The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Larry Hoover (hereinafter "Hoover") requests the Court to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For
the reasons set forth below, the Court declines to do so.
In 1998, Hoover was convicted of a number of offenses related
to his involvement with a notorious Chicago narcotics group, the
Gangster Disciples. Hoover served on the gang's "Board of
Directors" as its highest ranking member with the title of
"Chairman of the Board." His convictions included: engaging in a
continuing criminal enterprise, 21 U.S.C. § 848(a); using minors
to further a drug conspiracy, § 861(a); possession and
distribution of narcotics, § 841(a)(1); using a telephone to
facilitate a drug offense, § 843(b); and using a firearm during
and in relation to a drug offense, 18 U.S.C. § 924(c). The
convictions were affirmed on direct appeal. See United States v.
Hoover, 246 F.3d 1054 (7th Cir. 2001). Subsequent filings for a Seventh Circuit en banc rehearing and a Writ
of Certiorari to the Supreme Court were denied. See United States v.
Hoover, No. 98-2600, 2001 U.S. App. LEXIS 10566 (7th Cir. May 14, 2001);
Hoover v. United States, 536 U.S. 958 (2002).
At trial, the government's key evidence against Hoover came
from recordings of intercepted conversations (the "tapes")
between Hoover and other individuals who visited him while he was
incarcerated at the Vienna Correctional Center, many of whom
where later convicted as co-conspirators. Pursuant to
18 U.S.C. § 2518(3), the government obtained warrant authorization for the
tapes from a district court. The government concealed listening
devices inside visitor badges, which all visitors were required
to wear during their time at Vienna. A number of the tapes yielded
evidence regarding the gang's drug related activities in Chicago.
In May 2003, Hoover filed this § 2255 Motion for
post-conviction relief. Hoover's petition asserts three claims,
which more discernibly represent four claims related to the
tapes: (1) the tapes violated the Fourth Amendment and
18 U.S.C. § 2511(c) because the listening devices were on the "body" of
another, which required the consent of either the person upon
whose body the device was placed or Hoover himself; (2) the
government's original application to intercept oral
communications did not meet the Fourth Amendment's particularity
requirement because it did not clearly state the place where the
communications would be intercepted; (3) the court order
authorizing the tapes was void because the government omitted material information as to the method of interception in its
application for authorization; and (4) Hoover's counsel was
ineffective because they failed to pursue any of the above issues
concerning the tapes and authorization thereof.
In order to gain relief under § 2255, the moving party must
show either 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). In addition, there are three claims
that a § 2255 motion cannot raise: (1) issues that were raised
on direct appeal, absent a showing of changed circumstances; (2)
non-constitutional issues that could have been, but were not
raised on direct appeal; and (3) constitutional issues that were
not raised on direct appeal, unless the petitioner demonstrates
cause for the procedural default as well as actual prejudice from
the failure to appeal. Belford v. United States, 975 F.2d 310,
313 (7th Cir. 1992).
The government asserts that Hoover's § 2255 motion is
time-barred. "A 1-year period of limitation shall apply to a
motion under this section." § 2255. In this case, the Supreme
Court denied Hoover's petition for certiorari on June 28, 2002,
which made the judgment final and began the running of the one-year period. See
Clay v. United States, 537 U.S. 522, 527 (2003). Hoover had
until June 28, 2003 to file his Petition. Because Hoover filed
his Petition in May 2003, it is within the one-year statutory
period of limitation and he is not time-barred.
Hoover's first claim is that under the Fourth Amendment or
18 U.S.C. § 2511(2)(c), the government needed to obtain either
Hoover's or his visitors' consent for admissible recordings. The
Seventh Circuit already decided that the tapes were properly
admitted at trial. See Hoover, 246 F.3d at 1057. The
circumstances surrounding Hoover's case have not changed and both
stare decisis and res judicata apply to bar this claim.
Belford, 975 F.2d at 313; see also Shell v. United States,
No. 03 C 3182, 2004 U.S. Dist. LEXIS 16382, at *8-10 (N.D. Ill.
Aug. 10, 2004).
In any event, the consent claim also fails on review of the
merits. In Hoover's case, as in Shell, the government obtained
a court order for the monitoring, and therefore no consent was
required to satisfy the Fourth Amendment. See United States v.
Nerber, 222 F.3d 507, 606 (9th Cir. 2000). Additionally,
Hoover's 18 U.S.C. 2511(2)(C) challenge fails for the same
reasons set out in Shell, 2004 U.S. Dist. LEXIS 16382, at
*10-11, and Jackson, No. 03 C 2119, 2004 U.S. Dist. LEXIS 6929,
at *9 (N.D. Ill. Apr. 22, 2004) ("[S]imply because consent makes
it lawful to intercept a communication does not ...