United States District Court, C.D. Illinois, Springfield Division
September 1, 2004.
DARRYL MORRIS, Petitioner,
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)
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
evaluation of Morris' Petition and Supplemental Motion. For the
reasons set forth below, Morris' Petition and Supplemental Motion
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
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
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
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).
I. INEFFECTIVE ASSISTANCE OF COUNSEL
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,
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.
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.
A. FAILURE TO CONTEST ISSUANCE OF SEARCH WARRANT DID NOT CAUSE
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
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
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.
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,
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 very probative evidence to show
that Morris had possessed the weapon at some time. Therefore,
Morris' claim of ineffective assistance of counsel based on his
counsel's failure to challenge the issuance of the search warrant
Even assuming, arguendo, that this Court should reach the
merits of Morris' Fourth Amendment claims, this Court still finds
no grounds to vacate, set aside, or
correct his sentence.*fn2 Morris argues that the search
warrant was improvidently granted because it was not supported by
probable cause. Petitioner's Memorandum, pg. 3. He argues that
it was fatally flawed because there was no way to gauge the
reliability of the anonymous tips that supported it, and the
evidence found in his waste bin was obtained in violation of his
Fourth Amendment rights. Id.
The search warrant was supported by Officer Edwards' Affidavit;
in it he attested to several types of evidence that suggested
that Morris was selling drugs from his residence, including: (1)
a concerned citizen's report that a black male was selling crack
cocaine at Morris' residence [1225 E. Ash St.] and that a large
volume of foot and vehicle traffic was coming or going at all
times of the day and night; (2) a Crime Stopper tip on December
4, 2000, that a Hispanic male driving a white Mercedes with New
York license plates was selling drugs from Morris' residence; (3)
evidence taken by police from Morris' garbage bin on both January
7 and 8, 2001, including traces of cocaine and marijuana and an
unspent .22 caliber rifle round; and (4) observations by Officer
Edwards that traffic patterns at Morris' residence were
consistent with drug activity. Id., Affidavit of Officer
Donald L. Edwards.
The Court begins with the constitutionality of the officers'
search of Morris' waste bins. Morris argues that he "had an
expectation of privacy that his garbage would remain free from
Government intrusion within the curtilage of his property."
Id. at 3. Morris alleges that he secured his trash within the
curtilage of his property, but he does not allege specific facts
in support of this legal conclusion. Further, Morris does not
dispute Officer Edwards' description of the location where the
trash was found, namely, ". . . [in] white plastic garbage bags
inside and protruding from trashcans that were directly behind
1225 E. Ash and on the alley side of the chain link fence."
Id., Edwards Aff.
In United States v. Shanks, the Seventh Circuit held that
garbage is readily accessible from the street or
other public thoroughfares, an expectation of privacy
may be objectively unreasonable because of the common
practice of scavengers, snoops, and other members of
the public in sorting through garbage. Because the
garbage cans in this case were readily accessible and
visible from a public thoroughfare, the alley, and
because it is common for scavengers to snoop through
garbage cans found in such alleys, we agree that
Shanks could harbor no reasonable expectation of
privacy since the garbage was essentially exposed to
U.S. v. Shanks, 97 F.3d 977, 980 (7th Cir. 1996) (internal
citations omitted). As in Shanks, Morris placed his trash in
waste bins adjacent to a public thoroughfare an alley.
Therefore, he could not have a reasonable expectation of privacy
in his trash, and the officers' search would have been found
constitutional, had it been challenged by Attorney Mote.
Next, the Court turns to determine the reliability of the
confidential sources described in Officer Edwards' Affidavit. To
evaluate such sources, this Court looks to the following factors,
. . . the personal observations of the confidential
informant ("CI"), the
degree of detail given in the affidavit, independent
police corroboration of the information, the interval
of time between the events and application for a
warrant, and whether the informant testified at the
probable cause hearing. None of these factors is
determinative; however, "a deficiency in one factor
may be compensated for by a strong showing in another
or by some other indication of reliability."
