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October 1, 2004.

U.S., Respondent.

The opinion of the court was delivered by: CHARLES NORGLE, District Judge


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 a roofer.

  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 threatening language.

  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 ...

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