United States District Court, N.D. Illinois, Eastern Division
August 13, 2004.
JERRY STRAWHORN, Petitioner,
The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Jerry Strawhorn (hereinafter, "Strawhorn"), pro se,
petitions the Court under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct his sentence.
On May 9, 1997, a jury convicted Strawhorn on all counts
relating to his involvement with the Gangster Disciples (the
"GDs") street gang, including drug conspiracy charges pursuant to
21 U.S.C. § 846, and operating a continuing criminal enterprise
pursuant to 21 U.S.C. § 848. On July 9, 1998, the Court sentenced
Strawhorn to numerous concurrent terms of life imprisonment.
On April 12, 2001, Strawhorn appealed to the Seventh Circuit
and the District Court's decision was affirmed. Subsequently
Strawhorn filed a petition for certiorari with the United States
Supreme Court, which was denied on June 28, 2002.
On June 12, 2003, Strawhorn filed his § 2255 petition.
Strawhorn's petition puts forth 26 claims. Many of these factual situations have come up in the habeas corpus petitions of other
GDs and the Court has held that these situations did not
prejudice the petitioners. Strawhorn does not sufficiently
demonstrate why the Court should rule differently here.
Strawhorn's claims can be regrouped around five distinct claims
which Strawhorn believes entitle him to relief under § 2255:
1. Strawhorn's trial counsel proved constitutionally
ineffective for multiple reasons. This is a multifaceted claim
which several distinct errors by trial counsel, including:
a. failing to notify Strawhorn that she was facing
Illinois Attorney Registration and Disciplinary (the
"ARDC") charges before the jury's verdict;
b. failing to negotiate a plea for petitioner;
c. misadvising Strawhorn that he must go to trial;
d. misinforming petitioner that taking the stand was
his ultimate decision to make;
e. failing to prepare petitioner to take witness
stand in his own defense;
f. failing to secure testimony that would have
exculpated petitioner from intimidation charges;
g. failing to file particularized motions leading to
h. failing to communicate with Strawhorn prior,
during, and after trial and before sentencing was
i. failing to object to misrepresentations in the
pre-sentence report; j. failing to object to use of intimidation charge to
add one point to Strawhorn's Criminal History Score;
k. failing to discuss pre-sentence report with
Strawhorn before his sentencing, in violation of FED.
R. CRIM. PRO. 32;
l. failing to actively participate in compilation of
m. failing to challenge the allegations based on
vicarious liability for acts committed by other gang
n. failing to investigate Strawhorn's financial
situation to rebut presumption that Strawhorn derived
substantial income from illegal activities; and
o. failing to submit tapes where Strawhorn's voice
was in question to a voice stress analysis to
determine true speaker;
2. Strawhorn's appellate counsel was ineffective for failing to
object to ineffective trial counsel;
3. The Court did not have sufficient evidence to convict
Strawhorn of conspiracy pursuant to § 848;
4. The Court denied him a fair sentence when it used his past
convictions for unlawful use of a weapon and intimidation to
determine his current sentence; and
5. Strawhorn was unfairly prejudiced by pre-trial publicity.
II. STATEMENT OF FACTS
Larry Hoover, Tirenzy Wilson, Gregory Shell, Jerry Strawhorn,
Adrian Bradd, Darrell Branch, Andrew Howard, and William Edwards
were charged and convicted in 1998 of numerous offenses relating
to their participation in activities of the GDs, a large street gang
that sold sizable quantities of cocaine, heroin, and other drugs.
In total, the gang's receipts from illegal activity totaled more
than $100 million per year. Strawhorn served as a "governor" of
the GDs, a rank that placed him in charge of the gang's
day-to-day operations in the area surrounding the Chicago Housing
Authority apartments at 39th and State Street in Chicago,
The government's most important evidence against the GDs came
from wiretap surveillance of conversations between the gang's
incarcerated "Chairman," Larry Hoover, and his visitors at the
Vienna Correctional Center in Vienna, Illinois. The government
eavesdropped on these conversations by, pursuant to a valid
warrant, concealing a tiny transmitter within the badge each
visitor was required to wear at the prison. The government also
intercepted telephone conversations that took place at the Shrimp
on the Nine restaurant in Chicago, Illinois again pursuant to a
A. 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."
B. Ineffectiveness of Trial Counsel
Strawhorn alleges numerous incidents in which he claims he was
denied effective trial counsel. To prevail on any of his
ineffective assistance claims, Strawhorn must show both that: (1)
his attorney's performance fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that,
but for counsel's errors, the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 688, 694
(1984). The Court "must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance." Id. at 689.
Strawhorn's begins his multifaceted ineffective assistance of
trial counsel argument by expounding his main argument: that his
trial counsel proved constitutionally ineffective because she was
under investigation on ethics-related charges while representing
Strawhorn and failed to inform Strawhorn of this investigation.
