United States District Court, N.D. Illinois, Eastern Division
August 13, 2004.
GREGORY SHELL, Petitioner,
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
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
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).
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 332,
2002 U.S. Dist. LEXIS 18117, at *12 (N.D. Ill. September 24,
2002); United States v. Messino, No. 97 C 2767, 1998 U.S. Dist.
LEXIS 16573, at *2 (N.D. Ill. October 13, 1998). Accordingly, the
Court denies Shell's motion for default judgment.
B. Habeas Corpus
Shell argues that the Fourth Amendment required the government
to obtain his consent before requiring him to wear a badge
containing a transmitter that intercepted his conversations with
Hoover at the prison. However, the Fourth Amendment only protects
citizens from secret electronic surveillance in the absence of
both a warrant and the consent of a participant in the monitored
activity. See United States v. Nerber, 222 F.3d 597, 606 (9th
Cir. 2000). Here, pursuant to 18 U.S.C. § 2518(3), the government
obtained a court order from a United States District Judge
authorizing it to monitor and record Hoover's conversations with
particular visitors including Shell. Shell does not contend that
the government lacked probable cause for this warrant. Therefore,
Shell's consent was not required. The Court notes that it has
reached the identical conclusion in previous litigation involving other members of the Gangster Disciples.
United States v. Jackson, No. 2004 U.S. Dist. LEXIS 6929, at *7
(N.D. Ill. April 21, 2004). Branch v. United States, 2004 U.S.
Dist. LEXIS 5836, at *8 (N.D. Ill. April 6, 2004).
Shell also appears to contend that method of surveillance, the
covert placement of a transmitter on a visitor's badge worn on
his person, was a severe intrusion on his privacy such that
consent was required irrespective of judicial authorization.
While a method of surveillance may be banned outright if it
intrudes on personal privacy to an extent disproportionate to the
likely benefits from obtaining fuller compliance with the law,
see United States v. Torres, 751 F.2d 875, 882-83 (7th Cir.
1984), this is not the case here. Shell's conversations with
Hoover at the prison directly involved and facilitated the
operation of a vicious street gang's extensive drug operation. As
the Fourth Amendment permits electronic surveillance of
conversations, the incremental increase in invasion of privacy in
placing the transmitter on a badge worn by a visitor as opposed
to elsewhere in the visiting area is minuscule. See id. at 878.
A visitor has no right to be let alone while visiting a prisoner
to conduct the business of a violent street gang. See id. at
883. Thus, the social gain from monitoring the conversations
between Hoover and Shell outweighs the intrusion of privacy in
this case. Accordingly, the Court finds that Shell's argument
that the Fourth Amendment required his consent to the
surveillance in this case is without merit. In addition, Shell argues that the surveillance in this case
violated his statutory rights under 18 U.S.C. § 2511(2) (c)
because he did not consent to it. Section 2511(2) (c) states that
"it shall not be unlawful . . . for a person acting under color
of law to intercept a wire, oral, or electronic communication
. . . where one of the parties to the communication has given
prior consent to such interception." This Court has held that
"simply because consent makes it Lawful to intercept a
communication does 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." Jackson, 2004
U.S. Dist. LEXIS 6929, at *9. Therefore, Shell's argument that
the surveillance violated his statutory rights under § 2511(2)(c)
The Fourth Amendment prohibits general and open-ended search
warrants and requires that a search warrant particularly describe
both the place to be searched and the persons or things to be
seized. See Dalia v. United States, 441 U.S. 238, 255 (1979).
To reflect this particularity requirement,
18 U.S.C. § 2518(1)(b)(ii) requires that the application and order to
intercept oral communications state the "place where the
communication is to be intercepted." Shell contends that the
government's application to intercept oral communications between
Hoover and his visitors, and the resulting court order permitting
them, did not sufficiently specify where the communications would
be intercepted to satisfy Fourth Amendment and statutory particularity requirements. This, in Shell's view, is
because they described the place to be searched as the visiting
room area at the Vienna Correctional Center, not the "bodies" of
Under both 18 U.S.C. § 2518(1)(b)(ii) and the Fourth Amendment,
the particularity requirement is satisfied "by identifying [the]
location in terms of where a specified individual engages in
certain conversation." United States v. Bianco, 998 F.2d 1112,
1123-24 (2d Cir. 1993) (quoting United States v. Ferrara,
771 F. Supp. 1266, 1291 (D. Mass. 1991)). Here, the government's
warrant application specified that the desired conversations
between Hoover and named visitors including Shell would take
place at the prisoner visitor area at the Vienna Correctional
Center in Vienna, Illinois.
Shell argues that the placement of a transmitter in the
visitor's badge he wore while at the prison violated this
particularity requirement because it led to conversations being
intercepted on his "body," which neither the warrant nor the
warrant application mentioned. However, even if the Court
accepted that the government intercepted conversations on Shell's
"body," it did so only while Shell's body was within the confines
of the designated prisoner visitor area. Shell does not contend
that the government used conversations that occurred outside the
visitor area, nor does the record support such a conclusion. The
Supreme Court has stated that "the Fourth Amendment does not
generally extend to the means by which warrants are executed."
