The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, Chief Judge:
Rueben Richardson, acing pro se, brings this motion under 28 U.S.C. § 2255, asking us to vacate his twenty-five month sentence. He contends that because his criminal prosecution followed a civil forfeiture action arising out of the same alleged misconduct, his conviction and sentence were obtained in violation of the Double Jeopardy Clause of the Fifth Amendment. For the reasons set forth below, Richardson's motion is denied.
Over three and one-half years later, on December 8, 1993, Richardson was charged in a three-count indictment with conspiring to conduct an illegal gambling operation, in violation of 18 U.S.C. § 371
and 18 U.S.C. § 1955, conspiring to defraud the IRS, in violation of 18 U.S.C. § 371, and filing a false tax return, in violation of 26 U.S.C. § 7206(1). On March 29, 1994, Richardson pled guilty to the two conspiracy counts, and on September 1, 1994, he was sentenced by this court to twenty-five months imprisonment.
Although he declined to appeal his conviction and sentence, Richardson now moves under § 2255 to have his sentence vacated or corrected. He argues that because his property was seized in the 1989 civil case, the filing of the 1993 criminal complaint against him violated the Due Process Clause of the Fifth Amendment. Before reaching the merits of his argument, however, we must consider whether Richardson has defaulted his double jeopardy claim by failing to file a direct appeal.
It is well settled that a defendant's failure to present a constitutional challenge on direct appeal will act as a procedural bar to his raising that issue in a collateral proceeding, absent a showing of cause for the procedural default and actual prejudice resulting from the failure to appeal. Barker v. United States, 7 F.3d 629, 632 (7th Cir. 1993), cert. denied, 510 U.S. 1099, 127 L. Ed. 2d 229, 114 S. Ct. 939 (1994). Richardson failed to raise his double jeopardy argument before pleading guilty, and, as observed above, he neglected to file a direct appeal. Richardson cannot use the instant § 2255 motion as a substitute for direct appeal, see Williams v. United States, 805 F.2d 1301, 1306 (7th Cir. 1986), cert. denied, 481 U.S. 1039, 95 L. Ed. 2d 818, 107 S. Ct. 1978 (1987), and thus he is procedurally barred from raising his double jeopardy argument unless he can demonstrate cause and prejudice.
Although his submissions are not entirely clear, Richardson appears to argue that his cause is (1) ineffective assistance of his trial counsel, in that his attorney did not inform him of this argument, and (2) the novelty of his double jeopardy argument, in that several significant opinions on the topic were issued quite recently.
The latter argument requires much less discussion than the former, and therefore we tackle Richardson's contentions in reverse order.
Richardson maintains that he should be permitted to raise his double jeopardy argument at this time because of recent Supreme Court decisions elaborating on the protection afforded by the Double Jeopardy Clause. Richardson refers to Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994), United States v. Dixon, 509 U.S. 688, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993), Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993), and United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), as well as several other decisions from various courts of appeal. However, in order for the novelty of a constitutional claim to constitute cause, the legal basis for the argument must not be "reasonably available to counsel" at the time of the defendant's direct appeal. Reed v. Ross, 468 U.S. 1, 16, 82 L. Ed. 2d 1, 104 S. Ct. 2901 (1984). All of the cases cited above were decided before the defendant's sentencing on September 1, 1994, and thus could have been utilized in his direct appeal. Indeed, the Supreme Court first recognized that a civil sanction could be considered punishment under the Double Jeopardy Clause in Halper--a decision that was handed down over four years before Richardson's indictment and more than five years before his sentencing. Moreover, similar arguments were raised in this circuit long before Halper. E.g., United States ex rel. Fulton v. Franzen, 659 F.2d 741, 743 (7th Cir. 1981), cert. denied, 455 U.S. 1023, 72 L. Ed. 2d 142, 102 S. Ct. 1722 (1982). Thus, even if Richardson did not have the benefit of the most recent decisions construing the Double Jeopardy Clause, he did possess "the tools to construct [his] constitutional claim," and therefore cannot contend that the novelty of the claim is sufficient cause to overcome his procedural default. Boyer v. United States, 55 F.3d 296, 299-300 (7th Cir.) (quoting Engle v. Isaac, 456 U.S. 107, 133, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982)), cert. denied, 116 S. Ct. 268, 133 L. Ed. 2d 190 (1995); Barker v. United States, 891 F. Supp. 478, 481 (E.D. Wisc. 1995) (rejecting argument that recency of Halper and Kurth Ranch constituted cause for failing to raise double jeopardy claim on direct appeal); United States v. Estrada, 1995 U.S. Dist. LEXIS 11350, No. 95 C 2546, 1995 WL 476663, at *2 (N.D. Ill. Aug. 4, 1995) (same).