United States v. Peck, 317 F.3d 754, 756 (7th Cir. 2003),
quoting United States v. Brack, 188 F.3d 748, 756 (7th
Cir. 1999). Both tips suggested firsthand accounts, included
significant detail, and were corroborated by the officers'
independent investigations (including searches of Morris' garbage
bins and observations of traffic patterns outside his home).
Probable cause is "established when, based on the totality of the
circumstances, the affidavit sets forth sufficient evidence to
induce a reasonably prudent person to believe that a search will
uncover evidence of a crime." Id., citing Illinois v.
Gates, 462 U.S. 213, 238 (1983). The anonymous tips and the
officers' independent investigations which corroborated them
support the Magistrate Judge's finding that probable cause
existed for the issuance of the search warrant.
Finally, Morris does not allege that the Magistrate Judge who
issued the search warrant "abandoned his detached and neutral
role." United States v. Leon, 468 U.S. 897, 926 (1984).
Accordingly, unless Morris alleged facts showing that the
"officers were dishonest or reckless in preparing their affidavit
or could not have harbored an objectively reasonable belief in
the existence of probable cause," then evidence seized during the
execution of the search warrant would not be suppressed due to
the good faith exception to the exclusionary rule. Id.
Morris suggests, "[t]here was no way to determine the
reliability or honesty of the anonymous tipster to support
issuance of the warrant. It is highly likely that the alleged
anonymous tipsters are a figment of [Officer Edwards']
imagination." Petitioner's Memorandum, pg. 3. This inference of
untruthfulness is unjustified due to the corroboration noted
above. Accordingly, the good faith exception to the exclusionary
rule would also have operated to support the introduction of
evidence seized during the execution of the search warrant.
Therefore, Morris' Fourth Amendment claims also fail, even
assuming, arguendo, that the Court should have reached their
B. MORRIS' DECISION TO ADVANCE TO TRIAL
Morris argues that Attorneys Noll and Madonia led him into
proceeding to trial in "a successful attempt to receive more
money for additional services." Id. at 8. To that end, Morris
contends that Attorneys Noll and Madonia "never adequately
discussed the advisability of pleading guilty." Id. at 12. As
evidence of these claims, Morris offers his own Affidavit,
attesting to the following facts:
1. He would have entered a guilty plea, but for
Attorney Noll's advice.
2. Attorney Noll told him that he would receive the
same sentence whether he proceeded to trial or pled
3. Attorney Noll did not advise him that he could
received a threepoint reduction for pleading guilty
and accepting responsibility.
Id., Affidavit of Darryl Morris. Morris alleges that Attorney
Noll and Madonia's conduct injured him because he otherwise would
have pled guilty pursuant to a
"potential plea agreement . . . in exchange for a 3 level
departure," with the "substantial likelyhood [sic] that he would
have received a downward departure under section 5K1.1 . . ."
Id. at 9, 10.
In direct contravention to Morris' allegations, the Government
presents the Affidavits of Attorneys Noll and Madonia, as well as
letters written by Attorney Noll to Morris on October 22, 2002
and November 18, 2002, respectively.*fn3 Attorney Noll
attests that he raised the possibility of cooperating with the
Government to Morris, but Morris' decision to proceed to trial
and testify on his own behalf "was so tenacious and resolute that
his only focus was vindication at trial." Government's
Response, Affidavit of Jon Gray Noll, pg. 4. Attorney Noll's
letter of October 22, 2002, explained to Morris that the decision
to plead guilty or not guilty was Morris' alone. Id., Exh. 1,
pg. 2. Further, Attorney Noll's letter of November 18, 2002,
notified Morris that the possibility of a three-point reduction
for acceptance of responsibility was tied to the decision to
plead guilty. Id., Exh. 3, pg. 2. In addition, Attorney Noll
disputes Morris' claim that Morris would have received a
three-point reduction for acceptance of responsibility, noting
that "[a]ny credit [Morris] might have been entitled to under
acceptance of responsibility was essentially waived" due to his
failure to appear for his pretrial hearing on January 4, 2002.
Id., pg. 5.
To establish prejudice resulting from ineffective assistance of
plea negotiations, Morris must establish, "(1) through objective
evidence that (2) there is a reasonable probability that, but for
counsel's inadequate performance, he would have accepted the
government's offer." Paters v. United States, 159 F.3d 1043,
1047 (7th Cir. 1998).
