United States District Court, N.D. Illinois, Eastern Division
October 1, 2004.
BERNARD S. BOHANON, Movant,
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
Before the court is Bernard Bohanon's motion to vacate, set
aside, or correct his sentence brought pursuant to
28 U.S.C. § 2255. Movant, Bernard Bohanon ("Bohanon"), challenges the length
of his sentence for mailing threatening communications. For the
reasons stated below, the motion is denied.
In 1991, Bohanon agreed to perform landscaping work at the home
of Joe and Mary Walker.*fn2 In an attempt to assist Bohanon,
who appeared to be "down on his luck," the Walkers befriended
Bohanon, offering him odd jobs around their house, providing
meals for him, and taking him to their church. In response to the
Walkers' kindness, Bohanon began to exhibit a "romantic interest" in Sharon Conner (also a pseudonym), the
Walkers' niece, who lived with the Walkers. The Walkers
disapproved of this development, told Bohanon this, and asked
Bohanon not to come to their house while Mr. Walker was at work.
At this point, Bohanon returned to Texas, where he had worked as
Shortly thereafter, the Walkers and Conner began to receive
letters from Bohanon. These letters are a part of the public
record of the district court, and the Seventh Circuit has quoted
several of these letters at length in its opinion affirming
Bohanon's sentence. See Bohanon, 290 F.3d at 871-73. The
court therefore declines to quote from these letters once again.
Suffice it to say that the letters Bohanon wrote and mailed to
the Walkers and Conner (of which there may have been nearly three
hundred in number) were filled with sickening and pointedly
In March 2001, Bohanon pled guilty to one count of mailing
threatening communications, in violation of 18 U.S.C. § 876. The
district court sentenced Bohanon to a forty-eight month term of
imprisonment, followed by three years of supervised release. In
reaching this decision, the district court enhanced Bohanon's
sentence by eleven months, pursuant to the federal Sentencing
Guidelines, finding that Bohanon had intended to carry out the
threats, caused real psychological harm to his victims, and had
made more than two threats. The Seventh Circuit affirmed this
sentence in May 2002. Bohanon, 290 F.3d at 869.
In November 2002, Bohanon filed the present collateral attack
on the length of his sentence. His motion raises three issues:
(1) whether he suffered from diminished capacity at the time he
wrote the letters; (2) whether the district court abused its
discretion under the Sentencing Guidelines in enhancing his
sentence; and (3) whether the district court should now lower his sentence based on the supposed removal of two prior misdemeanors
from his criminal record.
On June 30, 2003, Respondent, the United States of America
("Government"), filed a response to this § 2255 motion. The court
ordered Bohanon to file a reply, if any, by July 16, 2003. See
Minute Order of May 15, 2003. Bohanon did not reply to the
Government's response. Bohanon's § 2255 motion is fully briefed
and before the court.
A. Standard of Decision
Section 2255 allows a person convicted of a federal crime to
vacate, set aside, or correct his sentence. This relief is
available only in limited circumstances, such as where an error
is jurisdictional, of Constitutional magnitude, or there has been
a "complete miscarriage of justice." See Harris v. United
States, 366 F.3d 593, 594 (7th Cir. 2004). The statute states:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
28 U.S.C. § 2255 ¶ 1. If the court determines that any of these
grounds exists, it "shall vacate and set the judgment aside and
shall discharge the prisoner or resentence him or grant a new
trial or correct the sentence as may appear appropriate."
28 U.S.C. § 2255 ¶ 2. In making that determination, the court must
review evidence and draw all reasonable inferences from it in a
light most favorable to the government. See United States v.
Galati, 230 F.3d 254
, 258 (7th Cir. 2000); Carnine v. United
States, 974 F.2d 924
, 928 (7th Cir. 1992).
Section 2255 petitions are subject to various bars, including
that of procedural default. Section 2255 petitions are "`neither a recapitulation of nor a
substitute for a direct appeal.'" McCleese v. United States,
75 F.3d 1174, 1177 (7th Cir. 1996) (citations omitted). Thus, a §
2255 motion cannot raise: (1) issues that were raised on direct
appeal, unless there is a showing of changed circumstances; (2)
non-Constitutional issues that could have been raised on direct
appeal, but were not; and (3) Constitutional issues that were not
raised on direct appeal. See Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992) (overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994)).
There are two exceptions to the procedural default rule: (1) if
the movant demonstrates cause for failing to raise the issue and
actual prejudice resulting therefrom; or (2) the court's refusal
to consider the Constitutional issue would result in a
fundamental miscarriage of justice, which requires a showing of
actual innocence. See Belford, 975 F.2d at 313 (collecting
authority); see also McCleese, 75 F.3d at 1177-78
(discussing fundamental miscarriage of justice). With these
principles in mind, the court examines Bohanon's motion.