Richardson next attempts to avoid the procedural bar by arguing that his attorney was ineffectual. To be sure, ineffective assistance of counsel may constitute cause for a procedural default, but only if the defendant was represented by an attorney whose performance fell below constitutional standards. See Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). To prove ineffective assistance, Richardson "must establish that his attorney's performance fell below an objective standard of reasonableness and that he was prejudiced by his attorney's error such that the result of the proceeding was rendered fundamentally unfair or unreliable." Mason v. Godinez, 47 F.3d 852, 855 (7th Cir.) (citing Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 842, 122 L. Ed. 2d 180 (1993) and Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)), cert. denied, 116 S. Ct. 125, 133 L. Ed. 2d 74 (1995). We need only address the second prong of this analysis, as Richardson is unable to demonstrate that he suffered any prejudice by not raising his double jeopardy argument at an earlier stage.
The Double Jeopardy Clause guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., amend. V. "The basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts." Abbate v. United States, 359 U.S. 187, 198-99, 3 L. Ed. 2d 729, 79 S. Ct. 666 (1959) (opinion by Brennan, J.). Thus, the Clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and--most relevant for Richardson--multiple punishments for the same offense. Halper, 490 U.S. at 440. In order for Richardson to claim that he falls into this latter category, he must show (1) that the civil forfeiture constitutes punishment for double jeopardy purposes; (2) that the civil forfeiture and criminal conviction are punishment for the same offense; and (3) that the civil forfeiture and criminal prosecution are separate proceedings. United States v. Ursery, 59 F.3d 568, 571 (6th Cir. 1995). To be sure, a civil forfeiture can sometimes constitute "punishment" for purposes of double jeopardy, thereby barring a subsequent criminal proceeding against the same person. See Halper, 490 U.S. at 446-49; United States v. Torres, 28 F.3d 1463, 1464 (7th Cir.), cert. denied, 513 U.S. 1059, 130 L. Ed. 2d 603, 115 S. Ct. 669 (1994). However, in this case the government challenges Richardson's ability to satisfy the second prong of the aforementioned test, arguing that the civil forfeiture and the criminal prosection were actually separate punishments for separate offenses. To determine whether two offenses are the same, we employ the "same-elements" test of Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932)--that is, we ask whether each offense includes an element not contained in the other. Dixon, 113 S. Ct. at 2856.
If so, then the two offenses are separate and their separate punishments do not run afoul of the Double Jeopardy Clause. See id.
In the instant case, the government needed to demonstrate that Richardson's property was used in the operation of an illegal gambling operation in order to prevail in the civil forfeiture. 18 U.S.C. § 1955(d). By contrast, the conspiracy charge did not require proof that any property was being used, or that the substantive crime outlawed in 18 U.S.C. § 1955(a) had actually been committed. United States v. Jackson, 33 F.3d 866, 870 (7th Cir. 1994) (conviction under § 371 does not require proof of underlying offense), cert. denied, 514 U.S. 1005, 131 L. Ed. 2d 197, 115 S. Ct. 1316 (1995). Rather, Richardson's conspiracy conviction required proof of an agreement between two or more persons to conduct an illegal gambling operation, Richardson's participation in that agreement, and the commission of an overt act in furtherance of the agreement by one of the coconspirators. See United States v. ...