The opinion of the court was delivered by: Richard Mills, District Judge
Two trials by two different juries and two different judges resulted
in Quilling's convictions.
One appeal affirmed his convictions and sentence.
Now, Quilling has filed a motion to vacate, set aside, or correct his
convictions and sentence pursuant to 28 U.S.C. § 2255.
It is the procedural end of the line for Petitioner Quilling.
On July 9, 1999, a jury found Petitioner guilty of one count of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
However, Petitioner was not sentenced on this conviction; rather, on
August 28, 2000, the Court allowed Petitioner's motion for a new trial
pursuant to Federal Rule of Criminal Procedure 33. United States v.
Quilling, 109 F. Supp.2d 1009 (S.D.Ill. 2000). Thereafter, the Court set
the matter for a new trial.
On August 20, 2001, the United States Court of Appeals for the
Seventh Circuit affirmed Petitioner's convictions and sentence. United
States v. Quilling, 261 F.3d 707 (7th Cir. 2001). On November 13,
2001, the United States Supreme Court denied Petitioner's petition for a
writ of certiorari. Quilling v. United States, 122 S.Ct. 576 (2001). On
July 30, 2002, Petitioner filed the instant petition pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
Petitioner now raises three reasons why his convictions and sentence
should be vacated, set aside, or corrected pursuant to
28 U.S.C. § 2255.
First, Petitioner argues that his convictions and sentence should be
vacated, set aside, or corrected because the Court engaged in judicial
misconduct prior to his trial.
Second, Petitioner contends that he is entitled to relief pursuant to
28 U.S.C. § 2255 based upon prosecutorial misconduct.
Third, Petitioner argues that his convictions and sentence should
be vacated, set aside, or corrected because he received ineffective
assistance of counsel in violation of his Sixth Amendment rights.
Accordingly, Petitioner asks the Court to conduct an evidentiary
hearing and to, thereafter, either grant him a new trial or vacate his
convictions and sentence outright.
Ordinarily, claims not raised on appeal are procedurally defaulted.
Barker v. United States, 7 F.3d 629, 632 (7th Cir. 1993). "A §
2255 petition is not a substitute for direct appeal." Prewitt v. United
States, 83 F.3d 812, 816 (7th Cir. 1996), citing Theodorou v. United
States, 887 F.2d 1336, 1339 (7th Cir. 1989). However, constitutional
claims may be raised for the first time in a collateral attack if the
petitioner can show cause for the procedural default and prejudice from
the failure to appeal. United States v. Frady, 456 U.S. 152, 167-68
(1982); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996).
If a petitioner is unable to demonstrate both cause and prejudice,
Petitioner may be able to obtain habeas review only if he can persuade
the court that the dismissal of his petition would result in a
fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 495
Petitioner did not raise his claim of judicial misconduct on appeal,
and thus, he has procedurally defaulted this claim. Barker, 7 F.3d at 632.
Therefore, Petitioner must establish both cause for and prejudice from
his failure to appeal this issue in order to prevail on his § 2255
petition Frady, 456 U.S. at 167-68. Petitioner has failed to do so.
In his reply to the Government's response to his § 2255 petition,
Petitioner contends that the Court's rescheduling of his trial by sixteen
days prejudiced him because, if he would have had more time to study
and prepare for the trial, then he could have contacted his witnesses and
could have better prepared his defense.
To the extent that he is arguing that the Court's rescheduling of his
trial prejudiced him in that it allowed the two Counts charged against
him in the Second Superseding Indictment to be tried together, Petitioner
did argue this point on appeal, and thus, he has not procedurally
defaulted this claim. However, the Seventh Circuit held that the Court
did not err in denying Petitioner's motion to sever. Quilling, 261 F.3d
"[O]nce this court [the Seventh Circuit] has decided the merits of a
ground of appeal, that decision establishes the law of the case and is
binding on a district judge asked to decide the same issue in a later phase
of the same case, unless there is some good reason for re-examining it."
United States v. Mazak, 789 F.2d 580, 581 (7th Cir. 1986); see Arizona
v. California, 460 U.S. 605, 618 (1983) (holding that "the [law of the
case] doctrine posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages
in the same case."). "The doctrine, however, allows some flexibility,
permitting a court to revisit an issue if an intervening change in the law,
or some other special circumstance, warrants reexamining the claim."
United States v. Thomas, 11 F.3d 732, 736 (7th Cir. 1993). "It [the law
of the case doctrine] will not be enforced where doing so would ...