Cureton v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

THOMAS CURETON, )

)

Petitioner, )

)

vs. ) Case No. 19-cv-1107-DWD

)

UNITED STATES OF AMERICA, )

)

Respondent. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

This matter comes before the Court on Petitioner Thomas Cureton’s Motion to

Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc 37; Doc. 1).

Petitioner challenges his 444-month sentence imposed in two criminal cases which were

consolidated for trial and sentencing. United States v. Cureton, SDIL Case No. 10-30106-

DRH-1 (hereinafter referred to as the “Drug Case” or “Case 106”); United States v. Cureton,

SDIL Case No. 10-30200-DRH-1 (hereinafter referred to as the “Ransom Case” or “Case

200”). Following multiple appeals, the Seventh Circuit Court of Appeals affirmed

Petitioner’s 444-month sentence on April 10, 2018. United States v. Cureton, 887 F.3d 318,

319 (7th Cir. 2018). For the following reasons, the Motion will be denied.

Factual and Procedural Background

On November 17, 2010, a federal grand jury returned a superseding indictment

charging Petitioner with five drug and weapon charges, including: four counts of

distributing crack cocaine near a school in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and

860 (Counts 2-5) and one count of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1) (Count 1) (Case 106, Doc. 42).

Also on November 17, 2010, a federal grand jury returned a separate indictment

charging Petitioner with one count of interstate communication with intent to extort in

violation of 18 U.S.C. § 875(a) (Case 200, Doc. 1). On April 20, 2011, a superseding

indictment was returned charging Petitioner with four charges: one count of interstate

communication of ransom request in violation of 18 U.S.C. § 2 and 875(a) (Count 1), two

counts of possession of a firearm in furtherance of a crime of violations in violation of 18

U.S.C. § 2 and 924(c) (Counts 2 and 4), and one count of attempted extortion in violation

of 18 U.S.C. § 2 and 1951(a) (Count 3) (Case 200, Doc. 31).

Attorney, John D. Stobbs, II represented Cureton at trial in both cases. Initially,

the two cases proceeded separately, with the Ransom Case proceeding before Judge

Murphy and the Drug Case before Judge Stiehl. However, after the grand jury returned

Cureton’s superseding indictment in the Ransom Case adding the two firearm charges,

Attorney Stobbs sought to consolidate the two cases for trial (Case 200, Doc. 37).

According to Attorney Stobbs, the new 18 U.S.C. § 924(c) charges each carried mandatory

consecutive sentences, which Stobbs believed significantly increased Petitioner’s risk in

the Ransom Case (Doc. 11-4, at ¶¶ 24, 31-36). In his motion, Stobbs also described the

significant overlap of facts and witnesses between the cases, the government’s intention

to introduce 404(b) material against Cureton, and judicial economy (Case 200, Doc. 37).

Judge Murphy initially denied the motion on May 2, 2011 (Case 200, Doc. 45).

However, on May 5, 2011, the Drug Case was transferred from Judge Stiehl to Judge

Murphy (Case 106, Doc. 97), so Stobbs moved to reconsider the denial of the motion for

consolidation, again citing the overlap between the cases, in addition to new scheduling

issues (Case 200, Doc. 46). On May 9, 2011, Judge Murphy granted the motion for

reconsideration and consolidated the two cases for trial (Case 200, Doc. 50).

On August 18, 2011, following a four-day jury trial, Petitioner was found guilty on

Counts 1-4 of the Drug Case, not guilty on Count 5 of the Drug Case (the fourth drug

distribution count), and guilty on Counts 1-4 of the Ransom Case (Doc. 11-11; Doc. 11-

12). Sentencing for both cases was held on January 30, 2012, before Judge Murphy (Case

200, Doc. 102). Judge Murphy sentenced Cureton to a total sentence of 744 months (Case

200, Doc. 102). In the Drug Case, Cureton was sentenced to 120 months on Count 1 (felon

in possession), and 360 months on Counts 2-4 (distribution of cocaine base, to run

concurrently, for a total sentence in the Drug Case of 360 months (Case 200, Doc. 102). In

the Ransom Case, Cureton was sentenced to 240 months on Counts 1 and 3 (ransom and

attempted extortion), to run concurrently (Case 200, Doc. 102), 84 months on the first §

924(c) conviction (Count 2) and 300 months on the second § 924(c) conviction (Count 4),

with both § 924(c) sentences running consecutive to all other sentences, for a total

sentence of 384 months in the Ransom Case (Case 200, Doc. 102).

The Government submitted the following table for illustration purposes, which

summarizes Cureton’s first sentence:

Case Count Description Sentence

10-30160 1 Felon in Possession 120 months (concurrent)

10-30160 2-4 Distribution of Cocaine Base 360 months (concurrent)

10-30200 1 Interstate Comm. of Ransom 240 months (concurrent)

10-30200 2 Poss. of Firearm/Crime of Violence 84 months (consecutive)

10-30200 3 Attempted Extortion 240 months (concurrent)

10-30200 4 Poss. of Firearm/Crime of Violence 300 months (consecutive)

360+84+300= 744 months

(Doc. 11, p. 11).

In explaining the severity of Cureton’s sentence, Judge Murphy made the

following comments concerning Cureton’s capacity for violence and extreme depravity:

The victim in this case is set on a bucket with her wrists and ankles

tied by the defendant. She was beaten while she was seated, punched in the

head and face, kneed in the ribs, kicked in the hip and, in addition, she was

choked. This was done several times, He punched her off the bucket, kicked

her in the side, leg and head. . . .

I think Mr. Cureton is a dangerous man. I think that he is dangerous

not just for the reason -- and we heard what the evidence was and what he

did to this young woman -- but he was wrong. You were -- you were after

the wrong person, and that makes you doubly dangerous. You were—you

were willing to take this young woman to an inch of her life on the theory

she had stolen your dope. And the Court heard all the evidence, and I don’t

think she stole your dope. . . .

But to tie a young woman up and kick, beat her, and threaten to cut

her, and to bring other people in to frighten her, and then to call her family,

just a horrible, horrible, horrible experience for everyone involved, is -- is

cold and vicious beyond description. I would have given you a life sentence

if the statute authorized it irrespective of what the guidelines provided for

in this case.

(Case 200, Doc. 118, at pp 29-37).

Cureton appealed his sentence on January 31, 2012 (Case 200, Doc. 106). Cureton

challenged (1) the district court’s admission of prior bad act evidence pursuant to Fed. R.

Evid. 404(b), (2) the propriety of his two convictions under § 924(c), and (3) whether the

district court’s finding of brandishing at sentencing violated the precedent of Alleyne v.

United States, 570 U.S. 99 (2013). See United States v. Cureton, 739 F.3d 1032, 1034–35 (7th

Cir. 2014). The Seventh Circuit found no error in admitting 404(b) evidence at trial and

held that the district court’s brandishing finding was erroneous but did not violate

Alleyne or result in a miscarriage of justice. Id. However, the Seventh Circuit ruled that

the two § 924(c) charges against Cureton for a single course of conduct involving only

one use of one firearm were multiplicitous. Id. at 1043–44. Thus, the Seventh Circuit

vacated Cureton’s sentence and remanded his case for resentencing. Id.

