The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the motion of Nathan Hill
to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255, his motion for a new trial pursuant to
Fed.R.Crim. Proc. 33, and his two motions for recusal. For the reasons
set forth below, the motions are denied.
In 1995, Hill was indicted along with more than 20 codefendants
on charges of conspiracy to distribute cocaine, continuing
criminal enterprise, drug trafficking, money laundering, and
related offenses. Shortly after the indictment issued, Hill fled
the United States, seeking refuge in places as diverse as Mexico,
Côte d'Ivoire, and the Bahamas before ultimately settling in
Conakry, Guinea. After two trials had been completed for others charged in the indictment, Hill was arrested
in Guinea and was returned to this country in early 1998 to face
the pending charges along with codefendant Cordell James.
Hill initially retained Thomas Durkin to represent him. As
events progressed, particularly with respect to restriction of
assets that were suspected to derive from the conduct described
in the indictment, Hill's financial wherewithal deteriorated and
the court appointed Durkin and his associate, Patrick Blegen, as
counsel. Because the trial and preparation therefor promised to
be time-consuming and extended, Durkin asked to be relieved from
the appointment. Although he was offered other appointed counsel,
Hill opted to represent himself with Blegen remaining in the case
as standby counsel. Hill apparently envisioned a more expansive
role and greater authority for Blegen than would typically be
played by standby counsel. At a court proceeding in November
1998, Blegen informed this court of Hill's wishes and it was
decided that Blegen would assume a hybrid role with respect to
Hill's representation. See Tr. 11/24/1998 at 3-4. Hill
expressed his satisfaction with the resulting arrangement at that
time. See id. at 4.
At first, Hill sought to accelerate the commencement of the
trial but later shifted gears and began requesting multiple
extensions of filing dates and the trial date. After a three-week
extension from the originally scheduled date, the trial commenced
in late March 1999, and the avalanche of evidence occupied nearly
two months. Hill testified at trial; his codefendant James did not. When all was said and
done, the jury found Hill guilty on seven counts. No verdict was
reached on Count Three, which revolved around a particular drug
transaction alleged to have occurred around January 21, 1993.
Hill was acquitted of Count Eight, which involved charges of
various money laundering activities. In November 1999, Hill was
sentenced to life in prison and fined in excess of $8 million. He
and James appealed their convictions, which were upheld in
United States v. Hill, 252 F.3d 919 (7th Cir. 2001).
In June 2003, Hill filed a motion for relief from his sentence
pursuant to 28 U.S.C. § 2255 petition. He has also filed two
motions to recuse and a motion for a new trial pursuant to
Fed.R. Crim. Proc. 33. Each of these motions is addressed below.
Because the motions to recuse and for a new trial are founded
on the same relatively straightforward contentions, we consider
The motions to recuse, as well as the motion for a new trial,
are at bottom regurgitations of motions that have already been
raised, considered, and decided.*fn1 The doctrine of the law of the case provides that a court's decision
upon a rule of law governs the same issues if they arise at
subsequent stages of a case absent a strong reason to depart from
the prior decision. United States v. Story, 137 F.3d 518, 520
(7th Cir. 1998). Hill has not advanced any reason to replow the
ground covered by this court and the court of appeals, let alone
the requisite strong rationale.*fn2
Hill's two motions to recuse derive their primary foundation
from a case called In re Hatcher. 150 F.3d 631 (7th Cir. 1998).
Hill argues that the rationale that led the Seventh Circuit to
order recusal in Hatcher applies with equal force to his
situation. Thus, says Hill, this court's presiding over his trial
created an appearance of impropriety that is prohibited by
28 U.S.C. § 455(b).
Hill's faith in Hatcher is misplaced. The recusal in
Hatcher was ordered because of that case's intimate connection
to an earlier case, United States v. Hoover, 95 CR 508. A
careful reading of Hatcher reveals that the Court of Appeals
framed the issue in the following manner: "The question here is
whether the Hoover case . . . is so closely related to Hatcher's
case that our hypothetical reasonable person would question the
judge's impartiality." Id. at 638. The indictment charging
Hatcher was one of three virtually identical indictments that came out of one
investigation. See id. at 632. The appellate court concluded
that the separation of the Hoover and Hatcher proceedings was
formal, not substantive, such that the indictments in the two
cases were functionally one. Id. at 638.
Even the most cursory comparison of the indictment in this case
with those in Hoover and Hatcher reveals none of the
similarities upon which the Seventh Circuit relied in concluding
that the latter two were in essence one proceeding. See id.
at 633-34, 638. The tangential connection between this case and
that prosecution is tenuous at best, and certainly nowhere near
strong enough to qualify as "the rare case where the earlier
proceedings were so close to the case now before the judge" that
recusal was required under § 455(b). See id. at 638. Hill's
assumption that Hatcher controls is simply wrong, and the
motions to recuse are denied.
B. Motion for a New Trial
Relying on the same circumstances that underpin his motions to
recuse, Hill requests a new trial based upon his discovery of
"new" evidence in the form of transcripts from the Hoover trial
recently given to him by a fellow inmate.
