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 ...