Rutledge v. U.S.

Decision Date25 September 1998
Docket NumberNo. 97-4054.,97-4054.
Citation22 F.Supp.2d 871
PartiesTommy Lee RUTLEDGE, Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — Central District of Illinois

Harold M. Jennings, Jennings Novick, Bloomington, IL, for petitioner.

Thomas A. Keith, Assistant United States Attorney, Peoria, IL, for respondent.

ORDER

MIHM, Chief Judge.

This matter is before the Court on Petitioner, Tommy Lee Rutledge's ("Rutledge"), Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255[# 1], Petitioner's Motion for Production of Telephone Recording [# 14], Petitioner's Motion for Evidentiary Hearing [# 15], Petitioner's Motion to Produce Statements by Michael Wright [# 21], Petitioner's Motion to Produce Statements by Kim Mummert [# 22], and Respondent's Motion for Reconsideration of the Court's June 18, 1998 Prospective Ruling [# 38].

Rutledge's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255[# 1] is GRANTED IN PART and DENIED IN PART. The Clerk is directed to prepare a new Sentencing Order which reflects the determinations made within this Order. Petitioner's Motion for Production of Telephone Recording [# 14] is DENIED. Petitioner's Motion for Evidentiary Hearing [# 15] is DENIED. Petitioner's Motion to Produce Statements by Michael Wright [# 21] is DENIED. Petitioner's Motion to Produce Statements by Kim Mummert [# 22] is DENIED. Respondent's Motion for Reconsideration of Court's June 18, 1998 prospective ruling [# 38] is DENIED. The Court will hold a telephone status call with counsel within 14 days to determine whether the United States wishes to pursue the retrial of Count V.

Background

A jury convicted Tommy Lee Rutledge, Shelly Henson, Richard Hagemaster, and Stan Winters of conspiring to distribute cocaine in violation of 21 U.S.C. § 846. Additionally, the jury convicted Rutledge of conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848, distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), possession of a firearm by a felon in violation of 18 U.S.C. § 922(g), and two counts of using or carrying a firearm during the commission of a drug felony in violation of 18 U.S.C. § 924(c).

Rutledge was sentenced to life imprisonment on the continuing criminal enterprise count (Count I), life imprisonment without the possibility of release on the conspiracy to distribute narcotics count (Count II), and life imprisonment without the possibility of release on the distribution count (Count III). Rutledge also received a 10-year term of imprisonment on the possession of a firearm by a felon count (Count IV). The three life terms and the 10-year term were ordered to run concurrently. Rutledge was also sentenced to a 5-year term of imprisonment on one armed drug trafficker count (Count V) and a 10-year term of imprisonment on the other (Count VI). These convictions were consecutive to each other and the other sentences.

Rutledge appealed his conviction to the Seventh Circuit, which affirmed his conviction. United States v. Rutledge, 40 F.3d 879 (7th Cir.1994). Subsequently, the Supreme Court reversed the Seventh Circuit's decision and remanded the case for a vacation of either Count I(CCE) or Count II (conspiracy to distribute narcotics), holding that conspiracy to distribute controlled substances is a lesser included offense of the continuing criminal enterprise offense. Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). This Court vacated Count II on May 29, 1996.

Rutledge filed a motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct an Illegal Sentence on April 24, 1997. On November 12, 1997, this Court appointed counsel to represent him. On March 26, Rutledge filed a supplemental memorandum of facts and law supporting his previously filed § 2255 motion. The issues which require resolution are:

1. Whether Counts V and VI (both armed drug trafficker counts) must be vacated in light of the evidence, jury instructions and the Supreme Court's decision in United States v. Bailey?

2. Whether the Count I(CCE) conviction must be set aside because the jury could have relied on impermissible predicate offenses?

3. If Count I(CCE) is vacated, can Count II (conspiracy) be revived?

4. Whether Count IV (felon in possession of firearm) must be vacated because of the restoration of certain civil rights?

5. Whether Count III (distribution of controlled substance) must be vacated due to his trial counsel's failure to conduct an adequate investigation of the facts, interview potential witnesses and present an alibi defense?

