# Snowden v. United States

> District Court, S.D. Illinois · July 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10646092

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** July 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10646092

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

DONALD V. SNOWDEN,

Petitioner,

v. Civil No. 3:24-cv-01061-JPG

UNITED STATES OF AMERICA, Criminal No. 4:19-cr-40081-JPG

Respondent.

MEMORANDUM AND ORDER
This matter comes before the Court on Donald Snowden’s motion to vacate judgment,
appoint counsel, revive his § 2255 petition, supplement his § 2255 petition, and set an expedited
evidentiary hearing. (Doc. 6). The Court VACATES the judgment, (Doc. 5), GRANTS the
motion to supplement, DENIES appointment of counsel, DENIES his request for an expedited
evidentiary hearing, DENIES his § 2255 petition, and DECLINES to issue a certificate of
appealability.
I. BACKGROUND
On September 1, 2019, Snowden was indicted on one count of distribution of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). (Doc. 1). On June 9, 2020, a
second superseding indictment charged him and his accomplice, Kevin McBride, with one count
of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846,
841(b)(1)(A)—in addition to the distribution of methamphetamine he was initially indicted for.
(Doc. 83). On August 11, 2022, the Court sentenced Snowden to serve 360 months concurrently
on both counts of the superseding indictment. (Doc. 311). Snowden appealed, (Doc. 315), and
his case was before the Court of Appeals, (7th Cir., Appeal No. 22-2426), when Snowden filed
his first motion for a § 2255. (Doc. 1).
In his first § 2255 motion, Snowden argued, inter alia, that he was unlawfully convicted
due to evidentiary issues that violated his constitutional rights. (Doc. 1). As Snowden himself
pointed out in his motion, all the issues he raised in his § 2255 were on appeal before the
appellate court and, therefore, his motion was not ripe. (Doc. 2). The Court ordered Snowden to

show cause as to why his § 2255 should not be dismissed for being unripe. (Id.). Snowden
responded to the Order to Show Cause by asking for leave to withdraw his motion. (Doc. 3). The
Court granted that motion and directed the clerk to enter judgment of dismissal without
prejudice. (Doc. 4).
On May 6, 2024, the Court of Appeals for the Seventh Circuit dismissed Snowden’s
appeal and granted his counsel’s request to withdraw. (7th Cir., Appeal No. 22-2426, Doc. 71).
Following that denial, Snowden filed his current motion. (Doc. 6). In his current motion, he
requests that the Court vacate judgment, revive his § 2255 petition, appoint counsel, allow him to
supplement his § 2255 petition, and set an expedited evidentiary hearing. His filing raises
identical arguments to his first § 2255 petition, but he rephrases his claims in the terms of

ineffective assistance of counsel (“IAC”). Additionally, he advances a number of new arguments
alleging his appellate counsel was likewise ineffective. (Doc. 6). Snowden makes approximately
twelve claims:
1. IAC of Trial Counsel for failure to investigate evidence.
2. IAC of Trial Counsel for filing a motion that ultimately prompted the Government to
file an additional charge.
3. (a.) IAC of Trial Counsel for failing to recommend a mental health evaluation.
(b.) IAC of Trial Counsel for not disclosing evidence to Snowden.

2
4. IAC of Trial Counsel for filing a motion to suppress that ultimately prompted the
Government to file an additional charge.
5. IAC of Trial Counsel for failing to investigate exculpatory evidence.
6. IAC of Appellate Counsel for not investigating claims by Trial Counsel and

demanding briefing and remand.
7. IAC of Appellate Counsel for failing to address and object to trial objections.
8. IAC of Appellate Counsel for failing to argue drug purity lab results.
9. IAC of Appellate Counsel for failing to investigate a Fourth Amendment Right
violation by eavesdropping from officers.
10. IAC of Appellate Counsel for failing to argue that Snowden’s post-Miranda
statements should have been suppressed.
11. Unconstitutional sentencing disparity.
12. IAC of Trial Counsel for not objecting to a lack of detention hearing.