On July 16, 2014, Cureton appeared for his first resentencing before Judge

Herndon (Case 200, Doc. 160). At sentencing, Cureton raised an objection that the Drug

Case and Random Case were improperly consolidated for sentencing (Case 200, Doc. 172,

p. 15). Judge Herndon overruled Cureton’s objection, finding that the two cases were

“rationally related” such that there was “no reason not to have them together”, and even

if the sentencings were not consolidated, the sentencing court would consider all

Cureton’s conduct in forming a sentence (Case 200, Doc. 172, p. 17). Judge Herndon then

sentenced Cureton to a total sentence of 444 months, eliminating the 300-month sentence

on the second § 924(c) charge (Case 200, Doc. 160). Cureton’s sentence otherwise

remained the same as originally imposed.

The Government again submitted a table for illustration purposes, which

summaries Cureton’s second sentence:

Case Count Description Sentence

10-30160 1 Felon in Possession 120 months (concurrent)

10-30160 2-4 Distribution of Cocaine Base 360 months (concurrent)

10-30200 1 Interstate Comm. of Ransom 240 months (concurrent)

10-30200 2 Poss. of Firearm/Crime of Violence 84 months (consecutive)

10-30200 3 Attempted Extortion 240 months (concurrent)

10-30200 4 Poss. of Firearm/Crime of Violence 300 months (consecutive)

360+84= 444 months

(Doc. 11, p. 13). At sentencing, Judge Herndon also commented on Cureton’s

dangerousness, finding he was “very dangerous” to the community (Case 200, Doc. 172,

p. 37).

On July 17, 2014, Cureton appealed his sentence (Case 200, Doc. 164). He argued

that the district court set conditions of supervised release without complying with United

States v. Thompson, 777 F.3d 368 (7th Cir. 2015). See United States v. Cureton, Nos. 14-2576

& 14-2586 (7th Cir. June 30, 2015). The Seventh Circuit agreed and vacated Cureton’s

sentence and remanded for resentencing. Id.

On October 1, 2015, while the case was on remand before the district court,

Cureton filed a motion to vacate his conviction for lack of jurisdiction (Case 200, Doc.

190). Cureton argued that Count 1 of the superseding incitement in the Ransom Case

(interstate communication of ransom) failed to allege a necessary element under 18 U.S.C.

§ 875(a) because there was “no reference to scienter or any mental state” to form “an

intent to extort.” (Case 200, Doc. 190). Cureton relied on the case United States v. Heller,

579 F.2d 990 (6th Cir. 1978) (Case 200, Doc. 190). Judge Herndon denied Cureton’s motion

to vacate on October 14, 2015, finding:

[T]he language in Count 1 of the superseding indictment tracks the

statutory language (which does not contain specific mens rea) and sets forth

the elements necessary, thus, the language contained in Count 1 is sufficient

and not defective. Moreover, the Court declines to apply the reasoning in

Heller to the facts of this case.

United States v. Cureton, No. 10-CR-30200-DRH, 2015 WL 5970673, at *1 (S.D. Ill. Oct. 14,

2015). On November 13, 2014, Judge Herndon resentenced Cureton to the same 444-

monht sentence and followed the Seventh Circuit’s guidance for imposing conditions for

supervised release (Case 200, Doc. 198).

On November 16, 2015, Cureton filed his third appeal (Case 200, Doc. 203),

claiming for the first time that § 875(a) does not qualify as a “crime of violence” under §

924(c) (Doc. 11-16). To explain his delay in raising this issue, Petitioner stated that he did

not know this argument existed before Johnson, which was decided on June 26, 2015 (Doc.

11-16, p. 16). The Seventh Circuit rejected this argument, finding that “a demand or

request for ransom necessarily includes at least an implied threat that the kidnapper will

use force against the captive if the demand is not satisfied”, such that, at minimum, it was

debatable whether the statute has an element of threatened use of physical force against

another so to affirm the district court’s sentence under a plan-error review. United States

v. Cureton, 845 F.3d 323, 326 (7th Cir. 2017), cert. granted, judgment vacated, 199 L. Ed. 2d 1

(Oct. 2, 2017).

Cureton then filed a petition for certiorari to the Supreme Court. On October 2,

2017, the Supreme Court granted certiorari, vacated, and remanded Cureton’s case back

to the Seventh Circuit for reconsideration in light of Dean v. United States, 581 U.S. 62

(2017) (disapproving of prior precedents barring sentencing judges from considering the

mandatory minimum sentence under § 924(c) when deciding the sentences for other

crimes). See Cureton v. United States, 199 L. Ed. 2d 1 (Oct. 2, 2017). The Seventh Circuit

ordered a limited Paladino remand so the district court could “determine whether it

would have imposed the same sentence, knowing that in light of Dean, it may consider

the mandatory sentence under § 924(c) when deciding the sentences for other crimes” or

whether the court wished “to have a new opportunity to exercise its discretion and

judgment in a complete resentencing.” United States v. Cureton, 882 F.3d 714, 716 (7th Cir.

2018).

On March 21, 2018, Judge Herndon issued an order explaining that he saw no basis

to change Cureton’s sentence (Case 200, Doc. 233). Judge Herndon quoted his own prior

comments at resentencing, in addition to Judge Murphy’s comments at Cureton’s original

sentencing, recalling that the Court’s earlier determinations “that Cureton’s capacity for

violence and depravity was extreme and Cureton needed to be off the streets for as long

as the law would permit which the Court determined to be 444 months imprisonment.”

(Case 200, Doc. 233, pp. 2-4). Judge Herndon concluded that a lower sentence would not

be sufficient to serve the purposes of 18 U.S.C. § 3553(a) and would constitute a “travesty

of justice.” (Case 200, Doc. 233, pp. 3-4). The Seventh Circuit reviewed and affirmed

Cureton’s 444-month sentence on April 10, 2018. See Cureton, 887 F.3d at 319. Following

the Supreme Court’s denial of Cureton’s petition for certiorari, this Motion followed.

The Motion

On October 10, 2019, Petitioner filed his § 2255 Motion (Doc. 1). His original

motion raises eight claims for ineffective assistance of his trial counsel, and a claim under

Rehaif v. United States, 204 L. Ed. 2d 594 (June 21, 2019), summarized as:

1. Whether counsel was ineffective for consolidating the trials,

2. Whether counsel was ineffective for arguing that Cureton was just a

middleman in the drug transactions,

3. Whether counsel was ineffective for presenting inculpatory evidence (the

fact he had a prior drug conviction) at trial,

4. Whether his conviction for being a felon in possession remains valid under

Rehaif v. United States, 202 L. Ed. 2d 641 (Jan. 11, 2019),

5. Whether counsel was ineffective for failing to file a motion to dismiss Count

1 of the Ransom Case for failing to allege an essential element,

6. Whether counsel was ineffective for failing to cross examine the victim in

the Ransom Case, and allegedly conceding Cureton’s guilt in closing

argument,

7. Whether counsel was ineffective for not objecting to the use of his prior

Illinois drug conviction to enhance his sentence in the Drug Case under 21

U.S.C. § 841(b),

8. Whether counsel was ineffective for not preserving an argument that his §

875(a) convictions were predicate offenses under 18 U.S.C. § 924(c), and

9. Whether counsel was ineffective for consolidating the two cases for

sentencing.

