# Suggs v. United States

> District Court, S.D. Illinois · March 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10153336

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** March 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JOSEPH E. SUGGS,

Suggs,

v. Case No. 3:18-CV-1533-SPM

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM AND ORDER

McGLYNN, District Judge:
Before the Court is petitioner Joseph Suggs’ (“Suggs”) Motion to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. §
2255.
Introduction
Following a jury trial, Suggs was convicted of multiple counts of producing and
attempting to produce child pornography in violation of 18 U.S.C. § 2255(a). United
States v. Suggs, 14-cr-30142-MJR (S.D. Ill.).1 The District Court sentenced him to
240 months imprisonment and ten years supervised release. On appeal, Suggs raised
issues surrounding certain evidence that he believes was improperly obtained and
should have been the basis of a motion to suppress. A motion that Suggs asserted
should have been allowed to be filed, albeit untimely, and should have been granted.

1 All documents cited to criminal case will be designated as “CR”, while all documents cited to this
§2255 matter will be designated as “Doc.”.
The Court of Appeals found no error and determined that the District Judge
reasonably exercised his discretion in declining to review the untimely motion, and,
therefore, affirmed the conviction. United States v. Suggs, 703 Fed.Appx. 425 (2017).
Suggs now moves to vacate, set aside or correct the sentence imposed in this
case (Doc. 1). For the reasons discussed below, that Petition is DENIED.

PROCEDURAL BACKGROUND

On July 23, 2014, Suggs was charged by indictment with production of child
pornography (CR. 1). On July 31, 2014, Suggs was arraigned on the indictment and
the federal public defender’s office was appointed (CR. 11, 13). On that date, the
Court also established a deadline for any pretrial motions, including a motion to
suppress. (CR. 14). Thus, the deadline for filing a motion to suppress was August
21, 2014, or 21 days after the arraignment. On August 1, 2016, assistant federal
public defender Thomas Gabel entered his appearance. (CR. 16).
In September of 2014, Suggs filed five pro se motions, including two motions
to suppress, but all were stricken with the Court noting that motions should be
filed by counsel and the deadline for such motions had elapsed (CR. 21-28). On
November 7, 2014, Suggs filed a pro se motion to substitute counsel (CR. 29). On
November 19, 2014, a hearing was held on said motion, with Suggs, his attorney

Tom Gabel, and the Federal Public Defender Phil Kavanaugh in attendance (CR.
31). Gabel advised that Suggs had requested he file some motions, but he refused
after advising Suggs he did not feel they had any merit (CR. 155 at 3). Gabel also
indicated that Suggs did not accept his judgment on that issue (Id.). At the hearing,
the Court advised Suggs of his absolute rights, but indicated the attorney had the
right to determine the tactics used in the case and that he did not have to follow
Suggs’ advice (Id. at 4). The Court emphasized that an attorney has an ethical
obligation to not file motions without a basis in law or fact (Id.). Kavanaugh agreed
that he would conduct an independent file review of this case, but stated that in his
professional opinion, a motion to suppress would be “frivolous” (Id. at 16). The

Court denied the motion for substitution of counsel. (Id. at 16). No pretrial motions
or motions to seek leave to reopen or extend the filing deadline were made following
that hearing.
On January 20, 2015, the Court received another pro se filing, which was
returned undocketed per prior admonishments (CR. 34). On February 4, 2015, less
than two months after prior hearing, Gabel moved to withdraw after being advised

Suggs had filed a complaint against him with the office of chief disciplinary counsel
(CR. 36). On that same date, the Court granted said motion and appointed CJA
attorney, Michael Ghidina, and advised Suggs that the change in counsel would
most likely result in trial continuance (CR. 37). On February 18, 2015, a motion to
continue was filed, and on February 23, 2015, the trial was continued from March
2015 to June 8, 2015 (CR. 38, 39). On May 13, 2015, another motion for continuance
was filed (CR. 40). On May 14, 2015, the Court continued the jury trial to August

31, 2015 and scheduled the final pretrial conference was July 29, 2015 (CR 41).
On July 7, 2015, Ghidina filed another motion to continue, along with a
motion for leave to file a motion to suppress (CR. 44). The government objected to the
allowance of the motion to suppress, and the Court agreed, entering an Order
denying leave to continue and striking the motion because no good cause had been
shown to allow the late filing and because the record was “devoid of any basis on
which to permit the filing of a suppression motion nearly eleven months past the
deadline.” (CR. 48, 48). On July 29, 2015, a final pretrial conference and jury
instruction conference was held (CR. 49). On July 30, 2015, the Court entered an
Order regarding pretrial deadlines including motions in limine, voir dire questions,