First, Morris has submitted no objective evidence that the
Government ever offered him a plea agreement. Second, Attorney
Noll's letters to Morris conclusively demonstrate that Morris was
advised that the decision whether to plead guilty or go to trial
was Morris' alone, and that any possibility of a three-level
reduction for acceptance of responsibility was intimately tied to
pleading guilty. See Government's Response, Affidavit of Jon
Gray Noll, Exhs. 1, 3. For example, Attorney Noll's November 18,
2002, letter flatly contradicts Morris' claim that Attorney Noll
wrongly advised him that there was no difference between pleading
guilty and advancing to trial. In it, Attorney Noll wrote:
Assuming that the Court found that you had in some
way obstructed justice, 2 points would be added,
bringing the offense level to 21. However, in the
event of a plea of guilty which is made prior to the
Government making substantial trial preparations,
you would be given a 3-point downward adjustment,
leaving you with a base of 18.
Id., Exh. 3, pg. 2 (emphasis added). The implication that a
reduction for acceptance of responsibility would only be possible
prior to the Government making substantial trial preparations
and that such a reduction would not be forthcoming after
trial preparations had been made is unmistakable.*fn4
Accordingly, Morris' claim that Attorneys Noll and Madonia did
not advise him of the possibility of a three-level reduction for
acceptance of responsibility cannot be sustained. No hearing on
this issue is warranted because the Court finds conclusive
evidence that Morris was so informed but chose to advance to
trial anyway. McCleese v. United States, 75 F.3d 1174, 1182
(7th Cir. 1996).
C. TESTIMONY AND EXAMINATION OF ANDRE SNOW
Testimony at Morris' trial revealed inconsistency between the
statements of defense witness, Andre Snow, and prosecution
witness, Alcohol, Tobacco, and Firearms (ATF) Special Agent Tom
Dart. First, Snow testified that he had not based his refusal to
speak without an attorney present to Special Agent Tom Dart on
November 21, 2003, on the advice of Attorney Noll. Petitioner's
Memorandum, Trial Transcript, pg. 244. Instead, Snow testified
under the Government's questioning:
Q. "You didn't tell [Special Agent Dart] that Jon
Noll told you not to talk to him?"
A. "I didn't name anybody specific, I just said I
wouldn't speak to him unless
an attorney was present."
On cross-examination by Attorney Noll on the same issue, Snow
testified that he spoke with Attorney Noll for the first time
just two days before his testimony at trial. Id. When called to
testify, however, Special Agent Dart stated that Snow, "told me
that he did not want to talk to me on the advice of his attorney.
I asked him did Jon Noll tell you that you shouldn't talk to me.
And he nodded, he said yes and nodded just like that." Id., pg.
Morris argues that Attorney Noll's cross-examination of Snow,
contrasted with the subsequent testimony of Special Agent Dart,
painted Snow as liar. Morris contends that Attorney Noll's
"questioning reflected negatively on the witness [Snow], who was
a defense witness. This clearly was against the interests of
his client, as it undermined the the [sic] testimony that the
witness had just proffered." Petitioner's Memorandum, pg. 7
(emphasis in the original). In the alternative, Morris also
claims ineffective assistance of counsel if Attorney Noll really
did speak with Snow for the first time just a few days before
Snow's testimony in Morris' case, claiming lack of preparation on
Attorney Noll's part. Id. at 8.
Under Strickland, Morris must show Attorney Noll's
cross-examination was an error "so serious that counsel was not
functioning as the `counsel' guaranteed the defendant by the
Sixth Amendment," and that "the deficient performance prejudiced
the defense." Strickland, 466 U.S. at 687. The standard the
Court applies to Attorney
Noll and Madonia's conduct is "that of reasonably effective
Morris cannot show that Attorney Noll acted unreasonably.
