United States District Court, S.D. Illinois
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
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.
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 it tendered the jurors who found him guilty
as witnesses at the evidentiary hearing on his motion for a new trial.
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 maybe 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).
In the instant case, Hodges has not procedurally defaulted on his
claims that one of the Government's witnesses committed perjury and that
there was insufficient evidence presented by the Government at trial to sustain his convictions because he presented those grounds on
direct appeal to the Seventh Circuit. Hodges, 315 F.3d at
However, the Seventh Circuit has explained that "once 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
produce an injustice." Mazak, 789 F.2d at 581.
In the instant case, the Court finds no good reason to re-examine any
of the non-procedurally defaulted issues raised by Hodges in his § 2255 petition. The Seventh Circuit addressed each of these claims
and adjudicated them against him. Hodges has not cited any intervening
change in the law, has not tendered any new evidence with which to
convince the Court that its previous rulings were in error, and has not
pointed the Court to any special circumstances which warrant re-examining
any of these issues. Therefore, to the extent that Hodges' § 2255
motion is based upon the grounds previously asserted by him on direct
appeal, his petition is denied.
As for his other grounds tendered in support of his § 2255
petition, as explained supra, Hodges must establish both cause
and prejudice in order to overcome procedurally defaulting these issues.
The Court finds that Hodges has failed to satisfy either the cause or
prejudice standard, and therefore, he is not entitled to the relief which
As for his claim of ineffective assistance of counsel, it is true that
a claim of ineffective assistance of counsel can satisfy the cause
component necessary to overcome procedural default. Fern v.
Gramley, 99 F.3d 255, 259 n. 4 (7th Cir. 1996). To establish a claim
of ineffective assistance of counsel, a petitioner must show two things.
First, the petitioner must show that his counsel performed in a
deficient manner. Strickland v. Washington, 466 U.S. 668, 687 (1984). "When a convicted
defendant complains of the ineffectiveness of counsel's assistance, the
defendant must show that counsel's representations fell below an
objective standard of reasonableness." Id. at 687-688. A court,
in reviewing a petitioner's claim of ineffective assistance of counsel,
must give great deference to the attorney's performance due to the
distorting effects of hindsight. Id. at 689. In addition, the
petitioner must overcome a strong presumption that the attorney's
conduct falls within a wide range of reasonable professional assistance.
Second, the petitioner must show that counsel's deficient
performance prejudiced her. Id. at 687. A petitioner must show
that counsel's errors "actually had an adverse effect on the
defense."*fn2 Id. at 693.
In the instant case, the Court cannot say that Hodges' trial counsel's
performance significantly prejudiced him or that his counsel's
representations fell below an objective standard of reasonableness. Contrary to Hodges' assertions now, his trial counsel did file a
motion for a new trial based upon the fact that Hodges had moved from
Marion, Illinois, to Chicago, Illinois, putting in question the
credibility of some of the Government's witnesses. Thus, Hodges' counsel
cannot be faulted for failing to raise an issue which he did, in fact,
In any event, Hodges has wholly failed to reveal to the Court the
identity of these witnesses, nor has he offered any proof from these
witnesses as to what their testimony might be. See Aleman v. United
States, 878 F.2d 1009, 1012 (7th Cir. 1989)(finding that no
evidentiary hearing was required where the petitioner failed to submit
specific allegations and failed to demonstrate that he had actual proof
of the allegation): see also Barry v. United States, 528 F.2d 1094, 1101
(7th Cir. 1976)(noting that a petition must be accompanied by a detailed
and specific affidavit which shows actual proof beyond unsupported
allegations). Thus, the Court finds that Hodges was not denied his Sixth
Amendment right to effective assistance of counsel.
As for his claim that Judge Riley should have recused himself based
upon his former representation of a witness involved in the case, the
Court finds that Hodges has wholly failed to satisfy either the cause or prejudice standard. This issue would certainly have had to have
been known at the time of the trial, but it was not raised by him on
appeal even though Hodges had different counsel on appeal than he had at
In any event, a petitioner filing a petition pursuant to
28 U.S.C. § 2255 must state specific facts which describe each ground for
relief so that the district court may tell from the face of the petition
whether further habeas review is warranted. See Rule 2(b) of
the Rules Governing § 2255 Cases; see also Adams v.
Armontrout, 897 F.2d 332, 334 (8th Cir. 1990)(§ 2254 petition).
A § 2255 petition cannot stand on vague and conclusory assertions of
a constitutional violation; rather, the petition must set forth facts
with sufficient detail to point the district court to the real
possibility of a constitutional error. See Oliver v. United
States, 961 F.2d 1339, 1343 n. 5 (7th Cir. 1992)(holding that a
district court may deny a § 2255 motion without a hearing "if the
allegations in the motion are unreasonably vague, conclusory, or
incredible, or if the factual matters raised by the motion may be
resolved on the record before the district court."); see also Shah
v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989)(holding that
vague or conclusory allegations warrant summary dismissal of § 2255
claims); see also United States v. Aiello, 814 F.2d 109, 113-14 (2nd Cir. 1987)(holding that
a § 2255 petition must be based on more than "[a]iry generalities,
conclusory assertions and hearsay statements."); see also United
States v. Unger, 635 F.2d 688, 691 (8th Cir. 1980)(holding that
"[c]onclusory assertions that a defendant's pleas were involuntary and
coerced are insufficient."). Hodges' bald assertion that Judge Riley
should have recused himself is an insufficient basis to grant him the
relief which he seeks.
Furthermore, as for Hodges' argument of an alleged agreement with the
Government not to call certain witnesses at the evidentiary hearing on
his motion for a new trial is wholly without merit. First,
Hodges has offered no proof of this alleged agreement, and it would be
illogical for the Government to enter into such an agreement given the
Seventh Circuit's remand for a hearing. Second, the Court, not
the Government, called the jurors as witnesses at the evidentiary
Finally, the Court notes that letting Petitioner's conviction and
sentence stand would not result in a fundamental miscarriage of justice.
Murray v. Carrier, 477 U.S. 478, 495 (1986).
Ergo, Petitioner's petition pursuant to 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence is DENIED.