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September 1, 2004.

DARRYL MORRIS, Petitioner,
U.S., Respondent.

The opinion of the court was delivered by: JEANNE SCOTT, District Judge


This cause is before the Court on Petitioner Darryl Morris' (Morris) Petition under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (d/e 1) (Petition), Supplemental Motion Under 28 U.S.C. § 2255 (d/e 13) (Supplemental Motion), and Motion for Expedited Appeal (d/e 10) (Motion to Expedite). Morris has also filed a Petitioner's Traverse Reply to Government (d/e 12) (Reply).

  Morris' Motion to Expedite is denied as moot. As to Morris' Reply, the Court notes that a reply to the Government's Response to Petitioner's Motion Under 28 U.S.C. § 2255 (d/e 7) is not required. See Rules Governing § 2255 Proceedings, Rule 5, Advisory Committee Note ("As under Rule 5 of the § 2254 rules, there is no intention here that such a traverse be required, except under special circumstances."). However, it is also not barred. Accordingly, the Court considers Morris' Reply in its Page 2 evaluation of Morris' Petition and Supplemental Motion. For the reasons set forth below, Morris' Petition and Supplemental Motion are DENIED.


  On October 3, 2001, Morris was indicted for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). Assistant United States Public Defender David Mote was appointed to represent Morris. On November 20, 2001, Morris filed a motion to suppress evidence, arguing that evidence seized during a January 9, 2001, search of his residence authorized by a search warrant should be suppressed due to the unreasonable manner in which it was carried out, including the use of flash-bang devices. This Court denied Morris' motion to suppress on November 29, 2001, and set the case for final pretrial hearing on January 4, 2002.

  Morris jumped bond and did not appear for his January 4, 2002, final pretrial hearing. A warrant was issued for Morris' arrest, but he was not apprehended until July 15, 2002, when he voluntarily surrendered. Attorney Mote withdrew as counsel on August 16, 2002, and Attorney John Maurer was retained by Morris. On October 3, 2002, Attorney Maurer withdrew as counsel, and on October 23, 2002, Attorney Jon Gray Noll was retained by Morris. On December 9, 2002, Attorney John Madonia also entered his appearance on Morris' behalf.

  Morris was tried by a jury in December 2002, and he testified in his own defense. On December 10, 2002, Morris was found guilty of one count of being a felon in possession, pursuant to 18 U.S.C. § 922(g)(1). On April 11, 2003, this Court Page 3 sentenced Morris to 57 months imprisonment, which reflected enhancements merited by the Court's findings that: (1) the firearms involved in the offense were stolen, and one did not have a visible serial number; (2) Morris possessed the firearms in connection with another felony offense, namely distribution of marijuana; and (3) Morris willfully obstructed and impeded the administration of justice both by failing to appear at his pretrial conference on January 4, 2002, and by committing perjury at trial by testifying falsely. Case No. 01-CR-30101, April 15, 2003, Order (d/e 40).

  On appeal, this Court's ruling was affirmed by the Seventh Circuit Court of Appeals on November 19, 2003. See United States v. Morris, 349 F.3d 1009 (7th Cir. 2003). Morris was represented during the direct appeal of his criminal sentence by Attorneys Noll and Madonia.

  Morris timely filed his Petition on April 30, 2004, and now asks this Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds that he received ineffective assistance of counsel in violation of his Sixth Amendment rights.*fn1 Morris argues that Attorney Mote, his counsel at the time of the hearing on his motion to suppress evidence, provided ineffective assistance by not challenging Page 4 whether probable cause existed to support the search warrant that led to the discovery of firearms at Morris' residence. Next, Morris contends that Attorneys Noll and Madonia provided ineffective assistance by failing to tell him about the possible benefits of pleading guilty, and by impeaching the credibility of a defense witness, Andre Snow, during Morris' trial. Finally, Morris contends in his Supplemental Motion that, under Blakely v. Washington, his sentence is unconstitutional because it reflected enhancements based on findings by this Court, made under a preponderance of the evidence standard. Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (June 24, 2004).



  To prevail on his claim of ineffective assistance of counsel, Morris must show that: (1) his attorney's performance was objectively unreasonable, and (2) such performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The Court evaluates "the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. In addition, this Court's review of counsel's performance is "highly deferential." Id. at 689. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id., quoting Michel v. State of Louisiana, Page 5 350 U.S. 91, 101 (1955).