exhibit lists, a joint witness list and a joint statement of the case (CR. 50).
On August 18, 2015, a notice of hearing for change of plea was set on August
19, 2015 (CR. 56). However, at the change of plea hearing, Suggs requested it ne
continued (CR. 57). On August 20, 2015, Ghidina filed another motion to continue
as well as a motion for psychiatric exam and motion for Order of competency to
stand trial (CR. 58, 59). In response thereto, the Court entered an Order for

examination and reset the trial to November 16, 2015 (CR. 60). On October 6, 2015,
the Court extended the evaluation period because the evaluation was set for
December 5, 2015 (CR. 62). Consequently, the Court also continued the jury trial
to January 19, 2016 (Id).
On December 18, 2015, the Court held a competency hearing and took
judicial notice of the report (CR. 65). An Order was entered declaring Suggs
competent to proceed, verifying the trial date of January 19, 2016 (CR. 66). On

December 30, 2015, the jury trial was moved to January 11, 2016 due to a conflict
(CR. 70).
On January 5, 2016, a federal grand jury returned a superseding indictment,
adding another count of production of child pornography and a count of attempted
production of child pornography, all relating to conduct on June 7, 2014 (CR. 71).On
January 9, 2016, the trial was continued to April 25, 2016, with the consent of
Suggs, in part due to the superseding indictment (CR. 76).
On February 5, 2016, Suggs filed a pro se motion for substitution of counsel,
which was set for hearing on February 24, 2016 (CR. 78, 79). At the hearing, the
Court denied Suggs’ motion and ordered Ghidina to remain on the case (CR. 80).

On March 7, 2016, Suggs filed pro se requests for official speedy trial
status/classification, “filed” documents and a notice of appeal, all of which were
denied because he was represented (CR. 81-84).
On April 5, 2016, Ghidina sought leave to withdraw, claiming that since the
prior hearing on February 24, 2016, Suggs has filed numerous pro se filings and is
at odds with his attorney and not following his advice (CR. 85). Ghidina indicated

that he felt some of Suggs’ conduct was fraudulent, and that Suggs advised him he
planned to file a complaint against him with the IARDC (Id.).
On April 15, 2016, a hearing was held on said motion wherein Ghidina
reiterated his concerns about representing Suggs and the rules of professional
responsibility (CR. 146, pp. 3-7). The Court denied the motion, stating that Suggs
had not yet reported Ghidina to the IARDC and that he just did not want to go to
trial (Id. at 10). As of the hearing date, Suggs has had seven (7) continuances and

has been incarcerated for 624 days (Id.). Suggs had previously been represented by
Gabel, a competent, qualified and professional federal defender and was then
represented by Ghidina, another competent, professional and capable panel
attorney (Id.). Young victims were awaiting trial, and although it was going to be
difficult, Ghidina needed to remain professional and do the best he could (Id. at 11).
In the Court’s opinion, no one would satiate Suggs, and this case was going to trial
on April 25th (Id.). The Court found the communication breakdown was attributable
to Suggs, not Ghidina so the Court advised Suggs to work with Ghidina and
admonished him to stop writing frivolous letters and complaints (Id. at 13).
On April 26, 2016, following a two-day jury trial, Suggs was found guilty on

all three counts alleged in the superseding indictment (CR. 90). On September 8,
2016, the Court conducted a sentencing hearing after a Presentence Investigation
Report (“PSR”) was prepared and filed (CR. 132). At that time, the Court sentenced
Suggs to a term of 240 months’ imprisonment on each count to run concurrently, a
$300 fine, a term of 10 years’ supervised release, and a $300 special assessment. R.
132. Judgment was entered by the Court on September 14, 2016 (R. 135).

On September 14, 2016, Suggs timely filed a notice of appeal (R. 138). On
August 22, 2017, the Seventh Circuit affirmed the convictions and sentence. See
United States v. Suggs, 703 Fed. Appx. 425 (7th Cir. 2017).
On August 24, 2018, Suggs filed his motion to vacate, set aside or correct
sentence (Doc. 1). On April 1, 2019, the government filed its response, along with 6
exhibits supporting their argument (Doc. 20). On May 8, 2019, Suggs filed a reply
to the government’s response (Doc. 21). On December 28, 2020, Suggs filed a motion
for evidentiary hearing, a motion to copy and a motion to appoint counsel (Doc. 24).

