Lewis v. United States

• Decision Date: 09 November 2021
• Docket Number: 17-cr-10004-JES
• Parties: ARRIBA W. LEWIS, Petitioner-Defendant v. UNITED STATES, Respondent-Plaintiff.
• Court: U.S. District Court — Central District of Illinois

ARRIBA W. LEWIS, Petitioner-Defendant
v.
UNITED STATES, Respondent-Plaintiff.

No. 17-cr-10004-JES

United States District Court, C.D. Illinois, Urbana Division

November 9, 2021

ORDER AND OPINION

JAMES E. SHADID, U.S. District Judge

Before the Court is a Petitioner-Defendant Arriba W. Lewis' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (d/e 54). Lewis argues that his federal conviction for possession with intent to distribute heroin should be vacated because it stems from traffic stop in which he alleges he was racially profiled. Put in the proper legal-terms, he argues that his counsel was ineffective for failing to raise a selective-enforcement claim. Additionally, he argues he received ineffective assistance of counsel because counsel did not perform a sufficient pre-trial investigation, because counsel did not call an expert at the suppression hearing, and because his sentencing range should not have been enhanced and he should not have been designated a career offender under the Sentencing Guidelines. He argues appellate counsel should have raised these issues, too, and also considered the applicability of the First Step Act. However, because Lewis has not shown that he was prejudiced by any allegedly deficient conduct, the Court DENIES the § 2255 Motion and DECLINES to issue a Certificate of Appealability.

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I. BACKGROUND

Lewis was pulled over while driving on the interstate and, in a subsequent search of his car, was found with 208 grams of heroin. Officer Sweeney, who pulled him over, testified that he observed two instances of Lewis commit the traffic violation of following another vehicle too closely prior to pulling him over. Lewis alleges, however, that all the other drivers' around him were driving in a similar manner but were not pulled over because they were white and he is black. While Lewis' defense counsel pursued a motion to suppress, he did not raise the issue of racial profiling or selective enforcement.

A. The Traffic Stop^[1]

The traffic stop occurred in January 2017. Lewis was travelling south on Interstate 55 through McLean County in Illinois when he passed Officer Sweeney. Sweeney testified that he observed Lewis driving in a pack of vehicles travelling close to each other, that Lewis was gripping the wheel at 10:00 and 2:00, and appeared to be in a rigid position. Sweeney decided to pursue Lewis, but first stopped to see if another officer needed assistance. In the process, Sweeney triggered his dashcam. Sweeney then caught up to Lewis and saw Lewis ahead in the left lane at the preliminary stages of passing a truck in the right lane. Lewis then changed back to the right lane behind the truck. Sweeney calculated the time-distance between Lewis and the truck as 1.2 seconds, meaning Lewis followed 1.2 seconds behind the truck according to this calculation. This time-distance of roughly 1.2 seconds persisted for about 45 seconds despite the lack of traffic immediately behind him.

Sweeney then pulled Lewis over. As he approached, Sweeney noticed that the driver was the only occupant of the vehicle. As Lewis gave Sweeney his driver's license, Sweeney noticed

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that Lewis' hand was trembling. Lewis was asked to step out of the car and, although initially hesitant, did get out and sit in the front seat of Sweeney's vehicle.

Sweeney verified Lewis' driving privileges were valid and began to complete a written warning for following too closely. Sweeney told Lewis that he was getting a written warning for violating the “3 second” rule. While completing the warning, Sweeney learned that Lewis was on federal supervised release. Lewis stated that the car belonged to his grandfather and that he was going to St. Louis to pick up his 26-year-old son from school. He later said that he was picking up his son because he got into a fight with his girlfriend. Sweeney noticed that Lewis seemed unsure of where he was going in St. Louis and changed his reason as to why he was going there. As they continued to talk, Lewis became more nervous. Another trooper arrived and had his K-9 conduct a free air sniff around the vehicle. The K-9 gave a positive alert for the presence of narcotics within the vehicle. After the K-9's alert, the vehicle was searched, and a black plastic bag was found between the front passenger seat and the center console. Inside the bag was a clear bag that contained 208 grams of heroin. Lewis was then arrested.

B. Criminal Proceedings

Lewis was subsequently charged with one count of knowingly possession 100 grams or more of a mixture and substance containing a detectable amount of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). See Indictment (d/e 10). The Government filed an Information, pursuant to 21 U.S.C. § 851, giving notice of its intent to seek enhanced statutory penalties based on two prior offenses.