  Morris must also demonstrate that his counsel's ineffective assistance prejudiced him in some way. He can do so by "show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. When conducting this prejudice determination, the Court "focuses on the question whether counsel's deficient performance renders the result of trial unreliable or the proceeding fundamentally unfair. Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (internal citations omitted). Further, this Court need not consider "the effect of an objection it knows to be wholly meritless under current governing law, even if the objection might have been considered meritorious at the time of its omission." Id. at 374 (O'Connor, J., concurring).

  Although the Supreme Court in Strickland discussed the two prongs of an ineffective assistance of counsel claim in sequential order, it noted that:
a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.
Page 6

 Strickland, 466 U.S. at 697. In the case at bar, Morris has failed to demonstrate prejudice. Accordingly, the Court is not required to "grade counsel's performance" by evaluating the reasonableness of Attorneys Mote, Madonia, and Noll's actions. Morris' Petition fails because he cannot show that he has been prejudiced in any way.


  The sole issue before the Court is whether Morris was prejudiced under Strickland by his counsel's failure to challenge the search warrant, not on whether there was in fact a violation of the Fourth Amendment when the search warrant was issued. Morris' Petition is barred to the extent that it attempts to vacate, set aside, or correct his sentence on the basis that his Fourth Amendment rights were violated by the issuance of the search warrant for his residence. The United States Supreme Court has held "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes omitted); see also United States v. Jones, 152 F.3d 680, 688 (7th Cir. 1998) (applying Stone's holding to federal prisoners).

  To the extent that Morris' Petition claims he suffered from ineffective assistance of counsel under the Sixth Amendment, however, "a narrow walkway might permit him to raise Fourth Amendment issues through the back door via a Sixth Page 7 Amendment claim that his attorney's handling of the issue . . . was incompetent." Holman v. Page, 95 F.3d 481, 489 (7th Cir. 1996), citing Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986). The Seventh Circuit has explained:
[t]he focus of the inquiry is not whether the Fourth Amendment issue was properly decided, which on habeas review Stone precludes, but whether defendant was denied his Sixth Amendment right to competent counsel. Thus, the "claim must be judged as a Sixth Amendment claim, according to the standards set forth in [Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052], and not as a Fourth Amendment claim governed by Stone." Morrison, 477 U.S. at 393, 106 S.Ct. at 2592 (Powell, J., concurring).
Id. Accordingly, the Court evaluates Morris' claim regarding the search warrant under the Sixth Amendment.
  To evaluate Morris' claim under the Sixth Amendment using the Strickland standard, the Court uses a different analysis than it would use if it was evaluating Morris' claim under the Fourth Amendment. As defined, "[p]rejudice in the Strickland sense refers to `unprofessional errors' so egregious `that the trial was rendered unfair and the verdict rendered suspect.'" Id. at 491, quoting Morrison, 477 U.S. at 374. The Seventh Circuit has explained:
Strickland prejudice relates to the fairness of the proceedings and to the confidence one may place in the outcome, i.e., to the correctness of the verdict. The Supreme Court has made clear that it is not unfair to a defendant for a jury to consider reliable but improperly gathered evidence of guilt. Fairness to the accused has nothing to do with the purpose of the exclusionary rule, which is why Fourth Amendment claims cannot be raised on habeas review.
Id., citing Stone, 428 U.S. at 486, 494-95. Page 8

  In this case, the search warrant resulted in discovery of several firearms at Morris' residence, one of which held Morris' palm print on the bottom of the gun. These weapons were introduced as evidence against Morris at trial. See Government's Response to Petitioner's Motion Under 28 U.S.C. § 2255 (d/e 7) (Response), Affidavit of Jon Gray Noll, Exh. 2, pg. 253-54.

  Significantly, Morris does not contest that the admission of this evidence against him made the guilty verdict less reliable than if the evidence had not been present. Instead, his sole argument is that his counsel's "failure to challenge the search warrant resulted in the defendant being prejudiced, in that all of the illegally obtained evidence being admitted as evidence in the defendan[t]'s tr[ia]l." Memorandum of Law In Support of Defendant's § 2255 Motion (Petitioner's Memorandum), pg. 6. Even if the Court assumes that the search warrant was issued wrongly, admission of improperly-gathered evidence alone does not constitute "prejudice" under Strickland. Holman, 95 F.3d at 491. In his Petition, Morris makes no showing that the admission at trial of evidence gathered pursuant to the search warrant made his guilty verdict less reliable. Id. at 492. In fact, the weapon with his palm print was ...

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