(Doc. 1). After briefing was completed on these issues, Cureton sought leave to file an

amended motion (Doc. 25). The Court granted the Motion for Leave, over the

Government’s objection (Doc. 36), and directed the Government to respond as

appropriate to Petitioner’s additional filings (Doc. 36). Petitioner’s Amended Motion

(Doc. 37) purports to raise, or bolster, two additional grounds for relief, which the Court

will consider with the above claims. These additional claims include:

1. Whether his trial counsel was ineffective for failing to make a Rehaif-type

argument to preserve the claim for appeal, and

2. Whether his § 924(c) conviction remains valid under United States v. Davis,

204 L. Ed. 2d 757 (June 24, 2019).

(Doc. 37).

Legal Standard

Section 2255 permits prisoners to petition their sentencing court for relief from

their sentence if 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 section 2255 is “reserved for

extraordinary situations” and cannot substitute for direct appeals. Kafo v. United States,

467 F.3d 1063, 1068 (7th Cir. 2006); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996).

Therefore, issues not raised on direct appeal are barred from collateral review absent

either a showing of good cause for the failure resulting in actual prejudice, or that a

refusal to consider the issue would lead to a “fundamental miscarriage of justice.” Id.

Cureton ultimately bears the burden to prove the allegations in his petition warrant relief

under section 2255. Stetson v. United States, 417 F.2d 1250, 1253 (7th Cir. 1969).

The district court is not required to hold an evidentiary hearing on a 28 U.S.C. §

2255 motion if “the motion, files, and records of the case conclusively show that the

prisoner is entitled to no relief.” Cooper v. United States, 378 F.3d 638, 641–642 (7th Cir.

2004); Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002) (“There is no

requirement that the district court grant an evidentiary hearing for every § 2255 petition

alleging factual improprieties.”); Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir.

1989) (“the district court is entitled to consider all the circumstances in the record in

determining whether a hearing should be afforded on a 28 U.S.C. § 2255 petition. Mere

unsupported allegations cannot sustain a petitioner’s request for a hearing”) (internal

citations and markings omitted). Based on a review of the filings and the extensive record,

this Court concludes that the issues in this case can be resolved on the existing record; an

evidentiary hearing is not necessary.

Discussion

Ineffective assistance of counsel claims may be brought in a collateral proceeding

under section 2255 regardless of whether the petitioner could have raised the claim on

direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003). To succeed on his

ineffective assistance claims, Cureton must ultimately show that “his counsel was

deficient, and that this deficiency prejudiced him.” Gant v. United States, 627 F.3d 677,

682 (7th Cir. 2010) (citing Strickland v. Washington, 466 U.S. 668, 669 (1984)). “A failure to

establish either deficience or prejudice is fatal to [petitioner’s] claim.” Gant, 627 F.3d at

682; see Thill v. Richardson, 996 F.3d 469, 477–78 (7th Cir. 2021) (Petitioner must establish

both Strickland prongs).

For the first prong, Cureton must demonstrate that his counsel’s representation

fell below the objective standard of reasonableness. Strickland, 466 U.S. at 669. Here,

Cureton must overcome the “strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 669; Cooper, 378

F.3d at 641 (“Defense counsel is ‘strongly presumed to have rendered adequate assistance

and to have made significant decisions in the exercise of his or her reasonable

professional judgment.”).

For the second prong, defendant must show that counsel’s “deficient performance

prejudiced the defense”, meaning that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”)

Taylor v. Bradley, 448 F.3d 942, 950 (7th Cir. 2006) (internal citations omitted); Thill, 996

F.3d at 476 (quoting Strickland, 466 U.S. at 694). Here, Cureton must demonstrate that his

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.” Cooper, 378 F.3d at 642

(citing Strickland, 466 U.S. at 686). In other words, Cureton must show that without

counsel’s alleged defective assistance, the outcome of his case would have been different.

But a “mere possibility of prejudice does not qualify as actual prejudice.” Prewitt, 83 F.3d

at 819 (emphasis in original); see also Harrington v. Richter, 562 U.S. 86, 112 (2011) (“The

likelihood of a different result must be substantial, not just conceivable”).

Cureton raises a multitude of grievances against Stobbs’ performance (Doc. 1, Doc.

37). With its response, the Government provided an Affidavit from Attorney Stobbs

(Doc. 11-5), in addition to an Affidavit from Attorney Thomas Q. Keefe, III, who also

represented Cureton at trial (Doc. 11-6). The Government, Stobbs, and Keefe argue that

Stobbs’ performance was not deficient, and that he properly exercised his trial strategy,

even effectively resulting in Cureton’s non-guilty verdict on one of the drug counts.

However, before evaluating whether Stobbs’ performance was “professionally

competent,” the Court first looks to whether Cureton can establish prejudice. Taylor, 448

F.3d at 949 (relying on Strickland, 466 U.S. at 694) (the Seventh Circuit consistently adopts

the Supreme Court’s mandate in Strickland of “first examining whether the petitioner has

established prejudice and then, if necessary, examining whether counsel’s performance

fell outside the parameters of what could objectively be considered ‘professionally

competent.’”). Indeed, “when an ineffectiveness claim may be disposed of on the basis

of a lack of prejudice” then “it is unnecessary and undesirable for [the court] to consider

the attorney performance facet of the analysis.” Id. This approach prevents courts from

conducting an “undesirable . . . ‘second trial, this one of counsel’s unsuccessful defense’

when the case can be resolved on lack of prejudice grounds.’”) Id. at 949–950 (quoting

Strickland, 466 U.S. at 697). Ineffective assistance claims do not prejudice defendants

where “overwhelming evidence” of defendant’s guilt is presented at trial. See Taylor, 448

F.3d at 950 (collecting cases).

I. Cureton’s Search for Prejudice Under Strickland

Here, a review of the record reveals that Cureton cannot establish prejudice and

his ineffectiveness claims necessarily fail. The evidence presented by the Government of

Cureton’s guilt was overwhelming so to support the reliability of his guilty verdict, and

thus Cureton cannot demonstrate that but for Stobbs’ conduct “there was a reasonable

probability that the result of the proceeding would have been different.” Taylor, 448 F.3d

at 951 (internal markings omitted). The Government presented its case over 4 days and

called 25 witnesses (Case 200, Doc. 97). The evidence presented by the Government

included testimony from the kidnapped victim, her family members, a confidential

informant, the robbery victim, the resident of the apartment where controlled buys

occurred, video surveillance of Cureton leaving his home to meet the confidential

informant, recorded phone calls, along with government agents linking Cureton’s

fingerprints to an electronic scale, a bag containing pistols, and to controlled “buy

money” found in Cureton’s wallet. See Cureton, 739 F.3d at 1039.

As documented in the trial record, and further summarized in Cureton, 739 F.3d at

1039, at trial the Government presented evidence that on December 31, 2009, January 4,

2010, and January 7, 2010, Cureton sold crack cocaine to a confidential informant. Id. at

1035. On December 31, 2009, a police inspector watched as a confidential informant called

Cureton to set up a drug buy. The inspector searched the informant, gave him $60 in

recorded bills, watched as the informant and Cureton entered the same building, and

then received crack cocaine from the informant that the informant said Cureton sold him

while another officer recorded Cureton as he left his home and drove to meet the

informant. Id.

