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UNITED STATES v. JOINER

March 23, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL JOINER, Defendant.


Leinenweber


The opinion of the court was delivered by: HARRY D. LEINENWEBER

FACTS

 On October 12, 1987, a masked man approached Thelma Tetter ("Tetter") from behind a building as she was returning home from work. The man shot at Tetter five times and consequently wounded her in her left leg. She was not pursued nor were any of the contents of her purse taken. Tetter was the mother of Anthony Sumner ("Sumner"), a former high-ranking El Rukn member. At the time of the shooting Tetter, Sumner had been cooperating with law enforcement authorities in their investigation of the El Rukn organization and was in protective custody. The prosecution planned to call Sumner as a witness in the trial of Jeff Fort, the leader of the El Rukns, as well as other El Rukn members.

 On June 7, 1993, Joiner filed a habeas corpus petition on the printed form provided by the Clerk of the United States District Court for the Southern District of Indiana, Terre Haute Division, for use in habeas corpus petitions under 28 U.S.C. § 2241. In this petition, Joiner asked for leave to proceed without payment of the filing fee and for a Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), hearing and a new trial. Joiner's petition was initially assigned to Judge Milton I. Shadur. In a Memorandum Order dated June 29, 1993, Judge Shadur granted Joiner leave to proceed in forma pauperis and construed Joiner's petition as a 28 U.S.C. § 2255 petition. Judge Shadur then transferred Joiner's petition to this court which is the court that sentenced Joiner. In transferring Joiner's petition to this court, Judge Shadur followed the requirements of section 2255 Rule 4(a), which states that a motion to vacate, set aside or correct a sentence "shall be presented promptly to the judge of the district court who presided at the movant's trial and sentenced him."

 DISCUSSION

 The court examined Joiner's petition and gave it initial consideration pursuant to Rule 4(b) of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. § 2255. Consequently, in a Minute Order dated July 21, 1993, the court ordered the United States Attorney to file an answer to Joiner's petition.

 Joiner bases his petition for relief under section 2255 on numerous claims. First, he alleges that there was insufficient evidence to convict and sentence him for using a firearm in commission of a felony in violation of 18 U.S.C. § 924(c) because no weapon was ever offered into evidence against him at trial. Next, he contends that he was the victim of much publicized prosecutorial misconduct that has taken place in many of the cases involving the El Rukns. Joiner also claims that the prosecutors offered into evidence against him statements concerning another retaliation shooting case (in which Joiner was subsequently found not guilty) and that this evidence was admitted for use in sentencing Joiner for his conviction in the Tetter shooting. Thus, he claims that the court relied on inaccurate information in his presentence investigation report ("PSI") in sentencing him.

 Joiner then claims that he received ineffective assistance of counsel at trial. He contends that he was left defenseless during his trial because of his counsel's failure to call his only defense witness. He alleges that his witness, Delores Howard ("Howard"), was at the same location as DeJean and Clark on the evening of the shooting.

 Finally, Joiner asks for a Franks hearing; however, because Judge Shadur construed Joiner's petition as a section 2255 petition, it is proper to assume that what Joiner was really requesting was a section 2255 hearing under Rule 8(a). Joiner alleges that the testimony of DeJean and Clark was impeachable and, thus, there was insufficient evidence to convict him.

 In his reply to the government's answer, Joiner notes that the Seventh Circuit erred in its first opinion of May 29, 1990, affirming his conviction and sentence. This error was corrected when the court amended its decision on June 4, 1990. The error consisted of a misstatement of the date of the return of his indictment.

 DISCUSSION

 Pro se litigants are not bound by the stringent standards governing trained attorneys; therefore, the court liberally construes petitioner's section 2255 petition. Jamison-Bey v. Thieret, 867 F.2d 1046, 1047 (7th Cir. 1989); see Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972). However, "arguments raised for the first time in a reply brief are waived." U.S. v. Hughes, 970 F.2d 227, 235 n.6 (7th Cir. 1992) (citations omitted); see also In Re Bear, 789 F.2d 577, 579 (7th Cir. 1986) ("We do not allow an appellant to raise new issues in the reply brief. . . .") Thus, those issues not addressed in Joiner's petition, but raised for the first time in his reply to the government's answer, are not considered. Joiner's claim that this court never had subject matter jurisdiction or personal jurisdiction over him is not considered by the court because Joiner presented it for the first time in his reply brief. Petitioner's Reply Brief at 4. This claim was not mentioned in, and could not be liberally construed from, Joiner's original petition.

 Under 28 U.S.C. § 2255, federal prisoners can challenge the imposition or length of their detention "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. . . ." 28 U.S.C. § 2255. If the court determines that any of these grounds exist, "the court 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." Id. After reviewing the prisoner's motion, the United States Attorney's answer, and any transcripts or records of prior court actions in the matter, the judge shall determine whether an evidentiary hearing is required. Rule 8(a) of the Rules Governing section 2255 Proceedings. Under section 2255, "if there is no reason to suppose that a hearing would produce evidence justifying the grant of a new trial, there is no reason to hold a hearing." U.S. v. Taglia, 922 F.2d 413, 419 (7th Cir. 1991), cert. denied, McDonnell v. U.S., 500 U.S. 927, 114 L. Ed. 2d 125, 111 S. Ct. 2040 (1991). In other words, "a judge should dismiss the petition without a hearing if it plainly appears from the ...


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