The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner William Edwards' (hereinafter,
"Edwards") Petition to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 ("Section 2255"). For the following
reasons, the Petition is denied.
In 1999, Edwards was convicted of numerous offenses relating to
his participation in activities of the Gangster Disciples, a
large and vicious Chicago street gang that sold large quantities
of drugs. Edwards was convicted of the following: conspiracy to
possess with intent to distribute cocaine, cocaine base, heroin,
and marijuana in violation of 21 U.S.C. § 846; use of a person
under 18 years of age in furtherance of a drug conspiracy in
violation of 21 U.S.C. § 846; possession with the intent to
distribute 8.8 grams of cocaine in violation of
21 U.S.C. § 841(a)(1); possession with the intent to distribute 10 grams of cocaine in violation of 21 U.S.C. § 841(a)(1); use of telephones
in the commission of a felony in violation of 21 U.S.C. § 843(b);
possession with the intent to distribute 137.2 grams of mixtures
containing cocaine base in violation of 21 U.S.C. § 841(a)(1);
and use of a firearm in connection with drug trafficking in
violation of 18 U.S.C. § 924(c).
On May 19, 2000, Edwards was sentenced to life imprisonment for
his conviction of conspiracy under of 21 U.S.C. § 846. The
government dismissed all remaining counts for purposes of
sentencing. Edwards' conviction was affirmed on direct appeal.
United States v. Hoover, 246 F.3d 1054 (7th Cir. 2001).
The government's main evidence against Edwards came from
recordings of intercepted conversations between Edwards and Larry
Hoover (hereinafter, "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 Edwards. As Vienna inmates received visitors
in an outdoor picnic area, the government accomplished the
monitoring by concealing a transmitter in the badge a visitor was
required to wear while in the institution. As Edwards frequently
visited Hoover at the Vienna Correctional Center, the government used this concealed transmitter to record numerous conversations
between Edwards and Hoover discussing the gang's drug conspiracy.
In June 2003, Edwards filed this petition for post-conviction
relief pursuant to § 2255. Edwards' petition alleges that he
received ineffective assistance of counsel at the trial and
appellate court levels. Specifically, Edwards argues that (1) his
trial and appellate lawyers failed to provide him with effective
assistance of counsel by not filing a motion to suppress the use
of the Vienna tapes on the grounds that they were unlawfully
obtained; (2) his trial and appellate lawyers failed to provide
him with effective assistance of counsel by failing to dispute
the absence of a specific jury finding regarding the amount of
drugs attributable to him; and (3) his appellate lawyers failed
to provide him with effective assistance of counsel by failing to
challenge, on appeal, the District Court's determination to apply
a four level enhancement to his offense level because he was a
"leader" within the meaning of United States Sentencing
Guidelines. (U.S.S.G.) Section 3B1.1.
Section 2255 provides that a prisoner "may move the court which
imposed the sentence to vacate, set aside, or correct the
sentence" on the basis that his sentence was imposed in violation
of the Constitution or laws of the United States. To receive
relief under Section 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).
Here, Edwards alleges ineffective assistance of counsel. As an
initial matter, the Court "must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance." Strickland v. Washington, 466 U.S. 687,
689 (1984). The Court will find ineffective assistance of counsel
only when a petitioner establishes both elements of the
Strickland two-prong test. The Petitioner must show that (1) his
counsel's performance was deficient to the extent that counsel
failed to function as the "counsel" guaranteed to the defendant
by the Sixth Amendment, and (2) this deficient performance
prejudiced his defense such that it deprived him of a fair trial
with a reliable result.
A. Suppression of Vienna Tapes
Edwards alleges ineffective assistance of counsel at both the
trial and appellate levels because his attorneys failed to move
to suppress the use of the Vienna Tape Recordings on the grounds
that the government's placement of "listening bugs" on Edwards'
person violated his rights under the Fourth Amendment and Section 2511(2) (c). Edwards' counsel at trial and on direct
appeal, however, did challenge the electronic surveillance
evidence, and lost the challenge, albeit on somewhat different
grounds than Edwards asserts in his § 2255 petition. There is a
presumption that decisions made by an attorney as to what
evidence should be presented and what issues deserve the most
focus are strongly presumed to be tactical decisions and
therefore, objectively reasonable. Strickland, 466 U.S. 668 at
689. In any event, the wiretap evidence that Edwards complains of
has been repeatedly upheld by the Seventh Circuit. See 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). Undoubtedly, Edwards'
arguments regarding this evidence would have had no traction at
either trial or on appeal. Accordingly, the purported failure of
counsel to raise Edwards' suggested grounds for suppression of
the Vienna Tape Recordings did not compromise the fairness of his
trial or appeal. See Strickland, 466 U.S. 668 at 691-92.
B. Specific Finding on Quantity of Drugs
Edwards also complains that his lawyer failed to provide him
with effective assistance of counsel by failing to dispute the
absence of a specific jury finding regarding the amount of drugs
attributable to him. Edwards argues that this failure caused the Court to apply an incorrect statutory maximum penalty and offense
level which violated his rights under the Fourth Amendment.
Edwards' argument lacks merit he misunderstands the contours of
conspiracy law. Under Pinkerton, Edwards is "answerable for the
crimes committed by the whole of [the Gangster Disciples]."
Pinkerton, 328 U.S. at 1058. A finding that Edwards conspired to
distribute fifty grams of crack cocaine would have authorized
life imprisonment. 21 U.S.C. § 841(b) (1) (a) (iii). As
recognized by the Seventh Circuit, the "[e]vidence in the record
establishes beyond any doubt that the Gangster ...