The confidential informant made two more crack cocaine buys on January 4, 2010,

in similar fashion. This sale took place at the apartment of William Bosely, who also

testified that he watched the drug transaction take place. Id. The Government also

alleged that the confidential information bought crack cocaine from Cureton on January

7, but the jury acquitted Cureton on this charge. Id. On January 7, 2010, law enforcement

agents executed a warrant search of Cureton’s home and found marked bills from the

confidential information inside Cureton’s wallet linking Cureton to the first buy on

December 31, 2009. Id. Agents also searched Bosely’s apartment, where the January 4,

2010 buys occurred, and recovered two pistols, ammunition, and an electronic scale with

Cureton’s fingerprints on them. Id.

As for the Ransom Case, the Government presented evidence that on June 12, 2010,

a man named Eddie Sakosko had approximately $9,800 in cash on him from the recent

sale of his home. Id. Sakosko and his friends decided to use some of the money to buy

crack cocaine from Cureton, who delivered drugs to the group. Id. at 1036. Cureton

delivered drugs to the group a second time and pulled out a gun and demanded money

from Sakosko. Id. The gun discharged with no injuries, and Cureton left with $9,500 in

cash. Id. Sakosko and his associates called the police and reported the robbery. Id.

Two days later, on June 14, 2010, Cureton, and his wife, LaQuita, left the apartment

they shared with LaQuita’s brother, Demetrius Anderson, and Anderson’s eighteen-year-

old girlfriend, Ashley Lawrence. Id. at 1036. The police arrived looking for Cureton. Id.

Anderson spoke with LaQuita on the phone after the police left, and LaQuita relayed that

she and Cureton wanted cash and LaQuita’s puppy brought to them. Id. It was decided

that Lawrence should bring the money to them because she would be less suspicious than

Anderson. Anderson directed Lawrence to bring $9,000 in cash that was hidden in the

freezer, along with LaQuita’s puppy, to Cureton and LaQuita at a nearby park. Id.

Lawrence testified at trial that she put the money in a newspaper, which she then

put inside a plastic bag, and carried both the package and LaQuita’s puppy toward the

park. Lawrence said she dropped the newspaper several times as she attempted to also

hold the dog, and at some point, realized the money was missing. When she realized the

money was gone, she called LaQuita right away and told her what happened. As

Lawrence was retracing her steps looking for the cash, Cureton arrived in a friend’s car

and demanded to know where the money was, saying that he “shot a motehrf’er in the

head for the money.” Cureton ordered Lawrence in the car and took her to a friend’s

house. Inside the basement, Cureton screamed at Lawrence, punched her, threatened

her, and questioned her about where the money was.

Cureton eventually assented to Lawrence’s request for a chance to find the money,

but the search was unsuccessful. After Lawrence returned to the house, Cureton took her

behind a garage and punched her repeatedly, tied her to a bucket, broke her nose, kicked

her, choked her, and threatened to cut certain body parts with a knife. Cureton also made

a phone call and instructed the person on the receiving end to bring him “that thing.”

Cureton’s brother arrived about 10 minutes later and handed Cureton a gun. Cureton

put the gun to Lawrence’s head and told her it was her last chance. Cureton, Lawrence,

and LaQuita then got into the Curetons’ parked car, and, under pressure from Cureton,

Lawrence began making calls to family members to request money. Lawrence called her

mother, stepfather, and grandfather, who all had doubts about Lawrence’s request

because of her history of lying. Cureton spoke to Lawrence’s grandfather, after which he

agreed to make a wire transfer of about $4,500. Cureton, Lawrence, and LaQuita then

headed back to their apartment. Lawrence’s family members contacted police officers,

who were present at the apartment and Cureton was arrested. Id. at 1037.

Lawrence’s testimony was corroborated by other witnesses, photographs, and

physical evidence, including her blood-stained shirt and the buckets found behind the

shed (Case 200, Doc. 97). The Seventh Circuit described the evidence of the kidnapping

and ransom as “overwhelming” Id. at 1039. Further, at all sentencings, Judge Murphy

and Judge Herndon commented on the violent circumstances of the crimes. Judge

Murphy stated:

[T]o tie up a young woman and kick, beat her, and threaten to cut her, and

to bring other people in to frighten her, and then to call her family, just a

horrible, horrible, horrible experience for everyone involved is—is cold and

vicious almost beyond description. I would have given you a life sentence

if the statute authorized it irrespective of what the guidelines provided for

in this case.

(Case 200, Doc. 118, at p. 37; Doc. 11-13).

At resentencing, Judge Herndon also commented on the severity of the torture

associated with Cureton’s actions, highlighting how Cureton held the victim against her

will, held a knife against certain body parts, and held a gun against her head (Case 200,

Doc. 214, p. 23). In addition, Judge Herndon commented on the severity of Cureton’s

distribution of cocaine, highlighting that the buys occurred near a school (Id.).

After reviewing the record, the evidence presented against Cureton at trial was

overwhelming and supports the reliability of the jury’s guilty verdict, even assuming

Stobbs’ alleged performance was deficient. Therefore, Cureton cannot show that “there

was a reasonable probability that the result of the proceeding would have been different”

had Stobbs performed differently. Because Cureton cannot demonstrate prejudice, his

ineffective assistance claims must fail without further analysis into Stobbs’ performance.

See Taylor, 448 F.3d at 949.

II. Cureton’s Search for Deficiency in Counsel’s Performance.

The Court finds no indication in the record that Stobbs’ performance fell below the

objective standard of reasonableness. Cureton’s complaints concerning Stobbs’

performance fall generally into three categories: (1) the decision to consolidate the trials;

(2) decisions made at trial; and (3) failing to preserve certain legal arguments. However,

none of these alleged errors establish deficient performance so to implicate Petitioner’s

Sixth Amendment right. See Hartjes v. Endicott, 456 F.3d 786, 790 (7th Cir. 2006) (To

establish deficient performance, defendant must show errors so serious that counsel was

not functioning as the counsel guaranteed by the Sixth Amendment). In reviewing

Stobbs’ decisions, the Court must presume that counsel made reasonable strategic choices

unless the petitioner produces evidence rebutting that presumption. Cooper, 378 F.3d at

641 (Counsel is “strongly presumed to have rendered adequate assistance and to have

made significant decisions in the exercise of his or her reasonable professional

judgment.”). This is a “highly deferential” standard and Cureton offers very little to

rebut the presumption. Id.

A. Consolidation

In his Affidavit, Stobbs stated that he was initially prepared to go to trial on both

of Cureton’s cases, with the first set for trial before Judge Murphy on April 26, 2011, and

the second set for trial on May 2, 2011, before Judge Stiehl (Doc. 11-5, ¶ 30). However,

Stobbs stated that after the superseding indictment was returned in the Ransom Case,

adding the two § 924(c) counts, Stobbs became “very concerned that Mr. Cureton would

be convicted and that for 404(b) purposes the Government could use the conviction on

May 2, 2011 with Judge Stiehl.” (Doc. 11-4, ¶ 31). Stobbs further stated that he was

concerned by the Government’s 404(b) Notice because of the “incredible overlap of guns

and witnesses in both cases.” (Id.) Stobbs indicated that without the superseding

indictment, he would have moved to keep the Government from discussing anything

regarding the firearms or Cureton’s prior bad acts, but with the inclusion of the firearm

counts, the Government would have been allowed to discuss the firearms in the case (Id.)

