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HODGES v. U.S.

April 19, 2004.

CARLAN D. HODGES, Petitioner, V. UNITED STATES OF AMERICA, Respondent


The opinion of the court was delivered by: RICHARD MILLS, Senior District Judge

OPINION

This § 2255 petition is Petitioner's latest bite at the apple.

  It is also his last bite.

  Petition denied.

  I. BACKGROUND

  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.

  II. PETITIONER'S CLAIMS

  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 ...


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