Dalia, 441 U.S. at 257. Thus, it is not necessary or practical that a judicial order approving
electronic surveillance specifically approve of the particular
means by which the surveillance is accomplished. See id. As the
monitored conversations took place within the prisoner visitor
area at the Vienna Correctional Center, the placement of
transmitters in the visitor's badge worn by Shell to accomplish
the surveillance did not violate the particularity requirement.
3. Omission of Material Information
Shell also contends that the government's decision to place
listing devices on his "body," without being specified in the
warrant, voided the warrant itself by constituting a material
omission in the government's warrant application. Shell contends
that, had the government specified the method of intercepting the
conversations, the issuing judge's would never have authorized a
In seeking a search warrant, "the government may not
intentionally or recklessly misrepresent material information to
magistrate judges, and misrepresentations encompass omissions."
Supreme Video, Inc. v. Schauz, 15 F.3d 1435, 1441 (7th Cir.
1994). A defendant must make "a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth" was made by the government in
seeking the warrant in order to demonstrate that a search warrant
is void due to the use of alleged intentionally or recklessly
false information by the government in procuring the warrant. Franks v. Delaware,
438 U.S. 154, 155-56 (1978).
The government's omission of its method of intercepting
conversations did not constitute a misrepresentation. The
government is neither required to include the specific means by
which a warrant for electronic surveillance is executed in its
application, Dalia, 441 U.S. at 257, nor required to identify
the precise location within a building where electronic
surveillance will take place to the judge approving the
surveillance. See United States v. Lambert, 771 F.2d 83, 91
(6th Cir. 1985). Furthermore, the government's warrant permitted
it to make "all necessary surreptitious entries . . . including
but not limited to entries to install, maintain, and remove
electronic listening devices within the Visitation Area located
at the Vienna Correctional Facility." (Tibbetts Aff. at 46.) This
Court has held that "based on this language, the scope of the
warrant does not preclude the use of wiretaps inside visitors'
name-tags for the purpose of intercepting the oral communications
occurring in the Visitor Areas of the Vienna Correctional
Center." Branch, 2004 U.S. Dist. LEXIS 5836, at *8; see
Jackson, 2004 U.S. Dist. LEXIS 6929, at *8. Thus, as the
government's surveillance was within the scope of the warrant
authorizing the surveillance, no misrepresentation as to the
method of surveillance occurred, and Shell's assertion that the
issuing judge would not have issued the warrant had the
application describe the means of surveillance is erroneous.
Therefore, Shell's claim that the warrant was void for omission
of material information constituting a misrepresentation from the application is without
4. Ineffective Assistance of Counsel
Shell alleges ineffective assistance of counsel at both the
trial and appellate levels because his attorneys failed to pursue
the issues concerning the validity of the government's placement
of "listening bugs" on Shell's person under the Fourth Amendment
and § 2511(2) (c) that he has raised in this petition at trial or
on direct appeal. The Court notes that Shell's counsel at trial
and on direct appeal did challenge the electronic surveillance
evidence, albeit on somewhat different grounds than Shell asserts
in his § 2255 petition, and lost. In any event, if Shell had
argued the meritless claims he put forth in his habeas petition
at trial or on appeal, they would have been rejected at that
time. Therefore, Shell's counsel's failure to raise them did not
compromise the fairness of his trial. See Strickland v.
Washington, 466 U.S. 668 at 691-92 (1984). Accordingly, Shell's
argument that his counsel was ineffective for failing to present
these claims at trial or on appeal fails.
5. Effect of Blakely and Booker on Shell's Sentence
While Shell's petition was pending, but after briefing on his
petition was complete, the Supreme Court declared that
Washington's state sentencing guidelines violated defendants'
Sixth Amendment's right to a trial by jury. Blakely v.
Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). Following,
Blakely, the Seventh Circuit held the United States Federal Sentencing Guidelines under which
Strawhorn was sentenced unconstitutional. United States v.
Booker, ___ F.3d ___, 2004 WL 1535858 at *1, (7th Cir. 2004).
Therefore, the Court also briefly considers what effect, if any,
Blakely and Booker have on this petition.
The Court notes that the Seventh Circuit has already rejected
extending the holding of Booker to cases up on collateral
review pursuant to § 2255. Simpson v. United States, ___ F.3d
___, 2004 U.S. App. LEXIS 14650 at *7 (7th Cir. 2004). Simpson
did, however, dismiss its petitioner's Blakely/Booker argument
without prejudice, noting that the Supreme Court has yet to
decide whether or not Blakely applies to habeas petitions. See
id. Therefore, although Shell does not technically make a
Blakely or Booker claim, any such claim would be dismissed
without prejudice within the Seventh Circuit.
For the reasons stated above, Shell's Motion for Default
Judgment and his Petition for Habeas Corpus are denied.
IT IS SO ORDERED.
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