United States District Court, S.D. Illinois
RAYMOND M. MARTIN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
matter comes before the Court on Petitioner Raymond M.
Martin's Motion (Doc. 1) to Vacate, Set Aside or Correct
his sentence pursuant to 28 U.S.C. § 2255. The
Government filed a timely response (Doc. 13) and the
Petitioner filed a reply (Doc. 18). Petitioner also filed a
Motion (Doc. 2) to Supplement the Petition and the Government
filed a response to the supplement (Doc. 23). Petitioner then
filed a reply (Doc. 24).
Court has reviewed the motion, briefs, and the records of
this case and has determined that an evidentiary hearing is
not warranted as the file and records conclusively
demonstrates that the prisoner is entitled to no relief.
See 28 U.S.C. § 2255(b).
September 23, 2010, Raymond M. Martin was found guilty at
trial of the fifteen offenses alleged in the Second
Superseding Indictment including distribution of marijuana,
carrying a firearm during a drug trafficking crime, and
witness tampering. See United States v. Martin,
09-cr-40037-JPG, Doc. 79. He was sentenced on January 19,
2011, to custody of the Bureau of Prisons for 60 months as to
Counts 1, 2, 3, 6, and 15 (all counts to run concurrent); 120
months as to Counts 7 through 14 (to run consecutive to
counts 1, 2, 3, 6 and 15); life with regard to Count 4 (to
run consecutive to Counts 1, 2, 3, 6, and 7 through 15); and
life with regard to Count 5 (to run consecutive to Court 4).
See United States v. Martin, 09-cr-40037-JPG, Doc.
138. Petitioner appealed and the United States Court of
Appeals for the Seventh Circuit affirmed the conviction, but
vacated the sentence. See USA v. Martin, 692 F.3d
760 (7th Cir. 2012).
case was remanded for resentencing and a hearing was
conducted on December 7, 2012. Petitioner was resentenced by
the Court to the same sentence as indicated above. See
United States v. Martin, 09-cr-40037-JPG, Doc. 253. The
Petitioner again appealed and that appeal was dismissed on
February 6, 2014. See USA v. Martin, 554 Fed.Appx.
515 (7th Cir. 2014).
filed his 28 U.S.C. § 2255 Petition on March 20, 2015,
alleging ineffective assistance of counsel. A judgment of
conviction becomes final for ' 2255 purposes when the
time expires for filing a petition for certiorari
contesting the appellate court's decision affirming of
the conviction. Clay v. United States, 537 U.S. 522,
524-25 (2003). The period for filing such a petition expires
90 days after the court of appeals enters judgment or denies
a petition for rehearing. S.Ct. R. 13. As such,
Petitioner's 28 U.S.C. § 2255 Petition was timely
Court must grant a § 2255 motion when a defendant's
“sentence was imposed in violation of the Constitution
or laws of the United States.” 28 U.S.C. § 2255.
However, “[r]elief under § 2255 is available
‘only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a
fundamental defect has occurred which results in a complete
miscarriage of justice.'” United States v.
Coleman, 763 F.3d 706, 708 (7th Cir. 2014) (quoting
Blake v. United States, 723 F.3d 870, 878-79 (7th
Cir. 2013)). It is proper to deny a § 2255 motion
without an evidentiary hearing if “the motion and the
files and records of the case conclusively demonstrate that
the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b); see Sandoval v. United
States, 574 F.3d 847, 850 (7th Cir. 2009).
a defendant cannot raise in a § 2255 motion
constitutional issues that he could have but did not raise in
a direct appeal unless he shows good cause for and actual
prejudice from his failure to raise them on appeal or unless
failure to consider the claim would result in a fundamental
miscarriage of justice. Massaro v. United States,
538 U.S. 500, 504 (2003). Neither is a § 2255 motion
necessarily a second chance at an appeal. Varela v.
United States, 481 F.3d 932, 935 (7th Cir. 2007).
Applying the “law of the case” doctrine, the
Court may refuse to consider issues in a § 2255 motion
that a defendant raised on direct appeal where there are no
changed circumstances of fact or law. Id.;
Fuller v. United States, 398 F.3d 644, 648 (7th Cir.
