Perez v. United States

STEVEN PEREZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 13 C 4478

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

December 22, 2015

Chief Judge Rubén Castillo

MEMORANDUM OPINION AND ORDER

Steven Perez ("Petitioner") is serving a 60-year sentence for his participation in a racketeering conspiracy. Presently before the Court is his motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (the "petition"). (R. 23, Am. Pet.) For the reasons set forth below, the petition is denied.

BACKGROUND

The facts underlying Petitioner's conviction are set forth in detail in the prior opinions of the U.S. Court of Appeals for the Seventh Circuit and this Court. See United States v. Perez, 673 F.3d 667 (7th Cir. 2012); United States v. Morales, 655 F.3d 608 (7th Cir. 2011); United States v. Benabe, 654 F.3d 753 (7th Cir. 2011); United States v. Benabe, 436 F. App'x 639 (7th Cir. 2011) (per curiam); United States v. Delatorre, 572 F. Supp. 2d 967 (N.D. Ill. 2008); United States v. Delatorre, 522 F. Supp. 2d 1034 (N.D. Ill. 2007); United States v. Delatorre, 508 F. Supp. 2d 648 (N.D. Ill. 2007); United States v. Delatorre, 438 F. Supp. 2d 892 (N.D. Ill. 2006). They are repeated here only generally.

In 2002, state and federal authorities began an intensive investigation into the Insane Deuces street gang after one of its members, Orlando Rivera, agreed to serve as a confidential informant. Morales, 655 F.3d at 615. Petitioner was among sixteen men indicted on various racketeering-related charges in connection with the investigation. Id. The evidence adduced at trial showed that the gang was affiliated with the Folks, a national network of local gangs. Id. The government's investigation focused on the Aurora Deuces, a chapter of the Insane Deuces with a significant presence in Aurora, Illinois. Id. As of 2002, the Aurora Deuces had become bitter rivals of the Latin Kings (also referred to as the "Kings"). Id. at 616. This rivalry led to "frequent and escalating violence." Id.

The Insane Deuces had its own set of "leyas," or laws, as well as a detailed hierarchy. Id. There were three tiers of membership within the gang: Seniors, Juniors, and Shorties. Id. Shorties were the gang's youngest members, who carried out most of the gang's activities, including shootings and other acts of violence, as well as selling drugs to fund the gang. Id. Shorties were often juveniles. Id. By participating in gang activities, Shorties could work their way up to becoming Juniors, who were responsible for the gang's day-to-day operations. Id. Juniors were the leaders of the gang, and they directed the gang's activities, which included selling drugs, carrying out "missions" (attacks on rival gang members), protecting and supporting fellow gang members and their families, and punishing gang members who violated the gang's rules. Id. Seniors were "longstanding members of the gang whose age and accomplishments made them the leaders, broad-scope planners, and advisors for the gang." Id. Seniors directed Juniors on larger issues, but they were more removed from the gang's day-to-day activities. Id.

Working with law enforcement, Rivera reported extensively on the gang's activities, conducted controlled buys of narcotics and firearms from gang members, and surreptitiously recorded meetings and conversations of gang members. Id. The intelligence gathered through Rivera produced evidence regarding "four murders, eleven attempted murders, two solicitationsto commit murder, other shootings, and narcotics distribution incidents—all of which the Deuces perpetrated in 2002 alone." Id. A federal grand jury returned a multi-count indictment against Petitioner and fifteen other gang members. Id. One of them pled guilty, and another remains a fugitive. Id. The Court divided the remaining fourteen defendants into two groups for purposes of trial. Id. at 619. Petitioner was originally grouped with the "less major players," who were to be tried before U.S. District Judge Harry D. Leinenweber. Id.

In April 2008, Judge Leinenweber commenced the trial of the less major players. United States v. Morales, No. 03 CR 90, 2009 WL 1456567, at *1 (N.D. Ill. May 22, 2009). A mistrial was declared shortly after opening statements, however, when several jurors asked to be removed from the jury. Id. The retrial was scheduled for October 2008. Id. In the interim, the trial of the other group of defendants—the so-called "leaders" of the gang—proceeded before this Court, and all but one of the defendants were convicted of racketeering conspiracy and other offenses.¹ Benabe, 654 F.3d at 757.

