United States District Court, Central District of Illinois, Springfield Division
February 5, 1987
DAVID ELY, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Mills, District Judge:
OPINION AND ORDER
The torrent of litigation flowing from the plea of guilty in this case
is utterly appalling!
Ely's guilty plea in September 1982 was to counts of distributing and
conspiring to distribute cocaine in violation of 21 U.S.C. § 841
(a)(1), 846, as well as to failure to appear in violation of
18 U.S.C. § 3150. United States v. Ely, No. 79-10041 (C.D. Ill. filed
Oct. 12, 1979), aff'd, 719 F.2d 902 (7th Cir. 1983), cert. denied,
465 U.S. 1037, 104 S.Ct. 1313, 79 L.Ed.2d 710 (1984).
And what has followed is a gross and outrageous example of how one man
can clog the wheels of justice in both this nation's trial and reviewing
courts with predominantly frivolous lawsuits. Ely's cases have been up
and down, right and left, vertically and horizontally into virtually
every nook and cranny of the federal judicial system — save the
court of last resort.
A quick recap reveals the following related actions:
Ely v. Department of Justice, 610 F. Supp. 942
(N.D.Ill. 1985), aff'd, 792 F.2d 142 (7th Cir. 1986);
Ely v. More Than 20 FBI Agents and A Swat Team,
792 F.2d 142 (7th Cir. 1986);
Ely v. Radke, 789 F.2d 920
(7th Cir. 1986);
Ely v. United States, 789 F.2d 919 (7th Cir. 1986);
Ely v. Federal Bureau of Investigation, 781 F.2d 1487
(11th Cir. 1986);
Ely v. United States Postal Service, 753 F.2d 163
Ely v. United States Bureau of Prisons, 732 F.2d 160
(8th Cir. 1984);
Ely v. Criminal Division of Dept. of Justice,
588 F. Supp. 628 (D.D.C. 1984);
Ely v. Internal Revenue Service, 54 A.F.T.R.2d 5495
Ely v. Federal Bureau of Investigation, No. 84-3035
(C.D.Ill. filed Dec. 14, 1983);
Ely v. Purdon, No. 83-3350 (C.D.Ill. filed Dec. 14,
Of course, these decisions only begin to scrape the surface. To
determine all the suits Ely has filed in the courts of the United States
would be a monumental task. Indeed, Ely himself has probably lost track.
Nevertheless, he persists. Ely is again back in federal court.
Returning to his roots, Ely now moves this tribunal pursuant to
28 U.S.C. § 2255 to set aside his sentence upon a guilty plea in the
prosecution which gave rise to his polemical attitude. Ely, however, is
entitled to no relief. As required by Rule 4(b) of the Rules Governing
Section 2255 Proceedings, the Court has examined the motion, together
with the records and transcripts relating to the judgment under attack,
and finds that the United States Attorney should not be compelled to
answer. The petition is wholly without merit.
For the following reasons, summary dismissal is proper.*fn1
David Ely is currently incarcerated at the Federal Correctional
Institute in Memphis, Tennessee. As previously mentioned, he is impounded
as a result of his admitted involvement with cocaine and a subsequent
three-year flight from justice. On November 5, 1982, Senior District
Judge Robert Morgan sentenced Petitioner to the maximum term of 15 years
on each of two narcotics counts — to be served consecutively
— followed by ten years of supervision for the failure to appear
Thereafter, Ely directly appealed both his conviction and sentence
unsuccessfully to the Seventh Circuit. The reviewing court, addressing
only the two issues raised, held that the indigent Defendant did not have
a right to counsel of his own choice under the Sixth Amendment. Nor did
the trial judge abuse his discretion in proscribing Defendant to 30 years
in prison. United States v. Ely, 719 F.2d 902 (7th Cir. 1983).
Ely's next step was to move for a new trial pursuant to Fed.R.Crim.P.
33 based upon the Government's alleged violation of the plea agreement.
That motion was denied with an appeal therefrom dismissed as legally
frivolous. In the meantime, Ely filed a second motion for a new trial on
the ground of Government misconduct, as well as a motion for an extension
of time in which to seek a reduction of sentence under Fed.R.Crim.P. 35
(b). The summary denial of those motions was affirmed for want of both
jurisdiction and merit in an unpublished opinion.
Still, Ely has not become discouraged. His current petition sets forth
in excruciating detail four unavailing reasons as to his allegedly
unlawful detainment: (1) an inaccurate presentence report; (2)
ineffective assistance of counsel; (3) a coerced plea; and (4) an abuse
of sentencing discretion.
The Court initially notes that all but the last of Petitioner's claims
are newborn. Neither did Ely raise them on direct appeal nor in his
post-conviction motions. Thus, the issue of waiver arises. Nevertheless,
this tribunal need look no further than the recent decision in Williams
v. United States, 805 F.2d 1301 (7th Cir. 1986), for guidance. In that
case, the Seventh Circuit clearly held that the "cause and prejudice"
standard of Norris v. United States, 687 F.2d 899 (7th Cir. 1982), is
applicable when a defendant attacks his sentence upon a guilty plea by
raising new questions for the first time in a § 2255 proceeding.
Williams, 805 F.2d at 1306-07. In other words, a failure to raise
constitutional challenges to a conviction and sentence on direct appeal
or in post-conviction motions bars a defendant from raising the same
issues under § 2255 absent a showing of good cause for and prejudice
from the failure to do so. Norris, 687 F.2d at 903-04; see also United
States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The
interest of finality demands no less.