B. Bohanon's Claim of Diminished Capacity
Bohanon asserts that at the time he wrote and mailed the
letters to the Walkers he was suffering from "diminished
capacity," stating, "I was, at the time, under some sort of
dillusion [sic], believing these people to have cast a spell upon
me through spiritual contact. . . . My mental state at the time
was reduced due to a mental illness or delusion and caused me to
be unable to exercise the power of reason in the situation." Mot.
Under 28 U.S.C. § 2255, at 5. Bohanon then argues that under
federal Sentencing Guideline § 5K2.13, his diminished capacity
should have afforded him a lower sentence. However, Bohanon
failed to raise this issue on direct appeal to the Seventh
Circuit. The Seventh Circuit has explained the grounds of Bohanon's appeal: "[Bohanon's] contentions are that the judge
made findings which contradict the imposition of the enhancement,
failed to explain clearly the reasons for the upward departure,
and failed to link the extent of the departure to the structure
of the guidelines." Bohanon, 290 F.3d at 874-75. Since
Bohanon's claim of diminished capacity was not brought on direct
appeal, and presents the court with no constitutional issue, it
is therefore procedurally barred at this stage of the game.
Broadway v. United States, 104 F.3d 910, 903 (7th Cir. 1997)
("non-constitutional errors which could have been raised on
appeal but were not, are barred on collateral review regardless
of cause and prejudice. . . .").
C. Bohanon's Claim that the District Court Abused its
Discretion in Enhancing His Sentence Under the Sentencing
Bohanon's second argument is that the district court failed to
properly apply the Sentencing Guidelines to his case. Mot. Under
28 U.S.C. § 2255, at 5. Specifically, Bohanon asserts that since
there is "no evidence that Mr. Bohanon's victims suffered any
physical or lasting psychological injury as a result of Mr.
Bohanon's threats . . ." the district court erred in enhancing
his sentence under the Guidelines. Id. Bohanon failed to bring
this claim on his direct appeal. This claim is therefore also
procedurally barred. United States v. Redding, 104 F.3d 96, 99
n. 3 (7th Cir. 1996) ("arguments based on the Sentencing
Guidelines must be raised on direct appeal or not at
all. . . ."); see also Martin v. United States,
109 F.3d 1177, 1178 (7th Cir. 1996).
The Seventh Circuit has recognized that where there has been a
"fundamental miscarriage of justice," it may be possible, in a §
2255 motion, to bring a claim that a district court failed to
properly follow the Sentencing Guidelines. See Allen v. United
States, 175 F.3d 560, 563 (7th Cir. 1999); see also
Martin, 109 F.3d at 1178. Bohanon, however, has failed to
allege that there was a "fundamental miscarriage of justice" in his case. Moreover,
the Seventh Circuit affirmed the sentence, calling the upward
departure in sentencing "modest." Bohanon, 290 F.3d at 874. The
exception for a "fundamental miscarriage of justice" therefore
does not apply to this case.
C. Bohanon's Claim that His Sentence Should be Lowered Due to
His Changed Criminal Background
Finally, Bohanon argues that since a court in Dallas County,
Texas has "discharged" two misdemeanor violations from his
record, the district court should reduce his sentence in light of
his now accurate criminal record. Mot. Under 28 U.S.C. § 2255, at
5. There are two problems with Bohanon's final argument. First,
Bohanon provides no proof that a Texas court has removed any
convictions from his record, nor does he inform the court as to
when this supposedly occurred. See Gray-Bey v. United States,
156 F.3d 773, 739 (7th Cir. 1998) (§ 2255 petitions must be
accompanied by proof of petitioner's allegations); see also
Mitchell v. United States, 359 F.2d 833, 837 (7th Cir. 1966)
("concerning petitions under § 2255: specific facts should be
alleged to support the claim . . . petitioner must show that he
has proof of his allegations beyond unsupported assertions.").
Second, Bohanon did not raise this issue on appeal. As discussed
above, non-constitutional issues not raised on appeal are
procedurally barred from being raised in § 2255 petitions.
Broadway, 104 F.3d at 903. Bohanon's final argument in support
of his § 2255 petition therefore fails.
For the foregoing reasons, Bernard Bohanon's motion to vacate,
set aside, or correct his sentence brought pursuant to
28 U.S.C. § 2255 is denied.
IT IS SO ORDERED.