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U.S. v. GIO

August 2, 1999

UNITED STATES OF AMERICA, PLAINTIFF,
v.
NICHOLAS GIO, DEFENDANT.



The opinion of the court was delivered by: Alesia, District Judge.

MEMORANDUM OPINION AND ORDER

Before the court is defendant Nicholas Gio's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the following reasons, the court denies the motion with prejudice.

I. BACKGROUND

In 1991, a jury convicted defendant Nicholas Gio along with co-defendant Joseph Marchiafava on one count of conspiracy to commit arson in violation of 18 U.S.C. § 371 and three counts of traveling in interstate commerce to promote or carry on unlawful activity in violation of 18 U.S.C. § 152.*fn1 During Gio and Marchiafava's joint trial, the court received into evidence against Marchiafava a redacted version of a confession made by Marchiafava. The confession was a statement made by Marchiafava to FBI agents which implicated Marchiafava, Gio, and several other men in the crime charged. The version of the confession received into evidence had been redacted to replace any references to Gio's name with the neutral phrases of "the other person" or "another person." The court allowed this redacted version to be read into evidence after the court read a limiting instruction, instructing the jury not to consider the statement as evidence against Gio.

In 1992, this court sentenced Gio to a sixty-three month term of incarceration to be followed by three years of supervised release and ordered Gio to pay $65,509.92 in restitution and a $200.00 special assessment. Gio appealed his sentence and conviction, arguing, inter alia, that this court erred by receiving into evidence the redacted version of Marchiafava's confession. The Seventh Circuit vacated this court's order of restitution but affirmed Gio's conviction and sentence in all other respects, holding that this court "did not err in allowing in evidence the redacted confession, combined with the limiting instruction given to the jury." Gio, 7 F.3d at 1286-87, 1293.

Gio did not attempt to appeal the Seventh Circuit's decision to the Supreme Court of the United States. On March 2, 1994, this court resentenced Gio, the only change on resentencing being that the court eliminated the order of restitution. Gio did not appeal any aspect of his new sentence.

On March 16, 1999, Gio filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, arguing that this court committed reversible error by admitting into evidence the redacted version of co-defendant Marchiafava's confession. In support of his motion, Gio relies on the Supreme Court's decision in Gray v. Maryland, in which the Court held that in a joint trial of two defendants, the use of one defendant's confession, which had been redacted to substitute blanks and the word "delete" for the other defendant's proper name, violated the Sixth Amendment rights of the other defendant, despite the fact that the trial judge gave an instruction that it could only be used against the defendant who had confessed. Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998).

The government has moved to dismiss Gio's § 2255 motion. The government argues that the Supreme Court's decision in Gray may not be applied retroactively. The government argues in the alternative that even if Gray is applied retroactively to Gio's case, the error, if any, was harmless.

II. DISCUSSION

In Teague v. Lane, the Supreme Court formulated a general rule of non-retroactivity applicable to motions filed under 28 U.S.C. § 2255 as well as petitions for habeas corpus filed under 28 U.S.C. § 2254. Teague v. Lane, 489 U.S. 288, 300-301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Fern v. Gramley, 99 F.3d 255, 257 (7th Cir. 1996) (explaining that "Teague applies to petitions brought under § 2255 as well as petitions brought under § 2254"). Under Teague's general rule of non-retroactivity, a new constitutional rule of criminal procedure does not apply to a case that has become final before the new rule was announced unless the new rule falls within one of two narrow exceptions to the general rule of non-retroactivity. Teague, 489 U.S. at 310, 109 S.Ct. 1060.*fn2

In order to determine whether the rule in Gray should be applied retroactively to Gio's case, the court must conduct a three-part inquiry. Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). First, the court must determine when Gio's conviction and sentence became final for the purposes of Teague. Id. at 390, 114 S.Ct. 948; Jones v. Page, 76 F.3d 831, 851 (7th Cir. 1996). Second, the court must determine whether the rule in Gray is a new constitutional rule of criminal procedure. Caspari, 510 U.S. at 390, 114 S.Ct. 948; Jones, 76 F.3d at 851. Third and finally, if the rule in Gray is a new constitutional rule of criminal procedure, the court must decide whether it falls within one of the two narrow exceptions to the general rule of non-retroactivity. Caspari, 510 U.S. at 390, 114 S.Ct. 948; Jones, 76 F.3d at 851.

A. When Gio's conviction and sentence became final for the
  purposes of Teague

The court must first determine when Gio's conviction and sentence became final for the purposes of Teague. In this case, the parties do not dispute that Gio's conviction and sentence became final well before Gray was decided. Except for the order of restitution, the Seventh Circuit affirmed all aspects of Gio's conviction and sentence on October 13, 1993 and issued the mandate in the case on November 4, 1993. This court resentenced Gio on March 2, 1994, eliminating the order of restitution. Gio did not appeal any aspect of his new sentence and did not attempt to appeal the Seventh Circuit's decision to the ...


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