First and foremost, we note that Fed.R. Crim. Proc. 33
provides that "[a]ny motion for a new trial grounded on newly
discovered evidence must be filed within 3 years after the
verdict or finding of guilty." The jury rendered its verdict of
guilt on May 24, 1999. The instant motion for a new trial, filed in June
2003, was more than a year late for the three-year deadline.
See, e.g., United States v. Ross, 372 F.3d 1097, 1105 n. 6
(9th Cir. 2004). As such, the motion is untimely presented and is
denied for that reason.
Second, this motion, like the motions to recuse, implicates the
law of the case. This is at least the second time Hill has moved
for a new trial on these same grounds, so even if he had made the
instant motion within the three years allowed by Rule 33, he has
not provided any compelling rationale to reconsider what has come
Furthermore, even if the motion had been timely filed and
presented issues that had not been previously ruled upon, Hill's
chances of obtaining a new trial would be slim to none. Motions
for a new trial based on newly discovered evidence are not
favored and are viewed with the utmost caution. See United
States v. Goodwin, 770 F.2d 631, 639 (7th Cir. 1985). A grant of
a new trial is appropriate only in extreme cases. See United
States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998).
To justify the need for a new trial to present newly discovered
evidence, a defendant must show that he or she did not become
aware of the evidence before the trial ended and could not,
through due diligence, have discovered the evidence during the
pendency of the trial. See United States v. Gillaum,
372 F.3d 848, 858 (7th Cir. 2004). The reasons for these requirements are
obvious; a trial is meant to provide the factfinder with the fullest amount of admissible evidence upon
which to base a verdict. Neither party can be permitted to play
just a few of the cards in its hand the first time around, while
keeping an ace in the hole to be thrown down only in the event of
defeat. In addition to showing that evidence is truly "newly
discovered," a defendant must show that the new evidence is
material to an issue that was decided during the trial. Id.
Finally, and perhaps most importantly, a defendant must show
that, in the event of a new trial, the new evidence is so
powerful that it will probably lead to an acquittal.
The transcripts Hill claims he only recently discovered were a
matter of public record during his trial and even before. In
addition, as the second motion for a new trial makes clear, Hill
was aware of the substance of his claims for a minimum of three
years and eight months before he filed the instant motion, even
if he did not have this particular record of their
existence.*fn3 Tr. 10/19/99, at 8-9; Docket, Docs. 1102,
1111. Thus, Hill's claim that he has only recently unearthed a
potential basis for relief is at best counterfactual and at worst
disingenuous. Moreover, the evidence to which Hill draws
attention was not material to any of the issues at his trial; the
specific argument he makes is wholly irrelevant to the issues the
jury was asked to decide. Even if we were to assume that the ownership of the money discussed within
the transcripts was in dispute, no reasonable jury could see that
issue as the difference between conviction and acquittal for
Hill, given the mountain of other proof against him provided by
the government's case and his own testimony.
It is incumbent upon Hill for purposes of this motion to show
each and every one of the four factors described above before a
new trial could be possible. See id. He has shown none, so
the motion would have no merit even if he had filed it on time,
for the first time.
C. Motion to Vacate, Set Aside, or Correct Sentence
Finally, we turn our attention to the most substantial of
Hill's pending motions: his § 2255 motion.*fn4 Relief under
§ 2255 is limited to situations where a conviction or sentence is
founded in "an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which
inherently results in a complete miscarriage of justice." Bischel v. United States, 32 F.3d 259, 263 (7th Cir.
1994). A grant of a § 2255 motion is the rare exception, not the
general rule. See Prewitt v. United States, 83 F.3d 812, 816
(7th Cir. 1996); United States v. Kovic, 830 F.2d 680, 683 (7th
Cir. 1987). When reviewing a § 2255 motion, the district court
must review the record and draw all reasonable inferences in
favor of the government. See Carnine v. United States,
974 F.2d 924, 928 (7th Cir. 1992). Because Hill is not represented by
counsel, his motion must be read liberally. Blake v. United
States, 841 F.2d 203, 205-06 (7th Cir. 1998).
The motion*fn5 puts forth ten grounds for relief:
involuntary waiver of Hill's Sixth Amendment right to counsel; violation of his Fifth Amendment
right to testify in his own defense; violation of his Fifth
Amendment right against self-incrimination; failure of the
indictment to properly charge an offense; denial of Fifth
Amendment due process in a variety of ways; deficient jury
instructions; denial of a motion to continue the trial date;
inability to pay for counsel of his choice because of threats
made to his family members who tried to offer funds; interference
with his ability to compel witnesses to testify in his defense;
and failure of his counsel to submit a particular jury
First, we must address the government's argument that Hill has
procedurally defaulted on his claims, obviating consideration of
their merits. When a defendant fails to raise an available claim
during direct review, the doctrine of procedural default normally
will bar its consideration in a § 2255 motion. Galbraith v.
United States, 313 F.3d 1001, 1006 (7th Cir. 2002). A district
court need not reach the merits of an issue in a § 2255
proceeding unless it has been raised in a procedurally
appropriate manner. See Williams v. United States,
805 F.2d 1301 (7th Cir. 1986). A § 2255 motion is neither a recapitulation of nor a substitute for a direct appeal.
See McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir.
1996). This general rule is subject to two exceptions: where a
defendant can satisfy the "cause and prejudice" test ...