First, Attorney Noll's cross-examination did nothing but bolster
the veracity of Snow's testimony. Attorneys are barred by the
Illinois Rules of Professional Conduct from "participat[ing] in
the creation or preservation of evidence when the lawyer knows or
reasonably should know the evidence is false." Illinois Supreme
Court Rules, Art. VIII, Illinois Rules of Professional
Conduct, § 3.3(a)(5), available at
Accordingly, by asking Snow the leading question, "Today is
Tuesday, and you and I had never spoken before Sunday, is that
correct?", Attorney Noll was adding his own credibility to Snow's
statements on direct examination. Petitioner's Memorandum,
Trial Transcript, pg. 244. Attorney Noll was under a professional
obligation not to lead Snow into a lie. If Attorney Noll had
stayed silent, the jury would have been left to make its own
conclusions as to who was telling the truth at trial about what
Snow did or did not say to Special Agent Dart. After Attorney
Noll cross-examined Snow, however, the jury had another reason to
believe that Snow was telling the truth at trial.
Second, this Court's evaluation of Attorney Noll's actions is
highly deferential. Strickland, 466 U.S. at 689. Because the
Court can deduce a logical reason behind Attorney Noll's
cross-examination of Snow, Morris' claim of ineffective
assistance of counsel cannot succeed.
Morris' argument in the alternative that it was ineffective
Attorney Noll not to interview Snow until two days before trial
is also unfounded. Witness preparation was within the discretion
of Attorney Noll. Further, Morris has alleged no grounds
regarding how Attorney Noll's supposed lack of preparation
prejudiced him at trial. Therefore, Morris' claims of ineffective
assistance of counsel based on the cross-examination of Snow are
II. BLAKELY AND THE SIXTH AMENDMENT
On July 28, 2004, the Court allowed Morris' Motion For
Permission to Supplement Motion Under § 2255 (d/e 11), and
directed the Clerk of the Court to file Morris' Supplemental
Motion Under 28 U.S.C. § 2255 (d/e 13) (Supplemental Motion). In
his Supplemental Motion, Morris argues that the Supreme Court's
recent decision in Blakely v. Washington should be applied
retroactively to his sentence. Blakely, 124 S.Ct. 2531. He
contends that under Blakely, his sentence is constitutionally
invalid because he received several enhancements at sentencing
that were found by a preponderance of the evidence by the Court,
not by his own admission, or beyond a reasonable doubt by a jury.
In Booker, the Seventh Circuit held that Blakely applies to
the United States Sentencing Guidelines and that a defendant has
a Sixth Amendment right to have a jury decide, beyond a
reasonable doubt, any fact that might increase his or her
sentence. United States v. Booker, 375 F.3d 508 (7th Cir.
2004); see also United States v. Ward, 377 F.3d 671
(7th Cir. 2004). Therefore, the question before the Court is
whether Blakely's holding can
be retroactively applied to Morris' case on collateral review.
For the reasons set forth below, the Court finds that the new
rule of criminal procedure announced in Blakely cannot be
applied retroactively to Morris' case.
On the same day that it issued Blakely, the Supreme Court
also issued Beard and Schriro, both of which reiterated the
law on the retroactive application of new rules of criminal
procedure on cases brought on collateral review. Beard v.
Banks, ___ U.S. ___, 124 S.Ct. 2504 (June 24, 2004); Schriro v.
Summerlin, ___ U.S. ___, 124 S.Ct. 2519 (June 24, 2004). In
Beard, the Court explained that courts should follow a
three-step process to determine retroactivity:
Under [Teague v. Lane, 489 U.S. 288, 310 (1989)
(plurality opinion)], the determination whether a
constitutional rule of criminal procedure applies to
a case on collateral review involves a three-step
process. First, the court must determine when the
defendant's conviction became final. Second, it must
ascertain the legal landscape as it then existed, and
ask whether the Constitution, as interpreted by the
precedent then existing, compels the rule. That is,
the court must decide whether the rule is actually
new. Finally, if the rule is new, the court must
consider whether it falls within either of the two
exceptions to nonretroactivity.
