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Kruger v. United States

November 25, 2008

DAVID A. KRUGER, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Petitioner David Kruger was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and possessing a firearm that was not registered to him in the National Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d). The court sentenced him to 290 months in prison as an armed career criminal under 18 U.S.C. § 924(e), and to 120 months for the § 5861 violation, with the sentences to be served concurrently. Petitioner brings this action for post-conviction relief under 28 U.S.C. § 2255, claiming that a number of his constitutional rights were violated during the trial. For the following reasons, the court denies his petition.

FACTUAL BACKGROUND

Evidence presented at trial established the following. On April 10, 2001, Petitioner was placed on parole after serving time in prison for a felony. (Trial Tr. vol. 2, at 255:1-2, 261:19; Sentencing Tr. at 9:1-3.) On September 1, 2001, an informant approached Chicago Police Officers Pat Thelen, George Parker, and Daniel Gorman and told them that Petitioner had a sawed-off shotgun stored in a brown bag in the bedroom of an apartment at 1015 North Pulaski. (Trial Tr. vol. 1, at 149:5-150:13, 199:16-17.) When the officers went to the apartment, Petitioner was not there, but his father provided written consent and led the officers down a hallway to a room that he identified as Petitioner's bedroom. (Id. at 156:19-22, 158:1-4.) The room contained a refrigerator, dresser, a bed, and a small glass table with a brown bag on it. (Id. at 161:21-162:3.) Officer Thelen went straight to the brown bag, opened it, and found a Savage Arms sawed-off shotgun, approximately sixteen inches long. (Id. at 162:3-9.) After making sure no rounds were still in the gun, Officer Thelen continued to search the bag for ammunition or other weapons, and found Petitioner Kruger's state identification card listing Kruger's address as 1015 North Pulaski. (Id. at 162:9-16, 214:10-11.) Petitioner's father did not know where his son was, so the officers took the gun to the station for processing. (Id. at 167:16-19.) No fingerprints were found on the gun. (Id., vol. 2, at 296:23-297:1.)

Five days later, on the night of September 6, 2001, Officers Thelen, Gorman, Parker, and Kathy Gerich were driving past 1015 North Pulaski and saw someone who looked like Petitioner standing outside the apartment building. (Id., vol. 1, at 168:10-12, 168:24-169:3.) The officers exited the car and approached Petitioner and asked him his name; when he responded "David Kruger," the officers placed him in custody, and Officer Thelen read him his Miranda rights. (Id. at 169:6-12, 169:24-170:6.) Thelen testified, and the police report reflects, that while seated in the back of the police car, Petitioner told the officers that "he got the gun for protection for himself and his family." (Id. at 171:5-10.) Although the incident report makes no mention of any other statements, Officers Thelen, Gorman, and Parker testified that Petitioner also asked the officers to charge him with a misdemeanor rather than a felony; claimed that the gun didn't work anyway; and pointed out that he was not even home when the gun was found. (Id. at 171:13-23, 172:3-5, 219:4-7, 234:21-235:3.) Defense counsel challenged the government's ability to connect the bedroom at 1015 North Pulaski to Petitioner (Id., vol. 2, at 273:21-23; id., vol. 3, at 369:1-11, 372:2-11), and attacked the police testimony concerning Petitioner's alleged confession. (Id., vol. 3, at 370:4-22.)

During deliberations, the jury sent back two notes to the judge. First, the jury asked to see a copy of the police report. (Id. at 397:1-5.) After a brief discussion with the attorneys, the court responded that the report was not submitted into evidence. (Id. at 397:12 -- 398:18.) The jurors later sent a second note requesting to see the shotgun. (Id. at 398:24-25.) The court again discussed this request with the government and defendant's counsel, then allowed the jury to keep the gun in the jury room. (Id. at 400:24-401:1.) Kruger's counsel waived the defendant's presence for the reading of these two notes and Kruger was not present in the courtroom when they were discussed. (Id. at 397:9-11.) After less than three hours of deliberation, the jury convicted Petitioner on both counts. (Id. at 401:9-402:5.)