Attached to many of these claims is the argument that the outcome “could have been different”
had his trial or appellate counsel acted differently.
II. LEGAL STANDARD
The Court must grant a § 2255 motion when a petitioner’s “sentence was imposed in
violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). However,
“[r]elief under § 2255 is available ‘only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a fundamental defect has occurred which
results in a complete miscarriage of justice.’” United States v. Coleman, 763 F.3d 706, 708 (7th
Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to

3
deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of
the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b);
see Shipman v. United States, 925 F.3d 938, 943 (7th Cir. 2019).
The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”
U.S. CONST. amend. VI. This right to assistance of counsel encompasses the right to effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v.
Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party claiming ineffective assistance of counsel
bears the burden of showing (1) that his trial counsel’s performance fell below objective
standards for reasonably effective representation and (2) that this deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Groves v. United States, 755
F.3d 588, 591 (7th Cir. 2014); United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); Wyatt v.
United States, 574 F.3d 455, 457 (7th Cir. 2009).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to

specific acts or omissions of his counsel. Wyatt, 574 F.3d at 458. The Court must then consider
whether, in light of all of the circumstances, counsel’s performance was outside the wide range
of professionally competent assistance. Id. To satisfy the second prong of the Strickland test, the
plaintiff “must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Harrington v. Richter, 562 U.S.
86, 104 (2011) (quoting Strickland, 466 U.S. at 694) (emphasis added); accord Groves, 755 F.3d
at 591; Jones, 635 F.3d at 915. Notably, the question is not whether the outcome could have been
different, but whether the outcome would have been different; “could” denotes a mere possibility

4
that the result may have been different whereas “would” denotes an at-least reasonable
probability that the result may have been different. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id. A mere possibility that the outcome
could have been different is not enough to establish prejudice. United States v. Ruzzano, 247

F.3d 688, 696–97 (7th Cir. 2001); Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001).
A defendant’s right to effective assistance of counsel does not mean that a defendant is
entitled to dictate which arguments their attorney should make before a court. Jones v. Barnes,
463 U.S. 745 (1983) (“Neither [Anders v. California, 386 U.S. 738 (1967)] nor any other
decision of this Court suggests . . . that the indigent defendant has a constitutional right to
compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a
matter of professional judgment, decides not to present those points.”).
Typically, in cases where a petitioner alleges they received ineffective assistance of
counsel, the burden for requesting an evidentiary hearing is relatively light. However, a light
burden is not no burden. When the record of a case “conclusively show[s]” that a petitioner is not

entitled to relief, the court may deny the request for an evidentiary hearing. Anderson v. United
States, 865 F.3d 914, 919 (7th Cir. 2017); Torres-Chavez v. United States, 828 F.3d 582, 586
(7th Cir. 2016). This form of screening is also prescribed by the Rules Governing Section 2255
Proceedings for the United States District Courts (hereinafter “Habeas Rules”).
III. ANALYSIS
Snowden has raised approximately twelve claims in his habeas petition. Snowden has
already argued most of these issues before this Court at trial, before the Court of Appeals, and
makes many of those same arguments before this Court again in the form of a § 2255. Now,

5
however, he has couched his objections in the language of ineffective assistance of counsel.
Snowden’s arguments and claims are identical—down to the specific document references. He
presents no new evidence for his objections at the trial level; he simply wishes to argue the same
points again and again. Additionally, Snowden levies IAC claims against his appellate counsel.

The Court warned Snowden that prisoners are only entitled to one § 2255 challenge as a
matter of right, yet Snowden insists on attacking the evidence for his conviction fresh off appeal.
Dressing the same arguments in the language of ineffective assistance of counsel is
unpersuasive—a hog in armor is still but a hog—particularly when the Appellate Court has
reviewed his case and found his claims meritless. Moreover, some of Snowden’s claims are
plainly not cognizable under a § 2255 petition. The Court will analyze his claims as to trial
counsel, analyze his claims as to his appellate counsel, and then address any remaining
arguments. The Court will address each argument individually.
A. Ineffective Assistance of Trial Counsel