However, the fact that a counsel is being investigated does not
create a per se inference that he or she is ineffective. Provided
that trial counsel remains a member of both the state and federal bars throughout the duration of representation, a federal habeas
petitioner must show "actual errors and omissions" by the trial
counsel to obtain relief. United States v. Williams,
934 F.2d 847, 851-52 (7th Cir. 1991). Here, Strawhorn's trial counsel
remained a member of both the state and federal bars throughout
the time she represented him. Therefore, to establish ineffective
assistance, Strawhorn must show actual errors and omissions by
his counsel that actually prejudiced the defense. Id. at 852.
Accordingly, Strawhorn's primary ineffective assistance claim
The Court similarly analyzes the remainder of Strawhorn's
ineffective counsel allegations under the two-pronged Strickland
test. In each, the Court notes that even if Strawhorn can show
errors, he cannot demonstrate the second prong of Strickland,
requiring prejudice. For instance, although Strawhorn claims that
his trial counsel failed to file particularized motions on his
behalf that could have led to discoverable evidence, Strawhorn
fails to explain what evidence would have allegedly been
discovered. Similarly, Strawhorn alleges that his trial counsel
failed to investigate Strawhorn's financial position to rebut the
presumption that Strawhorn derived substantial income from his
illegal activities. However, the government introduced
substantial evidence at trial that conclusively proved otherwise
and Strawhorn fails to establish how additional "investigation"
by his attorney would have somehow refuted that mountain of
evidence. It is not ineffective assistance of counsel to decline to raise an
argument with no hope of success. United States v. Yates,
308 F. Supp. 2d 959, 963 (N.D. Ill. 2002).
Strawhorn further argues that his trial counsel proved
constitutionally ineffective in failing to get the Court to
exclude the government's evidence obtained from hidden
transmitters placed on the visitors' badges of gang members who
visited Hoover at the Vienna Correctional Center. Strawhorn
contends that the government's collection of this evidence
violated his Fourth Amendment rights, and that a competent
counsel would have succeeded in getting the Court to exclude
them. Strawhorn also argues that the government's reason for the
32-day delay to seal the tapes was not satisfactory as required
by 18 U.S.C. § 2518(1)(c), and therefore the evidence from the
tapes should be suppressed.
The same challenge that Strawhorn raises with respect to the
constitutionality of the government's wiretap has been
unsuccessfully fought by Strawhorn's fellow gang members in
previous litigation. In each case, the Court found the identical
wiretap constitutional. United States v. Jackson, 207 F.3d 910
(7th Cir. 2000); United States v. Hoover, 246 F.3d 1054, 1057
(7th Cir. 2001); United States v. Wilson, 237 F.3d 827, 831 (7th
Cir. 2001). Strawhorn provides no argument concerning the wiretap
that the Seventh Circuit or this Court has not already considered
and rejected. Nor does Strawhorn raise a legitimate issue concerning the
government's delay in sealing the tapes. Strawhorn correctly
notes that, in a Seventh Circuit concurring opinion, the Hon.
Ilana Diamond Rovner questioned the government's reason for the
delay. However, that exact same Seventh Circuit panel rejected
imposing any sanction upon the government.
Strawhorn further contends that his trial counsel proved
ineffective in facilitating that the jury receive proper
instructions. This, Strawhorn believes, denied him due process
and a fair trial. Strawhorn insists that if the jury were
instructed differently, the outcome would have been different.
Strawhorn specifically objects to two jury instructions. The
first, the Pinkerton instruction on vicarious liability, has been
discussed above and was perfectly appropriate.
The second concerns the Court's failure to properly instruct
the jury that, to find a continuing criminal enterprise, it must
unanimously agree on at least two specific acts that constitute
the series of violations under 18 U.S.C. § 848. Richardson v.
United States, 526 U.S. 813, 818, 824 (1999); United States v.
Smith, 223 F.3d 554, 567 (7th Cir. 2000). Strawhorn was convicted
by a jury on May 7, 1997, nearly two years before Richardson was
decided, and thus, two years before this instruction was
required. It certainly then did not constitute ineffective
counsel for his lawyer to fail to request it. Nevertheless, jury
unanimously convicted each of the defendants of participating in a continuing criminal
enterprise based on far more than the required two predicate
offenses, each in turn based on substantial evidence proving
their occurrence beyond any reasonable doubt. Therefore, the
omission of a Richardson instruction even if improper did not
Strawhorn further claims that his trial counsel acted
ineffectively during the instruction conference. Strawhorn argues
that his counsel sat silent while his co-defendant's counsel
performed all the work and made all the requests. The Court fails
to see how this silence prejudiced Strawhorn. In a case with
multiple defendants and multiple counsel, Strawhorn had "virtual
representation" from the counsel of his co-defendants. Jackson,
207 F.3d at 919. Additionally, Strawhorn does not state what jury
instructions his counsel should have requested at this
conference, and therefore cannot demonstrate any prejudice.
The remainder of Strawhorn's other ineffective assistance of
trial counsel claims are similarly meritless. In none of those
claims does Strawhorn come remotely close to meeting the second
prong of the Strickland test. Thus, Strawhorn's claims for
ineffective assistance of trial counsel all fail.
