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POINTER v. U.S.

March 9, 2004.

SIDNEY POINTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent



The opinion of the court was delivered by: DAVID COAR, District Judge

MEMORANDUM OPINION AND ORDER

Before this Court is Sidney Pointer's ("Pointer" or "Petitioner") petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2255 (" § 2255 petition"). For the reasons set forth below, Pointer's motion is denied in its entirety.

I. FACTUAL AND PROCEDURAL BACKGROUND

  In June 2001, eight individuals, including Pointer, were charged in connection with an insurance fraud scheme involving the issuance of fraudulent commission checks. Pointer was the lead defendant, and was charged with issuing twenty-one fraudulent insurance commission checks to acquaintances while employed at Glenbrook Life and Annuity Company ("Glenbrook"), an affiliate of Allstate Insurance Company. Seven of the eight defendants, including Pointer, plead guilty. Pointer plead guilty to all twenty-two counts of the indictment against him. These counts charged Pointer with violations of Title 18, United States Code, Page 2 Sections 371 (conspiracy), 1033(b) (insurance fraud) and 2 (aiding and abetting). Pointer entered a blind plea of guilty.

  At sentencing, the Parties disputed whether Pointer should receive a two-level increase pursuant to Guideline § 3B1.3 for abuse of a position of private trust. During sentencing hearings conducted on June 4, June 18, and June 27, 2002, the Government presented testimony from Glenbrook employees to attempt to establish that Pointer exercised discretion over the issuance of checks. Pointer argued that he did not posses the discretion necessary for abuse of position of private trust. The Court found that Pointer did abuse a position of private trust and imposed a two-level enhancement. Additionally, the Court imposed a two-level increase because Pointer's offense involved more than minimal planning pursuant to Guideline § 2F1.1(b)(4)(A)*fn1 On June 27, 2002, Pointer was sentenced to forty-one months incarceration, to be followed by three years of supervised release. Pointer did not appeal his conviction or sentence.

 II. DISCUSSION

  A. Legal Standard for § 2255 Petitions

  Under 28 U.S.C. § 2255, federal prisoners can challenge the imposition or length of the detention if their conviction or sentence has been founded on an error that is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Oliver v. United States. 961 F.2d 1339, 1341 (7th Cir. 1995); 28 U.S.C. § 2255. If the court determines that any of these errors infected the judgment or sentence, the petitioner's Page 3 conviction will be vacated or set aside, and the petitioner will be discharged, resentenced, or granted a new trial. Id.,

  Additionally, after reviewing the petitioner's motion, the government's answer, and all transcripts or records of prior court proceedings, the court will determine whether an evidentiary hearing is necessary. See Rule 8(a) of the Rules Governing Section 2255 proceedings. "If it plainly appears from the face of the motion and any annexed exhibits and the prior proceeding in the case that the movant is not entitled to relief in the district court, the [court] shall make order of summary dismissal." See Rule 4(b) of the Rules Governing Section 2255 proceeding Liss United States. 915 F.2d 287, 290 (7th Cir. 1990).

  B, Analysis

  Pointer's petition provides three grounds upon which he contends relief should be granted,*fn2 Petitioner states that: (1) the Court abused its discretion when it applied the abuse of position of private trust and more than minimal planning sentence enhancements; (2) he was denied the effective assistance of counsel, because his counsel failed to clarify certain issues relating to those sentence enhancements to the Court; and (3) he did not plead guilty voluntarily and with the understanding of the nature of the charges and the consequences of his plea. Each of these stated grounds for habeas corpus relief will be addressed in turn. Page 4

  1. Did the Court Abuse its Discretion When Applying the Abuse of Position of Trust and More Than Minimal Planning Sentence Enhancements?

  Pointer contends that the Court abused its discretion when it applied the abuse of position of trust and more than minimal planning sentence enhancements. Pointer alleges that there was an insufficient factual basis upon which to apply these sentencing enhancements, and that the Court failed to consider the fact that Pointer received extensive supervision as a Process Owner at Glenbrook which prevented him from being in a position of trust.*fn3 However, as stated, Pointer did not directly appeal any aspect of his sentence. The errors regarding the use of the sentencing enhancements are nonconstitutional errors. "Nonconstitutional errors which could have been raised on appeal but were not, are barred on collateral review-regardless of cause and prejudice." Arango-Alvarez v. United States. 134 F.3d 888, 891 (7th Cir. 1998) (quoting Bontkowski v. United States. 850 F.2d 306, 313 (7th Cir. 1988))".*fn4 Therefore, Pointer's argument that the Court abused its discretion when applying the abuse of position of private trust and more than ...


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