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SERFLING v. UNITED STATES

April 4, 1997

SCOTT R. SERFLING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of Scott R. Serfling ("Serfling") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the motion is denied.

 I. FACTS

 On May 11, 1995, a petit jury found Serfling guilty of defrauding four individuals of an amount in excess of $ 425,000. Tim Metz ("Metz"), a veteran Wall Street Journal Reporter, was among those defrauded by Serfling. Interestingly, Metz featured Serfling in his book Black Monday, on the October 19, 1987, "crash" of the stock market. See Matt O'Connor, "Ex-Merc Trader Gets 3-Year Term -- Investors' Money Used For Personal Reasons," Chicago Tribune, November 10, 1995. Years later, Metz trusted Serfling with his retirement savings of $ 360,850.99, an amount used by Serfling not for investment purposes, but to pay for apartment rent, a luxury car, children's toys, a membership in a dating service, and for payments of debts to previous investors. Id.

 The trial record establishes that Serfling convinced each of the four individuals to invest money in the commodities market through him, although the National Futures Association had enjoined Serfling from trading commodity futures contracts and from soliciting money. See United States v. Serfling, 91 F.3d 147 (7th Cir. 1996). Despite the injunction, Serfling represented himself to his customers that he was a licensed commodities broker. Id. Serfling then appropriated all supposed investment money to himself.

 When the Federal Bureau of Investigations questioned Serfling regarding its investigation of a complaint by Richard Mudge, one of Serfling's clients, Serfling lied, telling the agent that he would return to the trading floor in minutes. Id. By that point, however, the National Future Association had already revoked Serfling's license. Id. Further, Serfling told the FBI agent that Mudge's money was safely in an interest-bearing escrow account frozen by the National Future Association. Id. In reality, Serfling had already spent the money. Id.

 Armed with the above facts, in addition to numerous documents and witnesses, the United States Government prosecuted Serfling for fraud. As already discussed, the jury found Serfling guilty. On November 9, 1995, this court sentenced Serfling to thirty-seven months of imprisonment, followed by two years of supervised release. The court ordered $ 425,850.99 in restitution. Serfling appealed the judgment and, on July 15, 1996, the United States Court of Appeals for the Seventh Circuit affirmed the conviction in its totality. See United States v. Serfling, 91 F.3d 147 (7th Cir. 1996).

 Serfling now attempts to collaterally attack the conviction and sentence by way of filing the instant § 2255 petition. Serfling claims his trial and appellate attorneys ineffectively represented him. Neither Serfling nor his attorneys raised any of the issues presented within the instant motion at trial or on appeal.

 II. DISCUSSION

 Habeas corpus relief under 28 U.S.C. § 2255 is limited to "an error of law that is jurisdictional, constitutional, or constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991). (quoting Carreon v. United States, 578 F.2d 176, 179 (7th Cir. 1978). Therefore, Serfling may not raise three types of issues: (1) issues that he or his attorneys raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been, but were not, raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, save those constitutional issues which Serfling can show both "good cause" for, and actual prejudice from, the procedural default. Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Serfling contends that both his trial counsel and appellate counsel, distinct attorneys with no connection, did not effectively represent him at the respective judicial levels, thus depriving him of his Sixth Amendment right "to have the assistance of counsel for his defense." U.S. Const. amend. VI. Therefore, the issues raised in the petition sub judice are of the third variety, constitutional issues not raised on direct appeal. Accordingly, before the court may consider the motion's merits, Serfling must first show cause for, and prejudice resulting from, his failure to raise the issues on direct appeal.

 A. Cause and Prejudice

 Serfling has failed to make the requisite showing of cause and prejudice. Though courts liberally construe a pro se submission, Blake v. United States, 841 F.2d 203, 205 (7th Cir. 1988), courts must also respect the limitations on their power under § 2255. See United States v. Springs, 988 F.2d 746, 748 (7th Cir. 1993). As his own motion states, Serfling released his trial counsel prior to sentencing. At sentencing, the court gave Serfling ample opportunity to express his dissatisfaction with his trial attorney. Serfling said nothing. Moreover, Serfling's new attorney, who was present at Serfling's sentencing hearing, and in fact made several arguments on Serfling's behalf during the hearing, made no mention of any prior attorney incompetence. Nor did Serfling's second attorney raise an ineffective assistance of counsel issue on appeal.

 Serfling's petition does not address his failure to raise the issue at sentencing. Other than mere conclusory allegations, nothing within the four corners of the Petition can be construed as attempting to demonstrate cause and prejudice. Such conclusions alone are insufficient to show the "cause" and "prejudice" necessary to resurrect a substantive issue after procedural default. Oliver v. United States, 961 ...


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