1. IAC of Trial Counsel for failure to investigate evidence.
Snowden argues that his trial counsel was ineffective because he failed to obtain evidence
that the prosecution was going to use at trial. The evidence that Snowden’s lawyer allegedly
failed to investigate or obtain was evidence of the methamphetamine’s existence. Specifically,
Snowden takes umbrage with the Government photographing the methamphetamine without
allowing him to view the drugs first. Snowden objected to the entry of this evidence at trial, but
the Court overruled his objection. Snowden also raised the issue on appeal, to no avail.
While a defendant is entitled to know the evidence that will be used against them in a
criminal trial, there is no indication—and Snowden does not allege—that the existence of the

6
methamphetamine, or the fact that the drugs were in the Government’s possession, was
concealed from him. The entry of the drugs into evidence was not a surprise; especially given
that Snowden’s trial itself centered around those drugs. It is unclear what was objectionable
about the entry of this evidence or what his attorney should have investigated. Snowden’s claim

essentially boils down to “those are not my drugs. I have never seen those drugs.” Even were the
Court to believe that age-old refrain, Snowden fails to demonstrate how this rendered his counsel
ineffective or what prejudice he suffered as a result. He objected to the entry of this evidence at
trial; the Court heard that objection and overruled it. There would be no difference in the
outcome if Snowden had been allowed to view the drugs before the photos were taken—if he
even had a right to view them. By finding him guilty, the jury determined that the evidence
presented was sufficient to establish that Snowden possessed those drugs. Snowden may disagree
with that finding, but a § 2255 petition is not the proper vehicle for disputing a jury’s factual
finding that the drugs depicted in a photograph were his drugs.
There is no indication that his attorney’s performance fell below an objective standard of

reasonableness nor any indication that he suffered prejudice as a result. Consequently, his first
claim is meritless.
2. IAC of Trial Counsel for filing a motion that ultimately prompted the
Government to file an additional charge.
Snowden argues that his trial counsel was ineffective because he filed a motion to dismiss
on the basis of selective prosecution. Snowden believes that this action prompted retaliation from
the Government because the Government added an additional charge after the motion was filed.
Snowden believes this disadvantaged him by making a plea deal more difficult.

7
Firstly, there is no clear causal connection between his attorney’s filing of a selective
prosecution motion and the Government’s decision to add an additional charge; the mere fact
that the additional charge came after his attorney’s motion is insufficient.
Secondly, even were the Court to believe there is some causal connection, if his attorney

believed that Snowden was the target of selective prosecution, his attorney was not deficient for
making the strategic decision to move for dismissal on that basis. His attorney has no control or
power over the Government’s charging decisions. Still, Snowden has failed to establish that there
is a reasonable probability that the outcome would have been different if his attorney had not
filed that motion. It is also unclear what prejudice he suffered. Snowden argues that the
additional charge made it more difficult for him to negotiate a plea agreement. Many defendants
believe they deserve a better deal than they are offered; that erroneous belief does not make their
counsel ineffective.
There is no indication that Snowden’s attorney’s performance by filing a motion to
dismiss for selective prosecution fell below an objective standard of reasonableness, nor is there

any indication that Snowden was prejudiced by his attorney’s performance. As a result, this
claim is meritless.
3. IAC of Trial Counsel for failing to recommend a mental health evaluation and
for not disclosing drug evidence to Snowden.
Snowden alleges that his counsel was ineffective because the Court recommended a
possible mental health evaluation for him but his counsel did not agree that an evaluation was
needed. Additionally, Snowden alleges that his attorney “never provided Snowden with the drug
evidence so [he] didn’t believe the government had any evidence of 50 grams [of

8
methamphetamine] or more.” (Doc. 6).
Snowden’s claim that he was unaware the Government had any evidence because he had
not seen the evidence first-hand before trial is obviously frivolous. As for his mental health
evaluation, Snowden’s extensive pro se filings may be largely frivolous, but they are coherent

enough for the Court to conclude that Snowden is competent. Therefore, his attorney
recommending him for a mental health evaluation would have changed nothing. In fact, if
Snowden’s attorney knew that Snowden was competent to stand trial, then his attorney was not
ineffective by being candid with this Court and not wasting time and resources by recommending
an evaluation when he knew the evaluation was meritless.
Contrary to Snowden’s assertion that “[h]ad [he] seen the evidence, the outcome may
have been different,” the Court does not see how Snowden was prejudiced by not having a
mental health evaluation or how his attorney failed to disclose evidence. Therefore, for both of
these claims, Snowden’s attorney’s performance did not fall below an objective standard of
reasonableness, nor did his attorney’s performance prejudice him. Thus, these claims