Stobbs also indicated that he believed the Government’s evidence continued to get

stronger, and he speculated that the Government “wanted two bites of the apple with

Mr. Cureton, [such that i]f it lost some counts in the Judge Murphy trial, it had another

shot at Mr. Cureton in the Judge Stiehl trial and vice-versa” (Doc. 11-5, ¶¶ 32-34). Stobbs

also believed that the two trials would have allowed the Government to know Cureton’s

trial strategy and witnesses would have been better prepared for a second trial (Doc. 11-

5, ¶ 34). Finally, Stobbs maintains that if he had not sought consolidation of the two cases,

Cureton would have had a good argument for ineffective assistance of counsel for the

failure to do so (Doc. 11-5, ¶ 36).

Cureton’s counsel on appeal and at resentencing opined that one of Stobbs’ stated

purpose for consolidation – specifically his concern with the potential of being classified

as a career offender and subject to §4B1.1 enchantments – may not have been a true

concern because Cureton’s initial presentence investigation report revealed the adjusted

offense level of the extortion/ransom charges as higher than the offense level for a career

criminal classification (Doc. 24-1, p. 3). However, this Court does not believe Stobb’s

strategy in any way amounts to deficiency in his representation of Cureton, particularly

in consideration of all the grounds Stobbs raised for seeking consolidation, both in his

Affidavit (Doc. 11-5) and in the Motion filed with the Court (Case 106, Docs. 88, 98).

Rarely, if ever, is pre-trial strategy illuminated with the same light as hindsight. Before

trial, variabilities in evidence, method of evidence presentation, and a jury’s

consideration of the evidence are virtually boundless. Pre-trial analysis of these

variabilities in a meaningful way requires counsel to conduct a calculated risk assessment

that is often intricate and daunting. Here, there is nothing in the record to suggest that

Stobbs’ risk assessment or implementation of his strategy was lacking, let alone that his

representation of Cureton was deficient.

“There are countless ways to provide effective assistance in any given cases [and

e]ven the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland, 466 U.S. at 690. Moreover, and as detailed above, there is no reasonable

probability that if Cureton’s cases went to trial separately that the result would have been

any different. Indeed, at his first resentencing, Judge Herndon found that the two cases

were “rationally related” such that there was “no reason not to have them together”, and

even if the sentencings were not consolidated, the sentencing court would still have

consider all the defendant’s conduct (Case 200, Doc. 172, p. 17).

B. Trial Decisions

Nor do Sobbs’ trial decisions amount to deficiencies. Cureton complains generally

of the following trial decisions: (a) Stobbs’ arguments made suggesting that Cureton was

a middleman in the drug transactions, (b) Stobbs’ presentation of inculpatory evidence

that Cureton had a prior drug conviction, (c) the decision to not cross-examine the victim,

Lawrence, and (d) Stobbs’ comments allegedly conceding Cureton’s guilt in closing

arguments. These arguments are easily rejected.

First, the evidence at trial revealed that Cureton directly sold drugs to a

confidential informant regardless of Stobbs’ attempt to downplay his role as a

“middleman.” Cureton was charged with “knowingly and intentionally distributing”

cocaine (Case 106, Doc. 42). However, at trial, Stobbs attempted to argue that Cureton

did not “knowingly and intentionally” distribute drugs to others, but instead was a

middleman merely putting other dealers in touch with individuals (Case 200, Doc. 114,

p. 38). This decision falls within the considerable deference afforded counsel to provide

a wide range of reasonable assistance. See Strickland, 466 U.S. at 689 (“A fair assessment

of attorney performance requires that every effort be made to eliminate the distorting

effects of hindsight … and the defendant must overcome the [strong] presumption that,

under the circumstances, the challenged action ‘might be considered strong trial

strategy.’”).

Nevertheless, even without Stobbs’ argument, the evidence at trial revealed that

Cureton was a direct dealer. The Seventh Circuit summarized this evidence, finding:

The three controlled buys that led to convictions were all supported by the

testimony of a confidential informant who testified at trial. In addition, the

jury heard that law enforcement officials were present while the informant

and Cureton made phone calls to set up the deals and that they watched as

Cureton left his home and went to the agreed upon meeting place during

each of the deals. Another witness, William Bosley, testified that he

watched the second deal between Cureton and the confidential informant

in Bosley’s apartment, and Cureton’s fingerprints were found on an

electronic scale and a bag containing pistols that Bosley said Cureton had

hidden in Bosley’s ceiling tiles. Notably too, some of the “buy money”

provided to the informant for the sole purpose of buying drugs during the

first sale was found in Cureton’s wallet seven days later.

Cureton, 739 F.3d at 1039. Thus, there is no reasonable probability that the jury would

have reached a different result if counsel would have referred to Cureton as something

other than a middleman.

Next, Cureton argues that Stobbs’ decision to admit an exhibit containing

inculpatory information regarding his prior drug conviction was erroneous. The Court

disagrees. Stobbs’ defense strategy involved attacking the Government’s investigation

(Doc. 11-5, ¶ 40). Indeed, during opening statements, counsel repeatedly told jurors that

law enforcement failed to do their “due diligence” because they relied on bad information

from a biased informant (Case 200, Doc. 114, p. 40). To support this strategy, Stobbs

admitted a search warrant application on the cross-examination to “show the jury that

law enforcement applied for a search warrant alleging they were going to find numerous

illegal items, but found nothing.” (Doc. 11-5, ¶ 40). However, in doing so, the search

warrant also revealed that Cureton had a prior conviction for a drug related offense and

multiple drug-related arrests that did not result in convictions (Case 200, Doc. 96, pp. 111-

112). Nevertheless, Stobbs rightly believed that any prejudice from this evidence would

be limited because Cureton previously signed a stipulation confirming that he had been

convicted of a prior felony as part of his felon-in-possession charge (Case. 106, Doc. 122).

Moreover, while Stobbs’ argument attacking the credibility of the police investigation did

not result in a complete acquittal, the jury did return a not guilty verdict on one of the

four distribution counts, suggesting that Stobbs was at least, to an extent, successful in

undermining the investigation and the informant’s credibility (Case 106, Doc. 133, p. 5).

Counsel was also not deficient in his decision to not cross examine the victim.

Throughout the record, Lawrence’s testimony was consistently described as compelling.

Her testimony was further corroborated by other witnesses, photographs, and physical

evidence, including her blood-stained shirt and the buckets found behind the shed (Case

200, Doc. 97). The Seventh Circuit described the evidence of the kidnapping and ransom

as “overwhelming,” Cureton, 739 F.3d at 1039, and according to Stobbs, the testimony was

so powerful that he still remembers it vividly nearly a decade later (Doc. 11-5, ¶ 41).

