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United States v. Terrell

United States District Court, Seventh Circuit

October 21, 2013

UNITED STATES OF AMERICA,
v.
JEROME TERRELL

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, District Judge.

Petitioner Jerome Terrell was convicted after a jury trial for his involvement in what the Court of Appeals described as a "sprawling narcotics-distribution network on the west side of Chicago, that has been in existence since 1998." United States v. Martin, 618 F.3d 705, 709 (2010). Terrell was sentenced to 300 months' imprisonment; the court later granted his motion for a sentence reduction, to 292 months. Terrell has moved to vacate his conviction and sentence pursuant to 28 U.S.C. ยง 2255. He presents three grounds for relief: (1) trial counsel was ineffective in failing to object to testimony concerning the probable cause procedures used to obtain wiretap authorization;

(2) Petitioner is actually innocent of a prior state conviction that was relied on to enhance his sentence; and (3) Petitioner has been unable to contact his trial counsel.

For the reasons explained here, the court concludes that none of these arguments provides a basis for postconviction relief.

DISCUSSION

1. Procedures for Obtaining Wiretap Authorization

Petitioner's first argument relates to the procedures used by the government to obtain authorization for wiretapping of conspirators' telephones. As the court understands his position, Petitioner contends that the government improperly elicited testimony from F.B.I. agents concerning the procedures used in obtaining authorization for a wiretap. Such testimony is improper, Petitioner suggests, in part because the Department of Justice has issued a memorandum disapproving "such tactics." (Motion to Vacate [1], at 5.) If this argument is an challenge to the introduction of the wiretap evidence, the court notes, first, that there were no wiretapped recordings of Jerome Terrell's telephone. (See Closing Argument, Trial Transcript at 1047 ("Now, we don't have Title IIIs on Jerome's telephone, and we don't have any drug seizures from Jerome or his home. No videotapes, no undercover buys from Jerome.")

Terrell may believe that he has standing to raise a Fourth Amendment objection on behalf of his co-Defendants (who were tried separately), and that his trial attorney was ineffective for failing to do so. To establish ineffective assistance on this basis, however, Terrell would have to show that the Fourth Amendment was in fact violated. See Kimmelman v. Morrison, 477 U.S. 365, 376 (1986) (where "defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, [petitioner] must also prove that his Fourth Amendment claim is meritorious..."). There was no such violation here. Counsel for co-Defendants mounted a substantial, though ultimately unsuccessful, challenge to the use of Title III material in this case on the basis of irregularities in the process for sealing the recordings. See Docket Entries 626, 749, 882, 946, 971, 1051, 1111. That challenge was the centerpiece of the co-Defendants' appeal, as well. Defense counsel prevailed on that argument, in that the Seventh Circuit ordered a limited remand for further findings on the matter of the failure to seal, generating another round of briefing and further written ruling from this court. See Docket Entries 2359, 2364, 2371, 2374. The admissibility of the recordings was ultimately upheld. In short, the matter was exhaustively explored, and the objection to use of the Title III materials failed.

Finally, Terrell has suggested that trial counsel erred by failing to object to the government's presentation to the jury of the procedures for obtaining Title III authorization. The standard for assessing such a challenge is familiar: Terrell would need to establish that his attorney's performance was deficient in that it fell below an "objective standard of reasonableness" under "prevailing professional norms, " and that her performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Terrell's claim meets neither of these standards. As noted, the government offered substantial evidence of the steps it took to obtain authorization of wiretaps-but none of those steps uncovered wrongdoing by Terrell himself. Trial counsel emphasized this point in her cross-examination of the agent:

Q. Did you ever take money or drugs off of Jerome Terrell's person?
A. No, we did not.
Q. Now, you also said that you used pen registers; is that correct?
A. Correct.
Q. Now, did you ever use a pen register for ...

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