is discussed and quoted earlier in this opinion, Robinson can
establish no prejudice stemming from any action or any absence of action by Beal, his appellate
counsel, on this issue. No reasonable jurist would find that this determination is wrong or
debatable.

F, “Standard of Error” - Failure to Challenge the Standard of Review Employed by
the Seventh Circuit on Remand from the Supreme Court

“[B]eyond any possible doubt” was the standard employed by the Seventh Circuit in its
April 3, 2001 ruling discussed and quoted earlier. No more lenient standard was applied.
Nothing Robinson’s appellate counsel Beal could have done would have changed that outcome.
Robinson can show no prejudice resulting from his counsel’s conduct on this issue. No
reasonable jurist would consider this determination to be wrong or debatable.

CONCLUSION

Having reviewed the record and the rulings pertaining thereto, no reasonable jurist would
find that the determinations made to be constitutionally wrong or debatable. Therefore, the
certificate of appealability is denied.

ENTER:

2

JXMES F, HOLDERMAN
ited States District Judge

DATE: March 19, 2004

14


, The Supreme Court in Slack also reaffirmed its long-standing position stated in
Ashwander v. TVA, 297 U.S. 288, 347 (1936), that procedural issues, which may be dispositive,
should be resolved before any constitutional question is addressed. Slack, 529 U.S. at 485.

In this case, Robinson filed three motions purportedly under § 2255. His first filing,
which he entitled “First Amended Motion to Vacate, Set-Aside or Correct Conviction or
Sentence Pursuant to 28 U.S.C. 2255" (Dkt. #1)', was mailed to this court from his place of
incarceration on October 8, 2002. The “1-year period of limitation” of § 2255 did not expire
until October 9, 2002, which was one year after the United States Supreme Court denied
Robinson’s second petition for certiorari on October 9, 2001 in Green v. United States,
534 U.S. 968 (2001). Robinson’s first motion (Dkt. #1), therefore, was timely filed. Robinson’s
“Second Amended Motion” (Dkt. #17) was mailed November 27, 2002, a month-and-a-half
after the deadline, and his “Third and Final Motion” (Dkt. #16) was mailed December 7, 2002,
almost two months after his time expired. I have considered only the issues presented in
Robinson’s timely-filed first motion. I did not consider the untimely second or third motions,
and I so advised Robinson in my September 12, 2003 ruling (Dkt. #29). No jurist of reason
would find my decision not to address the motions which Robinson filed after the § 2255
limitation period had expired on the statute of limitations to be wrong or debatable.
Rodriguez v. United States, 286 F.3d 972 (7th Cir. 2002), cert. denied, 123 U.S. 46 (2002).

In his only timely motion (Dkt. #1), Robinson raised two primary issues: (1) ineffective
assistance of his appointed appellate counsel on Robinson’s direct appeal (pages 7-30), and (2)
inadequacy of the general verdicts returned by the jury regarding the narcotics conspiracy and

RICO conspiracy counts (pages 31-40).

"Docket entry designations in the form “Dkt. #__” are to the original docket of this case,
02 CV 7324, unless otherwise stated.


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

EASTERN DIVISION DOLKETED

) MER 9 2 2004
United States of America )
)
Plaintiff, )
) No. 02 CV 7324 (89 CR 908-31)
v. )
) Judge James F. Holderman
Noah R. Robinson )
)
Defendant. y
)

MEMORANDUM OPINION AND ORDER.
DENYING CERTIFICATE OF APPEALABILITY

Noah Robinson (“Robinson”) has sought to initiate an appeal from the dismissal of his
motions filed under 28 U.S.C. § 2255. His right to appeal is governed by the requirements
found at § 2253(c). Under the provisions of that section, a certificate of appealability (“COA”)
may issue only if the applicant has made a substantial showing of the denial of a constitutional
right. The United States Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000), gave
further meaning to that requirement as it pertains to constitutional claims that were addressed
on the merits stating:

Where a district court has rejected the constitutional claims on the merits,

the showing required to satisfy § 2253 (c) is straightforward: The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claim debatable or wrong.

Id. at 484,
As to district court denials on procedural grounds, the Court further held in Slack that:
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should

issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.


. Ineffective Assistance of Counsel, with six (6) sub-categories, each representing separate
and distinct issues, which include the following:

a- Judicial Recusal issue

b- Drug Quantity issue

c- Statutory Maximum Penalty issue

d- Sentencing Guidelines Misapplication issue
e- Rule 54 Statement Fiasco issue

f- Standard of Error issue

Robinson has not sustained the requirements under the Strickland y. Washington, 466
U.S. 668, 687-88, 694 (1984), standard for ineffective assistance by his appellate counsel on
any of his asserted claims. See Smith v. Robbins, 52 U.S. 258, 286-89 (2000) (applying the
requirements of Strickland to a claim of ineffective assistance by appellate counsel).

A. “Judicial Recusal” - Failure to Challenge Mandamus-Only Rule

Robinson contends that attorney Beal’s failure to challenge the mandamus-only rule for
appellate review of Judge Zagel’s denial of Robinson’s motion to recuse constitutes
constitutionally ineffective appellate advocacy. The Sixth Amendment right to effective
assistance of counsel does not and should not compel counsel to have the ability “to forecast

changes or advances in the law.” Valenzuela v. United States, 261 F.3d 694, 700 (7th Cir.

2001). The notion that a counsel’s failure to predict that the Seventh Circuit would change this
long-standing rule regarding review of recusal requests, when the Seventh Circuit to this day
and in the face of dissent among its judges has not done so, to be attorney incompetence is a
notion no reasonable jurist would find to be wrong or debatable.

B. “Drug Quantity” ~ Failure to Challenge the Drug Quantity Determinations by
Judge Zagel

The Seventh Circuit’s April 3, 2001 ruling cited and quoted earlier in this opinion
answers this argument by Robinson. No reasonable jurist would find the ruling to be wrong or

debatable based upon the whole retrial record.

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