are meritless.
4. IAC of Trial Counsel for filing a motion to suppress that ultimately prompted
the Government to file an additional charge.
Snowden claims that his attorney was ineffective when he filed a motion to suppress drug
evidence. In that motion, his attorney argued that officers had not seen Snowden in possession of
the drugs or the container with the drugs. Similar to his claim as to the motion to dismiss for
selective prosecution, Snowden argues that the Government’s additional conspiracy charge was
retaliatory and that it is his attorney’s fault for filing a motion that incurred that retaliation.

9
Again, Snowden’s attorney is not responsible for the Government’s charging decisions.
Similar two his earlier claims, there is no causal connection between the filing of the motion and
the Government’s charging decision. Snowden argues that the motion was frivolous, but he
himself has claimed that there was no evidence linking him to the drugs. There is no indication

that the motion was frivolous or that the Government retaliated. Even if Snowden could establish
his attorney’s filing of that motion fell below an objective standard of reasonableness, he has
failed to establish that he was prejudiced by that decision. Consequently, this claim is meritless.
5. IAC of Trial Counsel for failing to investigate exculpatory evidence.
Snowden argues that his attorney was ineffective by allegedly not investigating
exculpatory evidence in the public record. Snowden believes that, because he was indicted
before the laboratory tested the methamphetamine’s purity, the mere fact that the indictment
preceded the lab results is exculpatory evidence that was withheld from him. He argues that
because his attorney filed several motions on his behalf and participated in extensive discussions

with the Government, his attorney had ample opportunity to investigate this “exculpatory
evidence” but failed to do so.
Exculpatory evidence, by definition, is evidence that exculpates a defendant, i.e., it tends
to establish a defendant’s innocence. See Brady v. Maryland, 373 U.S. 83, 89 (1963).
Whether the drug lab performed the purity tests before or after Snowden’s indictment
does not bear on Snowden’s innocence or guilt. On that basis alone, his claim is frivolous.
However, even if the timing of the drug tests was somehow exculpatory, that evidence was
provided to his attorney by the Government. Whether his attorney elects to pursue that issue in
motion practice is a strategic decision left to his sound discretion—not Snowden’s.

10
However, even if his attorney had pursued this issue, there would have been no difference
in the outcome; it is highly unlikely that a criminal court would throw out an entire case because
drug purity testing came after the indictment. For a multitude of reasons, this claim is frivolous
as well; Snowden’s attorney’s performance did not fall below an objective standard of

reasonableness, nor was Snowden prejudiced by his attorney’s performance.
12. IAC of Trial Counsel for not objecting to a lack of detention hearing1
Snowden argues that his trial counsel was ineffective for not disputing Snowden’s
detention and not allowing Snowden to have a detention hearing. Snowden argues that he should
have been given the opportunity to dispute the evidence at the detention hearing but that his
attorney failed to dispute that evidence or dispute his detention.
Snowden was not unlawfully detained. Even if he was unlawfully detained, the detention
hearing is not the appropriate venue for litigating the merits of a case. Even if it were an
appropriate venue for litigating the merits, a § 2255 petition is not the appropriate vehicle for

challenging a pretrial detention. Even if a § 2255 petition was the appropriate vehicle for
challenging a pretrial detention, Snowden was detained before his attorney was appointed and
before his attorney moved for bond. Even if his attorney had not moved for bond, Snowden has
failed to allege that the outcome would have been different if he was let out on bond—unless he
is implying that he would have jumped bail. If he is implying he would have jumped bail, he
only affirms the decision of the Court to keep him detained and deny bond. Suffice it to say,
Snowden’s attorney’s performance did not fall below an objective standard of reasonableness nor

