The opinion of the court was delivered by: John F. Grady, United States District Judge
Jonathan Gordon has filed a petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
Gordon pled guilty to four counts of a superseding indictment involving bank robbery. Count I charged the defendant and three co-defendants with conspiracy to rob the Oswego Community Bank in Montgomery, Illinois, the deposits of which were insured by the Federal Deposit Insurance Corporation. Count II charged the same four defendants with the actual robbery of the Oswego Community Bank on February 14, 2006, in violation of 18 U.S.C. § 2113(a) and (d). Count III charged the co-defendants with having knowingly possessed a firearm in furtherance of the bank robbery charged in Count II, in violation of 18 U.S.C. § 924(c)(1)(A). Count IV charged only Jonathan Gordon and one of his co-defendants, Arturo Guillen, with having robbed on April 6, 2006 the Associated Bank in Montgomery, Illinois, whose deposits were insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. § 2113(a) and (d). Count V of the superseding indictment, charging the defendants Guillen and Gordon with having knowingly possessed a firearm in furtherance of the Associated Bank robbery charged in Count IV, in violation of 18 U.S.C. § 924(c)(1)(A), was dismissed by the government at sentencing, as the government had agreed to do.
Gordon was sentenced to 60 months on Count I (conspiracy) and 144 months on Counts II and IV (the two bank robberies), to be served concurrently with Count I. On Count III, a required consecutive sentence of 84 months (for use of a firearm in the Oswego robbery) was imposed, for a total sentence of 228 months on the four counts.
Gordon's § 2255 petition alleges nine grounds under the Sixth Amendment, asserting various deficiencies of his trial and appellate counsel amounting to ineffective assistance under the rule of Strickland v. Washington, 466 U.S. 668 (1984). The petition lists the nine grounds, but they are developed to a somewhat greater extent in the petitioner's 41-page supporting memorandum, and we will discuss each of the grounds as set forth in that memorandum. Petitioner has signed the memorandum, but it appears to have been prepared by someone else, perhaps a fellow inmate at the Federal Correctional Institution at Oxford, Wisconsin. Assistance of this kind can be quite helpful to a pro se petitioner, but that has not been true in this instance. The lengthy memorandum consists for the most part of references to general principles of law and quotations from cases whose application to the case at hand is never shown. In fact, the memorandum has the earmarks of having been prepared for someone else--perhaps even a succession of persons--rather than for Mr. Gordon. Moreover, as we shall see, there is reason to believe that the author of the memorandum has never even read the counts of the superseding indictment to which Mr. Gordon pled guilty nor the judgment and commitment order that is being challenged.
We turn now to an examination of each of the grounds asserted. Each of the nine grounds is listed under the heading "Ineffective assistance of counsel" at pages 5 and 6 of the memorandum. The argument as to each ground is that trial and appellate counsel were constitutionally ineffective in failing to make the argument made in the memorandum.
Trial counsel is alleged to have been ineffective in failing to challenge Gordon's prior Illinois convictions, all felonies, that were used to compile his criminal history on the ground that none of them had been based on a grand jury indictment. The argument is that these convictions were unconstitutional under both the federal and state constitutions and thus should not have been used to enhance Gordon's criminal history at sentencing. The memorandum discusses at great length how various federal constitutional protections have been made applicable to the states by the Fourteenth Amendment, but it does not mention the rules specifically applicable to the use of prior convictions in federal guideline sentencing. In Burgett v. Texas, 389 U.S. 109, 114-15 (1967), the Supreme Court allowed a collateral attack upon a prior conviction used to enhance a sentence where the defendant had been deprived of his right to counsel under the Sixth Amendment, but the Court has declined to extend its scrutiny of prior convictions to cases, where, as here, the defendant was represented by counsel. See Custis v. United States, 511 U.S. 585, 485, 496-97 (1994); see also United States v. Jiles, 102 F.3d 278, 280-81 (7th Cir. 1996); Ryan v. United States, 214 F.3d 877, 879-81 (7th Cir. 2000). Trial and appellate counsel would have had no likelihood of success in challenging the state convictions used for Gordon's criminal history, and there is no question of ineffective assistance.
The complaint here concerns the fact that trial and appellate counsel did not challenge the consecutive sentence imposed for violation of 18 U.S.C. § 924(c). Petitioner cites a number of cases decided prior to 1984 that held that a sentence for a firearms violation under 18 U.S.C. § 924(c) cannot be made consecutive to a bank robbery conviction involving use of a dangerous weapon under 18 U.S.C. § 2113(d). Considering all of the cases cited in this section of the memorandum, it is hard to believe that the author was unaware of the fact that § 924(c) was amended in 1984 to provide that it can be used consecutively to a conviction under 18 U.S.C. § 2113(d) without violating the Double Jeopardy Clause. See United States v. Harris, 832 F.2d 88, 90-91 (7th Cir. 1987) (citing Missouri v. Hunter, 459 U.S. 359, 366-67 (1983)).