(claim five) based on counsel’s failure to raise the maximum-sentence issue. The Court ordered
a hearing on the issue of ineffective assistance and appointed counsel to represent Knox.

At the hearing, which took all of ten minutes, Knox’s trial and appellate counsel testified
that he had simply missed the maximum-sentence issue. Neither Knox’s counsel nor the
government contends that counsel’s omission of the maximum-sentence issue had any strategic
or tactical basis, or that counsel’s failure to raise the issue was not ineffective assistance because
the Seventh Circuit had rejected a similar claim in its own Edwards ruling. For the reasons
discussed in our earlier ruling in this case, counsel’s performance in this regard fell below
constitutional minimums, leaving before us today only the question whether Knox was
prejudiced as a result of the ineffective assistance. For the reasons indicated below, however, the
Court is convinced that Knox’s maximum-sentence claims are without merit and thus that he
cannot show he was prejudiced by his lawyer’s error.

After the Court set Knox’s case for a hearing, the government came out of its fog, filing a
motion to reconsider in which, for the first time in our estimation, it took Knox’s maximum-
sentence claims with the appropriate level of seriousness. It argued that the Court had erred in its
analysis of the issue in several respects; it gave extended treatment to the question of whether
harmless error analysis should apply; and it also argued, for the first time, that application of the
tule of Orozco-Prada to Knox’s case in the context of a § 2255 motion would violate Teague v.
Lane 489 U.S. 288 (1989), which holds that a new rule of constitutional procedure! cannot be

“applied to convictions that were final at the time the new rule was announced.

' The constitutional underpinning of Orozco-Prada is that an assumption that the jury
found the defendant guilty of anything other than the least-serious object of a multiple object
conspiracy violates the defendant’s right to a jury trial.

4



prejudice required to overcome the procedural default of his maximum-sentence claims.
Conclusion
For the reasons stated above, the Court grants the government’s motion to reconsider
[docket # 22-1] and dismisses all of Knox’s remaining claims. The Clerk is directed to enter
judgment in favor of the United States. Knox’s counsel are invited to submit a Criminal Justice

Act appointment form and voucher, in the appropriate format, at their earliest convenience.

MATTHEW F, KENNELLY
United States District Judge

Date: March 9, 2004



retroactively to cases pending on collateral review); Griffith v. Kentucky, 479 U.S. 314, 320-328
(1987) (applying rule of Batson v. Alabama to case pending on direct review when Batson was
decided).

The Court likewise rejects the government’s effort to torture out of the Seventh Circuit’s
decision in the direct appeal of one of Knox’s co-defendants an indication that the Seventh
Circuit still would reject Orozco-Prada even after the Supreme Court’s Edwards decision.
Adrian Bradd raised an Orozco-Prada issue in his appeal (Seventh Circuit Case No. 98-3840),
but the Seventh Circuit rejected the argument without even mentioning it directly. See United
States v. Hoover, 246 F.3d 1054, 1062 (7th Cir. 2001) (“None of the other arguments concerning
sentencing calls for a reduction.”). The government would have us read this as a square rejection
of Orozco-Prada, But as the government itself notes, “Bradd had forfeited the Orozco-Prada/
Edwards issue in the district court.” See Gov’t Reconsideration Reply at 4. For that reason, the
Seventh Circuit’s rejection of the point in Bradd’s appeal cannot sensibly be viewed as a ruling
on the issue’s merits.

The Court is persuaded, however, that it erred in stating that harmless error analysis does
not apply to Orozco-Prada errors. As the government correctly points out,’ the Supreme Court
has held that most constitutional errors can be harmless; only those errors that are “structural,” in
the sense that they “affect[ ] the framework within which the trial proceeds, rather than simply an
error in the trial process itself,” subject a conviction to automatic reversal. See Neder v. United

States, 521 U.S. 1, 8 (1999). Errors in the automatic-reversal category include the complete

? Unlike the Teague argument, the government made the harmless error argument in its
original response to Knox’s § 2255 motion, though as noted earlier it did not develop the point.

6



The government’s Teague argument comes too late in the day. Teague is a non-
jurisdictional rule that is subject to waiver by the government. See Schiro v. Farley, 510 U.S.
222, 229 (1994) (citing Godinez v. Moran, 509 U.S. 389, 397 n.8 (1993)). The government
waived it here by failing to mention it in its answer to Knox’s motion. Though a court may
consider, or even raise on its own motion, a Teague issue that the government has waived, see,
e.g., Thomas v. Gilmore, 144 F.3d 513, 516 (7th Cir. 1998), we decline to do so in this case.
First of all, the argument would not bar Knox’s ineffective assistance claim in any event.
Second, the government had ample opportunity to address Knox’s claims in its response: it
addressed the claims both on the merits and based on procedural default, but it did not mention
Teague until after the Court had ruled that the maximum-sentence claims would not be
dismissed. Were the Court to allow the government to raise the issue now, we would effectively
be saying that the parties’ briefs on a contested matter are merely a dry run, with a second go-
round after they see what works and what does not work. Reconsideration is not the time to raise
significant issues like the government’s Teague argument. As the Seventh Circuit has stated,
“[m]otions for reconsideration serve a limited function: to correct manifest errors of law or fact
or to present newly discovered evidence.” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d
246, 251 (7th Cir. 1987). The government’s newly-minted Teague argument falls in neither
category. And even were the Court to excuse the waiver, it is not clear that Teague would bar
Knox’s maximum-sentence claim, as what we consider to have been the Supreme Court’s
approval of Orozco-Prada in Edwards came while Knox’s case was still pending on direct
appeal. See, e.g., Wright v. West, 505 U.S. 277, 293 (1992) (“new rules always have retroactive

