The opinion of the court was delivered by: RICHARD MILLS, Senior District Judge
This § 2255 petition is Petitioner's latest bite at the apple.
It is also his last bite.
On June 2, 1999, a jury found Petitioner Carlan D. Hodges guilty of
Count I of the Indictment which charged him with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and
also found him guilty of Count II of the Indictment which charged him
with receiving stolen firearms in violation of 18 U.S.C. § 922(j) and
§ 924(a)(2). On October 8, 1999, the late United States District
Judge Paul E. Riley sentenced Hodges to 188 months of imprisonment. This
sentence consisted of 120 months for his conviction on Count I of the
indictment and 68 months for his conviction on Count II of the
indictment, to be served consecutively.*fn1
On October 15, 1999, Hodges filed a timely notice of appeal of his
convictions and sentence. While his appeal was pending before the United
States Court of Appeals for the Seventh Circuit, Hodges' counsel received
notification from (then Chief) United States District Judge J. Phil
Gilbert that Judge Riley may have had ex parte communications
with the jury during its deliberations in Hodges' trial. Based upon a
motion by Hodges' attorney, the Seventh Circuit issued a general remand
to the district court for further proceedings based upon the information
subsequently learned regarding Judge Riley's conduct during the trial.
Upon remand, Hodges filed a motion for a new trial, pursuant to Federal
Rule of Criminal Procedure 33, based upon the newly discovered
allegations of ex parte jury communications by Judge Riley.
After considering the parties' briefing on the motion and without
conducting an evidentiary hearing, the Court allowed Hodges' motion and
granted his request for a new trial. United States v. Hodges,
110 F. Supp.2d 768 (S.D. Ill. 2000). The Government moved for
reconsideration, and after the Court denied its motion, the Government
appealed the Court's ruling. On appeal, the Seventh Circuit vacated this
Court's decision and remanded for further proceedings. United States
v. Bishawi, 272 F.3d 458 (7th Cir. 2001).
After receiving the mandate, the Court conducted an evidentiary hearing
as directed by the Seventh Circuit. Thereafter, the Court denied Hodges'
motion for a new trial, United States v. Hodges, 189 F. Supp.2d 855
(S.D. Ill. 2002), and the Seventh Circuit affirmed this Court's
denial of Hodges' Rule 33 motion for a new trial and also affirmed
Hodges' convictions and the sentence imposed upon him by Judge Riley.
United States v. Hodges, 315 F.3d 794 (7th Cir. 2003). On May
5, 2003, the United States Supreme Court denied Hodges' petition for
certiorari. Hodges v. United States, 123 S.Ct. 1943 (2003).
Hodges has now filed the instant petition, pursuant to
28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. This
is the initial consideration of Petitioner's petition pursuant to Rule 4 of the
Rules Governing § 2255 cases.
Hodges has raised four reasons why his convictions and sentence should
be vacated, set aside, or corrected pursuant to 28 U.S.C. § 2255.
First, Hodges argues that he received ineffective assistance of
counsel in violation of his Sixth Amendment rights. Specifically, Hodges
asserts that his counsel was ineffective for failing to subpoena and
offer the testimony of certain witnesses and for failing to conduct a
timely and diligent investigation of the facts. Second, Hodges
contends that he was denied his right to a fair trail when Judge Riley
refused to recuse himself after he discovered that he had, prior to being
appointed to the bench, acted as defense counsel for one of the witnesses
involved in this case.
Third, Hodges claims that newly discovered evidence entitles
him to the relief which he seeks. Specifically, Hodges asserts that the
record will establish that one of the Government's witnesses committed
perjury with regard to Hodges' residence. Fourth, Hodges argues
that there was insufficient evidence presented to convict him of the
charges in the Indictment, and he contends that the Government breached
its agreement with him when ...