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April 21, 2004.

JOHNNY JACKSON, Leinenweber Petitioner

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


Before the Court is the Defendant Johnny Jackson's (hereinafter "Jackson") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons stated below, the Petition is denied.


  Jackson was convicted alter a jury trial of conspiracy to distribute narcotics as part. of his involvement, in the Gangster Disciples street gang, Jackson, a member of the so-called "board of directors" of the gang, was found guilty of narcotics conspiracy in violation of 21 U.S.C. § 846, one count. of substantive possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(l.), and fifteen counts of using telephones in furtherance of the conspiracy in violation of 23 U.S.C. § 843 (b). Jackson was sentenced to a term of imprisonment of 100 years, based on a 20-year term each for the conspiracy count and the substantive possession count, and 4 years each for the telephone counts, all to run consecutively. The "linchpin" of the government's case against Jackson was wiretap surveillance of conversations involving Jackson and other members of the gang First, the government, under a court order pursuant, to 18 U.S.C. § 2518(3), recorded conversations between several individuals, including Jackson, and Larry Hoover, the "chairman" of the Gangster Disciples, at the Vienna Correctional Center. Second, the government later obtained wiretap authorizations for telephones at Shrimp on the Nine restaurant, the home telephone of Gangster Disciple Cedric Parks, and a cellular telephone used by board member Darryl Johnson.

  In March 2003, Jackson filed this petition for post-conviction relief pursuant to 28 U.S.C. § 2255. He argues that his trial attorney was constitutionally ineffective for three reasons:
1) failure to "mount a vigorous challenge" to the government's placement of "listening bugs" on Jackson's person to record conversations between Jackson and Larry Hoover;
2) failure to request, at the end of the government's case, the dismissal of counts 1.4, 19, 20, 22, 23, 25-27, and 29-36 on the specific grounds that the government failed to prove that Jackson aided and abetted another in the commission of those offenses; and
3) Failure during sentencing to challenge vigorously as violative of the language of 21 U.S.C. S 841(b)(1)(C) and due process the District Court's determining that Jackson was responsible for 150 kilograms of cocaine/1.5 kilograms of cocaine base.
Jackson also argues that his appellate counsel, was constitutionally ineffective because counsel focused solely on the argument that the damaging wiretap evidence should have been suppressed, Jackson argues that his appellate counsel should have instead focused on other arguments, as follows:
1) Ineffective assistance of trial counsel for the reasons noted above;
2) Jackson's sentence should have been based or, his participating in a conspiracy solely Lo distribute marijuana rather than cocaine; and
3) The district court's imposition of consecutive sentences on each count of the conviction, rather than concurrent sentences, was disfavored by the sentencing guidelines and based upon the court's erroneous belief that it lacked statutory discretion under 18 U.S.C. § 3584 to impose concurrent sentences.
A. Standards for Habeas Corpus
  23 U.S.C. § 2255 provides that "a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside, or correct, the sentence." To receive relief under 28 U.S.C. § 225b, Jackson must show a " fundamental defect which inherently results in a complete miscarriage of justice," United States v. Addonizio, 442. U.S. 178, 1.85 (1979), or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 42.8 (1962), Here, Jackson alleges ineffective assistance of counsel. As an initial matter, the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 687, 689 (1994). The Court will find ineffective assistance of counsel only when a petitioner establishes both elements of the Strickland two-prong test. The Petitioner must, show that (1) his counsel's performance was deficient to the extent that, counsel failed to function as the "counsel" guaranteed to the defendant by the Sixth Amendment, and (2) this deficient, performance prejudiced his defense such that, it deprived him of a fair trial with a reliable result.

  B. Ineffective Assistance of Trial Counsel

  I. Pre-trial

  Jackson first argues that, his attorney was ineffective because he should have, but did not, mount a "vigorous challenge" to the government's placement of hidden transmitters on Jackson's person, by way of a prison visitor's badge, in order to intercept conversations between him and Larry Hoover during Jackson's visits to the Vienna Correctional Center. Jackson argues that, his counsel should have challenged the use of these conversations because the government's interception of them violated his Fourth Amendment rights, as well as his statutory rights under 18 U.S.C. § 2511 (2)(c).