application to criminal cases pending on direct review,” even though they do not apply



both involve the proper allocation of responsibility to the jury, a core value in our criminal justice
system. Given that context, the Court is hard pressed to say that an Apprendi error is any less
“structural” than an error under Orozco-Prada. And yet Apprendi errors are subject to harmless
error analysis (just as is the case when the judge erroneously fails to instruct the jury on an
element of the offense and thus effectively decides that issue himself, see Neder, 527 U.S. at 8-
13). See, e.g., United States v. Nance, 236 F.3d 820, 825 (7th Cir. 2000). It follows that the
same should be true of Orozco-Prada errors and would be true in this Circuit were the Seventh
Circuit to follow Orozco-Prada. The Court therefore disagrees with those courts that have
determined that Orozco-Prada is not subject to harmless error analysis.

Applying harmless error review, the 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, 527 U.S. at 18. This is,
as the government argues, the exact point that the Seventh Circuit decided on remand in Knox’s
case. Specifically, the court found that “the evidence shows beyond any possible doubt that
[Knox was] responsible for such a large quantity of drugs that had the jury been correctly
instructed, it would have found (him) guilty beyond a reasonable doubt of the offenses for which
{he was] sentenced,” namely a conspiracy to distribute narcotics carrying a possible term of life
in prison, United States v. Green, Nos. 98-2036, 98-2037, 98-2038, 98-2060, 2001 WL 338109,
at *1 (7th Cir. Apr. 3, 2001) (unpublished decision). For this reason, Knox has 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) — or to establish the cause-and-



Ifinuce Order Riper (06497)

ae Cou States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge If Other
ov Magistrate Judge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 02 C 7392 DATE 3/9/2004
CASE USA vs. Sammy Knox
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) Qa Brief in support of motion due

Q@) a Answer brief to motion due. . Reply to answer brief due.

(4) a Ruling/Hearing on set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at

(6) Oo 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) a [Bench/Jury trial] [Hearing] held/continued to at

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

OOFRCP4(m) CLocal Rule 41.1. CFRCP41(a)(1) 1 FRCP41(a)(2).

(10) | {Other docket entry] For the reasons set forth on the attached Memorandum Opinion and Order,
the Court grants the government’s motion to reconsider (22-1) and dismisses all of Knox’s remaining
claims. Judgment is entered in favor of the United States. Knox’s counsel are invited to submit a
Criminal Justice Act appointment form and voucher, in the appropriate format, at their earliest
convenience.

(dl) ff (For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document
No notices required.
Notices mailed by judge’s staff.
Notified counsel by telephone.
Y | Docketing to mail notices.

Mail AQ 450 form. ,
Copy to judge/magistrate judge. tknoo 13! Y isi sn

courtroom ey pas

OR deputy’s Eu ee
initials
Date/time received in
~_ central Clerk's Office rating deputy initials



denial of counsel, the refusal of self-representation, the denial of a public trial, bias of the trial
judge, and defects in how the jury is instructed on the fundamental concept of reasonable doubt.
See id. (citing cases), “Such errors infect the entire trial process, and necessarily render a trial
fundamentally unfair. Put another way, these errors deprive defendants of basic protections
without which a criminal trial cannot reliably serve its function as a vehicle for determination of
guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.”

Id. (citations and internal quotation marks omitted).

Upon further consideration, the Court does not believe that a violation of the rule of
Orozco-Prada falls within this “limited class,” Neder, 521 U.S. at 8, such that harmless error
analysis does not apply. Though as indicated in our earlier ruling in this case there are logical
distinctions between Orozco-Prada error and Apprendi error, there are similarities between the
two that are instructive. An Orozco-Prada error occurs when the jury returns a general verdict of
guilty on a conspiracy charge that involved multiple objects, making it impossible to say exactly
what the jury decided. A judge who imposes, in that scenario, a sentence higher than the
maximum for that applicable to the least-serious object of the conspiracy has made a potentially-
unwarranted assumption about what the jury found. He has effectively intruded into the jury’s
decision making process and imposed his own interpretation of the outcome. An Apprendi error
occurs when the judge, rather than the jury, decides a fact that increases the penalty for an
offense beyond the prescribed statutory maximum. Apprendi, 530 U.S. at 490. When this
occurs, the judge has effectively usurped a responsibility that the Constitution confers upon the
jury.

In sum, though the issues posed by Orozco-Prada and Apprendi are logically distinct,


Orozco-Prada, and that his claim was logically distinct from the Apprendi claim that the Seventh
Circuit had dealt with on remand.