Beard, 124 S.Ct. at 2510 (internal citations and quotations
It is undisputed that Morris' conviction became final before
the Supreme Court's decision in Blakely was issued.*fn5
Accordingly, the Court's next step is to
determine whether Blakely announced a new rule of criminal
procedure. Viewing the legal landscape as it existed on February
19, 2004, the Court "ask[s] whether the Constitution, as
interpreted by the precedent then existing, compels the [new]
rule." Id. In other words, was the rule announced in Blakely
"dictated by then-existing precedent . . . [and] apparent to
all reasonable jurists.'" Id. at 2511 (emphasis in the
original), quoting Lambrix v. Singletary, 520 U.S. 518,
Blakely extended the Court's earlier holding in Apprendi
which had concluded that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). In modifying Apprendi,
Blakely held that:
the "statutory maximum" for Apprendi purposes is
the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict
or admitted by the defendant. In other words, the
relevant "statutory maximum" is not the maximum
sentence a judge may impose after finding additional
facts, but the maximum he may impose without any
Blakely, 124 S.Ct at 2537 (emphasis in the original, internal
This interpretation of the term "statutory maximum" for
Apprendi purposes announced a new rule of criminal procedure
that was neither compelled by existing precedent nor apparent to
all reasonable jurists. First, while Blakely's holding
interpreted Apprendi, it was not compelled by Apprendi. As
the Government points out, at the time Blakely was issued, the
Courts of Appeal were unanimous that
Apprendi did not apply to sentencing enhancements under the
United States Sentencing Guidelines so long as they did not
result in a sentence beyond the statutory maximum.*fn6
Government's Response to Petitioner's Supplemental Motion Under
28 U.S.C. § 2255 (d/e 14), pg. 5 n. 2. Second, the simple fact
that four Justices dissented from the Blakely majority makes
clear that its holding was not apparent to all reasonable
jurists.*fn7 See Beard, 124 S.Ct. at 2512 (noting that
the fact that four Justices dissented in Mills was sufficient
to show that the new rule announced in Mills was not apparent to
all reasonable jurists. Mills v. Maryland, 486 U.S. 367
(1988)). Finally, the Seventh Circuit has concluded, albeit in
dictum, that the "rule announced in Blakely is based in the
Constitution and was not dictated or compelled by Apprendi or
its progeny." Simpson v. United States, 376 F.3d 679, 681
(7th Cir. 2004). Therefore, the Court concludes that
Blakely announced a new rule of criminal procedure.
The final step of the Teague retroactivity analysis requires
the Court to
determine whether Blakely's new rule falls within one of the
two narrow exceptions to Teague's general bar on the
retroactive application of new rules of criminal procedure. Only
the second exception, which allows retroactivity for "`watershed
rules of criminal procedure' implicating the fundamental fairness
and accuracy of the criminal proceeding," could possibly be
applicable to Morris' Petition. Graham v. Collins,
506 U.S. 461, 478 (1993).*fn8
Watershed rules of criminal procedure susceptible to
retroactive application on collateral attack, however, are
extremely rare. In Beard, the Court noted:
We have repeatedly emphasized the limited scope of
the second Teague exception, explaining that it is
clearly meant to apply only to a small core of rules
requiring observance of those procedures that . . .
are implicit in the concept of ordered liberty. And,
because any qualifying rule would be so central to an
accurate determination of innocence or guilt [that it
is] unlikely that many such components of basic due
process have yet to emerge, it should come as no
surprise that we have yet to find a new rule that
falls under the second Teague exception.
Beard, 124 S.Ct. at 2513-14 (internal quotations and citations
omitted). Further, in Schriro the Court stated, "[t]hat a new
procedural rule is fundamental in some abstract sense is not
enough; the rule must be one without which the likelihood of an
accurate conviction is seriously diminished. This class of
rules is extremely narrow, and it is unlikely that any . . .
ha[s] yet to emerge." Schriro, 124 S.Ct. at 2523 (internal
quotations and citations omitted) (emphasis in the
Schriro instructs on the limited breadth of the second
Teague exception and its reasoning directly applies to Morris'
Petition. In Schriro, the Court considered whether the new
procedural rule announced in Ring could be applied
retroactively. Ring v. Arizona, 536 U.S. 584 (2002). In Ring,
the Court had applied Apprendi to find an Arizona law
unconstitutional because it placed the power to find any one of
ten aggravating factors necessary to trigger the death penalty in
the judge's hands, not the jury's. The Court ruled that the Sixth
Amendment gave the defendant the right to have a jury find such
aggravating factors beyond a reasonable doubt.