  First and foremost, Jackson's trial counsel did challenge the wiretap evidence, albeit on somewhat different grounds than those that Jackson asserts now, when he moved to suppress the evidence and dismiss the indictment prior to trial. Jackson's attorney moved to suppress the wiretap evidence based on the following two grounds: (1) that the government failed to seal the wiretap evidence immediately as required by 18 U.3.C. § 2518(8)(a) and did not offer an objectively reasonable excuse for the delay, and (2) the government. failed to establish in its wiretap applications a showing of necessity as required by 18 U.S.C. § 2518 (1)(c). This Court denied the motion to suppress, just as with identical motions previously made by Jackson's co-defendants. The denial of Jackson's motion to suppress the wiretap evidence was upheld on appeal by the Seventh Circuit. United States v. Jackson, 2001 WL 1092784, at *106 (7th Cir. Sept. 14, 2001). Further, the same wiretap that Jackson now challenges has been repeatedly and unsuccessfully challenged in the appellate courts by several different, defendants and attorneys. See, United States v, (Harold) Jackson, 207 F.3d 920 (7th Cir. 2000); United Stated v. Hoover, 246 F.3d 1054, 1057 (7th Cir. 2001); United States v. Wilson, 237 F.3d 827, 831 (7th Cir. 2001).

  Jackson asserts that, his counsel should have challenged the wiretapping on both constitutional and statutory grounds different, from those presented at trial. Jackson's asserted claim that, his attorney should have argued that, the wiretapping violated Jackson's Constitutional Fourth Amendment right fails to meet, the requirements of the Strickland deficient performance prong. In the ordinary case, for the government to satisfy the requirements of the fourth Amendment, it must show probable cause for the search and/or seizure and obtain a warrant, to conduct that, search and/or seizure. U.S. Const. Amend, IV, see;, e.g., California v. Carney, 471 U.S. 386, 390 (1995). Here, both the probable cause and the warrant requirements were fulfilled because the government acquired a warrant based on probable cause when it "obtained a court order pursuant Lo 18 U.S.C. § 2518(3) that authorized the wiretap surveillance of conversations at the Vienna Correctional Center between Hoover and visitors who unwittingly wore hidden transmitters inside their visitors' badges." United States v. Jackson, 2001 WL 1092784, at *406 (7th Cir. Sept. 14, 2001). 18 U.S.C. § 2518(3) requires the government to follow prescribed procedures to obtain judicial authorization for wiretap surveillance, and the judge will not issue an order authorizing such wiretap surveillance pursuant to this statute unless "there is probable cause for belief that an individual is committing, has committed, or is about, to commit" a crime.

  Jackson's argument that the wiretapping violated his statutory rights under 18 U.S.C. § 2511 (2)(c) also tails. 18 U.S.C. § 2511(2) (c) states that:
It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
18 U.S.C. § 2511 (2)(c) (West 7004) (emphasis added).

  Jackson's petition shows that he both misquotes and misunderstands the implication of this portion of the statute. Simply because consent makes it lawful to intercept a communication docs not by analogy mean that it. is always unlawful for the government to intercept a communication without, consent of the parties involved in the communication. Law enforcement officers are constitutionally permitted to use wiretapping in certain circumstances to intercept conversations of individuals suspected of criminal activity after receiving judicial authorization, See United States v. Katz, 309 U.S. 347, 354 (1967). The Supreme Court has stated that. "under sufficiently "precise and discriminate circumstances,' a federal court may empower government agents to employ a concealed electronic device `for the narrow and particularized purpose of ascertaining the truth of the allegations' of a detailed factual affidavit alleging the commission of a specific criminal offense.'" Id. (quoting Osborn v. United States, 385 U.S. 323, 329-330 (1966)). In this instance, there is no dispute that the conversations between Jackson and Hoover were intercepted following judicial authorization; an authorization that has been affirmed by the Seventh Circuit Court of Appeals. See, e.g., United States v. (Harold) Jackson, 207 F.3d 915, (7th Cir. 2000).

  Thus, Jackson's argument that his counsel was ineffective for failing to challenge the wiretapping on these grounds does not meet the deficient performance prong of the Strickland test. 2. Post-trial

  Jackson contends that his trial counsel was ineffective because counsel failed to request, at the end of the government's case, the dismissal of counts 14, 19, 20, 22, 73, 25-27, and 29-36 on the sped tic grounds that the government, failed to prove that Jackson "aided and abetted" another in the commission of those offenses. However, Jackson's argument is misplaced because he was convicted of participating in a conspiracy to distribute narcotics. As the Seventh Circuit, stated in regards to the appeal of several other members of the. conspiracy, "every member of a conspiracy is substantively culpable for other conspirators' acts within the scope of the conspiracy." United States v. Hoover, 246 F.3d 1054, 10b7-b8. Such was the holding of Pinkerton v. United States, 328 U.S. 640 (1946). As Jackson was a high-ranking Board Member of the. Gangster Disciples conspiracy, he is criminally liable for the acts of his co-conspirators in furtherance of the conspiracy identified in these counts, regardless of whether or not he personally committed or ...

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