2005); Olmstead v. United States, 55 F.3d 316, 319
(7th Cir. 1995); Belford v. United States, 975 F.2d
310, 313 (7th Cir.1992).
regard to the petitioner's allegations of ineffective
assistance of counsel, the failure to hear a claim for
ineffective assistance of counsel in a ' 2255 motion is
generally considered to work a fundamental miscarriage of
justice because often such claims can be heard in no other
forum. They are rarely appropriate for direct review since
they often turn on events not contained in the record of a
criminal proceeding. See Massaro v. United States,
123 S.Ct. 1690, 1694-5 (2003). In addition, the district
court before which the original criminal trial occurred, not
an appellate court, is in the best position to initially make
the determination about the effectiveness of counsel in a
particular trial and potential prejudice that stemmed from
counsel's performance. For these reasons, ineffective
assistance of counsel claims, regardless of their substance,
may be raised for the first time in a ' 2255 petition.
Sixth Amendment to the Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his
defense.” U.S. Const. amend. VI. This right to
assistance of counsel encompasses the right to
effective assistance of counsel. McMann v.
Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson
v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party
claiming ineffective assistance of counsel bears the burden
of showing (1) that counsel's performance fell below
objective standards for reasonably effective representation
and (2) that this deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 688-94
(1984); United States v. Jones, 635 F.3d 909, 915
(7th Cir. 2011); Wyatt v. United States, 574 F.3d
455, 457 (7th Cir. 2009), cert. denied, 130 S.Ct.
2431 (2010); Fountain v. United States, 211 F.3d
429, 434 (7th Cir. 2000).
satisfy the first prong of the Strickland test, the
petitioner must direct the Court to specific acts or
omissions of his counsel. Wyatt, 574 F.3d at 458.
The Court must then consider whether in light of all of the
circumstances counsel's performance was outside the wide
range of professionally competent assistance. Id.
The Court's review of counsel's performance must be
“highly deferential[, ] . . . indulg[ing] a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Strickland, 466 U.S. at 689; accord Wyatt,
574 F.3d at 458. Counsel's performance must be evaluated
keeping in mind that an attorney's trial strategies are a
matter of professional judgment and often turn on facts not
contained in the trial record. Strickland, 466 U.S.
at 689. The Court cannot become a “Monday morning
quarterback.” Harris v. Reed, 894 F.2d 871,
877 (7th Cir. 1990).
satisfy the second prong of the Strickland test, the
plaintiff must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceedings would have been different, such that the
proceedings were fundamentally unfair or unreliable.
United States v. Jones, 635 F.3d 909, 915 (7th Cir.
2011); Fountain, 211 F.3d at 434; Adams v.
Bertrand, 453 F.3d 428, 435 (7th Cir. 2006). “A
reasonable probability is defined as one that is sufficient
to undermine confidence in an outcome.” Adams,
453 F.3d at 435 (citing Strickland, 466 U.S. at
the Court must liberally construe pro se pleadings.
See Haines v. Kerner, 404 U.S. 519, 520 (1972);
Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir. 1998).
However, Courts are not obliged to craft arguments or perform
necessary legal research for pro se litigants,
because even pro se litigants must put forward some
legal argument in support of their contentions. See
Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.
2001); Mathis v. New York Life Ins., 133 F.3d 546,
548 (7th Cir.1998); Pelfresne v. Village of Williams
Bay, 917 F.2d 1017, 1023 (7th Cir. 1990).
initial motion, Petitioner alleges eight claims of
ineffective assistance of counsel.
supplemental material has been considered and addressed
within the appropriate initial claim. The Court will address
each of the Petitioner's claims in the order raised in
(1) Whether Petitioner was denied due process by ineffective
assistance of counsel for failing to object to the lack of a
argues that there was no evidence to support federal
jurisdiction over the offenses and that his counsel was
ineffective for failing to object that a federal cause of
action existed. Petitioner cites to United States v.