Stobbs also represented that after Lawrence’s direct examination ended, Judge

Murphy took an unscheduled break which Stobbs believed was done because of the

powerful emotion shown during her testimony (Doc. 11-4, ¶ 42). During this break,

Stobbs stated that he discussed his strategy with Attorney Keefe, and they both

questioned how to cross-examine Lawrence without infuriating the jury (Doc. 11-5, ¶ 43).

Given this risk, Stobbs stated he decided to not cross-examine the victim, and instead

cross-examined other witnesses to attack her credibility (Doc. 11-5, ¶¶ 44-45). Indeed,

Stobbs’ examination of other witnesses, including Lawrence’s family members,

effectively revealed that Lawrence had a history of lying (Case 200, Doc. 97, at pp. 416-

417), thus accomplishing a credibility challenge without cross-examining her directly.

This decision was well within Stobbs’ discretion, and the Court observes no reason to, in

hindsight, second-guess that decision. See, e.g., Bryant v. Brown, 873 F.3d 988, 996 (7th Cir.

2017) (“A decision not to impeach a particular witness is normally considered a strategic

choice within the discretion of counsel” especially “when it is far from clear that any

impeachment would have been successful.”) (citing Jones v. Butler, 778 F.3d 575, 584 (7th

Cir. 2015)).

Finally, Cureton complains that Stobbs conceded his guilt during cross

examination, when Stobbs stated that Lawrence’s testimony was “heart-wrenching” and

“awful” and indicated that the jury could take the easy way out and find Cureton “guilty

of everything” because of her sympathetic story (Doc. 1, pp. 15, 52). However, as the

Government points out, Cureton failed to include the rest of Stobbs’ argument where he

reminded the jury of their oath, told them to test the evidence and be skeptical of the

evidence, and argued that even if Lawrence’s testimony was true, it could only amount

to state crimes:

You can say, well, if he committed this, he must be guilty of everything else.

If you do, you shorted your oath. If you do, you haven’t kept your promise.

Test it. Scrutinize it. Study it. Hold them to their burden. Be skeptical. Be

skeptical and ask yourself, ask yourself about what happened in June,

number one, but ask yourself, more importantly, what is it about what

happened in June that’s really being charged here?

. . .

Those are state crimes. Those don’t implicate federal jurisdiction. Mr. Burke

told you about federal jurisdiction. Federal jurisdiction means interstate

commerce. Federal jurisdiction means things crossing state lines. That

means as angry as Ashley Lawrence’s testimony makes you, it might make

you even angrier to know that her testimony, she never testified to a federal

crime. That is not what was charged. The victim: When the instruction says

“the victim,” and they talk about fear of the victim. That fear is not Ashley

Lawrence’s. That fear would be Gary Neumann, Gary Ramage, Misty

Neumann. The “victims” on these counts are the people on the other end of

the phone. That’s what it is that you are being asked to decide. It’s different

than what Ashley testified to . . . .

(Case 200, Doc. 115, pp. 62-63). This additional context is necessary for understanding

Stobbs’ argument, and the Court finds that these statements fall within the “wide range

of competent representation” afforded counsel. See, e.g., Bryant, 873 F.3d at 997 (Even

“[e]rrors resulting from strategic miscalculations may fall within the wide range of

competent representation”).

C. Failing to Preserve Legal Arguments

Cureton’s last set of arguments pertain to the alleged failure to preserve certain

legal arguments, including arguments under Rehaif, 202 L. Ed. 2d 641, Fed. R. Crim. P. 7,

Mathis v. United States, 579 U.S. 500 (2016), Johnson v. United States, 576 U.S. 591 (2015),

and Davis, 204 L. Ed. 2d 757. However, as further detailed below, none of these legal

arguments raise sufficient grounds to alter Cureton’s conviction or sentence. Thus, even

to the extent his trial counsel could have raised or preserved these arguments at trial,

such failure does not amount to ineffective assistance of counsel. See, e.g., United States v.

Rezin, 322 F.3d 443, 446 (7th Cir. 2003) (counsel has no duty to make frivolous arguments,

and tactical reasons to not raise weak arguments that may district he court from stronger

claims); in accord United States v. Brodie, 507 F.3d 527, 532 (7th Cir. 2007); see also Kirklin v.

United States, 883 F.3d 993, 997 (7th Cir. 2018) (“We have said repeatedly that the

guarantee of effective assistance of counsel does not require an attorney to anticipate

every eventual change in the law.”).

1. Rehaif claim

Cureton argues that he is entitled to relief premised on Rehaif, 202 L. Ed. 2d 641,

because the Government did not allege or prove that he knew he was a prohibited person

(i.e. a person with a prior felon) at the time he possessed the firearm in this case. In Rehaif,

the Supreme Court held that “in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2),

the government must prove both that the defendant knew he possessed a firearm and

that he knew he belonged to the relevant category of persons barred from possessing a

firearm.” Rehaif, 204 L. Ed. 2d 594; United States v. Williams, 946 F.3d 968, 970 (7th Cir.

2020). Post-Rehaif, the Government does not have “to prove that the defendant knew he

was prohibited from possessing a firearm. Knowledge of the relevant status is enough.”

Santiago v. Streeval, 36 F.4th 700, 707 (7th Cir. 2022) (citing United States v. Maez, 960 F.3d

949 (7th Cir. 2020)); United States v. Cook, 970 F.3d 866, 880 (7th Cir. 2020). In examining

whether the defendant knew of his relevant status, the Seventh Circuit has instructed that

district courts can, and should, consider other evidence in the criminal record to

determine whether the evidence establishes the knowledge element set forth in Rehaif.

See, e.g., Williams, 946 F.3d at 973; United States v. Dowthard, 948 F.3d 814, 818 (7th Cir.

2020); United States v. Pulliam, 973 F.3d 775 (7th Cir. 2020).

The Government acknowledges that the jury was not instructed to find that

Cureton knew he was a felon at the time he possessed the firearm at issue (Doc. 11, p. 36).

This was consistent with pre-Rehaif controlling precedent. However, the Government

avers that it would have been implausible for Cureton to not know he was a prohibited

person because of his prior felony convictions, and the terms of imprisonment he served

for those convictions. See, e.g., Williams, 946 F.3d 968 (Finding that defendant “cannot

plausibly argue that he did not know his conviction had a maximum punishment

exceeding a year” where he spent twelve years of his life in prison); Santiago, 36 F.4th at

708-09 (collecting cases). The Court agrees. Cureton stipulated at trial that prior to

January 7, 2010, the date he was alleged to have possessed the firearm at issue, he had

been convicted of a felony offense (Case. 106, Doc. 122). Further, his criminal history

reveals that Cureton served more than a year in custody on at least 3 occasions for prior

offenses (Case 200, Doc. 196, ¶¶ 101-105) (sealed). Considering he served more than one

year in prison and stipulated to his prior felony, Cureton’s arguments that he did not

know of his status as a felon would be implausible, and he is not entitled to relief on this

basis. See Maez, 960 F.3d 949 (even assuming Rehaif violations, these errors would not

undermine the fairness or integrity of a judicial proceeding when there was no doubt the

defendant knew he was a felon and juries would be permitted to hear such evidence).