FACTUAL BACKGROUND

On June 7, 2014, Belleville Police Department responded to the 100 block of
South 44th Street in Belleville, which is adjacent to Citizen’s Park for a call
regarding “some juveniles messing around in an abandoned house” (CR. 147 at pp.
17-18). Upon arrival, officers observed two juveniles, M.W. and T.G., as well as
Suggs, but no one else was in area (Id.). Suggs was standing outside his vehicle
holding a camera, and when asked, responded that he was “taking pictures of the
juveniles in different settings and stuff” (Id.). The officer engaged in “small talk”
with Suggs, who advised that he had a photography business (Id.). Suggs claimed

that he knew the kids, initially stating that he knew their fathers and from the
neighborhood (Id.). After a records check, the officers discerned that Suggs had an
Alorton address and asked him if he knew the kids from a neighborhood in Alorton.
(Id.). Suggs indicated he was employed at McDonald’s in Belleville and knew them
from there (CR. 147 pp. 19-20).
While one officer spoke with Suggs, another spoke with the juveniles who

advised that Suggs had approached them at Bellevue Park in Belleville and asked
to take pictures of them in exchange for money (Id.). Suggs then drove the two
juveniles to the area where officers located them and took photographs of them. (Id.).
One of the juveniles said it was not the first time that Suggs had asked if he could
take photographs of him which he refused at that time (Id.).
The officers thought this was “suspicious” and asked Suggs to look at the
photographs of the juveniles (CR. 147 at p. 22). Suggs consented and produced his

camera and even showed the officers how to scroll through the pictures (Id.). The
photographs “initially they started off normal… and then there were pictures
where the juveniles had their pants pulled down their legs, boxer shorts still on”
(Id.). In one of the photos, the juveniles had their pants pulled “down to their lower
legs (with boxer shorts still on) bent over with their butts facing the camera” (Id.).
One of the pictures showed the juveniles with their shorts pulled down below their
pubic area and “you could see the bulge” (CR. 147 at p. 22).
After consultation with his chain of command, Suggs was arrested for
violating Belleville’s local disorderly conduct ordinance and the camera was secured
as evidence (Id. at p. 23). Suggs was arrested with disorderly conduct and his camera

was taken in to evidence (Id.).
Detective with the Belleville Police Department then applied for and received
a search warrant in the Circuit Court of St. Clair County for the memory card that
was contained in the camera as well as an additional memory card that had been
located in Suggs’s pocket during a search incident to arrest (CR. 147 at pp. 28, 48-

49). Ultimately, a forensic review of the two memory cards was conducted by a
detective with the O’Fallon, Illinois police department who serves on the United
States Secret Service Cybercrime Task Force; around 200 “illicit” photographs of
M.W. were located, including photographs of M.W. exposing his penis in front of a
statue located at Bellevue Park named “Angel of Hope” as well as seated in a
Cadillac (CR. 147 at pp. 108, 110, 119-123). In some of the photographs, a hand not

belonging to M.W. is holding his penis (CR. 147 at 121).
M.W. and T.G. – the two juveniles – testified at trial. M.W. stated that on
June 7, 2014, he was on his way to a park when Suggs pulled up to him in a brown
Cadillac, told him that he was a photographer, and offered him money in exchange
for taking pictures of him (CR. 147 pp. 82 – 84). Suggs took pictures of M.W. on a
stage located within the park. Id. at 85. M.W. then stated that they went to a statue
in the park called “Angel of Hope” and took photographs at that location (Id. at p.
86). M.W. then stated that they took pictures in Suggs’s Cadillac (Id. at p. 88). Suggs
specifically asked M.W. to take a “playboy pic” or a “nude pic” while M.W. sat in the
passenger seat and Suggs sat in the driver’s seat (Id. at p. 89). Suggs then took
pictures of M.W.’s “private part” and grabbed M.W.’s penis while they were in the
car (Id. at 89 – 90). M.W. got out of the car and went to his friend, T.G.’s house (Id.).

M.W. and T.G. both testified they went to the park near Memorial Hospital
later on June 7, 2014, and Suggs approached both of them offering money in
exchange for photographs (Id. at pp. 67 - 68, 91 – 93). Suggs drove them to Citizen’s
Park where he took photographs of them on some railroad tracks nearby (Id. at pp.
69 – 70, 94). After taking a few pictures on the railroad tracks, Suggs, M.W., and
T.G., went back to Suggs’s car (Id. at pp. 73, 96). Suggs asked M.W. if he thought

T.G. would take nude pictures (Id. at 96). T.G. then entered Suggs’s car and was
asked to “take a picture with [his] panties hanging” (Id. at pp. 74–76, 97). Suggs
grabbed T.G.’s penis over his clothing (Id. at 76). Shortly after T.G. got out of the
car, Belleville police arrived on scene (Id. at pp. 77–78, 98).
SUMMARY OF PETITONER’S CLAIMS

In its briefing order (Doc. 3), the Court organized Suggs’s arguments into four claims:
1) Suggs was denied effective assistance of counsel pre-trial by his
attorneys’ failure to timely and successfully challenge Suggs’ “unlawful
arrest” without warrant or probable cause.

2) Suggs was denied effective assistance of counsel pre-trial by his
attorneys’ failure to timely and successfully challenge the search and
seizure of his property (i.e., his camera, memory cards, and cell phone) in
violation of the Fourth Amendment.

