Shell v. U.S.

Citation448 F.3d 951
Decision Date23 May 2006
Docket NumberNo. 04-3890.,04-3890.
PartiesGregory SHELL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

H. Ron Davidson (argued), Mayer, Brown, Rowe & Maw, Washington, DC, for Petitioner-Appellant.

Edward Siskel (argued), Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before MANION, WOOD, and EVANS, Circuit Judges.

MANION, Circuit Judge.

Gregory Shell is serving a term of life imprisonment after being convicted for his leadership role in the Gangster Disciples. The government obtained overwhelming evidence against Shell by monitoring his conversations with Larry Hoover, the chieftain of the Gangster Disciples, who was serving time in prison for murder. Shell filed a motion for relief under 28 U.S.C. § 2255, which the district court denied. We granted a certificate of appealability on the issue of whether Shell's counsel was constitutionally ineffective for not raising certain challenges at his trial. We now affirm.

I.

Gregory Shell was second-in-command of the Gangster Disciples ("GDs" or the "gang") in Chicago, a gang that had a $100,000,000 per year drug business.1 The founder of the gang, Larry Hoover, had been convicted of murder in 1973, but he retained his leadership position in the GDs from his prison cell in Vienna, Illinois. To maintain order in his absence, Hoover designated Shell as his proxy in 1992, giving him day-to-day control over the gang's operations in Chicago. Shell, a trusted board member who had not been incarcerated, brought a flair for organization to the gang's dealings, efficiently coordinating and systematizing the GD drug network. During Hoover's time in jail, he would often talk to different GD lieutenants over the telephone, but, if the conversation turned to gang business, he would tell his interlocutor to come to Vienna personally. Over a period of ninety months in the late 1980's through the mid 1990's, Shell made the trip from Chicago to Vienna, which is in the most southern part of Illinois, over one hundred times.

In 1993, a DEA task force began investigating Hoover's continuing role with the GDs. The task force applied to Chief Judge Moran of the Northern District of Illinois for a warrant for electronic surveillance, as required by 18 U.S.C. § 2518 ("Title III"). Title III requires applicants for such a warrant to submit a statement, under oath, containing a variety of disclosures, including "(ii) . . . a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted." 18 U.S.C. § 2518(1)(b). In this case, the application sought a warrant "authorizing the [DEA] and other law enforcement personnel assisting them to intercept oral communications occurring at the Visitor Area [of the Vienna Correctional Facility], between Larry Hoover and Gregory Shell, [and assorted other GD members]." The application was devoid of any information describing the means that the DEA intended to employ. Chief Judge Moran authorized the surveillance.

All visitors to the prison had to wear a badge identifying themselves as such. Working with prison officials, the DEA conducted the authorized surveillance of the conversations in the Visitor Area by placing an electronic eavesdropping device (the "bug") inside the badge given to Hoover's visitors. This enabled the DEA to listen to Hoover's communications with Shell and his other GD visitors, no matter where in the Visitor Area they occurred. The bug turned up a wealth of information, leading to a forty-two count indictment against Hoover, Shell, and various other GD leaders for their involvement in the gang's drug activities.

Before trial, Shell filed a motion to suppress, raising a variety of challenges to the Title III application and warrant.2 The district court denied the motion. Shell then went to trial and was convicted, and we affirmed. See Hoover, 246 F.3d at 1063.

In 2003, Shell filed a timely motion under 28 U.S.C. § 2255 asserting that the bug in the badge amounted to a Fourth Amendment violation and that his counsel was constitutionally ineffective for not raising this argument. The district court denied this motion. We subsequently granted a certificate of appealability on three issues: "Whether trial and appellate counsel were ineffective for failing to argue that (1) the intercepted conversations were obtained in violation of the Fourth Amendment; (2) the trial court erred when it admitted intercepted conversations because the court order did not specify where the communications would be intercepted; and (3) the court order was void because the government deliberately omitted material information regarding the method of interception when it asked for authorization, and the judge would not have authorized the surveillance if he had known the method."

II.

We review the district court's decision to deny Shell's § 2255 motion de novo. See Kitchen v. United States, 227 F.3d 1014, 1017 (7th Cir.2000); see also Fountain v. United States, 211 F.3d 429, 433 (7th Cir.2000). "A § 2255 motion must be granted when a defendant's `sentence was imposed in violation of the Constitution or laws of the United States.'" Fountain, 211 F.3d at 433 (quoting 28 U.S.C. § 2255). As the certificate of appealability was limited to Shell's challenge to the constitutionality of his representation, see id., we conduct our review in light of the test first annunciated by Strickland v. Washington, 466 U.S. 668, 688-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Kitchen, 227 F.3d at 1019; Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). The familiar standard of Strickland requires a showing that: (1) Shell's counsel was objectively deficient; and (2) this deficient performance so prejudiced his defense that Shell was deprived of a fair trial. See Fountain, 211 F.3d at 434; see also Prewitt, 83 F.3d at 816.

Turning to the first prong, a constitutionally deficient performance is one that falls below an objective standard of reasonableness under prevailing professional norms. See, e.g., Granada v. United States, 51 F.3d 82, 83 (7th Cir.1995). In the Supreme Court's words, "a court must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Galbraith v. United States, 313 F.3d 1001, 1008 (7th Cir.2002). "[B]ecause counsel is presumed effective, a party bears a heavy burden in making a winning claim based on ineffective assistance of counsel." Fountain, 211 F.3d at 434 (quoting United States v. Trevino, 60 F.3d 333, 338 (7th Cir.1995)). Generally, failing to pursue a particular issue is not deficient performance, but such a conclusion depends on the attorney's reasoning (or lack thereof). See Kitchen, 227 F.3d at 1020. "When the claim of ineffective assistance is based on counsel's failure to present a motion to suppress, we have required that a defendant prove the motion was meritorious." United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir.2005); see also Owens v. United States, 387 F.3d 607, 610 (7th Cir.2004).

Shell claims his attorney was ineffective because he failed to present several valid arguments in the motion to suppress. Against this backdrop, we consider the arguments Shell believes his attorney should have made. Specifically, Shell contends that his attorney should have argued the interception of the communications constituted both an unreasonable seizure and an unreasonable search of his body in violation of the Fourth Amendment. Shell further claims his attorney should have argued that the Title III application and warrant failed to specify the location of the search with requisite particularity. Finally, he asserts that his attorney was ineffective because he failed to argue that the government omitted material information regarding how the search was to be conducted, thus transforming Chief Judge Moran into a rubber stamp.

A.

We begin our analysis by considering Shell's two Fourth Amendment challenges. Shell first contends that the government seized his body through the placement of the bug in his visitor's badge. "A `seizure' triggering the Fourth Amendment's protections occurs only when government actors have, `by means of physical force or show of authority . . . in some way restrained the liberty of a citizen.'" Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also United States v. Hendricks, 319 F.3d 993, 999 (7th Cir.2003); United States v. Thompson, 106 F.3d 794, 798 (7th Cir.1997). Rather than explaining the alleged seizure of his person using this well-established framework, Shell roots his argument in Fourth Amendment precedent regarding seizures of property. See United States v. Karo, 468 U.S. 705, 712, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) ("A `seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property.") (internal citations omitted). Shell offers no support for deploying this characterization of a seizure in this case. As Shell has failed to show that DEA agents in any way restrained his liberty, he has not established an illegal seizure for Fourth Amendment purposes.

We now turn to Shell's claim that the DEA's actions in bugging his badge constituted an unconstitutional search. "As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as...

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