Lopez, 514 U.S. 549 (1995) as setting out the,
“interstate nexus necessarry (sic) in order to
establish federal jurisdiction.” He notes that it is
the government's burden to prove jurisdiction and to
prove, “that the accused's conduct affected
interstate commerce.” (Doc. 1-1, pgs 11 & 12).
petitioner argues that his alleged conduct involved stealing
marijuana from an evidence room and selling it, but not that
the marijuana was “transported or otherwise flowed
through interstate commerce.” (Doc. 1-1, pg 11). While
Lopez does set the framework for federal
jurisdiction, the case involved a particular statute or
provision that fell entirely outside of Congress'
commerce power. That is not the case with regard to the
In Raich, the Court addressed Congress's
authority to regulate the marijuana market. The Court
reaffirmed “Congress' power to regulate purely
local activities that are part of an economic ‘class of
activities' that have a substantial effect on interstate
commerce.” 545 U.S., at 17, 125 S.Ct. 2195. The
production, possession, and distribution of controlled
substances constitute a “class of activities”
that in the aggregate substantially affect interstate
commerce, and therefore, the Court held, Congress
possesses the authority to regulate (and to criminalize) the
production, possession, and distribution of controlled
substances even when those activities occur entirely
within the boundaries of a single State. Any other
outcome, we warned, would leave a gaping enforcement hole in
Congress's regulatory scheme. Id., at 22, 125
Taylor v. United States, 136 S.Ct. 2074, 2080, 195
L.Ed.2d 456 (2016)(emphasis added).
such, the distribution of controlled substances - regardless
whether the activity is local or interstate - has been deemed
to substantially affect interstate commerce. Further, as the
government notes, there was factual evidence at trial that
the petitioner obtained marijuana from Tennessee and that he
was aware that such product was being obtained from
Tennessee. See United States v. Martin,
09-cr-40037-JPG, Doc. 127, pg. 530.
petitioner's counsel was not ineffective for failing to
object to the lack of a federal nexus as such an objection
would be frivolous.
(2) Whether Petitioner was denied due process by ineffective
assistance of counsel for failing to request a
Franks hearing challenging the accuracy of the
statements of Jeremy Potts.
claims that, “Potts, or otherwise the informant, gave
false testimony while testifying at the petitioner's
trial.” Further, petitioner claims that Mr. Potts gave
a false statement, “in a police statement initiating
the investigation.” Therefore, petitioner claims that
his counsel should have moved for a Franks hearing
and also “moved the court to suppress all of the
evidence procured by law enforcement.” (Doc. 1-1, pg.
Petitioner cites to Franks v. Delaware, 438 U.S. 154
(1978) which held:
[W]here the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was including by the
affiant in the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the
defendant's request. In the event that at that hearing
the allegation of perjury or reckless disregard is
established by the defendant by a preponderance of the
evidence, and, with the affidavit's false material set to
one side, the affidavit's remaining content is
insufficient to establish probable cause, the search warrant
must be voided and the fruits of the search excluded to the
same extent as if probable cause was lacking on the fact of
the affidavit. Id. at 155-56.
Petitioner does not mention a search warrant in his
arguments. He only states that Potts gave false testimony at
trial and in a police statement. Petitioner never states that
such false statements were used to obtain a search warrant.
The government provided a copy of the three warrants that
were issued in petitioner's criminal investigation.
(Docs. 13-7, 8, & 9). As the government states, not one
of these warrants reference the false statement by Mr. Potts
that petitioner “put a gun to his head and threatened
him.” Also, even if a false statement was included in
one of the affidavits, there is no allegation by the
petitioner that the individual attesting to the warrants'
affidavits knowingly and intentionally, or with reckless
disregard for the truth, included the statement.
Court has reviewed the affidavits and has found each to be
well supported by personal observation of the attester and
other law enforcement agents along with various surveillance
and recorded transactions.
arguments that, “Counsel for the petitioner failed to
obtain the phone records which would indicate that there were
certain calls made by Potts to the petitioner which were not
part of law enforcement operation” has no bearing on
the warrants as these calls were not the basis for any of the
warrants. Further, the government indicates that the records
were provided to petitioner's counsel in discovery on
March 10, 2010. (Doc. 13, pg 46, n. 14).
only issue with regard to a Franks hearing is
whether a false statement knowingly and intentionally, or
with reckless disregard for the truth, was including by the
affiant in the warrant affidavit. Here, the petitioner has
not made any showing, let alone a substantial showing, that
such a statement was included. ...