3) Suggs was denied effective assistance of counsel pre-trial by his
attorneys’ failure to “adequately investigate” cell phone records and
failure to “secure witnesses” for the defense.

4) Suggs was denied effective assistance of counsel during trial by his
attorney’s failure to “follow a cohesive trial strategy,” by conceding Suggs’
guilty due to application of the “Dost factors,” and by failing to object to
“improper bolstering by the prosecution.”

LEGAL STANDARDS

I. General Standards

A Court may grant relief pursuant to a § 2255 motion if it finds that “the
sentence was imposed in violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.” 28 U.S.C. § 2255(a). Relief under 28 U.S.C. § 2255 is “reserved
for extraordinary situations.” Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir.
2006). Collateral relief is appropriate only when the error is a jurisdictional,
constitutional, or is a fundamental defect which inherently results in a complete
miscarriage of justice.” Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997).
Habeas relief under § 2255 is not a substitute for direct appeal. Fountain v. United
States, 211 F.3d 429, 433 (7th Cir. 2000). Thus, claims not raised on direct appeal
are barred from collateral review unless the district court is “convinced” that failure
to consider the claim “would amount to a fundamental miscarriage of justice.” Id.
at 433. Specifically, a § 2255 motion “cannot raise: (1) issues that were 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; and (3)
constitutional issues that were not raised on direct appeal, unless within the section
2255 Suggs demonstrates cause for the procedural default as well as actual prejudice
from the failure to appeal.” Belford v. United States, 975 F.2d 310, 313 (7th Cir.
1992) (emphasis in original), overruled on other grounds by Castellanos v. United
States, 26 F.3d 717 (7th Cir. 1994).
II. Ineffective Assistance of Counsel Claims

The predominant way Suggs seeks to avoid the aforementioned proscriptions
is by casting his claims as ones alleging ineffective assistance of counsel which,
except in limited circumstances, are not subject to dismissal based upon procedural
default. See Fuller v. United States, 398 F.3d 644, 650 (7th Cir. 2005). Ineffective
assistance of counsel claims “may be brought in a collateral proceeding under §
2255, whether or not the petitioner raised the claim on direct appeal.” Massaro v.

United States, 538 U.S. 500, 504 (2003). In fact, the Seventh Circuit has identified
§ 2255 motions as a more appropriate venue than direct appeal for raising ineffective
assistance of counsel claims because the opportunity to adequately develop the
factual predicate for the claim” arises independent of the trial record. Id. (citing
Guinan v. United States, 6 F.3d 468 (7th Cir. 1993)).
If a § 2255 motion claiming ineffective assistance of counsel survives

preliminary review and is considered on its merits, a district court evaluates the
claim under the two-prong Strickland test. McDowell v. Kingston, 497 F.3d 757,
761 (7th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).
There is a heavy burden of proof on a defendant asserting an ineffective assistance
of counsel claim. Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990). “The benchmark
for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.” Strickland, 466 U.S. at 686.
Under Strickland, the petitioner must prove: 1) that his attorney’s
performance fell below an objective standard of reasonableness; and 2) that the
attorney’s deficient performance prejudiced the defendant such that “there is a

reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different.” McDowell, 497 F.3d at 761. If the Court
finds either the performance or the prejudice component of the ineffective
assistance claim deficient under the Strickland test, then there is no need to
consider the sufficiency of the other component. United States v. Slaughter, 900
F.2d 1119, 1124 (7th Cir. 1990); see also Ebbole v. United States, 8 F.3d 530, 533

(7th Cir. 1993) (a defendant's failure to satisfy either prong is fatal to his claim).
Proving that deficient performance of counsel actually prejudiced the defense
requires a showing of a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Benefiel v. Davis, 357 F.3d 655, 661 (7th Cir. 2004); see also Williams v. Taylor, 529
U.S. 362, 363 (2000). This test is “highly deferential to counsel and presumes
reasonable judgment and effective trial strategy.” Hays v. United States, 397 F.3d

564, 568 (7th Cir. 2005). In other words, Suggs must demonstrate that counsel’s
error actually had an adverse effect. Strickland, 466 U.S. at 693. However, “[n]ot
every adverse consequence of counsel’s choices is ‘prejudice’ for constitutional
purposes.” United States v. Springs, 988 F.2d 746, 749 (7th Cir. 1993). Counsel’s
conduct must be shown to have “so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.” Cooper, 378 F.3d at 642.
III. Standards for Evidentiary Hearing in Motions Brought
Pursuant to § 2255

A district court is not required to provide a hearing for every petitioner who
brings a § 2255 motion. A petitioner who fails to support his § 2255 motion with
“sufficient detail,” or whose motion is “too speculative” is not entitled to such a
hearing. Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir. 1989). “Mere
unsupported allegations cannot sustain a petitioner’s request for a hearing.” Id.
Instead, the § 2255 motion “must be accompanied by a detailed and specific
affidavit which shows that the petitioner had actual proof of the allegations going
beyond mere unsupported assertions.” Galbraith, 313 F.3d at 1009. It is proper to
deny a § 2255 motion without holding an evidentiary hearing if “the motion, files
and records of the case conclusively demonstrate that the prisoner is entitled to no
relief.” Cooper v. United States, 378 F. 3d 638, 641- 41 (7th Cir. 2004).

