The opinion of the court was delivered by: J. PHIL GILBERT, District Judge
The Court previously found that Petitioner was not entitled to
relief under 28 U.S.C. § 2255, thus denying his motion and
dismissing this action. On appeal, the Seventh Circuit held that
the Court erred in failing to consider the arguments presented in
Petitioner's proposed amendments to his motion; therefore, the
judgment was vacated, and the case was remanded for consideration
of those arguments.
The Clerk docketed this pleading as a motion to amend, but
Petitioner titles it as his amendment to pending 2255 motion, and
it was submitted with his self-titled request to amend (Doc. 6).
In this amendment, Petitioner argues that the Court erred in
imposing a $500 fine against him as part of his sentence. He
bases this argument on the fact that the PSI indicated that he
had no assets or income with which to impose a fine. He concedes
that he does earn an income through his work assignment in the
B.O.P., although such employment is compelled by the B.O.P. In
turn, his meager income from UNICOR is subjected to garnishment under the
Inmate Financial Responsibility Program ("IFRP"), which would not
occur if the Court had not imposed the unjustified fine of $500.
Essentially, he argues that he has been forced into labor for the
purposes of paying a fine that was imposed in violation of the
Eighth Amendment's proscription against cruel and unusual
Petitioner cites no legal authority that supports his argument.
He points to Browning-Ferris Industries v. Kelco Disposal Inc.,
492 U.S. 257 (1989) for the Supreme Court's discussion of
excessive fines,*fn1 but Petitioner concedes that "it may be
debatable" whether his $500 fine could be considered excessive.
Given that the statute authorizes a fine as great as $4,000,000,
Petitioner's $500 fine is hardly excessive; rather, it is a mere
Petitioner also relies upon United States v. Yahne,
64 F.3d 1091 (7th Cir. 1995), which held that "the district court
erred in delegating to the probation office the specification of
a payment schedule for the fine and restitution." Id. at 1097.
See also United States v. Murphy, 28 F.3d 38, 42 (7th Cir.
1994). Such is not the case here, as it is the B.O.P., rather
than the probation office, which is collecting his fine; the
Seventh Circuit has consistently upheld the B.O.P.'s collection
of court-imposed fines through the IFRP. See, e.g., McGhee v.
Clark, 166 F.3d 884 (7th Cir. 1999).
Finally, Petitioner believes that his argument regarding
inability to pay is supported by United States v. Wells,
177 F.3d 603 (7th Cir. 1999). However, Wells involves the
imposition of restitution, as opposed to a fine imposed pursuant
to statute. Compare 18 U.S.C. § 3663 with 18 U.S.C. § 3572,
21 U.S.C. § 841(b). Therefore, the sole ground for relief raised
in Petitioner's first amendment (Doc. 6) is without merit. LEAVE TO SUPPLEMENT (DOC. 8)
The argument presented in this pleading relates back to his
original argument regarding the computation of his criminal
history category. In the June 2, 2003, order (Doc. 10), the Court
Petitioner argues that his criminal history was
"grossly over-represented." He was assessed 15
criminal history points giving him a criminal history
category of VI. (Presentence Investigation Report, p.
12). Petitioner goes on to list those offenses for
which he received criminal history points. However,
petitioner does not provide any case law which
indicates that the Court, or the probation office
incorrectly determined his criminal history category.
After a thorough review of the record, the Court
remains convinced that the criminal history points
assessed, and the criminal history category in which
petitioner was placed, are correct. Therefore, any
claim that his constitutional rights were violated
because his criminal history points were incorrectly
determined is without merit.