Lewis' defense counsel filed a motion to suppress the evidence obtained from the search, arguing that Sweeney did not have grounds to initiate the traffic stop and that the stop was unreasonably prolonged. See d/e 16. This Court denied the motion after a hearing, finding that

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probable cause existed to initiate the traffic stop and that Sweeney developed reasonable suspicion of criminal activity during the traffic stop to justify further detention after he had completed the written warning. See d/e 22.

Lewis then entered a conditional guilty plea (d/e 23) on August 24, 2017, in which he retained the right to appeal the Court's denial of his motion to suppress. The Presentence Investigation Report (PSR) determined that Lewis qualified as a career offender under § 4B1.1 of the Sentencing Guidelines based on two prior felony convictions: (1) On November 29, 1995, Lewis was convicted of the offense of First Degree Murder in Cook County Circuit Court Case No. 94CR3081101; and (2) On November 4, 2008, Lewis was convicted of the offense of Distribution of Crack Cocaine in U.S. District Court, Northern District of Illinois, Docket No. 07-CR-746. See PSR ¶23 (d/e 27). Lewis' counsel objected to the career offender designation because Lewis' murder conviction was more than fifteen years old. However, despite the objection, the probation office continued to find the murder conviction to be a qualifying offense. The probation office relied on Commentary Note 1 of § 4B1.1: “A sentence imposed more than fifteen years prior to the defendant's commencement of the instant offense is not counted unless the defendant's incarceration extended into this fifteen-year period.” PSR at p.27. Lewis' had been convicted in 1995, but he was not paroled until August 30, 2004, which was within the fifteen-year period.

At sentencing, on December 14, 2017, the Court agreed with the probation officer, found that Lewis was a career offender, and adopted the PSR without change. Lewis' designation as a career offender resulted in an advisory Sentencing Guidelines range of 262 to 327 months' imprisonment. See Statement of Reasons (d/e 31). Due to the § 851 enhancement, Lewis faced a mandatory statutory minimum sentence of ten years and a maximum of life. See 21 U.S.C. § 841(b)(1)(B).

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The Court sentenced Lewis to a below guidelines sentence of 240 months' imprisonment. Judgment (d/e 29).

Lewis appealed the denial of his motion to suppress, arguing that Officer Sweeney lacked lawful grounds to initiate the traffic stop and arguing Sweeney prolonged the stop without independent reasonable suspicion. United States v. Lewis, 920 F.3d 483, 486 (7th Cir. 2019). However, the Seventh Circuit affirmed the Court's ruling. Id. Lewis argued that the 3-second rule mentioned by Sweeney during the traffic stop was not a law, but a recommendation by the Illinois Secretary of State, so could not form the basis for probable cause. Id. The Seventh Circuit found this argument to be a “red herring.” Id. The objective circumstances supported probable cause to pull Lewis over based on the two observations of him following too closely, which did violate 625 ILCS 5/11-710(a). Id. at 489-90. Moreover, the Seventh Circuit agreed that objective reasonable suspicion of criminal activity developed during the traffic stop to support further detention. Id.

C. Section 2255 Motion

Lewis has now filed this timely Motion to Set Aside, Vacate, or Correct Sentence pursuant to 28 U.S.C. § 2255 (d/e 54). Lewis argues that he received ineffective assistance of counsel during the pre-trial stages, at sentencing, and on appeal. He divides his motion into seven grounds for relief, although his petition is at times hard to follow and his claims often overlap. His first four grounds for relief relate to his motion to suppress and counsel's failure to investigate and pursue a racial profiling defense and for failing to challenge the standard of proof. He argues appellate counsel was ineffective for failing to raise these issues on appeal. He also argues that his counsel was ineffective for not arguing that his prior murder conviction should not have been used a predicate offense for his career criminal designation, and that

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appellate counsel was ineffective for not arguing this on appeal. He also argues that he should not have been subject to the § 851 enhancement. Finally, he argues that appellate counsel should have raised arguments relating to the First Step Act, which was enacted while his appeal was pending. The Government has filed a response in opposition (d/e 64), and Lewis has filed a reply (d/e 65). After careful review of the record and the parties' briefs, the Court now denies Lewis' motion.

II. LEGAL STANDARD

A person convicted of a federal crime may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief under § 2555 is an extraordinary remedy because a § 2255 petitioner has already had “an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). A...