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QUILLING v. U.S.

December 18, 2002

GARY CORTEZ QUILLING, PETITIONER,
V.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Richard Mills, District Judge

  OPINION

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.

Petition denied.

I. BACKGROUND*fn1

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On September 21, 2000, a federal grand jury superseded the Indictment returned against Petitioner to add a second count alleging Petitioner to have been a felon in possession of firearm ammunition in violation of 18 U.S.C. § 922(g)(1).*fn2 On October 30, 2000, a jury found Petitioner guilty of both Counts charged in the Indictment. Accordingly, on January 4, 2001, the Court sentenced Petitioner to 78 months of imprisonment on each Count of conviction and ordered his sentences to be served concurrently.

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.

II. PETITIONER'S CLAIMS

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.

III. ANALYSIS

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 (1986).

A. JUDICIAL MISCONDUCT

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 at 713-15.

"[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 ...


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