ANALYSIS

Suggs claims that his Fourth Amendment rights were violated on the basis
of an unlawful arrest without a warrant or probable cause, and both of his attorneys
were deficient by not filing a motion to suppress (Doc. 1). Suggs cannot satisfy
either prong of Strickland with respect to this claim.
When a claim of ineffective assistance of counsel is predicated on counsel’s
failure to file a motion to suppress, the prejudice prong of Strickland requires that
the defendant prove that the motion would have been granted. United States v.
Cieslowski, 410 F. 3d 353, 360 (7th Cir. 2005). See also Kimmelman v. Morrison,
477 U.S. 365, 375 (1986) (“Where defense counsel’s failure to litigate a Fourth
Amendment claim competently is the principal allegation of ineffectiveness, the
defendant must also prove that his Fourth Amendment claim is meritorious”).
Failure to raise a losing argument or file a futile motion to suppress does not

constitute ineffective assistance of counsel. Perez v. United States, 286 F. App’x 328,
331-332 (7th Cir. 2008).
Suggs cannot prove that his motion to suppress would have been granted as
there was no Fourth Amendment violation with respect to his initial arrest for
disorderly conduct. When police arrived in the area of the 100 block of South 44th
Street for a call of “juveniles messing around in an abandoned house,” the only

individuals in the area were the two juveniles, M.W. and T.G., and Suggs. Police
appropriately engaged in a consensual conversation with Suggs, while a second
officer approached the juveniles to see what was going on. Suggs admitted that he
was taking photographs of the juveniles and Suggs claimed he had a photography
business. He said he knew the juveniles’ fathers, then said that he worked at
McDonald’s and knew the juveniles from his employment. The juveniles advised

Suggs offered them money to take pictures of them and drove them to a second
park.
At trial, the officer characterized his conversation with Suggs as “small talk”
(CR. 147 at p. 19). He recalled Suggs’s conduct appeared “suspicious”. Suggs gave
voluntary consent for the officers to view the photographs on his camera and even
helped them access the older photographs. The officers saw photographs of the two
juveniles with their shorts pulled down exposing their boxer shorts and bent over
“with their butts facing the camera” in addition to photographs of the juveniles
standing to the side where “you could see the bulge” (CR. 147 at p. 22). Suggs was
then placed under arrest for violating Belleville’s disorderly conduct ordinance, 30-
1-2, which provides in relevant part:

“A person commits disorderly conduct when he knowingly:
(F) Does any act which will disturb the public peace and quiet
or is likely to provoke a breach of the peace

In 2014, the penalty for violating the disorderly conduct ordinance was
governed by Belleville ordinance 1.09, which states in relevant part: “… any person
by any provision of this Code is guilty of a misdemeanor and shall, upon conviction,
be fined not less than $50, nor more than $1,000.” In Atwater v. City of Lago Vista,
the United States Supreme Court upheld warrantless arrests for minor criminal
offenses which are punishable only by a fine as permissible. 121 S. Ct. 1536, 1541
(2001).
“Breach of the peace” is not defined in the Belleville Code of Ordinances;
however, the Seventh Circuit has observed that the offense of disorderly conduct has
been around for a long time, even though it is not well-defined. Sroga v. Weiglen, 649
F. 3d 604, 606 (7th Cir. 2011). In the context of Illinois’ disorderly conduct statute,
which also uses the phrase “breach of the peace,” an Illinois Appellate Court has
stated,
“Lewd conduct may constitute disorderly conduct depending on the
surrounding circumstances. One relevant circumstance is the young age
of the victims. In determining whether conduct provokes a breach of the
peace, it is appropriate to consider the status of the victim.”
People v. Allen, 288 Ill. App. 3d 502, 508 (Ill. App. 4th Dist. 1997) (internal
quotations and citations omitted). As such, the initial arrest of Suggs was lawful.
During Gabel’s representation of Suggs, a motion hearing was held before
the Honorable Judge Reagan on November 19, 2014, at which time he addressed

the propriety of filing a motion to suppress in Suggs’s case. After the Court noted
Suggs filed a number of pro se motions, which included motions to suppress and
motions to quash, Gabel stated:
Mr. Gabel: “Your Honor, my client would like me to file some motions that
I do not feel have merit. I have explained that to my client. My client
doesn’t accept my judgment on this issue, Your Honor.” (CR. 155 at p. 3).