To determine whether the new rule announced in Ring could be
applied retroactively, the Schriro Court questioned, "whether
judicial factfinding so seriously diminishe[s] accuracy that
there is an impermissibly large risk of punishing conduct the law
does not reach." Id., Schriro, 124 S.Ct. at 2525 (internal
quotations omitted). Despite the jury's central role in the
American criminal system, the Court found that procedural rules
affecting the right to a jury were not sufficiently fundamental
to the concept of ordered liber0ty to permit retroactive
application of the rule announced in Ring. The Court wrote,
"[w]hen so many presumably reasonable minds continue to
disagree over whether juries are better factfinders at all, we
cannot confidently say that judicial factfinding seriously
diminishes accuracy." Id. (emphasis in the original). The Court
then foreclosed any possibility of applying Ring's new
procedural rule retroactively by stating:
The right to jury trial is fundamental to our system
of criminal procedure, and States are bound to
enforce the Sixth Amendment's guarantees as we
interpret them. But it does not follow that, when a
criminal defendant has had a full trial and one round
of appeals in which the State faithfully applied the
Constitution as we understood it at the time, he may
nevertheless continue to litigate his claims
indefinitely in hopes that we will one day have a
change of heart.
Id. at 2526.
Morris' Petition seeks retroactive application of his Sixth
Amendment right to have a jury determine beyond a reasonable
doubt any fact that increased his sentence. Schriro teaches,
however, that such a right cannot be applied retroactively
because it is not of the type fundamental to the concept of
ordered liberty. This conclusion is buttressed by the fact that
Apprendi, which announced a new rule of criminal procedure of a
similar nature to the one announced in Blakely, was not applied
retroactively by the Seventh Circuit. See Curtis v. United
States, 294 F.3d 841, 842 (7th Cir. 2002), cert. denied,
537 U.S. 976 (2002). Further, many courts that have been
petitioned to apply Blakely retroactively on collateral attack
have concluded that it cannot be done. See United States v.
Lowe, 2004 WL 1803354, *3 (N.D. Ill., August 5, 2004); Garcia
v. United States, 2004 WL 1752588, *6 (N.D.N.Y., August 4,
2004); United States v. Stoltz, ___ F.Supp.2d ___, 2004 WL
1619131, *3 (D. Minn., July 19,
2004); see also In re Dean, 375 F.3d 1287, 1290 (11th
Cir. 2004) (strongly suggesting that Blakely cannot be applied
retroactively in dicta); Rosario-Dominguez v. United States,
2004 WL 1814021, *9 n. 3 (S.D.N.Y., August 16, 2004); but see
Blakely, 124 S.Ct. at 2549 (O'Connor, J., dissenting, joined in
part by Rehnquist, C.J., and Kennedy, J., and joined by Breyer,
J.).*fn10 Therefore, Morris' Supplemental Motion is denied.
THEREFORE, Petitioner Darryl Morris' Petition under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (d/e 1) and
Supplemental Motion Under 28 U.S.C. § 2255 (d/e 13) are DENIED.
This case is closed.
IT IS THEREFORE SO ORDERED.
*fn11 The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an
impartial jury of the State and district wherein the
crime shall have been committed, which district shall
have been previously ascertained by law, and to be
informed of the nature and cause of the accusation;
to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for
U.S. Const. amend. VI (emphasis added).
*fn12 The Fourth Amendment states, "no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized."
*fn13 Attorney Madonia signed an identical copy of the Affidavit
offered by Attorney Noll. Compare Government's Response,
Affidavit of Jon Gray Noll, with Affidavit of John (Mo)
*fn14 The Court notes that the state of the law as of November
2002, when Attorney Noll wrote the letter, made it very unlikely
that Morris would be entitled to a three-level reduction for
acceptance of responsibility, even if Morris pled guilty. By
jumping bond and substantially delaying his trial, Morris had
already obstructed justice under the Sentencing Guidelines and
Seventh Circuit precedent. See United States Sentencing
Guidelines (U.S.S.G.) § 3C1.1, and Commentary Note 4(e) (". . .
