However, Defendant did not produce a statement by Clyvester Robinson or live testimony
from Clyvester Robinson at the hearing. Since the time of the evidentiary hearing, no filings
have been made concerming the written statement.

ANALYSIS

28 U.S.C. § 2255 provides that a prisoner in custody pursuant to a sentence of a federal
court may collaterally attack a sentence for a number of various reasons. However, “the failure
to raise an issue on direct appeal generally bars a defendant from raising it in a subsequent post-
conviction proceeding.” Barker v. United States, 7 F.3d 629, 632 (7th Cir. 1993). Thus, a
defendant cannot raise non-constitutional issues that were not raised on direct appeal. Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992).

In this case, Defendant could have raised the issues concerning false and incomplete
testimony, the proffer agreement, and the sentence miscalculation on direct appeal. As noted
above, Defendant conceded this point at the evidentiary hearing. Accordingly, these issues have
been procedurally defaulted and cannot be raised in a § 2255 motion.

As to his ineffective assistance of counsel claim, Defendant argues that his attorney was
ineffective at the sentencing hearing because: (1) he failed to call certain witnesses that would
demonstrate Defendant could not have driven his own semi-tractor to steal and transport the
materials; and (2) he failed to rebut the Government’s assertion that certain documents could not
be accepted at face value as truthful, even though those documents could have been authenticated
under the Federal Rules of Evidence.

To succeed on his claim of ineffective assistance of counsel, Defendant must show that:

(1) his attorney’s performance fell below an objective standard of reasonableness, and


CONCLUSION

For the foregoing reasons, Defendant’s Motion to Vacate, Set Aside, or Correct Sentence

by a Person in Federal Custody is denied.

Dated: laepale 2004

JOHN W. DARRAH
jted States District Judge



Special Agent John Newcomb presented incomplete testimony at Defendant’s sentencing
hearing; (3) the Government failed to honor a proffer agreement and instead used statements in
the proffer agreement to aggravate Defendant’s sentence; and (4) the sentence was miscalculated
because an incorrect loss amount was attributed to Defendant.

Defendant also contends that he received ineffective assistance of counsel at his
sentencing hearing because his attorney failed to adequately prepare. Specifically, Defendant
argues that his attorney was ineffective because: (1) he failed to call certain witnesses that would
demonstrate Defendant could not have driven his own semi-tractor to steal and transport the
materials; and (2) he failed to rebut the Government’s assertion that certain documents could not
be accepted at face value as truthful, even though those documents could have been authenticated
under the Federal Rules of Evidence.

An evidentiary hearing was later held on Defendant’s motion. At the hearing, Defendant
conceded that his only proper challenge “boiled down to one constitutional issue, and that is the
ineffective assistance of counsel.” (Mot. Hr’g, June 3, 2003, at 12).

In support of this argument, Defendant claimed that a written statement, which was
purportedly made by a Clyvester Robinson and given to one of Defendant’s prior attorneys,
substantiates Defendant’s alibi by showing Defendant did not participate in the theft at issue and
did not drive his own semi-tractor to steal and transport the materials. According to Defendant,
the statement would show that Defendant’s semi-tractor was being serviced at the time of the
theft at issue; and, therefore, Defendant could not have used his semi-tractor to commit the theft,
as the Government contended. Defendant was the only person who testified at the evidentiary

hearing.



(2) Defendant suffered prejudice from the unreasonable performance. Coleman v. United States,
318 F.3d 754, 760 (7th Cir. 2003) (Coleman) (citing Strickland v. Washington, 466 US. 668, 688
(1984)). Reasonableness is measured under the standard of professional norms. Coleman, 318
F.3d at 760 (citation omitted). “To meet the prejudice prong, [Defendant] must show that but for
counsel’s error, the results would have been different.” Coleman, 318 F.3d at 760 (citation
omitted), “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.” Strickland v. Washington, 466 U.S. 668, 697
(1984)).

Defendant’s assertion that his attorney was ineffective at the sentencing hearing because
he failed to call certain witnesses at the hearing does not show that Defendant was prejudiced,
even if, contrary to any evidence, his attorney’s performance fell below an objective standard of
reasonableness. Defendant’s motion claims that certain unnamed witnesses would exonerate
Defendant by showing that he did not participate in the theft at issue and did not drive his own
semi-tractor to steal and transport the materials. At the evidentiary hearing, Defendant repeated
this claim and explained that a written statement, which was purportedly made by a Clyvester
Robinson, would exonerate Defendant.

However, Defendant failed to present this written statement at the evidentiary hearing, or
at any time after the evidentiary hearing. Defendant also failed to present live testimony from
Clyvester Robinson. The only person that testified on behalf of Defendant was Defendant
himself, and Defendant’s self-serving testimony was not credible. Therefore, it cannot be said
that, but for the errors, if any, made by Defendant’s attorney at the sentencing hearing, the results

would have been different.