Also present at the hearing was the Federal Defender at the time, Phil Kavanaugh.
After an exchange with Suggs, the Court stated:
The Court: “I note that the Federal Defender, Mr. Kavanaugh, is here. I
am going to ask him to just put a second pair of eyes on this potential
Motion to Suppress, if he hasn’t done so already…” (Id. at pp. 10-11).

In response, Kavanaugh stated:

Mr. Kavanaugh: “Your Honor, if it pleases the Court and Mr. Suggs, I’ll
conduct and independent file review of this case. I’ll make sure that I give
him citations of authority on the search and seizure issue because I told
Mr. Gabel in my professional opinion a Motion to Suppress would be
frivolous, but I will supply citations of authority to Mr. Suggs on that
behalf.” (Id. at p. 16).

The Court told Suggs:

The Court: “…Mr. Kavanaugh is going to take a second look at the entire
file and see if it merits filing a Motion to Suppress. If he thinks it is, one
will be filed. If he thinks not, one will not.” (Id. at p. 18).

Kavanaugh reiterated to Suggs:

Mr. Kavanaugh: “… I am going to take a second look at the file and
come to an independent decision about what to do”… (Id.).
Following the hearing on November 19, 2014, neither Gabel nor Kavanaugh moved
to reopen the pre-trial motion deadline or filed any pretrial motions. The reasonable
inference to be drawn from that is that both attorneys rightfully determined that
any motion to suppress was meritless.
Mr. Ghidina prepared an affidavit regarding his representation of Suggs
(Doc. 20-1). In it, he stated that he likewise believed that “a suppression motion
lacked merit, and he was out of time to pursue it.” (Id.). Ghidina ultimately

attempted to draft one but was of the belief that “the merits were extremely weak.”
(Id.). The Court ultimately struck that motion to suppress as untimely. (CR. 48).
The three experienced criminal defense attorneys – Mr. Gabel, Mr.
Kavanaugh, and Mr. Ghidina – all came to the same correct conclusion: any motion
would assuredly fail. Belleville police properly investigated a call and observed
Suggs with two minors. They began a consensual encounter with Suggs, which
arose suspicians, and obtained verbal consent to view the photographs and saw the

aforementioned juveniles in a public setting with their shorts pulled down, boxers
still on, standing to the side where “you could see the bulge” in addition to
photographs of the juveniles with their pants pulled down to their lower legs “bent
over with their butts facing the camera.” (CR. 147 at p. 22). The conduct comported
with Belleville’s disorderly conduct ordinance as photographing two juveniles in a
state of partial undress in a public setting is conduct that is likely to provoke a

breach of the peace and disturb the public peace and quiet. Thus, there was ample
probable cause for Suggs’s warrantless arrest.
Without explicitly saying so, the Court likewise assessed that there was no
issue with the initial arrest in this case. At a motion hearing on February 24, 2016,
regarding Suggs’s second motion for new trial counsel, Suggs reiterated to the
Court his belief that his constitutional rights were violated (CR. 145 at pp. 7, 17-
18). The Court told Suggs that Mr. Ghidina “…can’t file something frivolous. If he

does, he gets sanctioned by me. I assure you, he has been in front of me many times.
He knows if there is a valid Fourth Amendment violation or not…” Id. at 8. The
Court later offered its own summary of the events that led to Suggs’s arrest:
The Court: “… [Y]ou were arrested on June 7th for disorderly conduct
after Belleville Police investigated a report of kids messin' around in a
vacant house on South 44th Street. Officers Nowak and Laminek [sic]
arrived on the scene and saw you outside your vehicle holding a camera
and they saw two male juveniles nearby. The juveniles said they were
13 and 16 years old and that you drove them from another location and
paid them $20 each to photograph them. According to those officers,
you allowed them to view the pictures on your camera, some of which
showed the kids with their shorts down to the lower legs with boxer
shorts on, bent over with their rear ends facing the camera. Other
pictures had shorts pulled down, boxers still on, kids standing
sideways.

You were arrested for disorderly conduct and searched as being
processed and booked. A four-gig micro memory card taken from your
pocket, 16-gig taken from the camera. You were charged by way of
Criminal Complaint in State Court. Search warrants were executed
on your residence and computers and a forensic analysis was done on
the memory cards. The State case was dismissed when the Federal
Indictment was filed.

That is what Mr. Ghidina has in the discovery. That is what I have
gleaned your case is about according to the officer's reports.