1 While this claim is his sixth claim against trial counsel, Snowden organized his motion in such a way that this
complaint in particular appears twelfth, rather than sixth. To avoid confusion as to which claims the Court is
referencing, the Court will retain Snowden’s enumeration.
11
did his attorney’s performance prejudice him; this claim is also frivolous.
Trial Counsel Analysis Summary
Snowden’s claims against his attorney are manifestly the issues he has already presented
and have been disregarded. Merely relabeling his failed attempts to attack his conviction as

ineffective assistance of counsel claims is inadequate and unpersuasive. Snowden wants a second
bite at the apple; he shall not get one.
Snowden has failed to establish that his attorney’s performance fell below an objective
standard of reasonableness. In fact, at least two of Snowden’s claims arise from his attorney
zealously advocating on his behalf by filing motions to dismiss and motions to suppress
evidence. Snowden unintentionally provides a description of the efforts his attorney took to
represent him: “Mr. Sims filed a motion for bond, and a reconsideration for bond, a selective
prosecution and a suppression of drugs for Snowden on Snowden’s behalf.” This is not the
description of an attorney whose representation fell below an objective standard of
reasonableness.

Snowden has also failed to establish that he was prejudiced by his attorney’s conduct.
The standard for establishing prejudice is not whether the outcome “could have” been different,
but whether there was a high likelihood that the outcome would have been different, such that it
undermines the confidence in the outcome; Snowden has failed to make that showing. Had his
attorney acted the way Snowden wanted him to act, made the arguments Snowden wanted him to
make, or refrain from filing motions Snowden wanted him to refrain from filing; there is no
indication that the outcome would have been different.
For all these reasons, Snowden’s ineffective assistance of counsel claims against his trial

12
counsel are meritless.
B. Ineffective Assistance of Appellate Counsel
6. IAC of Appellate Counsel for not investigating claims by Trial Counsel and
demanding briefing and remand.

Snowden argues that his appellate counsel was ineffective for not investigating his trial
attorney’s motion to suppress evidence of methamphetamine. He argues that because his attorney
alleged in the motion that there were no eyewitnesses to Snowden’s possession, his appellate
counsel was obliged to investigate that issue. Had his appellate counsel investigated this matter,
Snowden claims the outcome could have been different.
It is ironic that, in one breath, Snowden accuses his trial counsel of being ineffective for
filing the motion to suppress and then, in the next, accuses his appellate counsel of being
ineffective for failing to investigate the motion to suppress. Setting aside the fact that Snowden
believes his trial counsel was ineffective for raising that argument and also believes his appellate

counsel was ineffective for not raising that same argument, Snowden has failed to establish that
his appellate counsel was ineffective here.
There is no indication that Snowden’s appellate counsel was unaware of the evidentiary
arguments his trial counsel made. In fact, appellate attorneys are obliged to review the record of
the trial when arguing on appeal. If an appellate attorney determines that the argument is
meritless, they are not obliged to raise it. It is also not the responsibility of an appellate attorney
to investigate matters outside the record—an appellate court is not a forum for trying a case a
second time.
Ultimately, whether there was eyewitness testimony of Snowden’s possession or not, the

13
question of possession was a factual one. These were arguments and issues that were raised at
trial. The jury determined that Snowden possessed the drugs, regardless of the strength of the
evidence presented. The standard for overturning a jury verdict is high; Snowden failed to meet
that standard.

The Court was unconvinced of this argument at trial and an appellate attorney’s decision
to select certain issues to raise is their strategic decision—not Snowden’s. Even if his attorney
had raised the issue, Snowden has failed to show that there is a high likelihood that the outcome
would have been different. Therefore, this claim is frivolous.
7. IAC of Appellate Counsel for failing to address and object to trial objections.
Snowden next alleges that his appellate counsel was ineffective for “not addressing trial
objections and admissions of trial evidence.” (Doc. 6). Specifically, Snowden takes umbrage
with his appellate attorney’s refusal to raise objections to the entry of drug evidence, officer
testimony, “trial exhibits[,] guns, scales, and all objections that should not have been overruled.”