As indicated earlier, the Court declined to dismiss Knox’s maximum-sentence and related
claims. We noted that several circuits (though not the Seventh) had adopted Orozco-Prada at the
time of Knox’s sentencing. See Knox, 2003 WL 22012680, at *3 (citing Orozco-Prada; United
States v. Garcia, 37 F.2d 1359, 1369-71 (9th Cir. 1994); United States v. Bounds, 985 F.2d 188,
194-95 (Sth Cir. 1993); United States v. Owens, 904 F.2d 411, 414-15 (8th Cir. 1990); Newman
v. United States, 817 F.2d 635 (10th Cir. 1987)). And contrary to the government’s argument,
the Supreme Court’s Edwards decision not only did not uphold the Seventh Circuit’s contrary
ruling, it appeared to reflect approval of Orozco-Prada, which the Court cited favorably in
Edwards. See Knox, 2003 WL 22012680, at *4 (citing Edwards, 523 U.S. at 515). Two circuits,
in fact, had read Edwards as approving of Orozco-Prada. Id. (citing United States v. Allen, 302
F.3d 1260, 1269 (11th Cir. 2002); United States v. Zillgitt, 286 F.3d 128, 135-36 (2d Cir. 2002)).
And at least two circuits had held that Orozco-Prada maximum-sentence errors were not subject
to harmless error review, in contrast to Apprendi errors. Id. at *5 (citing Zillgitt, 286 F.3d at 139-

40; Allen, 302 F.3d at 1276, 1277). We indicated that if harmless error analysis did not apply,
then Knox “had a solid Orozco-Prada issue.” Id.

Because Knox procedurally defaulted his maximum-sentence claims (claims two and
three), he was required to show cause for the default and prejudice resulting from it before the
Court can consider those claims on their merits. To establish cause for the default, Knox had to
show that his counsel were ineffective in failing to raise the maximum-sentence claims. This

was essentially the same showing needed to establish his stand-alone ineffective assistance claim


second claim. That claim is premised on the fact that the narcotics charge involved an allegation
of a conspiracy to distribute multiple types of drugs, but the jury (with both sides’ acquiescence)
returned a general verdict of guilty. The claim is based on United States v. Orozco-Prada, 732
F.2d 1076 (2d Cir. 1984), and its progeny in other circuits. Knox argues that because there was
no way of knowing what particular type or types of drugs formed the basis for the conviction, it
was improper to impose a sentence exceeding the maximum for conspiracy to distribute codeine
syrup, the drug that carried the least severe maximum sentence of those alleged to have been part
of the conspiracy. Knox argued in his third claim that a life sentence for tacketeering conspiracy
was improper because RICO permits a life sentence only if the penalty for one of the underlying
racketeering acts is life in prison, which would not be the case if he were sentenced at the
maximum for distributing codeine syrup. Knox’s fifth claim (at least the part of it we did not
dismiss) was also related to claim two: he argued that his trial and appellate counsel were
ineffective for failing to argue the maximum-sentence issue involved in claims two and three.

In its response to Knox’s petition, the government gave Knox’s second claim the back of
its hand. It made a two-paragraph argument which stated the following, without elaboration: at
the time of Knox’s sentencing, his maximum-sentence argument was foreclosed in this Circuit by
United States v. Edwards, 105 F.3d 1179, 1180-81 (7th Cir. 1997); Edwards was affirmed by the
Supreme Court in 1998, see Edwards v. United States, 523 U.S. 511 (1998); in any event Knox’s
maximum-sentence argument has been subsumed by Apprendi; and on remand of Knox’s case,
the Seventh Circuit found any Apprendi error harmless. See Gov’t Resp. at 5-6. The government
made no effort to develop these points in its response, and Knox effectively rebutted them in his

reply, pointing out that the Supreme Court’s Edwards decision actually connoted approval of



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

EASTERN DIVISION
MAR 1 5 2004
UNITED STATES OF AMERICA )
)
vs. ) Case No. 02 C 7392
)
SAMMY KNOX )

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Sammy Knox was convicted, along with several other defendants, of narcotics conspiracy
under 21 U.S.C. § 846 and racketeering conspiracy under 18 U.S.C. § 1962(d) and was sentenced
to life in prison. His conviction and sentence were affirmed on appeal, and after the Supreme
Court remanded the case to the Seventh Circuit for reconsideration in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), Knox’s sentence was again reaffirmed.

Knox then filed a pro se motion in this Court under 28 U.S.C. § 2255 seeking to vacate
his conviction and sentence. He raised six claims, several of which the Court dismissed after
considering the government’s response to the motion and Knox’s reply. See United States v.
Knox, No. 02 C 7392, 2003 WL 22012680 (N.D. Ill. Aug. 26, 2003). The Court declined,
however, to dismiss two claims and part of a third and ordered a hearing. The government
moved to reconsider the Court’s ruling, but we deferred ruling on that motion until after the
evidentiary hearing. The government’s motion and Knox’s remaining claims are now ripe for
decision.

We begin by revising briefly the remaining claims and their procedural history, to provide

context for the matters under consideration. Each of the claims that remains is related to Knox’s

3S