Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BARDNEY v. UNITED STATES

September 11, 1997

Victor M. Bardney, 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 Petitioner, Victor M. Bardney's Amended 28 U.S.C. § 2255 Petition for Discharge and/or Sentence Reduction. For the following reasons, the § 2255 petition is denied.

 I. BACKGROUND

 On January 21, 1993, a federal grand jury returned a three-count indictment against Petitioner, Victor M. Bardney ("Bardney"). In Count I, the grand jury charged Bardney with conspiring with his co-defendants, Samuel Benson and Lawrence Spinks, to possess and distribute two kilograms of cocaine and fifty pounds of marijuana, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2 ("conspiracy count").

 On September 8, 1993, a jury found Bardney guilty on the drug-trafficking count, but acquitted him on the conspiracy and § 924(c)(1) counts. Bardney moved for a new trial, which the court denied. On December 7, 1993, the court imposed a two-point enhancement pursuant to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) for possession of a firearm and sentenced Bardney to 160 months of incarceration.

 Bardney appealed to the Seventh Circuit and raised several issues regarding his trial and sentence. On February 1, 1995, the Seventh Circuit affirmed. See United States v. Bardney, 46 F.3d 1134, 1995 WL 41317 (7th Cir. 1995). The Seventh Circuit denied Bardney's motion for reconsideration. Id. Thereafter, the Supreme Court denied Bardney's petition for writ of certiorari. See United States v. Bardney, 516 U.S. 1002, 133 L. Ed. 2d 451, 116 S. Ct. 549 (1995).

 On August 14, 1996, Bardney filed a petition pursuant to 28 U.S.C. § 2255, seeking discharge or sentence reduction. On October 11, 1996, the court denied seven of the eight issues Bardney raised in his § 2255 petition because Bardney had all ready raised them on direct appeal. See Bardney v. United States, 945 F. Supp. 152 (N.D. Ill. 1996). With respect to the eighth issue, the court ordered Bardney to file an amended § 2255 petition because the original petition lacked citations to relevant, authoritative case law. Id.

 On April 16, 1997, Bardney filed an amended § 2255 petition. Bardney argues that the court erroneously relied on evidence presented at trial and erroneously imposed a § 2D1.1(b)(1) enhancement in violation of Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), because the jury acquitted him on the § 924(c)(1) count.

 II. DISCUSSION

 A. Admonishment

 Before the court addresses the merits of Bardney's § 2255 petition, the court notes that its previous admonishments, and imposition of sanctions, has had no effect on Bardney's counsel. In imposing sanctions, the court stated: "[Pincham] forgot 'to study the law before representing its contents to a federal court . . . [and neglected to perform the] necessary work to find the law before filing the brief.' Instead, Pincham placed the 'burden of study and illumination on . . . the court.'" Bardney, 945 F. Supp. at 157 (citations omitted). Despite the court's lecture, Pincham again ignored adverse legal authority and misrepresented the Supreme Court's opinion in Bailey v. United States, 516 U.S. 137, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), to file the instant, frivolous petition on behalf of Bardney. In so doing, Pincham's conduct has once again forced an unfortunate waste of judicial resources.

 B. Petition for Writ of Habeas Corpus

 Habeas corpus relief under § 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)).

 Relying on a misleading interpretation of Bailey, Bardney argues that the court violated his constitutional rights (double jeopardy, trial by jury, due process, and fundamental fairness) by enhancing his sentence for possession of a firearm after the jury acquitted him on the § 924(c)(1) count. The Government does not argue that Bardney is procedurally defaulted from raising the issues ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.