The opinion of the court was delivered by: Charles R. Norgle, Sr., United States District Judge.
Before the court is Robert Meeks' petition to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. For the following reasons, the petition is denied.
In the criminal matter underlying the present § 2255 petition, Meeks, a civilian, and his Co-Defendants, members of the Chicago Police Department, concocted and carried out a scheme of tracking down drug dealers and robbing them of money and drugs, rather than arresting them. Meeks was indicted on numerous charges arising out of this criminal enterprise, including violations of the Hobbs Act, 18 U.S.C. § 1951, charges relating to the use of a firearm during a crime of violence in violation of 18 U.S.C. § 924 (c), a charge of conspiring to deprive others of civil rights under color of law in violation of 18 U.S.C. § 241, and a charge of possession of drugs with intent to deliver in violation of 21 U.S.C. § 841 (a)(1).
After a lengthy trial, a jury convicted Meeks and his Co-Defendants on all counts. Meeks appealed his conviction, arguing, inter alia (1) an order granting severance should have been entered by the district court; (2) the evidence at trial did not establish a sufficient connection between the acts of the Defendants and interstate commerce, as required by the Hobbs Act; and (3) his sentence was improperly calculated. The Seventh Circuit affirmed the conviction, but remanded the case for the limited purpose of recalculating Meeks' sentence, as the Seventh Circuit was uncertain from the record whether one robbery, the Kudaisi robbery, was considered in the calculation of Meeks' sentence. See United States v. Meachum, 182 F.3d 923, 1999 WL 511431, at *7 (7th Cir. 1999) (unpublished opinion). On remand, the court clarified that the Kudaisi robbery was not considered in the calculation of Meeks' sentence, thus the sentence remained. Meeks filed a second appeal, again arguing that his sentence was improperly calculated. The Seventh Circuit affirmed Meeks' conviction and sentence, indicating: "The district court did exactly as instructed. It reviewed all appropriate sentencing factors while disregarding the Kudaisi robbery, concluded that the sentencing ranges were not affected, and ordered Meeks' sentence to stand." United States v. Meeks, 215 F.3d 1331, 2000 WL 748116, at *1 (7th Cir. 2000) (unpublished opinion).
Meeks now seeks § 2255 relief, raising numerous issues that overlap each other, and that generally recapitulate arguments made on his appeals. The court is to liberally construe a prisoner's pro se petition, see Haines v. Kerner, 404 U.S. 519, 520 (1972), but the burden remains with the petitioner to demonstrate entitlement to the extraordinary writ of habeas corpus. Aside from Meeks' original § 2255 petition, he has submitted numerous other motions to the court seeking to supplement that original petition. The court will not treat these motions as consecutive § 2255 petitions, as the Government has not argued that these supplements constitute an abuse of the writ as defined by habeas corpus jurisprudence. See generally McCleskey v. Zant, 499 U.S. 467, 470 (1991) (clarifying the "abuse of the writ" doctrine). Thus, the court will consider these supplements along with the original petition.
The court consolidates and interprets Meeks' arguments as: (1) his sentence was improperly calculated; (2) the evidence at trial did not establish a sufficient connection between the acts of the Defendants and interstate commerce, as required by the Hobbs Act; (3) the Hobbs Act counts are jurisdictionally deficient because the Government did not allege the requisite mens rea to the grand jury in seeking his indictment; (4) as a private citizen, he cannot be found to have conspired to deprive others of their civil rights, under color of law, in violation of 18 U.S.C. § 241; and (5) multiple allegations of ineffective assistance of counsel.
The Government argues, and the court agrees, that all of these claims, except select ineffective assistance of counsel claims, are procedurally defaulted, and that the ineffective assistance of counsel claims are without merit.
A. Standards Under 28 U.S.C. § 2255:
Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct his sentence. The relief is available only in limited circumstances, such as where an error is jurisdictional or of Constitutional magnitude. The statute states:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that 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, may
move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255 ¶ 1. If the court determines that any of these grounds exists, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255 ¶ 2.
Section 2255 petitions are subject to various bars, including that of procedural default. Section 2255 petitions are "`neither a recapitulation of nor a substitute for a direct appeal.'" McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (citations omitted). Thus, a § 2255 motion cannot raise: (1) issues that were raised on direct appeal, unless there is a showing of changed circumstances; (2) non-Constitutional issues that could have been raised on direct appeal, but were not; and (3) Constitutional issues that were not raised on direct appeal. See Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994)).
There are two exceptions to the procedural default rule: (1) if the movant demonstrates cause for failing to raise the issue and actual prejudice resulting therefrom; or (2) the court's refusal to consider the Constitutional issue would result in a fundamental miscarriage of justice, which requires a showing of actual innocence. See Belford, 975 F.2d at 313 (collecting authority); see also McCleese, 75 F.3d at 1177-78 ...