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McIntosh v. United States

United States District Court, Seventh Circuit

October 9, 2013

CARLTON McINTOSH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION AND ORDER

JAMES B. ZAGEL, District Judge.

Carlton McIntosh ("petitioner") was convicted of failing to surrender for service of a prison sentence. The short trial was before me sitting without a jury. I imposed a sentence including 60 months in custody. He appealed claiming there was insufficient evidence to convict and there was no statutory authority for imposition of the sentence. The Court of Appeals affirmed. United States v. McIntosh, 702 F.3d 381 (7th Cir. 2012). The Supreme Court denied certiorari. He seeks relief under 28 U.S.C. § 2255.

The chain of events leading to conviction began in another courtroom before another judge. In that criminal case the charge was escape from the community confinement center where he was serving time (the "Escape case"), imposed by Judge Pallmeyer before whom he had been convicted of money laundering.

The money laundering led to prison time and a period of supervised release. The supervised release was revoked twice. For violating the conditions of supervised relief, petitioner was given a sentence of incarceration for 16 months. The supervised release violation was not typical of its genre.[1] The revocation of release was imposed after a finding that petitioner had used false identification documents to open bank accounts and obtain money that was not his. He was given a specific surrender date and was ordered to self-report for his 16 months. I infer that self-surrender appeared to be appropriate because petitioner (whom I have seen and heard) possesses a non-threatening demeanor, is non-violent and speaks in a reasonable manner when before the court and, at least for a short while, appears to be credible.[2]

There appears no dispute that petitioner wanted self-surrender because, as he communicated to the court in his Escape case, his prior experience in the Bureau of Prisons included lengthy transit which may well result in temporary placements and take months to get to the designated institution. He said or wrote that "transit is not fun." It is well known among District Judges that transit is not popular among convicts. The vast majority of inmates who are eligible for self-surrender will ask for that condition to be imposed.

The date for self-surrender in the Escape case was January 8, 2010. It was ordered November 25, 2009 and also on December 10, 2009. Petitioner was present at these times and asked no questions. The only step he took after December 10 was to come in to court on December 16, 2009 and request surrender to a designated institution (as opposed to surrendering to a Marshal at the courthouse). When granting the right to surrender at the designated institution the court did not change the surrender date.

On January 5, 2010 petitioner finally filed a motion asking for a stay of the January 8 surrender date. The district court denied the motion. The court order which gave petitioner the right to surrender at the designated institution (as opposed to surrendering at the courthouse) did not specify the institution (it is uncommon for the BOP to have made the designation at the time the court orders surrender). The U.S. Marshal's Service is the most likely agency to have initial notice of the designated institution, and the probation officer told petitioner the location of the Marshal's Service on the 24th Floor of the courthouse.

Petitioner did not surrender on January 8 but the court did not issue a bench warrant for petitioner until January 29. To save the cost of enforcement the prosecution may not seek a warrant until it becomes crystal clear that the convict is not going to surrender himself. When the Deputy Marshal went to the address petitioner had been using for his residence to execute the bench warrant, the place seemed vacant and not in good repair. The officers called petitioner's cell phone and then called other places where he might be found. When they made contact the petitioner declared that he had already talked to the judge and said "I'm going to turn myself in." In a later conversation with Deputy Patel, the man who told petitioner of the bench warrant, the deputy told petitioner to surrender himself at the courthouse lobby the next day at 8:30 a.m. Petitioner responded that he would surrender as required. He did not surrender.

What he did do was rent a car and drive to Nashville, Tennessee where he failed to return the car on the due date of January 30. He stayed in Nashville until February 3 when he was arrested.

He did answer the law enforcement officer who spoke to him after his arrest. He reported to Secret Service agents (1) that he knew his supervised release had been revoked, (2) that self-surrender to the Marshals had been ordered by the court and (3) that the Marshals were looking for him. Petitioner decided, he said, not to surrender in order that he could complete his yet unfinished appeal of the supervised release revocation.

Petitioner testified at the trial in this case. He admitted knowing that he had been given instructions by Deputy Marshals and by the district judge's clerk, all of them clearly telling him to turn himself in. Instead he went to Nashville. He abandoned his "preparing an appeal" reason for not surrendering. His trial claim was that he did not surrender because he was waiting for the BOP to designate a particular institution so he could avoid transit.

I found petitioner guilty of willfully refusing to surrender in accordance with the court order. All the elements of the offense were proven beyond a reasonable doubt. Petitioner knew what his obligations were. He admitted that he knew he was obliged to surrender on January 8 and then didn't do so. Petitioner was untruthful at trial.

In this § 2255 petition the petitioner attacks the quality of his representation. The performance of counsel has to fall below a clear standard of reasonable quality, and even if it did the errors of counsel have to be shown to have made a difference. There is, finally, a strong presumption that, in the context of the overall case, the decisions of counsel may be sound. See Strickland v. Washington, 466 U.S. 668, 694 (1984), Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011), Brown v. Finnan, 598 F.3d 416, 422 (7thCir. 2010); all cases correctly cited by the prosecution. The bottom line is that it is difficult for petitioners to succeed on claims of ineffective representation by counsel.

On this standard the decisions of defense counsel not to call, as witnesses, Judge Pallmeyer's clerk, the duty federal defender, and Deputy Marshal Robinson are beyond reproach. The theme sounded by petitioner is that he received different information from each of these witnesses and other witnesses beside. The differences are simply not material. Someone may, for example, have told petitioner that there was an arrest warrant for petitioner when in fact it was a bench warrant requiring appearance in court. The relevant point is that no one told him he did not have to surrender himself soon nor did any officer of the court or the executive branch tell him that he did not have to surrender himself on January 8. In short, the ...


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