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Payne v. United States

United States District Court, N.D. Illinois, Eastern Division

November 5, 2019



          Sharon Johnson Coleman, United States District Judge

         Pro se petitioner Marshall Payne filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.[1] For the reasons stated below, the Court denies Payne's motion and declines to certify any issues for appeal. 28 U.S.C. § 2253(c)(2).


         A grand jury returned an indictment charging Payne with felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Payne originally pleaded not guilty and moved to suppress his post-arrest statements and evidence recovered during the search of his car, including two loaded semi-automatic handguns.

         At the motion to suppress hearing, evidence revealed that Chicago Police Officers and the U.S. Drug Enforcement Administration were investigating drug trafficking activities in the Chicago area. As part of the investigation, law enforcement obtained court-authorized wire taps and then intercepted communications between Payne and his brother Dwayne Payne. Chicago Police Officer John Dolan testified that he had listened to intercepted calls on November 26, 2012 between Payne and his brother, at which time Officer Dolan determined that Payne was headed to the corner of Central Park Avenue and Division Street in Chicago to meet his brother and would have guns concealed under children's costumes in the back of his car.

         Officer Dolan and other surveillance officers proceeded to that intersection where Officer Dolan observed Payne in a Chrysler 300 parked on Central Park Avenue. Officer Dolan testified that he saw Payne reach toward the back of the car and relayed this information to the other officers. After these observations, Officer Dolan approached Payne on foot, but Payne began running to a nearby CVS store while locking his car with a key fob. Officer Dolan pursued Payne and saw him throw his keys on to the store's roof. Police then apprehended and handcuffed Payne. According to Officer Dolan, Payne spontaneously admitted that he had two guns in his car and gave verbal consent to search his car.

         Chicago Police Officer Edward Zablocki testified that he also observed Payne standing near a Chrysler 300 at the intersection of Central Park Avenue and Division Street. Officer Zablocki then ran the Chrysler's license plate number and found that the car was registered to Payne. After circling the block, Officer Zablocki saw Payne run from his car to the CVS, heard the car horn honk, and saw the car's lights flash as Payne locked the doors. Based on the intercepted calls, Officer Zablocki believed there were guns in the car and decided to stay put until Payne was apprehended. Officer Zablocki testified that he could see costumes in the backseat of the vehicle, but was instructed not to recover the guns or search the car.

         Once police recovered Payne's keys, an officer unlocked Payne's car and Officer Zablocki looked under the costumes where he found a TEC-9 millimeter semi-automatic handgun. Another Chicago Police Officer drove Payne's car to the police station where a second TEC-9 millimeter semi-automatic handgun was recovered from the trunk.

         The Court denied Payne's motion to suppress concluding that the officers had probable cause to arrest Payne and search his car based on the wiretap interceptions, surveillance, and the automobile exception, and that Payne's statements were made voluntarily. Payne then entered into a conditional plea of guilty as to the felon-in-possession count, which allowed him to appeal the motion to suppress ruling. The Court sentenced Payne to a total term of 88 months and Payne appealed.

         The Seventh Circuit affirmed the Court's suppression ruling, concluding that law enforcement had probable cause to arrest Payne and search his car and that Payne's post-arrest statements were not a product of interrogation. This § 2255 motion followed. Construing Payne's pro se § 2255 motion liberally, see Chronis v. United States, 932 F.3d 544, 554 (7th Cir. 2019), he asserts that his trial counsel was constitutionally ineffective under the Sixth Amendment for failing to present exculpatory and impeachment evidence at his suppression hearing.

         Legal Standard

         “Relief 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.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013); see also Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006) (“Motions to vacate a conviction or sentence ask the district court to grant an extraordinary remedy to one who already has had an opportunity for full process.”). To obtain relief under § 2255, a petitioner must show that his “sentence was imposed in violation of the Constitution or laws of the United States, the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Swanson v. United States, 692 F.3d 708, 714 (7th Cir. 2012) (citation omitted). Because Sixth Amendment ineffective assistance of counsel claims often involve evidence outside of the trial record, such claims may be brought for the first time in a § 2255 motion. Massaro v. United States, 538 U.S. 500, 504 (2003).


         Payne argues that his trial counsel was constitutionally ineffective at his suppression hearing and that appellate counsel was ineffective for failing to raise certain suppression hearing-related arguments on appeal. See Schmidt v. Foster, 911 F.3d 469, 478 (7th Cir. 2018) (en banc) (right to counsel “means more than a lawyer at trial, ” it “ensures that defendants facing incarceration will have counsel at ‘all critical stages of the criminal process.'”) (citation omitted). To establish ineffective assistance of counsel in violation of the Sixth Amendment, Payne must show (1) his trial attorney's performance “fell below an objective standard of reasonableness, ” informed by “prevailing professional norms” and ...

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