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U.S. v. HUGHES

United States District Court, N.D. Illinois


January 12, 2004.

UNITED STATES OF AMERICA, Plaintiff;
v.
RUBEN D. HUGHES, Defendant

The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AMD ORDER

Petitioner Reuben Hughes ("Hughes"), pro se, petitions the Court under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. For the following reasons, his petition is denied.

I. CASE HISTORY

  In June 1998, Hughes was convicted on five counts of trafficking cocaine and cocaine base, and one count of illegal firearms possession. Following an evidentiary hearing concerning the amount of cocaine base processed by Hughes' organization, the Court sentenced him to life imprisonment on each of the five drug trafficking charges (Counts One through Five). The Court also sentenced Hughes to 10 years on the firearms violation (Count Six).

  On appeal, the Seventh Circuit affirmed Hughes' conviction and sentence, Hughes petitioned the United States Supreme Court for a Writ of Certiorari. On November 6, 2000, the Supreme Court granted his petition and remanded to the Seventh Circuit "for further Page 2 consideration in light of Apprendi v. New Jersey, 530 U.S. 466 (2000)." Hughes v. United States, 531 U.S. 975 (2000),

  In February 2001, the Seventh Circuit affirmed Hughes' conviction and sentence on all Counts except Counts Three and Four, and remanded to this Court for re-sentencing. As Hughes still faced life sentences stemming from Counts One, Two, and Five, the government moved to dismiss Counts Three and Four, and this Court granted the government's motion. On June 14, 2001, the Seventh Circuit dismissed Hughes' appeal for lack of jurisdiction. On March 18, 2002, the Supreme Court denied Hughes' petition for Writ of Certiorari.

  On March 18, 2003r Hughes filed his § 2225 petition. On June 27, 2003, Hughes filed for permission to amend his petition, and the Court granted his request.

  Hughes' amended petition asserts eight claims which Hughes believes entitles him to relief under § 2255: 1) the government relied on false testimony by witness Joseph Nixon ("Nixon"); 2) Hughes' trial counsel proved constitutionally ineffective in his handling of the allegedly false testimony; 3) Hughes' trial counsel proved constitutionally ineffective by not raising the issue of the allegedly false testimony in a post-trial motion; 4) Hughes' appellate counsel provided ineffective assistance of counsel by not raising trial counsel's ineffectiveness; 5) the Court erred by using the preponderance of the evidence standard to determine Page 3 Hughes' drug quantities, in violation of the Apprendi rule; 6) Hughes' appellate counsel proved constitutionally ineffective in failing to raise Apprendi upon direct appeal; 7) the Court erred by not conducting a 21 U.S.C. § 851 (b) colloquy prior to enhancing sentence and 8) trial counsel proved ineffective by not objecting to the defective § 851 inquiry.

  II. DISCUSSION

  A. Joseph Nixon's allegedly false testimony

  To obtain habeas corpus relief based on perjured testimony, a petitioner must, show: 1) that the prosecution presented perjured testimony, (2) that the prosecution knew or should have known of the perjury, and (3) that some likelihood exists that the false testimony impacted the jury's verdict. Harding v. Walls, 300 F.3d 824, 828 (7th Cir. 2002). The Court "does not employ the term of perjury in its technical, legal sense in these types of cases." Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir. 2001). Rather, it is "enough that the jury was likely to understand the witness to have said something that was, as the prosecution knew, false." Id. (internal citations omitted). However, "mere inconsistencies in testimony by government witnesses do not establish the government's knowing use of false testimony." Id. (internal citations omitted).

  Hughes cites two instances in which he claims the prosecution knowingly and willfully used false testimony by witness Nixon. First, Hughes points out that Nixon initially testified that a Page 4 singular transaction occurred in late 1993, but later stated that it happened in October 1994, Since a specific transaction can occur only once, Hughes contends that Nixon's testimony regarding one of these dates must be false. Second, Hughes argues that Nixon falsely testified that he chose to testify only because Hughes signed a statement implicating him. As both Hughes and the government acknowledge, no such statement exists. Ergo, Hughes notes that Nixon's testimony concerning this alleged statement must also be false.

  Given the above evidence, Hughes fails even the first, part of this test. While it is true that Nixon may have incorrectly recounted the details of specific events, it is not true that "the jury was likely to understand the witness to have said something that was . . . false," After all, the prosecution did not hide the minor inconsistencies within Nixon's testimony. It was the prosecution that elicited Nixon's inconsistent testimony regarding the transaction that occurred in either 1993 or 1994 — thereby placing both versions of the story before the jury. Similarly, Hughes' expansive discovery revealed that Hughes never signed a statement implicating Nixon — and Hughes' counsel used the statement's nonexistence when attempting to impeach Nixon on cross-examination. Consequently, Hughes' claims concerning prosecutorial use of false testimony must therefore be denied. Page 5

  Since Nixon's testimony did not reach a problematic level of falsity, neither Hughes' trial nor appeal counsel can be faulted in their handling of this testimony. Accordingly, Hughes' ineffective assistance of counsel claims concerning this allegedly false testimony also fail,

B. Apprendi
  Upon remand from the Supreme Court, the Seventh Circuit conducted an Apprendi — based review of Hughes' sentence. With respect to Counts One, Two, and Five, the Seventh Circuit found that, although this Court committed clear error in sentencing Hughes, its error failed to prejudice the defendant. Conversely, the Seventh Circuit found reversible error concerning Hughes' sentence under Counts Three and Four, and remanded for re-sentencing (those counts were later dismissed).

  Therefore, Hughes has now received every right Apprendi entitles him to. This renders moot Hughes' claim concerning this Court's use of the preponderance of the evidence standard in the original sentencing, and his claim that appellate counsel was ineffective by not raising Apprendi.

  C. The 21 U.S.C. § 851(b) colloquy

  Hughes also challenges his sentence on the grounds that the Court failed adequately to engage in a 21 U.S.C. § 851(b) colloquy. Additionally, Hughes insists that his lawyer's supposed failure to object to this inadequate colloquy constitutes ineffective Page 6 assistance of counsel. Section 851(b) requires that the prosecuting United States attorney and the Court comply with certain procedures prior to enhancing a defendant's sentence due to previous convictions. Specifically, the statute demands that, "If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack the sentence." 21 U.S.C. § 851(b).

  Here, Hughes alleges two infractions that he feels warrants a re-sentencing. First, he claims that the Court failed to inquire as to whether he affirmed or denied his previous listed convictions. However, as the transcript amply demonstrates, the Court did engage in such an inquiry. In fact, during this questioning, Hughes claimed that he failed to remember two of the listed convictions, though he did not specifically dispute their existence. (Tr. 1/13/99 p.m., pg. 24-26.) Thus, the Court finds that it complied with this requirement.

  Second, Hughes argues that the Court failed to inform him that any challenge to a prior conviction which is not made before sentence is imposed may not thereafter be raised to attack Page 7 sentence. Since Hughes has not attacked any of his previous convictions, the Court finds this claim moot.

  As the Court rejects petitioner's claims concerning the § 851(b) colloquy, it similarly denies petitioner's claim for ineffective assistance of counsel regarding the colloquy.

  CONCLUSION

  For the reasons stated herein, Petitioner's Petition under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence is denied.

  IT IS SO ORDERED.

 

? Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury rendered its verdict.
? Decision by Court. This action came before the Court. The issues have been tried or heard and u decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that Ruben D. Hughes' Petition to vacate, set aside, or correct sentence is denied.

20040112

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