Is there anything else you want to say about the request for me to
excuse Mr. Ghidina, because I haven't heard anything that gets you
there so far. You don't like what he was doing, you don't like that you
were arrested, you don't like the charge…” (CR. 145 at pp. 19-20).
Clearly, the Court believed that any motion to suppress with respect to Suggs’s
arrest would be meritless.
A district court’s review of attorney performance is “highly deferential”
assuming that “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Holman, at 840. Because Gabel and Ghidina’s conduct fell

within the wide range of reasonable professional assistance, Suggs fails to meet
Strickland’s first prong. Additionally, Suggs cannot meet Strickland’s second
prong, as he cannot show that a motion to suppress based upon an unlawful arrest
would have been meritorious; thus, his claim that his attorneys were ineffective on
this ground fails.
Suggs also claims that his attorneys were ineffective for not filing a motion

to suppress the seizure and search of his property – specifically his camera and
memory cards. This claim is also meritless as he voluntarily provided it to the
officer.
As noted above, officers first observed photographs on Suggs’s phone
pursuant to voluntary consent provided by Suggs. Officers then seized the camera
as evidence pursuant to his arrest for disorderly conduct (CR. 147 at pp. 27-28).
During a search incident to arrest, a separate memory card was located in Suggs’

pocket (Id. at p. 28). Both items were logged in to evidence (Id. at p. 35). A search
warrant was then obtained for the memory card contained within the camera, as
well as the separate memory card found in Suggs’s pocket, the search warrant
having been authorized by a Circuit Court Judge in St. Clair County (Id.). A
search of the memory cards revealed approximately 200 illicit images of M.W.,
including photographs of his penis (CR. 147 at pp. 118-119, 121).
A well-recognized exception to the warrant requirement is when someone
consents to a search. United States v. Jackson, 598 F. 3d 340, 346 (7th Cir. 2010).
Law enforcement may seize items without a warrant if they have probable cause to
believe those items are linked to criminal activity. United States v. Bruce, 109 F.

3d 323, 328 (7th Cir. 1997). Where Suggs consented to viewing photographs on his
camera and officers observed photographs in plain view that showed Suggs engaged
in conduct that violated Belleville’s disorderly conduct ordinance, the initial search
and seizure of Suggs’s camera did not violate the Fourth Amendment.
Another well-rooted exception to the warrant requirement is a search
incident to arrest. Police can conduct a warrantless search of an arrestee even if
they have no reason to believe that the arrestee possesses weapon or evidence. See

New York v. Belton, 453 U.S. 454, 461 (1981); Virginia v. Moore, 553 U.S. 164
(2008). After Suggs was transported to the Belleville Police Department following
his arrest for disorderly conduct, an officer searched his person and located the
additional memory card in his pocket, which was seized as evidence (CR. 147 at pp.
27-28). This was a proper search incident to arrest.
A complaint for search warrant to search (again) the memory card seized from

the camera as well as the memory card found in Suggs’s pocket was obained.
In his complaint, the detective detailed the investigation to that point and
submitted that he had probable cause to believe that evidence of child pornography
(in addition to the already-established probable cause for disorderly conduct) would
be found on the memory cards. He submitted his complaint to a neutral judge who
authorized (another) search of the memory card from the camera in addition to the
memory card found in Suggs’s pocket. It was during this search – a forensic
examination of the memory cards – that the illicit photographs of M.W. were
recovered. The search of the two memory cards pursuant to search warrant was,
therefore, proper.

In the context of an ineffective assistance of counsel claim predicated on
counsel’s failure to file a motion to suppress, the burden is on the Suggs to
demonstrate that a motion to suppress would have been meritorious. Failure to
raise a losing argument or file a futile motion to suppress does not constitute
ineffective assistance of counsel. Perez, at 331-332. Both Gabel and Ghidina made
proper assessments that any motion to suppress would be meritless, and Suggs

cannot show that any motion to suppress would have succeeded. Therefore, neither
attorney was ineffective for failing to challenge the searches or seizure of evidence
in Suggs’s case.
Suggs states in his initial grounds for relief that “Counsel failed to
investigate cell phone records, which would have indicated, contrary to the evidence
before the jury, that movant’s geographical location, was not in the area of the
purported crime” (Doc. 1 at p. 2). However, he fails to develop his argument in any

meaningful way.
The allegation of failure of counsel to investigate is addressed in the affidavit
of his attorney Mr. Ghidina:
In regard to defending the case, the most effective evidence the defendant
could have pursued was the individual whom Suggs advised me was the
real photographer. However, Suggs refused, despite multiple requests, to
identify or provide information regarding this person. We discussed
witnesses on his behalf and he offered no one (Doc. 20-1).

