United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN W. DARRAH, District Judge.
Defendant-Petitioner John Hemphill is currently serving a 90-month sentence for convictions for mail fraud and false impersonation of a federal officer. Hemphill has moved, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence, on the basis that during sentencing, the district judge said Hemphill was an "intelligent individual" without knowing that Hemphill had been evaluated as a child as mildly mentally retarded. For the reasons stated below, Hemphill's § 2255 Motion  is denied.
The Seventh Circuit summarized the factual background of this case in its opinion, United States v. Hemphill, 447 Fed.Appx. 733 (7th Cir. 2011). In October 2002, Hemphill concocted a "rather elaborate" fraudulent scheme to take possession of certain Illinois properties under the guise that the properties had been seized by the federal government and that Hemphill was the federal government's "receiver." Id. at 734. To further his scheme, Hemphill incorporated two companies, United States Receivers Caretakers Association ("USRCA") and United States Mortgage Release Corporation ("USMRC"). Id. From 2002 to 2009, Hemphill filed dozens of fraudulent deeds with the Cook County Recorder of Deeds ("CCRD"), transferring properties from the properties' owners to USRCA or USMRC and then selling the properties to unsuspecting third-parties. Id. at 734-35.
After receiving complaints about Hemphill, law enforcement began investigating him in 2009. Id. at 735. As part of this investigation, an undercover government agent met with Hemphill about purchasing a property that Hemphill did not own. The agent paid Hemphill a down payment, and Hemphill filed a release deed with the CCRD. (Trial Transcript ("Tr.") at 110, 138-44.) After the agent paid the remaining balance, Hemphill signed a special warranty deed for the property and gave the deed to the agent. ( Id. at 148-51.) Hemphill was subsequently arrested, and a search warrant was executed on Hemphill's office. ( Id. at 151-52.)
On October 15, 2009, Hemphill was indicted on one count of mail fraud and one count of false impersonation of a federal officer, in violation of 18 U.S.C. §§ 1341 and 912, respectively. On August 16, 2010, Hemphill proceeded to trial, where he represented himself pro se with the assistance of stand-by counsel. After a four-day trial, the jury returned a verdict of guilty on both counts.
On January 26, 2011, Hemphill's sentencing hearing was held. Hemphill's stand-by counsel filed a sentencing brief and argued on Hemphill's behalf at the hearing. His counsel objected to the Probation Officer's conclusion that Hemphill's criminal history category was VI, as well as made a number of 18 U.S.C. § 3553 objections. The district judge agreed that Hemphill's criminal history category was overstated and sentenced Hemphill as a criminal history category V instead. (Sentencing Transcript ("S. Tr.") at 27-28, 35.)
During the sentencing hearing, Hemphill's lack of education and lack of sophistication were raised. Specifically, Hemphill's counsel objected to the Probation Officer's recommendation that a "sophisticated means" enhancement be applied to Hemphill's sentence. The government agreed with Hemphill that this enhancement was not appropriate. The district judge also agreed this enhancement was not appropriate, stating "that although there was considerable activity in order to move forward this process, ... the means utilized in performing this scheme were anything but sophisticated." (S. Tr. at 17.) Additionally, Hemphill's counsel described Hemphill as "essentially a street - a creature of the streets, and who doesn't have a lot of education, doesn't have a lot of training, certainly doesn't have financial wherewithal." ( Id. at 40.)
During his allocution, Hemphill apologized to the district judge, stating that "this is way, way over my head. And I know that things that is [sic] going on right now, I'm not educated on them. But I do know a little bit - little things about receivership. So that's why I challenged the court and came to found [sic] out that I don't know a whole lot that I thought I knew." ( Id. at 43.) He then told the district judge that "I do everything by the book." ( Id. at 46.)
After Hemphill's allocution, the district judge responded and remarked that Hemphill was attempting "to convince the Court as to the propriety of his efforts to save the neighborhood, " but "those attempts were an act at failure because I haven't heard or seen anything that suggest to me that there is one person who has been helped other than yourself." The district judge continued addressing Hemphill, "You talk about trying to do things the right way. I think a person with an ounce of intelligence would know I don't sign my name and put my thumbprint on a document and the name that I sign is not my name but somebody else's name. That's not doing things the right way." ( Id. at. 46.) The district judge then stated:
It is clear to the Court, based upon the evidence in this case and even your comments here today that, Mr. Hemphill, you are just a glorified conman who is continuing to try and con people, including the Court today, into believing that you are going to continue with this process once you get out and make sure you do it the right way. You are an intelligent individual. And for you to say that I am a receiver and I am going to come and take your property and give to someone else because the neighborhood is so bad, let me tell you, based upon what I have heard and seen in this court, the neighborhood is going to be better when you are not in it, because you take advantage of people and the people who can least afford to be taken advantage of.
( Id. at 46-37.) The district judge then sentenced Hemphill to concurrent prison terms of 90 months for the mail fraud and 36 months for the false impersonation count. The Seventh Circuit affirmed both Hemphill's conviction and sentence on direct appeal.
While Hemphill's appeal was pending, the Probation Office belatedly received records showing that, in 1984 at age 14 years old, Hemphill had been evaluated as "mildly mentally retarded" and had received special education services at school. (Pet.'s Mem. in Supp. of Mot. at 6, 7.) After the case was remanded to the district court, Hemphill's court-appointed counsel obtained court approval for a neuropsychological evaluation of Hemphill, which was performed by a clinical psychologist in ...