On appeal, Petitioner argued that his confession was taken before he had been read his Miranda rights, that § 922(g) and § 5861(d) were unconstitutional for exceeding the power granted to Congress by the Constitution, that certain evidence of his living at 1015 North Pulaski was inadmissible, that the jury instructions were improper, that he should not have been sentenced as a career criminal, and that the district court should have sentenced him "downward." On appeal, his appointed counsel sought to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), believing all claims to be meritless. The Seventh Circuit agreed, granted his motion to withdraw, and dismissed the appeal. See United States v. Kruger, 75 Fed. App'x 514 (7th Cir. 2003).

DISCUSSION

Petitioner seeks post-conviction relief under 28 U.S.C. § 2255. "Habeas corpus relief under [section 2255] is reserved for extraordinary situations" and requires a showing "that the district court sentenced [Petitioner] in violation of the Constitution or laws of the United States . . . ." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Petitioner has cataloged a number of complaints in the various motions and briefs he has filed in this court.*fn1 His claims fall into five categories: (1) ineffective assistance of counsel, (2) admission of testimony in violation of the Confrontation Clause, (3) sentencing in violation of the Sixth Amendment, (4) warrantless arrest in violation of the Fourth Amendment, and (5) government misconduct. Petitioner has also asked for court-ordered discovery as to this last claim, and has requested an evidentiary hearing.

I. Ineffective Assistance of Counsel

Petitioner alleges ineffective assistance of trial counsel, arising out of (1) counsel's failure to pursue four witnesses identified by Petitioner, (2) counsel's failure to advise Petitioner to enter a plea agreement, and (3) counsel's waiver of Petitioner's right to be present at the reading of the jury notes. (8/26/04 Mot. at 4-4(a).)*fn2 Petitioner also alleges that he received ineffective assistance from his appellate counsel in failing to raise these and other issues on appeal. (2/23/05 Mot. at 5.)

The Sixth Amendment guarantees defendants the right to effective assistance of counsel in criminal prosecutions. Prewitt, 83 F.3d at 818.To prevail on an ineffective assistance of counsel claim, a petitioner must first "show that counsel's representation fell below an objective standard of reasonableness." Gallo-Vasquez v. United States, 402 F.3d 793, 798 (7th Cir. 2005) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). Second, the petitioner must establish that he was prejudiced by counsel's inadequate representation 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." Gallo-Vasquez, 402 F.3d at 798 (quoting Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Petitioner bears the burden of establishing both of these elements, "as counsel is presumed effective." Menzer v. United States, 200 F.3d 1000, 1003 (7th Cir. 2000). Furthermore, a court need not examine the two elements in order and may dispose of a case where no prejudice has been shown without addressing the adequacy of counsel's performance. See Strickland, 466 U.S. at 697 ("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 . . . that course should be followed.").

A. Failure to Investigate Witnesses

Petitioner first asserts that counsel was ineffective for failing to interview and present four witnesses at trial. He has provided affidavits from three of his sisters--Debra Howard, Kimberly Owens, and Diane Rafear-and Ray Newsome, his father's car repairman. The affidavits assert that the gun was in the apartment while Petitioner was imprisoned, that the gun belonged to Petitioner's father, and that Petitioner's state ID was often kept in a mirror in the same room in which the gun was found. (Howard Aff. ¶ 6; Newsome Aff. ¶¶ 3-5; Owens Aff. ¶¶ 4-5; Rafear Aff. ¶¶ 5-8.) Petitioner claims he gave his attorney a list of these witnesses, but the attorney failed to "investigate, interview, or subpoena" them to testify at the trial. (2/23/05 Mot. at 2.) Three of the affidavits also assert that counsel never contacted them about testifying.*fn3 (Newsome Aff. ...


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