Criminal Law

In prosecution on drug distribution charge arising out of sting operation involving drug buy, Dist. Ct. did not err in denying defendant's motion to suppress drugs seized from defendant during strip search subsequent to his arrest, even though defendant argued that police lacked probable cause to stop him or to conduct strip search. At time of defendant's arrest, police had probable cause to believe that defendant had attempted to sell drugs to informant where: (1) van in which defendant was passenger appeared at pre-arranged location specified by informant as part of sting; (2) van matched description given by different informant; and (3) police observed defendant's cell phone ring when informant redialed number he had been using to set up drug buy. Moreover, police could conduct strip search of defendant at police station where: (1) drug dog alerted police to presence of drugs in van; (2) police were aware of defendant's habit of hiding drugs between his buttocks; and (3) defendant exhibited marked fidgeting while seated at police station.

Dist. Ct. did not err in denying defendant's habeas petition under 28 USC section 2241 in which defendant challenged his sentence for drug and firearm offenses where said sentence was enhanced under Armed Career Criminal Act (ACCA). Record showed that defendant had filed prior unsuccessful section 2255 habeas petition, and defendant could not proceed with instant section 2241 petition where he failed to show that sentencing remedy was unavailable to him under section 2255. Moreover, any lack of certainty as to legal basis supporting his sentencing challenge did not preclude defendant from bringing instant claim in his prior section 2255 petition. Alternatively, instant habeas petition was without merit since defendant's prior state conviction for aggravated battery under circumstances where defendant committed simple battery in public place constituted violent felony under ACCA.

Dist. Ct. erred in denying defendant's habeas petition challenging his 264-month term of incarceration on illegal drug possession charge based in part on finding that defendant qualified as armed career criminal under Armed Career Criminal Act based on three prior convictions that qualified as violent felonies. Defendant was entitled to new sentencing hearing since one of his prior convictions, i.e., Illinois charge of compelling person to become prostitute, was not violent felony for purposes of Armed Career Criminal Act.

Dist. Ct. did not err in sentencing defendant to 25-year term of incarceration on drug conspiracy charges based, in part, on finding that defendant qualified for sentencing enhancement under 21 USC section 851 arising out of 2004 state court conviction on drug charges to which defendant had pleaded guilty. While defendant argued that enhancement was improper since his trial counsel during 2004 guilty plea proceedings had failed to inform him that guilty plea could be used to trigger sentencing enhancement in any subsequent conviction, Ct. found that it was not unreasonable for defendant's counsel to fail to give said advice where possibility of enhancement was entirely contingent on defendant's decision to commit additional crimes.

Dist. Ct. did not err in dismissing defendant's habeas petition alleging that trial court denied defendant his right to counsel by denying his motion for appointment of counsel with respect to his pending motion under Indiana law to correct his sentence on his robbery conviction that had been filed after trial court had revoked his probation on said conviction. Defendant had no constitutional right to appointment of counsel where defendant's motion to correct sentence was essentially collateral attack on his sentence since: (1) alleged sentencing error was not clear from face of trial court's original judgment; and (2) resolution of defendant's alleged error required consideration of proceedings that occurred after entry of original judgment.

Dist. Ct. did not err in sentencing defendant to 24-month term of incarceration on charge of leaving threatening messages on victim’s telephone under 18 USC section 875(c). Ct. could properly weigh more heavily victim’s impact statement over defendant’s mitigation evidence that included his good work in community. Moreover, Ct. rejected defendant’s claim that his sentence was unreasonable where Ct. noted that defendant continued to leave threatening messages after being warned by FBI not to do so.