(Id.).
Snowden’s claims are meritless for a couple reasons. Again, the appellate court is not the
appropriate forum for retrying a case. Attorneys are not required to throw every single argument
possible at the appellate court in the hope that one might stick. Not only are appellate attorneys
not required to advance every possible argument, an attorney would be ill-advised to do so. An
appellate attorney especially has limited time to speak at oral argument and a limited number of
pages in their briefs. One of the quintessential responsibilities an attorney has is to sort through
which legal arguments have the best chance at success for their client. A skilled attorney knows
that raising every possible argument sacrifices focus and attention on arguments that have greater

14
merit or have a higher chance at success.
However, even if an appellate attorney believes the outcome of the objection should have
been different at trial, an attorney may not believe there is a strong enough argument to
overcome the deference required by the appropriate standard of review. Consequently, an

appellate attorney’s decision not to raise some nonfrivolous arguments on appeal is strategic.
Even had Snowden’s attorney raised this argument, this Court remains unconvinced that there is
a high likelihood the outcome would have been different.
Therefore, Snowden has failed to demonstrate that his appellate attorney’s performance
fell below an objective standard of reasonableness, nor has he shown he was prejudiced by his
appellate attorney’s refusal to raise these frivolous objections. As a result, this claim is meritless.
8. IAC of Appellate Counsel for failing to argue drug purity lab results.
Snowden next argues that his appellate counsel was ineffective for failing to dispute the
drug lab results. Snowden believes that, because some of the drugs had to be pulverized for

testing, that the condition of the drugs was permanently altered and therefore the evidence is
inadmissible. Essentially, he believes that because the lab did not test all of the drugs, that there
is some uncertainty of whether the drugs amounted to more than fifty grams of
methamphetamine.
Drugs are tested for representative sampling. A chemist testified to their method of
testing. Snowden had an opportunity to argue that the sampling was insufficient. It is for the jury
to determine whether Snowden possessed that amount of methamphetamine. The jury
determined that the chemist’s testimony on the method of representative sampling was sufficient
to determine the requisite purity of the methamphetamine in Snowden’s possession. This is a

15
frivolous argument and Snowden’s appellate attorney is not deficient for refusing to raise it.
Even if the Court had indulged Snowden and tested the entire amount of
methamphetamine, the Court finds it highly unlikely that there would have been less than fifty
grams of actual methamphetamine. Snowden’s claim that the purity “could have” been different

epitomizes the nature of his claims. There are infinite possibilities; it is certainly possible that the
rest of the drugs were not pure enough to sustain a conviction and that all the methamphetamine
just so happened to find its way into the chemist’s sample—but that is not reasonable. Our
justice system does not demand that a defendant’s guilt be proven as an absolute certainty; our
justice system demands that a defendant’s guilt be proven beyond a reasonable doubt—Snowden
fails to grasp this concept.
Regardless, Snowden has failed to establish that his appellate attorney’s decision to not
dispute the drug lab purity fell below an objective standard of reasonableness, nor has he shown
that he was prejudiced by that decision. Therefore, this claim is meritless.

9. IAC of Appellate Counsel for failing to investigate a Fourth Amendment Right
violation by eavesdropping from officers.
Snowden argues that his Fourth Amendment rights were violated at trial because one of
the devices used to gather evidence was property of the Carbondale police department, not the
federal government. Snowden believes, because he was charged in a federal case, that the
Carbondale police department would have to issue an “authorization to eavesdrop.” Snowden
argues that the practice violates Illinois’s eavesdropping law. On this basis he also disputes the
recorded video and audio. His appellate counsel’s refusal to raise this argument, he believes,
amounts to ineffective assistance of counsel.

16
Snowden’s argument is clearly erroneous. The Illinois eavesdropping statute provides
explicit exemptions for law enforcement officers who have been authorized to use such a device.
720 ILL. COMP. STAT. 5/14-2 (2016). There is obviously no general prohibition on federal
agencies using state evidence and state devices. Snowden’s attorney’s refusal to raise this

frivolous argument did not fall below an objective standard of reasonableness nor would raising
this meritless argument have had any effect on the proceedings. Thus, this claim is meritless.
10. IAC of Appellate Counsel for failing to argue that Snowden’s post-Miranda
statements should have been suppressed.
Snowden argues that his appellate counsel was ineffective for failing to argue that his
post-Miranda statements should be suppressed because those statements were “involuntary.”
There is no indication Snowden’s decision to engage in a post-Miranda interview was in
any way involuntary. This argument was raised before the Court at trial and the Court rejected it.
Without any evidence of involuntary statements, his post-Miranda interview is valid and