2. Insufficient Indictment

Next, Cureton reasserts an argument presented at his resentencing on October 1,

2015, where he sought to have his conviction vacated for a lack of jurisdiction (Case 200,

Doc. 190). Specifically, he argued that Count 1 of his Ransom Case, under 18 U.S.C. §

875(a), failed to allege a necessary element because there was “no reference to scienter or

any mental state” such as “an intent to extort.” (Case 200, Doc. 190) (citing Heller, 579

F.2d 990). Judge Herndon rejected this argument, finding that “the language in Count 1

of the superseding indictment tracks the statutory language (which does not contain

specific mens rea) and sets forth the elements necessary” such that the language “is

sufficient and not defective.” Cureton, 2015 WL 5970673, at *1. The Court finds no basis

to reconsider this prior ruling. Moreover, a defect in an indictment does not deprive the

Court of jurisdiction. See United States v. Cotton, 535 U.S. 625 (2002) (“[D]efects in an

indictment do not deprive a court of its power to adjudicate a case.”). The Court is also

not aware of any binding precedent determining that an intent to extort is an essential

element of § 875(a). Thus, even if this omission was erroneous, the argument would not

result in prejudice.

3. Johnson and Davis based claims

Cureton raises multiple legal challenges to his § 924(c) conviction, for which he

was sentenced to 84 months. These claims are based on guidance from Johnson, 576 U.S.

591, Davis, 204 L. Ed. 2d 757, and their progeny. Cureton also raised these claims on

appeal, and the Seventh Circuit rejected his arguments on a plain error review finding

that Cureton could show no harm because his guidelines range would have remained the

same regardless of whether his § 924(c) conviction was vacated. See Cureton, 845 F.3d at

328. It is for this reason that Cureton’s remaining legal challenges to his § 924(c)

conviction must also fail, even ignoring that Cureton has shown no changed

circumstances that would permit him to relitigate those issues raised on appeal. See

Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (“Issues that were raised on direct

appeal may not be reconsidered on a § 2255 motion absent changed circumstances.”).

Cureton challenges his § 924(c) conviction arguing that his § 875(a) conviction was

not an appropriate predicate offense for his conviction following Johnson, 576 U.S. 591

(holding that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutional). He

further argues that his claim should be vacated following Davis, 204 L. Ed. 2d 757, where

the Supreme Court held the definition of “crime of violence” contained in the “residual

clause” of 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague. The Seventh Circuit

rejected Cureton’s Johnson-based argument on appeal, finding that his sentence would

remain unchanged regardless of whether his § 924(c) conviction was vacated:

[E]ven if we vacated the § 924(c) sentence, the guideline range of 360 to 720

months for his remaining offenses in his two consolidated cases would

remain the same. In addition, there is no doubt that Cureton as a matter of

fact threatened his victim with force with a gun literally to her head. The

district court is perfectly entitled to consider that fact in exercising its

sentencing discretion. See 18 U.S.C. § 3661. With an unchanged guideline

range, the district court could readily impose the same 444-month sentence

that it has already ruled twice is appropriate. Cureton, 845 F.3d at 327. The

high likelihood that Cureton would receive the same sentence, even if his

Johnson claim was successful, is underscored by the district judge’s

comments at Cureton’s first sentencing hearing:

[T]o tie up a young woman and kick, beat her, and threaten to cut her, and

to bring other people in to frighten her, and then to call her family, just a

horrible, horrible, horrible experience for everyone involved is—is cold and

vicious almost beyond description. I would have given you a life sentence

if the statute authorized it irrespective of what the guidelines provided for

in this case.

Cureton, 739 F.3d at 1045.

As for his Davis-based claim, the Seventh Circuit originally rejected this claim for

two reasons. Cureton, 845 F.3d at 325. First, the Seventh Circuit reasoned that Cureton’s

ransom offense debatably satisfied the “elements” or “force” clause of § 924(c)(3)(A). Id.

Second, the Seventh Circuit found that Cureton could not show harm because his

guidelines range would remain the same regardless of whether his § 924(c) conviction

was vacated. Id. at 328. The Seventh Circuit later held that holding a person ransom

“did not categorically” satisfy the elements clause of § 924(c)(3)(A), see United States v.

Jenkins, 849 F.3d 390, 393 (7th Cir. 2017), cert. granted, judgment vacated, 201 L. Ed. 2d 240

(May 14, 2018), altering its reasoning on the first holding. However, in doing so, the

Seventh Circuit specifically addressed Cureton’s case, emphasizing that Cureton’s

conviction would remain unaltered on its second holding because Cureton could not

demonstrate harm from the error, whereas Jenkins’ sentence was 120 months longer than

his guidelines range without the enhancement. See Jenkins, 849 F.3d at 393–94.

The Court can discern no reason to depart from the Seventh Circuit’s analysis and

reiterates that even if Cureton’s § 924(c) sentence was vacated, there is no indication in

the record that he would have received a different sentence as the guideline range on his

remaining offenses continued to be 360 to 720 months. As Judge Herndon aptly reasoned

in his March 2018 Order, “any sentence other than that previously imposed by this Court

would be so insignificant as to be a travesty of justice.” (Case 106, Doc. 268).

4. Mathis-based claims

Cureton argues that his 21 U.S.C. § 841(b) conviction was improperly enhanced

following Mathis, 579 U.S. 500, United States v. Elder, 900 F.3d 491 (7th Cir. 2018), and their

progeny. In Mathis, the Supreme Court provided guidance on the “categorical approach

for classifying prior convictions for purposes of recidivist sentencing enhancements.” See

Watkins v. United States District Court for the Central District of Illinois, 37 F.4th 453, 456 (7th

Cir. 2022) (summarizing Mathis). Under the categorical approach, the court asks,

“whether the elements of the crime of conviction match the elements of the crime

referenced in the federal statute, while ignoring the particular facts of the case.” Elder, 900

F.3d at 501 (internal citation and markings omitted). “If, and only if, the elements of the

state law mirror or are narrower than the federal statute can the prior conviction qualify

as a predicate felony drug offense.” United States v. De La Torre, 940 F.3d 938, 948 (7th Cir.

2019).

Cureton argues that the use of his prior Illinois drug conviction under 720 Ill.

Comp. Stat. Ann 570/401(c)(2) (Case 200, Doc. 196, ¶ 105) to enhance his sentence under

21 U.S.C. § 841(b) was error. The Seventh Circuit recently found, on direct appeal, that

the Illinois definition of cocaine in 720 Ill. Comp. Stat. Ann. 570/401(c)(2) was

categorically broader than the federal definition in 21 U.S.C. § 815, and rejected the use

of an Illinois cocaine conviction as a predicate offense for enhancement under

841(b)(1)(C). United States v. Ruth, 966 F.3d 642, 647 (7th Cir. 2020). Ruth further instructs

that an enhancement error here will affect a defendant’s substantial rights when the

enhancement increased the defendant’s Guidelines range. See Ruth, 966 F.3d at 650

(“When a defendant is sentenced under an incorrect Guidelines range—whether or not

the defendant’s ultimate sentence falls within the correct range—the error itself can, and

most often will, be sufficient to show a reasonable probability of a different outcome

absent the error.”) (quoting Molina-Martinez v. United States, 578 U.S. 189 (2016)).

