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United States of America v. Derrick Shareef

October 11, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DERRICK SHAREEF, DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

Derrick Shareef has moved the Court pursuant to 28 U.S.C. § 2255 to vacate his conviction for attempted use of a weapon of mass destruction in violation of 18 U.S.C. § 2332a(a)(2)(D). The indictment alleged that Shareef attempted to use explosive devices to attack the CherryVale Shopping Center in Rockford, Illinois. Shareef pled guilty and was sentenced by Judge David Coar to a thirty-five year prison term. In his section 2255 motion, Shareef asserts that his attorneys rendered constitutionally ineffective assistance in violation of his Sixth Amendment rights.

In a previous decision, the Court denied Shareef's motion in part and ordered the government to submit additional evidentiary materials in support of its position. See United States v. Shareef, No. 10 C 7860, 2011 WL 1838876 (N.D. Ill. May 13, 2011). The Court assumes familiarity with that decision, which provided a brief summary of the relevant facts and procedural history. The government and Shareef have both filed additional briefs and exhibits. For the reasons stated below, the Court now denies the remainder of Shareef's motion.

Discussion

Shareef's sole remaining ineffective assistance claim involves the failure of his second attorney, Donald Young, to file a motion to withdraw Shareef's guilty plea and advance defenses of entrapment and sentencing entrapment. In considering this claim, the Court applies the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), whichrequires Shareef to make a two-part showing. First, Shareef must demonstrate that Young's performance was deficient-specifically, that it "fell below an objective standard of reasonableness." Id. at 688. The Court must make "every effort . . . to eliminate the distorting effects of hindsight" and will therefore "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Second, Shareef must show that he was prejudiced by Young's deficient performance. To do so, he must demonstrate "a reasonable probability that, but for [Young's] unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Regarding deficiency, Shareef must show that Young unreasonably concluded that Shareef's entrapment defense was weak and advised Shareef not to withdraw his guilty plea. "Where a defendant offers a defense of entrapment, the government must prove either that it did not induce the defendant to commit the crime, or that the defendant had a predisposition to commit the crime." United States v. Lewis, 641 F.3d 773, 781 (7th Cir. 2011). Facts relevant to predisposition include "(1) the defendant's character or reputation; (2) whether the government suggested the criminal activity; (3) whether profit was involved; (4) whether reluctance was expressed which was overcome by government persuasion; and (5) the nature of the inducement or persuasion." Id. Although none of these factors is dispositive, "the central question is whether the defendant showed reluctance to participate in the crime." Id.

The government contends that Young's decision not to advise Shareef to withdraw his guilty plea and raise an entrapment defense was a reasonable strategic judgment in light of the evidence. Pl.'s Supplemental Resp. (Pl.'s Supp.) at 15. In support, it cites documents and multimedia evidence taken from Shareef's computer; reports of government agents' interviews with Shareef and other individuals; and transcripts of recorded conversations between Shareef and a confidential informant.*fn1

See generally id. at 7-15, Exs. A-V.Shareef counters that the government "failed to point out in its submissions whether Mr. Young had investigated" Shareef's allegations of entrapment before advising Shareef not to withdraw his plea. Def.'s Supplemental Reply (Def.'s Supp.) at 4.He also asserts that the evidence shows that he was not predisposed to commit a terrorist act but rather that he attempted to do so only in response to the informant's coercive comments and actions. See generally id.

1. Shareef's motion to appoint counsel

As an initial matter, Shareef has filed a renewed motion to appoint counsel to perform discovery on his behalf pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings. Docket no. 31. Shareef filed a virtually identical motion on June 28, 2011, which the Court denied. See docket nos. 25, 26.

The Court denies Shareef's renewed motion. As discussed below, the record is sufficiently developed for the Court to resolve Shareef's ineffective assistance claim.Moreover, as the Court noted in its order denying Shareef's last motion to appoint counsel, the quality of Shareef's submissions over the course of this case demonstrates that Shareef was capable of presenting his claim and responding to the government's arguments without the assistance of counsel. See docket no. 26. Therefore, the Court declines to appoint counsel for Shareef or order additional discovery before ruling on his section 2255 motion. See Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2007) ("[D]ue process does not require appointment of counsel for indigent prisoners pursuing . . . federal habeas relief"); see also Barry v. United States, 528 F.2d 1094, 1101 (7th Cir. 1976) ("[T]he scope of discovery to be allowed in a collateral attack upon a conviction lies in the discretion of the district court.").

2. Young's investigation of Shareef's entrapment defense

Turning to the merits, Shareef contends that the government "failed to point out in its submissions whether Mr. Young had investigated any of Mr. Shareef's allegations of being entrapped by the government's paid [informant], before advising him to continue on with his guilty plea." Def.'s Supp. at 4. The government, by contrast, argues that Shareef "has presented no evidence rebutting Mr. Young's representation that he investigated the case file." Pl.'s Supp. at 15.

There is evidence in the record indicating that Young diligently investigated Shareef's entrapment defense before advising him ...


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