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U.S. v. ROBINSON

March 19, 2004.

United States of America, Plaintiff
v.
Noah R. Robinson, Defendant



The opinion of the court was delivered by: JAMES HOLDERMAN, District Judge

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.
Id. Page 2 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),*fn1 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). Page 3

 I. 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)(i) 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. Page 4

 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, I 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." *fn2 The first of the initial three "Illustrations" of which Robinson complains is the Page 5 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 El 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 ...

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