disputing that on appeal without any evidence to the contrary would have been frivolous.
Snowden’s attorney’s decision to not pursue the frivolous argument that his post-Miranda
statements were inadmissible did not fall below an objective standard of reasonableness, nor did
his attorney’s refusal to raise that argument prejudice him. Therefore, this claim is meritless.
11. Unconstitutional Sentencing Disparity
Snowden argues that there is an unconstitutional sentencing disparity between his co-
defendant and himself. Snowden argues the disparity arises from an alleged erroneous
application of the career offender enhancement. He believes that he should not have been given

the career offender enhancement if there were no role adjustments. Additionally, he alleges that
17
he was “enhanced twice[,] once for gun and once for drug enhancement.” (Doc. 6).
Generally, as the Guidelines are advisory, an error in a guideline calculation is not
grounds for collateral attack in a § 2255 petition. A defendant may have grounds to collaterally
attack their sentence if a guideline enhancement was improper and their counsel did not raise that

issue, but that is not the case here.
Snowden received two separate enhancements: a career offender enhancement under
U.S.S.G. § 4B1.1 and a specific offense enhancement for having a firearm related to the offense
under U.S.S.G. § 2D1.1(b)(1); both were properly applied.
Under §§ 4B1.1, 4B1.2, a defendant may have their sentenced enhanced if they have (i.)
at least two prior convictions, (ii.) as an adult, (iii.) that were either a crime of violence or a
controlled substance violation under state or federal law, and (iv.) were each punishable by one
year or more in prison. §§ 4B1.1, 4B1.2. (hereinafter “Chapter Four enhancement”).
In Snowden’s presentence investigation report, Probation provides five state convictions
that qualified him for a Chapter Four enhancement, each in violation of 720 ILL. COMP. STAT.

570/401 (2018):
• 02-CF-96 (possession with intent to deliver less than 1.5 grams of cocaine)
• 05-CF-155 (delivery of more than 1 gram but less than 15 grams of cocaine)
• 10-CF-39 (delivery of more than 1 gram but less than 15 grams of cocaine)
• 10-CF-317 (manufacturing or delivery of an unspecified amount of cocaine)
• 10-CF-689 (possession with intent to deliver 8.5 grams of crack cocaine)
In the state of Illinois, cocaine is a Schedule II substance. 720 ILL. COMP. STAT. 570/206 (2018).

Under Illinois law, a violation of 20 ILL. COMP. STAT. 570/401 involving more than 1 gram but
18
less than 15 grams of cocaine is a Class 3 felony. 20 ILL. COMP. STAT. 570/401(e) (2018). Class 3
felonies are punishable by no less than two years in prison. 730 ILL. COMP. STAT. 5/5-4.5-40
(2017).
When the Court sentenced Snowden, he had five (i.) prior convictions, (ii.) as an adult,

(iii.) that were a controlled substance violation under state law, (iv.) punishable by one year or
more in prison. As Snowden had five qualifying convictions when only two are sufficient to
apply the enhancement, Snowden satisfies the criterion for a Chapter Four enhancement. There is
no indication that Chapter Four enhancement was erroneously assigned.
If a defendant satisfies the criterion for a Chapter Four enhancement, with immaterial
exceptions, Chapter Four prescribes an offense level corresponding to the statutory maximum for
the crime of conviction. Next, Probation calculates the defendant’s adjusted offense level
subtotal for the crime of conviction (including offense enhancements). After calculating the
offense level subtotal, Probation compares that offense level to the offense level prescribed by
the Chapter Four enhancement. Then, Probation assigns the defendant with whichever offense

level is higher.
Snowden was convicted on two counts of conspiracy to distribute (Count 1) and
distribution (Count 2) of 50 grams or more of methamphetamine, or 500 grams or more of a
mixture of substance containing methamphetamine. (Docs. 83, 275). Both of Snowden’s
convictions carry a maximum term of life in prison. 21 U.S.C. § 841(b)(1)(A)(viii). Because
Snowden’s convictions carry a maximum term of life in prison, the Chapter Four enhancement
prescribes him an offense level of 37. Probation calculated Snowden’s adjusted offense level
subtotal to be 34. Because Snowden’s prescribed offense level for the Chapter Four enhancement