Minute Order Form (06/97)

United States District Court, Northern District of Minois

Name of Assigned Judge
or Magistrate Judge

John W. Darrah

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 CR 572 DATE 8/30/2004
CASE USA vs. Norman Stapleton
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:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) im) Answer brief to motion due. . Reply to answer brief due.
(4) Qa Ruling/Hearingon set for at.
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Qo Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) o Trial{set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) oa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocal Rule 41.1 COFRCP41(a\(1) OO FRCP41(a)(2)
(0) =x [Other docket entry] For the reasons stated in the attached memorandum opinion and order,
defendant’s motion to vacate, set aside, or correct sentence by a person in Federal Custody, is denied.
Enter Memorandum Opinion and Order.
dl) @f [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required. ; umber of ntiees
Notices mailed by judge’s staff. .
Notified counsel by telephone, y 1.
vo | Docketing to mail notices. \
Mail AO 450 form. docketing fleputy initials
Copy (o judge/magistrate judge. \
daze mdted Nosice
courtroom
MF deputy's '
initials = ot
Date/time received in
central Clerk's Office mating depaydnitils



Defendant’s claim that his attorney failed to rebut the Government's assertion that certain
documents could not be accepted at face value as truthful at the sentencing hearing fails to
demonstrate that his attomney’s performance fell below an objective standard of reasonableness.
First, the Federal Rules of Evidence do not apply at sentencing. Fed. R. Evid. 1101(d)(3).
Second, simply demonstrating that a document is authentic does not preclude the opposing party
from arguing that the document is not credible evidence. See Fed. R. Evid. 104(e).

Based on the above, Defendant has not demonstrated that he received ineffective
assistance of counsel at the sentencing hearing.

Lastly, Defendant filed a supplemental memorandum of law contending that his sentence
was in violation of Blakely v. Washington, 124 S. Ct. 2531 (2004), because certain facts may
have been used to enhance Defendant’s sentence without an admission by Defendant or an
explicit finding by a jury. However, the holding of Blakely has yet to be extended retroactively.
Simpson v. United States, No. 04-2700, 2004 WL 1636965, at *2 (7th Cir. July 23, 2004)
(Simpson). Accordingly, Defendant’s request under Blakely is denied without prejudice to refile
a renewed application on Blakely grounds if the United States Supreme Court determines that

Blakely applies retroactively. Simpson, 2004 WL 1636965, at *2.



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA
. No: 02 CR 572
y D0cKE rE * OM 1303

NORMAN STAPLETON 46 3 7 2004 Judge John W. Darrah

we reve ev

MEMORANDUM OPINION AND ORDER

The United States of America (“the Government”) brought a two-count information
against Defendant, Norman Stapleton. Thereafter, Defendant pled guilty to both counts of his
information and was sentenced. At sentencing, Defendant received a two-level enhancement,
pursuant to United States Sentencing Guideline § 3B1.3, because Defendants track driving skills
were considered special skills that aided Defendant in committing the offenses. Defendant raised
a number of issues, including whether his attorney at the time of sentencing failed to present a
witness that would have exonerated Defendant. Presently before the Court is Defendant’s
Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed pursuant
to 28 U.S.C. § 2255. For the following reasons, that motion is denied.

BACKGROUND

The facts, for the purposes of this motion, are as follows. Defendant was charged in a
two-count information, alleging that: (1) Defendant conspired to steal goods from interstate
shipment, and (2) Defendant knowingly possessed goods stolen from interstate shipments.
Thereafter, Defendant pled guilty to these charges without entering into a plea agreement with

the Government.



The Presentence Investigation Report included a two-level enhancement, pursuant to
pursuant to United States Sentencing Guideline § 3B1.3, for use of a special skill not possessed
by members of the general public in a manner that significantly facilitated the commission of the
charged offenses. Specifically, the Presentence Investigation Report contended that Defendant
used his skills as a licensed commercial truck driver to drive his own semi-tractor to steal and
transport the materials.

After hearing testimony and argument on the issue at the sentencing hearing, it was
determined that Defendant did not qualify for a reduction, which Defendant sought, claiming he
was a minor participant, under § 3B1.2. Additionally, it was found that Defendant used a special
skill in a manner that significantly facilitated the commission of the offense; and, therefore, a
two-level enhancement was appropriate.

Defendant objected to this enhancement but conceded that the use of truck driving skills
was an appropriate basis for the special skill enhancement. Instead, Defendant argued that the
enhancement did not apply to him because he did not participate in the theft at issue or drive his
own semi-tractor to steal and transport the materials.

Subsequently, Defendant filed a Notice of Appeal in the United States Court of Appeals
for the Seventh Circuit. Before the merits of the appeal could be considered, however,
Defendant filed a motion to dismiss the appeal pursuant to Federal Rule of Appellate Procedure
42(b).

Defendant next filed the instant motion under 28 U.S.C. § 2255. Defendant raised a
number of alleged errors, including: (1) false testimony was presented by Eugene Brock, a co-

defendant in this matter, at Defendant’s sentencing hearing; (2) Federal Bureau of Investigation