In October 2008, the retrial of the less major players was held. Morales, 655 F.3d at 619. The trial spanned more than two months, during which time the government presented extensive witness testimony, recordings of gang meetings, and forensic evidence establishing the gang's activities, rules, and purpose. Id. Rivera described the inner workings of the gang, explained what was said in the various recorded meetings, and described the gang's organization and means of rule enforcement. Id. Two other former gang members, Lorenzo Becerra and Akeem Horton, testified on behalf of the government regarding the gang's activities and the scope of participation of each individual defendant. Id. The government also presented testimony from a variety of police officers and federal agents, as well as several victims of the violence perpetratedby the gang. Id. After a week of deliberations, the jury returned its verdicts finding all the defendants guilty of racketeering conspiracy, with the exception of Petitioner. Id. The jury could not reach a verdict as to Petitioner, and a mistrial was declared as to him. Morales, 2009 WL 1456567, at *1.

Petitioner was subsequently retried on his own before this Court. Perez, 673 F.3d at 668. Much of the same evidence was presented regarding the gang's racketeering activities, including the testimony of Rivera and other cooperating gang members and the undercover recordings of gang meetings. This evidence established as follows:

Perez was involved in three attempted murders as a member of the Insane Deuces . . . . The first two attempted murders occurred on January 20, 2002, when brothers Gerardo and Rodolpho Rios were mistaken for members of a rival street gang and shot while walking along the street. Gerardo was struck in the leg; Rodolpho in the arm and back. The third attempted murder occurred on May 11, 2003, when Perez rang the doorbell of the Rivera family home looking for Orlando Rivera—a member of the Insane Deuces who was cooperating with police. But Orlando had already moved out of the home for protection, and Orlando's father, Tomas Rivera, answered the door instead. Perez shot Tomas in the arm as soon as he opened the door, before being chased away by another family member.

Id. At the close of the evidence, the jury found Petitioner guilty of racketeering conspiracy. Id. In a second round of deliberations, the jury returned special verdicts for the purpose of sentencing enhancement, finding it "proven" that Petitioner was responsible for the attempted murders of Tomas Rivera and both Rios brothers. Id. The jury found as "proven" that Petitioner had personally discharged the firearm that caused Tomas Rivera's injury, but "not proven" that Petitioner had personally discharged the firearm that caused the Rios brothers' injuries. Id. This Court subsequently sentenced Petitioner to 60 years in prison. Id.

On appeal, Petitioner raised one argument—that the Court violated his rights under the Grand Jury Clause of the Fifth Amendment by permitting the government to redact certainportions of the indictment that was sent back with the jury. Id. at 669. In an opinion issued on March 12, 2012, the Seventh Circuit rejected this argument and affirmed Petitioner's conviction and sentence in all respects. Id. at 669-70. Petitioner did not seek certiorari with the U.S. Supreme Court. (R. 1, Pet. at 2.)

On June 12, 2013, Petitioner filed a petition to vacate his sentence under 28 U.S.C. § 2255. (R. 1, Pet.) The Court denied the petition without briefing. (R. 5, Order.) Petitioner moved for reconsideration of that ruling (R. 7, Mot.), and on reconsideration, the Court concluded that Petitioner could proceed further if he filed an amended petition that clearly articulated his grounds for relief.² (R. 16, Order.) Thereafter, Petitioner filed an amended petition asserting five grounds of ineffective assistance of appellate counsel. (R. 23, Am. Pet.) The Court ordered briefing on the petition, which has now been completed. (See R. 27, Gov't's Resp.; R. 29, Pet'r's Reply.)

LEGAL STANDARD

"To succeed on a § 2255 petition a convicted defendant must show that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996); see also 28 U.S.C. § 2255(a). "Relief under this statute is available only in extraordinary situations," such as where "an error of constitutional or jurisdictional magnitude" has occurred, "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).

ANALYSIS

I. Timeliness

The government first argues that the petition was untimely and cannot be considered on the merits. (R. 27, Gov't's Resp. at 1-3.) A petition filed under 28 U.S.C. § 2255 "is subject to a one-year time limitation." Clay v. United States, 537 U.S. 522, 524 (2003). The limitations period begins to run on the latest of the following dates:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant

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