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ALEX v. UNITED STATES

June 6, 1997

GUS ALEX, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: ALESIA

 This matter is before the Court on Petitioner Gus Alex's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence. The motion is denied.

 I. BACKGROUND

 In December of 1991, a grand jury returned a seven-count indictment against Petitioner Gus Alex and codefendants Lenny Patrick, Nicholas Gio and Mario Rainone. Alex was charged in Counts I, IV, and VII. Count I charged Alex and his codefendants with conspiracy to engage in a racketeering enterprise in violation of 18 U.S.C. § 1962(d). Count IV charged that Alex, Patrick and Rainone conspired to commit extortion by demanding and obtaining cash payments from various restaurants in violation of 18 U.S.C. § 1951. Count VII sought the forfeiture of assets from Alex.

 The case was tried before a jury. On October 1, 1992, the jury found Alex guilty on Counts I and IV; the jury also concluded that Alex should forfeit $ 197,000 pursuant to Count VII. Alex was sentenced to 188 months imprisonment, fined $ 250,000 and ordered to pay $ 376,000 restitution for a total of $ 823,000.

 Alex appealed his conviction and sentence. The Seventh Circuit affirmed. See United States v. Rainone, 32 F.3d 1203 (7th Cir. 1994). Alex now attacks his conviction and sentence collaterally under 28 U.S.C. § 2255.

 II. DISCUSSION

 Alex offers only three arguments attacking his conviction and sentence: (1) that trial counsel performed ineffectively; (2) that due to Alex's age at the time of sentencing -- 78 years old -- the lengthy sentence amounted to a life sentence which is inconsistent with the crimes of conviction; and (3) the government may have unlawfully seized evidence to support its position at sentencing that Alex was a member of "organized crime." Each argument will be addressed in turn.

 Prior to addressing the arguments, however, the court will first discuss the purpose of a § 2255 motion and the procedural steps that must be complied with in order to grant the reviewing court the authority to entertain the issues raised in the motion.

 Relief under § 2255 "is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Indeed, a criminal defendant may attack the validity of his sentence under § 2255 only if:

 
the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

 28 U.S.C. § 2255. Importantly, however, "[a] § 2255 motion is neither a recapitulation of nor a substitute for a direct appeal." Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). This means that:

 
an issue not raised on direct appeal is barred from collateral review absent a showing of both good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or if a refusal to consider ...

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