As hereinbefore mentioned, the memory card contained within Suggs’s camera had
nearly 200 illicit photographs of M.W. with the first photograph where M.W.’s penis
was exposed was taken around 11:19 a.m. on June 7, 2014 – the same date Suggs
was found with the minors and arrested for disorderly conduct (CR. 147 at pp. 122-
123). At the time of Suggs’ arrest, his vehicle, a Cadillac, was photographed, and
some of the 200 illicit photographs of M.W. that were recovered had been taken in
his Cadillac such that the Cadillac logo was visible (CR. 147 at pp. 121-122). M.W.
testified credibly at trial that on the morning of June 7, 2014, Suggs asked him to
take “playboy” pictures in exchange for money (CR. 147 at p. 88). He stated that he
got in the passenger side of Suggs’s Cadillac and that Suggs took photographs of his
“private part” (Id. at pp. 67, 89).
Suggs cannot show that Mr. Ghidina was ineffective. Where a petitioner
claims ineffective assistance of counsel based upon a failure to call witnesses, he

must explain what testimony would have been provided by the witnesses that
counsel failed to call. Fernandez v. United States, 197 Fed. Appx. 513, 515 (7th Cir.
2006). Suggs does not even name what witnesses he wanted counsel to call, let
alone what the substance of the testimony would have been. Suggs also fails to
indicate where he purportedly was at the time these photographs were taken.
Suggs fails to meet either prong of Strickland. Mr. Ghidina’s performance fell
within the objective standard for reasonableness and there was no showing of

prejudice.
Suggs also asserts in his initial grounds for relief that “Counsel conceded the
guilt of the movant by his use of the Dost factors and failed to object to improper
bolstering by the prosecution” (Doc. 1 at p. 2). He fails to develop this argument
whatsoever. Suggs inaccurately states that Ghidina conceded his guilt and he does
not identify what he believed was “improper bolstering by the prosecution” such

that Ghidina should have lodged an objection. Ghidina’s affidavit, however,
responds to this cursory, unsupported argument, stating:
“We talked about theory of defense many times. I asked him what he
thought and he never had an answer other than to pray, everybody was
lying and he wasn’t being treated fairly by the system. He agreed that
focus at trial should necessarily be on the government’s ability or inability
to prove all elements that the jury would be required to find concerning
the alleged conduct itself according to their jury instructions, including
“use of the Dost factors” (Doc. 20-1).

Ghidina did all he could do defending Suggs at trial considering the damning
evidence against him and in no way conceded Suggs’s guilt. Ghidina objected
numerous times to questions posed by the prosecution as well as to the introduction
of certain government exhibits. See generally CR. 147. Ghidina cross examined
witnesses regarding the character of the photographs, inconsistencies of prior
statements, and custody of evidence (CR. 147 at pp. 30-33; 60-62; 79-80; 100-105).
In closing arguments, Ghidina did not give up. He focused on the inconsistencies of
the witnesses, the content of the photographs as it relates to the definition of
“sexually explicit conduct,” and the quantum of evidence proving up the interstate
or foreign commerce element (CR. 148 at pp. 24-34).
Suggs’ claim fails to satisfy the first prong of Strickland, i.e. the objective
standard for reasonableness. Ghidina’s trial strategy to argue that the prosecution
had not met its burden of proof on each element and calling in to question the
reliability of the witness’ accounts was a reasonable strategic choice by trial
counsel, one that was made in consultation with Suggs and with his agreement
(Doc. 20-1). Thus, the Court should presume this was a valid strategic choice by
trial counsel. Additionally, because Suggs does not specify what “improper

bolstering” should have been objected to, he fails to satisfy the second prong of
Strickland – that he suffered prejudice from any alleged deficient performance.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the Court
must issue or deny a certificate of appealability when entering a final order adverse
to a petitioner.

A petitioner’s right to appeal a district court’s denial of a Section 2255 petition
is not absolute; it depends on whether the district court grants a certificate of
appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). A certificate of
appealability is warranted only where (1) a petitioner shows that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and (2) jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473,

484 (2000).
Suggs has not made a substantial showing that he was denied a constitutional
right. Reasonable jurists could not debate whether Suggs’ counsel was ineffective.
The Court, therefore, declines to issue a certificate of appealability.
CONCLUSION
In light of the foregoing, Suggs’ Motion to Vacate, Set Aside, or Correct the
Sentence pursuant to § 2255 is DENIED and his claims are DISMISSED with
prejudice. All other motions are terminated as moot at this time. Given the record of
the underlying criminal action where Suggs was provided with two competent

attorneys, it is obvious that the Court was invested in guaranteeing that his rights
were more than protected. It also appears as if this action was frivolous and without
merit as the evidence was overwhelming and Suggs’ argument is wholly without
merit. Spiegel v. Continental Illinois Nat’l Bank, 790 F.2d 638 (7th Cir. 1986). The
Court DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.

DATED: March 12, 2021.

/s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10153336. Public record. Not legal advice.