Here, Petitioner’s sentence derives from 21 U.S.C. § 841, which at the time of his

sentencing and resentencing, provided for a maximum statutory sentence of 720 months

(Case 200, Doc. 196, ¶¶ 152-153) (Sealed). Probation computed this number by starting

with 240 months (the baseline maximum under § 841(b)(1)(C)) and increasing that

amount to 360 months because of Cureton’s prior drug felony offense (the § 841

enhancement), and then doubling that amount because each of the three controlled buys

took place near a school (the second enhancement under 21 U.S.C. § 860). Cureton does

not challenge his § 860 enhancement. Without the § 841 enhancement, Cureton’s

maximum statutory penalty on each of his distribution counts would be 480 months,

which accounts for the 240 months baseline maximum, then doubled to account for the §

860 enhancement.

The Government correctly notes that even if Cureton had successfully challenged

his § 841 enhancement, his sentence of 360 months on each drug count was well within

this statutory range. However, this does not preclude a finding of error. Ruth, 966 F.3d

at 651 (“We have repeatedly held that ‘[a] sentencing based on an incorrect Guidelines

range constitutes plain error and warrants a remand for resentencing, unless we have

reason to believe that the error in no way affected the district court's selection of a

particular sentence.”). Under the particular circumstances of this case, the Court finds

that there is ample reason to believe that an error here would not have affected Cureton’s

sentence. Indeed, there are multiple statements throughout the record and his sentencing

transcripts to indicate that Cureton would have received the same sentence regardless of

any changes to his Guidelines range. At Cureton’s sentencing, Judge Murphy stated:

[T]o tie up a young woman and kick, beat her, and threaten to cut her, and

to bring other people in to frighten her, and then to call her family, just a

horrible, horrible, horrible experience for everyone involved is—is cold and

vicious almost beyond description. I would have given you a life sentence

if the statute authorized it irrespective of what the guidelines provided for

in this case.

Cureton, 739 F.3d at 1045. Judge Hendon reiterated this sentiment at his resentencings:

It’s quite something different to be someone who beats the life out of

somebody because they made the horrendous mistake of dropping some

money on their way to meet up with – because they are to do something

forbidden. That’s what makes people like Mr. Cureton very dangerous to

the community.

(Case 106, Doc. 227, p. 37)

[T]his case is more about the violent case that occurred over the lost money

and the violence surrounding the victim who was held against her will who

went through all of the torture associated with having a knife held against

certain body parts, a gun held against her head, a ransom request made. All

of that is very, very serious. And so you take that kind of violence, which I

don’t think anybody in the community that’s looking to reduce sentences

having to do with drugs would in any way suggest that his sentence needs

to be reduced because we have somebody who’s involved in the drug

business and we’ve got a change in attitudes about drugs. That’s just not

consistent with the arguments that they make about why we need to change

our thinking about drug crime. … they would say that case points out one

of the types of cases that you wouldn’t want to reduce the sentence. That

kind of violence, that tangentially would not be the kind of case where you

would want to reduce a sentence.

(Case 106, Doc. 255, pp. 23-24).

Most recently, in his March 21, 2018 Order, Judge Herndon stated that “any

sentence other than that previously imposed by this Court would be so insignificant as

to be a travesty of justice.” (Case 106, Doc. 268). Thus, under the specific circumstances

here, the Court finds that any error would not result in prejudice or a miscarriage of

justice, let alone a basis to support an ineffective assistance of counsel claim.

Alternatively, should a contrary finding be made that such error was not harmless,

and that Ruth provides a viable standalone claim for relief, the Court finds that Cureton’s

arguments are procedurally defaulted. “A claim not raised on direct appeal generally

may not be raised for the first time on collateral review and amounts to procedural

default. White v. United States, 8 F.4th 547, 554 (7th Cir. 2021) (citing McCoy v. United

States, 815 F.3d 292, 295 (7th Cir. 2016).

Cureton had notice of the Government’s intent to use this conviction in November

2010, when the Government filed its § 851 Information (Case 106, Doc. 39), and did not

challenge the use of this prior conviction at his sentencings of his appeals. See Cureton,

739 F.3d 1032 (arguing error on direct appeal for allowing evidence of an uncharged

robbery, receiving multiple § 924(c) convictions despite single use of firearm, and

objection to § 924(c)(1)(A)(ii) enhancement for brandishing a firearm); Cureton, 845 F.3d

at 324 (“Cureton appeals his conviction for using a firearm during a crime of violence. He

contends that the crime of making a ransom demand in violation of 18 U.S.C. § 875(a)

does not qualify as a “crime of violence” under 18 U.S.C. § 924(c).”); Cureton, 887 F.3d at

319 (affirming § 924(c) conviction following district judge’s limited consideration of Dean,

581 U.S. 62).

Although he briefly argued at his resentencing that his drug conviction should be

reduced based on changing drug level weights (Case 106, Doc. 255, p. 16) and Alleyne

(Case 200, Doc. 172, p. 27), Cureton did not specifically raise any issue with his prior state

convictions or its use in his criminal history or for an enhancement. Thus, to overcome

his procedural default and obtain § 2255 relief, he “must show either cause for the default

and actual prejudice from the alleged error, or that he is actually innocent.” White, 8 F.4th

at 554 (citing Bousley v. United States, 523 U.S. 614, 622 (1998). Cureton has not argued

that he is actually innocent. Nor has he argued or established good cause for his default

and actual prejudice. As shown above, Cureton had fair notice of and an opportunity to

challenge the use of his predicate offense during his criminal proceedings and appeals,

yet he did not. Further, at the time he was sentenced, a challenge to his predicate offense

was neither novel nor foreclosed. See, e.g., White, 8 F.4th 547. Nor can Cureton overcome

this default by showing a “fundamental miscarriage of justice”, a “high bar that requires

a showing of actual innocence.” Id.

Finally, the Court again reiterates, that under the specific circumstances here,

Cureton’s sentencing judges continued to maintain that no change in law or alleged

errors would compel a contrary sentence than what was imposed. Thus, upon review of

the multitude of arguments raised in Cureton’s motion, amended motion, and various

supplements, Cureton is not entitled to relief under 28 U.S.C. § 2255.

Disposition

For these reasons Cureton’s motion under 28 U.S.C. § 2255 to vacate, set aside, or

correct sentence is DENIED. The Clerk is DIRECTED to enter judgment in favor of the

United States and against Petitioner Thomas Cureton.

The Court further DECLINES to issue a certificate of appealability. Rule 11(a) of

the Rules Governing Section 2255 Proceedings requires a district court entering a final

order adverse to a petitioner to issue or deny a certificate of appealability. 28 U.S.C. §

2253(c)(2) states that a certificate of appealability may issue “only if the applicant has

made a substantial showing of the denial of a constitutional right.” This standard

requires the petitioner to demonstrate that “reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner

or that the issues presented were ‘adequate to deserve encouragement to proceed

further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); see also United States v. Fleming,

676 F.3d 621, 625 (7th Cir. 2012). The undersigned concludes that Cureton has not satisfied

his burden of showing that he was entitled to relief on the merits of his petition.

Reasonable jurists would not find this conclusion debatable, thus a certificate of

appealability will not issue.

SO ORDERED.

Dated: March 31, 2023 Ves L {2 i an

DAVID W. DUGAN

United States District Judge

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