C. Ineffectiveness of Appellate Counsel
Strawhorn also contends that his appellate counsel was
ineffective. Strawhorn bases this argument entirely on appellate
counsel's failure to argue the ineffectiveness of his trial counsel. Since the Court has already rejected Strawhorn's trial
counsel claims, his appellate counsel claims based on those same
allegations also fail. United States v. Jackson, 2004 U.S. Dist.
LEXIS 6929 at *13 (N.D. Ill. 2004).
D. Sufficiency of Evidence
Strawhorn asserts several claims alleging that the government
put forth insufficient evidence to convict him. These claims
include: (1) a claim that the government failed to supply enough
evidence to allow a reasonable jury to convict Strawhorn of the
conspiracy counts in particular, a claim that Strawhorn should
not be vicariously liable for the acts of other members of the
GDs; and (2) a claim that the government failed to prove the
substantial income requirement of the continuing criminal
A petitioner seeking to overturn his conviction based on
sufficiency of the evidence grounds faces a heavy burden. In
adjudicating these petitions, a court "must uphold a conviction
if, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
United States v. Dweck, 913 F.2d 365, 368 (7th Cir. 1990).
Here, concerning Strawhorn's argument regarding whether he
should be vicariously liable for the acts of his co-conspirators,
the Court notes that Strawhorn has introduced no evidence to
counter that brought forth by the government at trial. Under the doctrine of vicarious liability, "`an overt act of one partner
[in a conspiracy] may be the act of all without any new agreement
specifically directed to that act." United States v. Pinkerton,
328 U.S. 640, 656-57 (1946). At trial, the government introduced
a plethora of evidence that Strawhorn participated in a
continuing criminal conspiracy, and that his co-conspirators
participated in substantial narcotics trafficking. Based on that
evidence, and the Pinkerton doctrine, the jury concluded that
"Governor" Strawhorn was liable for the actions undertaken by all
the members of the GDs. Strawhorn may dislike the principles of
conspiracy law, but that distaste does not warrant this Court
overturning fifty years of Supreme Court precedent.
Similarly, as discussed already, Strawhorn introduces no
evidence establishing that the jury erred in finding that
Strawhorn derived a substantial portion of his income from
illegal activities. Strawhorn's professed claim of pre-conviction
poverty does not justify this Court overturning the jury's
finding based on the wealth of verified evidence admitted at
trial. Therefore, Strawhorn's sufficiency of the evidence claims
E. Use of Past Charges When Determining Current Sentence
Strawhorn argues that his prior finding of guilt and court
supervision for the unlawful use of a weapon and a past
conviction for intimidation should not be held against him when
determining his federal sentence. However, under the federal sentencing guidelines (which, see
Section G below, remain applicable to Strawhorn's conviction), a
defendant receives one point when the defendant pleads guilty to
the unlawful use of a weapon and receives court supervision.
United States v. Ruiz, 734 F. Supp. 312, 314 (N.D. Ill. 1990).
Likewise, a conviction for intimidation also adds points for
purposes of determining a defendant's criminal history
calculation. United States v. Unthank, 109 F.3d 1205, 1209 (7th
Cir. 1997) (an Illinois intimidation offense is a "crime of
violence" as a matter of federal sentencing law); United States
v. Ryan, 214 F.3d 877, 879-81 (7th Cir. 2000) (court held that
past convictions can be used in a defendant's criminal history
calculation). Strawhorn pleaded guilty to the use of a weapon,
receiving court supervision, and was convicted of intimidation.
Therefore, his claim that these prior convictions should not have
factored into his sentence lacks merit.
F. Unfairly Prejudiced by Pretrial Publicity
The record indicates that the Chicago Sun-Times published
information that Strawhorn had been convicted of witness
tampering. Strawhorn alleges that this leak came from Assistant
United States Attorney David Styler and was motivated by his
desire for career advancement. Strawhorn further contends that
this leak to the press interfered with the fair administration of
justice. Strawhorn wants an evidentiary hearing to determine the
nature of the breach and the extent of the prejudice because of
this leak. In 1997, Strawhorn filed a motion instanter to dismiss the
indictment because of inflammatory and prejudicial pretrial
publicity, and the Court ruled that Strawhorn was not prejudiced
by the leak of this information. United States v. Hoover, 1997 WL
80947 at *4 (N.D. Ill. 1997). Strawhorn does not provide us with
any evidence to question the previous decision of the Court. An
evidentiary hearing is therefore unnecessary.
G. Affect of Blakely and Booker on Strawhorn's Sentence
While Strawhorn's petition was pending, 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). In reaction, Strawhorn filed a
supplemental motion asking this Court to consider the application
of Blakely and Booker to his petition.
Unfortunately for Strawhorn, 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, Strawhorn's Blakely argument is denied without
prejudice, to be refiled only if the Supreme Court announces that
Blakely also applies to cases on collateral review.
Strawhorn raises numerous other claims, each without merit. In
total, Strawhorn's petition is denied with prejudice except for
his Blakely/Booker claim, which is denied without prejudice.
IT IS SO ORDERED.
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