19
is greater than his adjusted offense level subtotal, Probation assigned Snowden an offense level
of 37. Consequently, even if the specific offense enhancement for the gun was improperly
applied—and there is no indication that it was improperly applied—that enhancement is
irrelevant. Snowden was not “enhanced twice.” Rather, he erroneously interprets Probation’s

calculation of his adjusted offense level subtotal with the firearm enhancement as “stacking” on
top of his Chapter Four enhancement when, in reality, only the Chapter Four enhancement
applied.
As the enhancements were properly applied, neither of his attorneys were ineffective for
not objecting to the calculation. As a result, this claim is also frivolous.
C. Snowden’s Other Claims
Snowden’s most recent filing in this case provides twelve claims that he believes
demonstrates his counsel was ineffective. However, Snowden intended this recent filing to also
supplement his initial petition, the one that he withdrew after the Court entered an order to show

cause. (Doc. 1). That initial petition lists several other claims that are similarly meritless. In a
similar pattern, Snowden takes issue with the Court’s findings at trial—again, a § 2255 petition
is an improper forum for re-litigating a case. Therefore, these claims are meritless.
D. Snowden’s Claims Generally
It is clear from his filings that Snowden wants to judge his attorneys’ effectiveness based
on the results; however, the result of a case does not determine whether counsel was effective.
Snowden wishes to engage in Monday morning lawyering—he wants to hold his attorneys
responsible for unsuccessful legal arguments and hold them responsible for not making the

arguments he believes they should have made; the Court will not indulge him. Strategic legal
20
decisions are the domain of the attorney, not the client.
In some ways Snowden’s arguments as to his appellate counsel are new; in other ways,
his arguments are the same. Similar to his trial counsel, he argues his appellate counsel was
ineffective for failing to raise arguments that he wanted to raise and failing to make arguments

that he believed would have prevailed. The attorney-client relationship binds the attorney to act
in the best interests of their client. As someone not trained in the legal profession, clients are
generally not in the best position to dictate what their counsel should and should not argue, nor
what arguments they should and should not raise. Strategic decisions and professional judgments
on what to raise and their likelihood of success are the purview of the attorney, not the client.
Indeed, clients can and do demand that their attorneys file frivolous motions and make meritless
arguments. The attorney is obligated to refuse these demands. Clients may bristle at their
attorney’s refusal, but generally the client is free to seek legal representation elsewhere. In cases
of appointed counsel, as here, the ethical obligations of the attorney remain unchanged. While
defendants are entitled to effective assistance of counsel, they are not entitled to the counsel of

their choice or counsel that will follow their every whim. His attorneys’ decisions not to advance
frivolous arguments do not make them ineffective.
Snowden also wishes to hold his attorneys responsible for the Government’s charging
decisions. Suffice it to say, his attorneys are not responsible for his criminal acts, nor how the
Government chooses to charge those criminal acts. Snowden, not his attorney, is responsible for
his conviction. The common theme in Snowden’s relentless filings is that everyone is at fault for
his present situation, except for himself. Snowden is serving a long prison term, but he will
eventually be released. If he wishes to successfully reintegrate after prison, it would behoove him

21
to take responsibility and accountability for his actions rather than persisting in a relentless
campaign of finger pointing.
According to the Habeas Rules, Habeas petitions are screened. If it plainly appears from
the motion, any attached exhibits, and the record of prior proceedings that the moving party is

not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving
party. Here, it is plain to see that all of Snowden’s claims are meritless and that he is not entitled
to the relief.
IV. CONCLUSION
Snowden’s motion to vacate the judgment of dismissal without prejudice and to revive
his motion for § 2255 is GRANTED. The judgment vacating dismissal without prejudice is
hereby VACATED. Snowden’s motion to supplement his § 2255 is GRANTED. Snowden’s
motion for appointment of counsel is DENIED. Snowden’s motion for an expedited evidentiary
hearing is DENIED because it plainly appears that his § 2255 lacks merit. As his § 2255 is
plainly meritless, based on the documents, exhibits, and record; Snowden’s § 2255 is hereby

DENIED and the Court DECLINES to issue a certificate of appealability. The Clerk of Court is
DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED: July 12, 2024

s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

22

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10646092. Public record. Not legal advice.