Criminal Law

Defendant filed request for order authorizing Dist. Ct. to entertain second motion for collateral review of defendant’s 262-month term of incarceration, where defendant was sentenced as career offender under Armed Career Criminal Act (ACCA), and where defendant relied on Johnson, 135 S.Ct. 2551 to support argument that he is entitled to new sentence because residual clause in ACCA is unconstitutionally vague. Defendant could not show that his sentence violated Johnson since Dist. Ct. did not base sentence on residual clause, but rather on defendant’s prior convictions for carjacking, which had as element use or threatened use of force and for residential burglary, which qualified as “crime of violence” under section 4B1.2(a)(2) of USSG. (Dissent filed.)

In prosecution on receipt and possession of child pornography charges, defendant was entitled to remand for new sentencing hearing on issue regarding whether to impose any standard or special terms of supervised release, where Dist. Ct. did not make any findings to justify its imposition of certain standard and special conditions, and where certain terms of supervised release needed clarification. Specifically, Dist. Ct. on remand should: (1) clarify nature of support defendant is required to provide to family members and consider defendant’s financial ability to pay any support; (2) define requirement that defendant obtain “regular” employment; (3) define “change of employment” that would trigger defendant’s obligation to notify his probation officer; (4) clarify prohibition on defendant’s presence at places where illegal drugs are sold or presence with individuals engaged in criminal activity; (5) clarify time and frequency of probation officer visits to defendant’s home; and (6) clarify circumstances regarding defendant’s notification to others of risks associated with defendant’s criminal background. Dist. Ct. did not err, though, in imposing restrictions on defendant’s use of alcohol and banning unsupervised visits with female minors, where Dist. Ct. adequately explained links between such restrictions and instant charged offenses.

In prosecution on unlawful possession of firearm charges, Dist. Ct. did not err in denying defendant’s motion to suppress seizure of firearm from defendant’s rental car, even though defendant argued that Franks hearing was required to determine search’s validity in light of fact that officer seeking search warrant misrepresented and omitted certain facts. Instant affidavit listed several facts that connected defendant to series of bank robberies, including: (1) presence of Cardinal baseball cap and grey basketball shoes in defendant’s car that resembled items worn by perpetrator(s) in bank robberies; (2) existence of several contacts that defendant made with another suspect in said robberies; and (3) existence of incriminating phone call that defendant made to girlfriend to clean out his car. Fact that officer told judge that cap was worn during one robbery, that basketball shoes were “Jordans” as opposed to “LeBrons” (which were in defendant’s car), or that defendant’s car resembled car observed at two robberies either were not misstatements or were immaterial misstatements so as to not require Franks hearing. Moreover, remaining facts in affidavit were sufficient to establish probable cause to believe that defendant’s car contained evidence of instant bank robberies.

Dist. Ct. erred in denying defendant’s habeas petition challenging his 100-year sentence on state-court murder and firearm charges on grounds that his sentence constituted cruel and unusual punishment under Miller, 132 S.Ct. 2455, due to fact that he was only 16 years old at time of offenses. Record showed that defendant had failed to raise instant 8^th Amendment claim in state court proceedings, although record demonstrated that defendant had potentially viable 8^th amendment claim, where trial court did not consider defendant’s youth as mitigating factor when imposing instant de-facto life sentence. Moreover, remand was required since defendant’s habeas claim was “premature,” where defendant still had potential under Illinois law for filing successive petition for post-conviction relief that raised instant 8^th Amendment claim. Ct. also directed Dist. Ct. to further consider defendant’s habeas petition once state court acts on any successive petition for post-conviction relief. Dissent maintains that defendant had defaulted any 8^th Amendment claim due to his failure to raise it in his direct appeal or initial petition for post-conviction relief, and that Miller did not apply to instant case where defendant’s offenses did not require imposition of death/mandatory life term that was at issue in Miller.

In prosecution on unlawful possession of firearm charge, Dist. Ct. did not err in denying defendant’s motion to suppress warrantless seizure of firearm initially discovered by Cook County Dept. of Revenue agents, who had entered defendant’s convenience store to investigate recent purchase of cigarettes that failed to contain proper tax stamps. Record showed that agents found firearm in area of store where cigarettes were stored and in area near jar that contained likely narcotics that store sold for $5 per pill, and Ct. rejected defendant’s challenge to local cigarette ordinance that allowed agents to make instant administrative search. Also, Ct. found that instant warrantless search of defendant’s store was not unreasonable under Burger, 482 U.S. 691, since defendant did not possess reasonable expectation of privacy in view of ordinance that gave defendant notice of potential for instant search, as well as fact that sale of cigarettes was pervasively regulated business.

In prosecution on drug and firearm charges, Dist. Ct. did not err in overruling defendant’s objection to prosecutor’s use of peremptory challenge on one of two African-Americans potential jurors, who indicated in questionnaire that he had been victim of prior false arrest. Dist. Ct. could properly find that prosecutor’s statement, that juror’s response in questionnaire was evidence of bias against law enforcement, was race-neutral justification for use of peremptory challenges, and defendant failed to show that said justification was pretext for race discrimination, where: (1) none of three proposed comparative jurors gave similar false-arrest response in questionnaire; and (2) one proposed juror, who left question unanswered and was not stricken by prosecutor, was African-American. Fact that prosecutor did not ask stricken juror any clarifying questions about his response in questionnaire did not require different result. Ct. also rejected defendant’s argument that prosecutor could not use bias against law enforcement as race-neutral justification because African-Americans are disproportionately affected by negative interactions with law enforcement personnel.

Dist. Ct. did not err in denying defendant’s habeas petition, challenging his drug convictions on ground that record failed to show that he validly waived his appointed appellate counsel on direct appeal. State court’s determination that valid waiver had occurred was not unreasonable application of established law, where: (1) record need only show existence of “straightforward assent” for waiver of appellate counsel, as opposed to colloquy that is normally required for waiver of trial counsel; and (2) record showed that defendant told his appellate counsel that he wanted to proceed pro se, and defendant subsequently signed waiver form provided by appellate counsel that informed defendant of perils of proceeding pro se. Ct. rejected defendant’s argument that instant waiver was nonetheless involuntary due to his inability to read and write and due to his prior vacillation on whether to proceed pro se, since: (1) written waiver came after any oral vacillation on waiver of appellate counsel; and (2) state court could reasonably discount evidence of defendant’s inability to read or write.