Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SHELL v. U.S.

August 13, 2004.

GREGORY SHELL, Petitioner,
v.
U.S., Respondent.



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

MEMORANDUM OPINION AND ORDER

Petitioner Gregory Shell (hereinafter, "Shell") filed a petition to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"), and a motion for default judgment on that petition.

I. INTRODUCTION

  In 1998, Shell was convicted of numerous offenses relating to his participation in activities of the Gangster Disciples, a large and vicious street gang that sold large quantities of cocaine, heroin, and other drugs in Chicago. Shell served on the gang's so-called "board of directors," and was the gang's second-in-command He was the highest-ranking non-incarcerated gang officer, and orchestrated the gang's day-to-day operations.

  Shell was convicted of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848; conspiracy to possess with intent to distribute cocaine, cocaine base, heroin, and marijuana in violation of 21 U.S.C. § 846; distribution of narcotics in violation of 21 U.S.C. § 841(a)(1); use of minors in furtherance of the conspiracy in violation of 21 U.S.C. §§ 861(a)(1), 861(a)(2); use of telephones in furtherance of the conspiracy in violation of 21 U.S.C. § 843(b); and use of firearms during and in relation to the conspiracy in violation of 21 U.S.C. § 924(c). For these convictions, Shell received a sentence of life imprisonment. Shell's convictions were affirmed on direct appeal. United States v. Hoover, 246 F.3d 1054 (7th Cir. 2001).

  The government's main evidence against Shell came from recordings of intercepted conversations between Shell and Larry Hoover ("Hoover"), the leader and "chairman of the board" of the Gangster Disciples, who was incarcerated at the Vienna Correctional Center in Vienna, Illinois. Pursuant to 18 U.S.C. § 2518(3), the government obtained court authorization to monitor and record Hoover's conversations with certain prison visitors, including Shell. As Vienna inmates received visitors in an outdoor picnic area, the government accomplished this monitoring by concealing a transmitter in the badge a visitor was required to wear while in the institution. Since Shell frequently visited Hoover at the Vienna Correctional Center, the government used this concealed transmitter to record numerous conversations between Shell and Hoover discussing the gang's drug conspiracy.

  In May 2003, Shell filed this petition for post-conviction relief pursuant to 28 U.S.C. § 2255. Shell's petition alleges four discernable claims which Shell believes entitle him to relief under § 2255: (1) the trial court erred in admitting the intercepted conversations because the government's placement of "listening bugs" on Shell's person, without Shell's consent, violated his rights under both the Fourth Amendment to the United States Constitution and 18 U.S.C. § 2511(2)(c); (2) the trial court erred in admitting the intercepted conversation because the government's application to intercept oral communications between Hoover and Shell, and the resulting court order permitting them, did not sufficiently specify where the communications would be intercepted creating both statutory violations and violations of the Fourth Amendment; (3) the court order authorizing the interception of conversations between Hoover and Shell was void because the government deliberately omitted material information as to the method of interception from its application seeking authorization, such that the issuing judges would not have authorized the surveillance in the absence of the omission; and (4) Shell's trial and appellate counsel were constitutionally ineffective because they failed to pursue the above issues concerning the validity of the government's placement of "listening bugs" on Shell's person under the Fourth Amendment and § 2511(2)(c).

  In August 2003, this Court ordered the government to respond to Shell's petition pursuant to 28 U.S.C. § 2255 by October 15, 2003. The government failed to do so. This court subsequently ordered the government to respond by January 5, 2004. The government again failed to respond. Shell filed his motion for default judgment premised on the government's failure to respond to his § 2255 petition on March 30, 2004. The government responded to the petition on April 26, 2004.

  II. STANDARD OF REVIEW

  Section 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 § 2255, a prisoner must show a "fundamental defect which inherently results in a complete miscarriage of justice," United States v. Addonizio, 442 U.S. 178, 185 (1979), or "an omission inconsistent with the rudimentary demands of fair procedure," Hill v. United States, 368 U.S. 424, 428 (1962).

  III. DISCUSSION

  A. Default Judgment

  While the government promptly responded to Shell's § 2255 petition after it became aware that its filing did not occur in the time prescribed by the Court, the government missed two briefing schedules eventually turning in its response brief nearly nine months after the Court originally asked for it. Although a court is usually justified in entering a default judgment against a party that fails to respond after notice in a civil case, Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984); see FED. R. CIV. P. 55, "a default judgment, without full inquiry into the facts, is especially rare when entered against a custodian in a habeas corpus proceeding," Ruiz v. Cady, 660 F.2d 337, 340 (7th Cir. 1981), Courts are reluctant to grant default judgments without reaching the merits of the claim in habeas corpus cases because such judgments would cause the public at large to suffer by bearing either the risk of releasing prisoners that were duly convicted or the costly and difficult process of retrying them rather than impose hardship on the defaulting party. See id. (acknowledging that default judgments in habeas corpus proceedings might compromise the public's right to protection). Although default judgment in a habeas corpus proceeding is an extreme remedy, the Seventh Circuit permits a trial court to employ it as a sanction against a respondent's unwarranted delay. See id. Delays that are both long and inadequately explained are presumed to be unwarranted. See id. Under this framework, the trial court has discretion in determining whether a default judgment for the petitioner is the appropriate remedy for the government's delay in a habeas corpus proceeding. See id. at 341.

  The government's response to Shell's § 2255 petition asserts that the counsel for the government assigned to the § 2255 petition was not the counsel of record for the trial or direct appeal and had no record of the briefing schedule until Shell filed the motion for default judgment. While the Court concludes that this explanation for the delay is not adequate, this finding does not require the Court to grant a default judgment for Shell. See id. Given the strong policy reasons against granting a default judgment for the petitioner in a habeas corpus proceeding, the Court finds that the circumstances of this case do not warrant the extreme remedy of granting a default judgment. When a petitioner files a motion for default judgment alleging the government's failure to respond to a § 2255 petition, and the Court subsequently accepts the government's late reply, the claimed grounds for default judgment are eliminated. See Irorere v. United States, No. 01 C ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.