6. Whether the sentence imposed on Count III must be reduced to no more than 30 years because the sentence exceeds the maximum sentence proscribed by 21 U.S.C. § 841(b)(1)(C)?

7. Whether Rutledge was denied effective assistance of counsel as guaranteed by the Sixth Amendment?

Rutledge has also filed motions seeking the production of telephone recordings which were made from his place of incarceration [# 14], for an evidentiary hearing [# 15], and to produce statements by Michael Wright [# 21] and Kim Mummert [# 22]. As will be discussed below, this Court finds that the issues presented in the § 2255 motion are purely legal and that there is no need for additional evidence. Accordingly, these Motions are denied.

Standard of Review

Relief under 28 U.S.C. § 2255 is limited to an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice. Bischel v. United States, 32 F.3d 259, 263 (7th Cir.1994) (internal citations and quotations omitted). A § 2255 motion is neither a recapitulation of nor a substitute for a direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir.1995). A petitioner is barred from raising in a § 2255 proceeding constitutional issues that could have been raised earlier unless he or she can show good cause and prejudice. Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir.1988). Non-constitutional errors that could have been raised on appeal are barred in a § 2255 proceeding, regardless of cause and prejudice. Therefore, a petitioner may not raise three types of issues: (1) issues that he or his attorneys raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been, but were not, raised on direct appeal; or (3) constitutional issues that were not raised on direct appeal, unless petitioner can show both good cause for, and prejudice from, the procedural default. Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.1996).

1. Counts V and VI (Armed Drug Trafficker) and the Bailey Rule

Rutledge argues that his convictions on Counts V and VI (both armed drug trafficker counts pursuant to 18 U.S.C. § 924(c)) must be vacated because of the rule announced in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).

Section 924(c)(1) requires the imposition of specified penalties if the defendant "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm." At trial, this Court instructed the jury:

To sustain the charge of using or carrying a firearm during a drug trafficking crime as alleged in Counts 5 and 6 of the indictment the Government must prove each of the following propositions beyond a reasonable doubt. First, that the defendant Tommy Lee Rutledge did knowingly use or carry a firearm. Second, that the firearm was used or carried during and in relation to a drug trafficking crime for which he may be prosecuted in a court of the United States.... In reference to Counts 5 and 6, use of a firearm does not require that the weapon be found on or near the defendant. A firearm is, quote, used, unquote, under federal law if its presence increased the likelihood of success of a drug offense as a means of protection or intimidation.

Jury Instruction No. 18.

While the instruction given by this Court was an accurate statement of the law at the time of Rutledge's trial, before his appeal was exhausted, the Supreme Court decided Bailey, which changed the landscape of the "use" prong of 924(c)(1).

In Bailey, the Supreme Court held "that 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense." Bailey, 116 S.Ct. at 505. The Supreme Court stated that active employment "certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. (emphasis supplied). By contrast, the mere placement of a firearm for protection at or near the site of a drug crime or its proceeds or paraphernalia, or nearby concealment of a gun to be at the ready for an imminent confrontation are no longer within the scope of § 924(c)'s definition of "use." Id. at 508. The Court made it clear that the Government was required to show more than the "inert presence" or "storage" of a firearm in order to establish the "use" prong.

It is the law of this Circuit that an erroneous jury instruction is harmless if, looking at the instructions and the record as a whole, the Court can be convinced that a properly instructed jury would have reached the same verdict. United States v. Williams, 33 F.3d 876, 879 (7th Cir.1994). Rutledge, however, correctly argues that the general phrasing of the jury instruction at his trial makes it impossible to tell whether the jury convicted under the "use" or "carry" prong, and he is consequently entitled to the presumption that the jury's conviction rested solely on the "use" prong.

The Seventh Circuit was faced with this problem of applying Bailey retroactively in United States v. Jackson, 103 F.3d 561 (7th Cir.1996). There, a three-tier standard was established for determining what relief is appropriate.

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