Ely's first ground for relief concerns allegedly false or inaccurate
information contained in his presentence report which Judge Morgan
purportedly relied on in passing sentence. Ely, however, indubitably
failed to bring this issue to the Courts' attention on a number of
occasions. In fact, the appellate court remarked in affirming the length
of Ely's sentence that the factual accuracy of the presentence report was
not contested. Ely, 719 F.2d at 907.
Indeed, if the evidence suggested that the Defendant did not have an
opportunity to review the presentence report and thus discover any factual
inaccuracies therein as guaranteed by Fed.R.Crim.P. 32(c)(3)(A), this
Court might reconsider the applicability of the waiver doctrine. See
United States v. Johnson, 607 F. Supp. 258, 263 (N.D.Ill. 1985). But
Ely's dialogue with the Court at his sentencing indicates otherwise:
THE COURT: Mr. Ely, since you were last in court, the
court has had the benefit of a report of a presentence
investigation by the probation officer. A copy was
furnished to your attorney. Have you had a chance to
go over it together?
THE DEFENDANT: Yes, sir, I read it.
THE COURT: Do either of you have any comments on the
probation officer's report such?
THE DEFENDANT: No, sir.
Consequently, Ely's claim that the report was not made available to him
is frivolous. Clearly, the time for objecting to the alleged improper
inclusions was at the sentencing. Petitioner has shown no cause for his
failure to do so. As expressed in Williams, 805 F.2d at 1308:
The question is not whether [the defendant] raised the
issue, but rather whether he could have and simply
failed without cause to do so. If this were not the
case, litigants would be free to keep issues in
reserve while presenting challenges to their
convictions and sentences one issue at a time.
Especially at a time when the federal courts are
drowning in litigation, the presumption is against
piecemeal litigation and it is the movant's burden to
overcome the presumption by showing that he has a good
reason for proceeding in this manner.
See also Taylor v. United States, 798 F.2d 271
, 273 (7th Cir. 1986).*fn3
Ely likewise has waived his second claim of ineffective assistance of
counsel by failing to show cause why he has not advanced it sooner. This
conclusion necessarily results from the language of the appellate court's
opinion on direct appeal:
Ely does not argue that Brady was incompetent or had a
conflict of interest. . . . Although he preferred
Bartley, Ely expressed no dissatisfaction with Brady.
It was not that Brady was not good but that Bartley
was, in Ely's opinion, better.
Ely, 719 F.2d at 904. Moreover, the Court noted that Ely was supplied
with the services of competent and experienced legal counsel. Id. at
905. Thus, his second ground is baseless.
Defendant's third assertion fares no better. In essence, Ely challenges
the voluntariness of his plea, maintaining that the Government utilized a
"carrot and stick approach" to coerce him into admitting guilt. But he
cannot now be heard to cry
foul when he had more than ample opportunity to do so in a direct appeal
and in three post-conviction motions.
Furthermore, Ely's proposition is nonsense. At his change of plea
hearing Ely stated that no threats, or promises other than those
contained in the plea agreement, had induced him to acknowledge his
THE COURT: Mr. Ely, you have heard the agreement
announced by the Assistant United States Attorney and
concurred in by your attorney; do you understand this
DEFENDANT: Yes, sir, I do.
THE COURT: Do you approve it?
DEFENDANT: Yes, sir, I do.
THE COURT: Have any threats of any kind been made in
order to induce you to plead guilty to Counts I, V,
and VI subject only to this agreement?
DEFENDANT: No, sir.
THE COURT: Have any promises of any kind been made
other than those contained in the agreement itself .
. . [have] any other promises of any kind been made to
you that you are relying upon in any way?
DEFENDANT: No, sir.
In addition, Ely further indicated he understood the consequences of his
guilty plea including the potential penalties for the offenses charged.
Thus, Ely's third allegation is unfounded.
Finally, Ely again raises the argument presented on direct appeal that
the trial judge abused his discretion by imposing a much longer sentence
upon him than either of two co-defendants. But the Seventh Circuit found
that the record prevented it "from concluding that Ely's sentence [was]
so disproportionate and unexplained that the district judge must not have
exercised his sentencing discretion and should be told to try again."
Ely, 719 F.2d at 907.
Such being the case, it seems somewhat elementary to this Court that
the ruling of the reviewing court must stand. Were it not thus, the
superior orders in the judicial chain of command would constantly be
thwarted, no determination would ever be final, and justice would cease
to be either administered or dispensed.
To observe the behavior of this Defendant is to comprehend why the
average layman is skeptical that justice is ever accomplished, and why
the administration of justice — lawyers, judges, courts, all of our
legal structure — is viewed with doubt and mistrust. The general
public is suspicious that the letter of the law is misused to subvert the
spirit of the law and further suspects that the apparent perfection sought
by forms, pleadings and procedures is more important than fairness and
the final disposition of cases.
Ely gives us no reason to believe otherwise.
Unfortunately for Defendant, however, a point of no return — a
moment of finality — to all litigation must exist, somewhere,
sometime. And if ever a time for such finality arose, it is now —
in this criminal prosecution of David Ely. This Court has finished the
final chapter in Case No. 79-10041 and now closes the book. Petitioner
has had more than his day in court — he has had a legal lifetime.
But he has reached the end, at least in this matter!
Ergo, Petitioner's motion under 28 U.S.C. § 2255 to set aside his
sentence is DENIED pursuant to Rule 4(b). Any further outstanding
motions are likewise DENIED.
This case is CLOSED.