The opinion of the court was delivered by: FOREMAN
Before the Court is defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. After careful review, the Court concludes that defendant is not entitled to relief and that the motion must be denied.
Defendant is currently serving a thirty-five year federal sentence pursuant to a 1992 conviction entered in Case No. 90-30067-WDS. Prior to this 1992 conviction, defendant pleaded guilty in 1979 to federal charges of concealing stolen goods. (See Case No. 79-50007-JLF, Judgement and Probation/Commitment Order filed November 9, 1979). Defendant's 1979 conviction resulted in a five-year sentence.
Defendant's current sentence was enhanced by three criminal history points assigned to the 1979 conviction. Defendant now asserts that the 1979 conviction was invalid and should not have been used to enhance his current sentence.
Defendant is seeking to attack his 1979 conviction because it was used to enhance his sentence for the 1992 conviction. In other words, defendant is seeking to vacate, set aside, or correct the 1992 sentence, the sentence imposed in Case No. 90-30067-WDS. When defendant filed the instant § 2255 motion, however, he designated that it should be filed in the 1979 proceeding, Case No. 79-CR-50007-JLF (See Case No. 79-CR-50007-JLF, Motion filed 8/23/96).
Defendant may not use § 2255 to vacate, set aside, or correct the sentence imposed in 79-CR-50007-JLF. Although defendant does not clarify the point, it is clear from the passage of time that this five-year sentence has either been served or has expired. Consequently, defendant can no longer challenge that sentence under § 2255. United States v. Rasco, 697 F. Supp. 343, 344-45 (N.D.Ill. 1988); United States v. Correa-DeJesus, 708 F.2d 1283, 1285 (7th Cir. 1983); Lewis v. United States, 902 F.2d 576 (7th Cir. 1990).
In theory, defendant can challenge the 1979 sentence through the extraordinary "writ of error coram nobis." Lewis, 902 F.2d at 577; Rasco, 697 F. Supp. at 345 (citations omitted). The Seventh Circuit has recognized that a defendant may challenge an already served or expired sentence by filing for such a writ under Title 28 U.S.C. § 1651. Rasco, 697 F. Supp. at 345 (citing Correa-DeJesus, 708 F.2d at 1285). The substantive standard under § 1651 is the same as § 2255, thus, defendant's § 2255 motion will also be construed as if it were a motion for a writ of error coram nobis brought pursuant to 28 U.S.C. § 1651. See Lewis, 902 F.2d at 577 (citing United States v. Keane, 852 F.2d 199, 204 (7th Cir.1988) and United States v. Doe, 867 F.2d 986, 989-90 (7th Cir.1989)).
A motion for a writ of error coram nobis, however, is subject to the doctrine of laches. Rasco, 697 F. Supp. at 345. In other words, a court may bar relief if the movant filed the writ after significant delay and no "sound reasons [exist] for failure to seek appropriate earlier relief." Correa-DeJesus, 708 F.2d at 1286 (quoting United States v. Morgan, 346 U.S. 502, 512, 98 L. Ed. 248, 74 S. Ct. 247 (1954)). In Correa-DeJesus, for example, the Seventh Circuit held that laches barred a motion filed sixteen years after sentencing when the movant failed to provide a satisfactory explanation for the delay. Correa-DeJesus, 708 F.2d at 1286-87. See also Rasco, 697 F. Supp. at 345 (laches bars a motion filed fourteen years after entering a guilty plea).
In the instant case, defendant has waited sixteen years to challenge his 1979 sentence on the grounds he now asserts. He offers no explanation for the delay. Furthermore, he has had opportunities to raise at least some of these grounds before but has not done so. For example, in November 1980, defendant moved for a reduction in sentence pursuant to Fed.R.Crim.Proc. 35 and 45. (See Case No. 79-50007-JLF, Motion filed 11/26/80.) That motion did not raise any of the grounds that defendant now asserts. This Court denied the motion after finding that defendant had tendered to the court a photocopy of his Bureau of Prisons Progress Report which intentionally omitted a paragraph describing his assault of another inmate and the resulting revocation of good time credits by the Institutional Disciplinary Committee.
In addition, defendant has never directly appealed the 1979 conviction. Had he filed this § 2255 motion sixteen years ago, it would have been dismissed unless he had first shown that his failure to appeal was excusable. See Correa-DeJesus, 708 F.2d at 1285 (extending cause and prejudice requirement applicable to § 2255 and § 2254 to motions for writ of error coram nobis). Defendant offers no explanation for the delay, thus, his motion may be dismissed on this basis.
Even if defendant had offered an explanation for his sixteen-year delay, his motion still would not succeed. In 1979, defendant was indicted for Concealing Stolen Goods (Count 1), Transporting Interstate Stolen Goods (Counts 2, 3), and Possession of an Unregistered Firearm (Counts 4, 5). Defendant pleaded guilty to ...