willfully failing to appear, as ordered, for a judicial
proceeding.") (Nov. 1, 2002); United States v. Bolden,
279 F.3d 498, 502 (7th Cir. 2002) (decided January 31, 2002).
Accordingly, unless Morris's case was one of the "extraordinary
cases in which adjustments under both §§ 3C1.1 and 3E1.1 may
apply", he would not be entitled to a reduction for acceptance of
responsibility. U.S.S.G. § 3E1.1, Commentary Note 4 (November
1, 2002). Morris presents no evidence to suggest that his case
was extraordinary in this way.
*fn15 Morris' conviction became final after his time to file a
petition for certiorari expired on February 19, 2004, 90 days
after the Seventh Circuit Court of Appeals entered judgment in
Morris (affirming Morris' sentence on November 19, 2003).
Morris, 349 F.3d 1009; see United States Supreme Court Rule
*fn16 See, e.g., United States v. Casas, 356 F.3d 104, 128
(1st Cir. 2004); United States v. Luciano, 311 F.3d 146,
153 (2d Cir. 2002); United States v. Parmelee,
319 F.3d 583, 591-92 (3d Cir. 2003); United States v. Cannady,
283 F.3d 641, 647 & n. 7 (4th Cir. 2002); United States v.
Floyd, 343 F.3d 363, 372 (5th Cir. 2003); United States v.
Tarwater, 308 F.3d 494, 517 (6th Cir. 2002); United States
v. Merritt, 361 F.3d 1005, 1015 (7th Cir. 2004); United
States v. Banks, 340 F.3d 683, 684-85 (8th Cir. 2003);
United States v. Ochoa, 311 F.3d 1133, 1134-36 (9th Cir.
2002); United States v. Mendez-Zamora, 296 F.3d 1013, 1020
(10th Cir. 2002); United States v. Ortiz, 318 F.3d 1030,
1039 (11th Cir. 2003); United States v. Pettigrew,
346 F.3d 1139, 1147 n. 18 (D.C. Cir. 2003).
*fn17 Justice Scalia, who wrote the majority opinion, was joined
by Ginsburg, Souter, Stevens, and Thomas, JJ. Justice O'Connor
filed a dissenting opinion, joined by Breyer, J., and joined in
part by Rehnquist, C.J., and Kennedy, J.; Justice Kennedy filed a
dissenting opinion, joined by Breyer, J.; and Justice Breyer
filed a dissenting opinion, joined by O'Connor, J. Blakely,
124 S.Ct. 2531.
*fn18 The first exception allows retroactive application of
"rules forbidding punishment `of certain primary conduct . . .
[as well as] rules prohibiting a certain category of punishment
for a class of defendants because of their status or offense',"
neither of which are implicated in this case. Beard,
124 S.Ct. at 2513, quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989).
*fn19 As an example of such a fundamental rule, the Beard Court
held up the right to counsel established by Gideon v.
Wainwright, 372 U.S. 335 (1963). "Gideon, it is fair to say,
`alter[ed] our understanding of the bedrock procedural elements
essential to the fairness of a proceeding.' Sawyer v. Smith,
497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). By
contrast, we have not hesitated to hold that less sweeping and
fundamental rules do not fall within Teague's second
exception." Beard, 124 S.Ct. at 2514 (emphasis in the
*fn20 In her dissent, Justice O'Connor implied that despite
Schriro, sentences like Morris' may be susceptible to
retroactive application of Blakely on collateral attack.
And, despite the fact that we hold in Schriro v.
Summerlin, ante, ___ U.S. ___, 124 S.Ct. 2519,
___ L.Ed.2d ___, 2004 WL 1402732 (2004), that Ring (and
a fortiori Apprendi) does not apply
retroactively on habeas review, all criminal
sentences imposed under the federal and state
guidelines since Apprendi was decided in 2000
arguably remain open to collateral attack.
Blakely, 124 S.Ct. at 2549 (O'Connor, J., dissenting, joined by
Rehnquist, C.J., Kennedy and Breyer, JJ.). This position,
however, has not been adopted by the aforecited courts.
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