In this supplement (Doc. 8), filed almost two years after his
Section 2255 motion was filed, Petitioner alleged that all of
his prior convictions were uncounseled, that he did not knowingly
waive his right to counsel in any of those prosecutions, and at
the time of those prior convictions, he was never apprised of his
constitutional rights. Later, in his motion for certificate of
appealability, Petitioner again argued that his prior convictions
were uncounseled (Doc. 14). In that motion, Petitioner claimed
that "the issues of the uncounseled prior convictions had
already been asserted in the original 2255 Motion. . . ." Id.
at 2 (emphasis in original). As support for this claim, he points
to Ground 1 and Ground 5 of the original motion, as well as
Exhibit C. However, Petitioner's original motion (Doc. 1)
contains no reference to his prior convictions at all. Therefore,
the Court guesses that Petitioner must be referring to his
Memorandum (Doc. 5), which was filed almost six months after the
original motion was filed.
In that Memorandum, Ground 1 only presents the argument that
Petitioner's criminal history was over-represented, as the vast
majority of his prior record is comprised of misdemeanor offenses involving domestic disputes with his former girlfriend.*fn2
Contrary to his assertions, there is no reference in Ground 1
to his claim that these prior convictions were uncounseled.
In Ground 5, Petitioner once again argued that his criminal
history was miscalculated, stating that "he was assessed 2
criminal history points for offenses that he plead guilty,
under the advisement of a court appointed public defender, and
received 12 months court supervision, for which he successfully
completed." Id. at 7 (bold in original; italics added for
emphasis). Petitioner later elaborated on these arguments,
In all of the adjudications in State court, they
were all obtained through ineffective assistance
of counsel in the plea process, in that counsel did
not advise or misadvised Petitioner in each
instance, and Petitioner did reasonably believe that
no adverse consequences could arise in the future
such as future federal sentence enhancements would
flow from the completed supervisions, nor the
misdemeanor charges filed by his girlfriend. . . .
Petitioner was actively mislead by the State Statute,
and by affirmative actions of defense counsel, the
prosecutor, and the court in each of the completed
supervision adjudications, to believe incorrectly
that if he satisfactorily completed supervision, the
outcome would be equivalent to a "not guilty", and he
would not later suffer any adverse consequences.
Id. at 18 (emphasis added). Again, the Court finds no reference
to any assertion that could be construed as a claim that his
prior convictions were uncounseled and, in fact, a claim that he
had no counsel is completely contradicted by these statements.
Finally, the Court examines Exhibit C to the Memorandum.
Exhibit C consists of four pages that appear to be screen-prints
from the St. Clair County court records. These print-outs relate
to only two of Petitioner's prior convictions, indicating that
for each, Petitioner paid a $100 fine and successfully completed one year of supervision.*fn3 Contrary
to his assertions, these print-outs do not prove that these
convictions were uncounseled. Even if the Court were to discount
these two points, Petitioner would still fall into Criminal
History VI with 13 or more points.*fn4
The Court finds it inconceivable that Petitioner would clearly
articulate his dissatisfaction with counsel's representation
during his prior state court proceedings, only to allege almost
18 months later that he never had counsel for any of those
state court proceedings and did not knowingly waive that right or
any other rights. In fact, in his Memorandum, Petitioner even
conceded that he "can not attack the existence of these
adjudications." Id. at p. 17, citing Custis v. United States,
511 U.S. 485 (1994). Therefore, at the time he filed his
Memorandum, in December 2001, Petitioner was aware of the
principle that with sole exception of convictions obtained in
violation of right to counsel, a defendant in a federal
sentencing proceeding has no constitutional right to collaterally
attack the validity of previous state convictions used to enhance
his sentence. Id. at 490-97. See also Daniels v. United
States, 532 U.S. 374, 378-79, 382 (2001) (applying Custis rule
in context of a collateral attack under 28 U.S.C. § 2255). To
make allegations in direct contradiction to his earlier
statements is disingenuous, at best, and the Court will not
Consequently, the grounds raised in his amendment (Doc. 8)
cannot provide him relief under § 2255. In summary, as discussed above, the grounds presented by
Petitioner in his two amendments do not entitle him to relief
under Section 2255 of Title 28. The Court previously found that
the grounds raised in his original motion (Doc. 1) did not
entitle him to such relief (Doc. 10). Accordingly, Petitioner's