The opinion of the court was delivered by: John Daniel Tinder, Judge
Entry Discussing Petition for Writ of Habeas Corpus*fn1 For the reasons explained in this Entry, the petition of Amiel Cueto ("Cueto") for a writ of habeas corpus is denied and this action is dismissed for lack of jurisdiction.
After a jury trial, Cueto was convicted in this court of one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and three counts of obstruction of justice, in violation of the omnibus clause of 18 U.S.C. § 1503. Cueto's convictions and sentences were affirmed on appeal in United States v. Cueto, 151 F.3d 620 (7th Cir. 1998), cert. denied, 536 U.S. 1016 (1999). In that appeal, Cueto argued that: (1) the conviction for conspiracy to defraud was invalid because of constitutional infirmities and because of insufficiency of the evidence; (2) the convictions for obstruction of justice were also invalid because of constitutional infirmities and insufficiency of the evidence; (3) he was entitled to a new trial because the district court erroneously excluded certain defense evidence; and (4) his sentence should be vacated and remanded because the trial court erroneously calculated his sentence. Id. at 624.
Following the conclusion of his direct appeal, Cueto filed an action for collateral relief pursuant to 28 U.S.C. § 2255. In that motion, he raised six separate grounds for relief:
! The government's failure to produce a letter from the U.S. Attorney to the Administrator of the Illinois Attorney Registration and Disciplinary Commission constituted a Brady violation and compelled the defendant to bear witness against himself in violation of the Fifth Amendment of the United States Constitution.
! The introduction of testimony which the government knew was perjured could have affected the judgment of the jury and on this basis alone, a new trial is required.
! Previously disclosed evidence reveals that the trial judge was biased or that there was an appearance of Rule 11 impropriety requiring a new trial.
! An intervening change of law rendered co-defendant Albert Romanik's grand jury testimony inadmissible, requiring a new trial for Cueto.
! The sentence should be vacated in that 87 months imprisonment and an $80,000 fine are in excess of the maximum allowed by law, and the trial court did not have jurisdiction to impose an excessive sentence.
! Cueto had a good faith belief that other Brady violations occurred, which could be brought to the trial court's attention through discovery or an evidentiary hearing.
This motion was denied by the trial court in an unpublished order, United States v. Cueto, No. 99-831-SNL (S.D. Ill. Aug. 18, 2000), and both the trial court and the Court of Appeals declined to issue a certificate of appealability.
Cueto now seeks habeas corpus relief pursuant to 28 U.S.C. § 2241(c)(3). The United States, through Cueto's past custodian, has opposed the habeas filing, and Cueto has replied.
Cueto asserts eleven individual points as reasons that his convictions should be vacated. The points are interrelated as will be noted. The central premise to virtually all of Cueto's arguments is his view of the structure of the charges of convictions and the nature of the evidence upon which he was convicted. Simply put, he contends that he was convicted for publishing a newspaper and for doing other lawful acts.
Point One: Cueto contends that all the matters underlying his convictions relate to his publication of a newspaper entitled "The Eastside Review." He contends that it is the publication of the newspaper which is the overt act alleged to complete the conspiracy, and which is also the corrupt motive underlying the obstruction counts of which he was convicted. He asserts that his activities related to the publication of the newspaper were protected under the First Amendment. He further contends that the decision by the Ninth Circuit Court of Appeals in Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) created a new rule of law that excludes from First Amendment protection only statements or threats which are done with malice and specific intent in communicating true threats to kill, assault, or do bodily harm to individuals.
Point Two: Cueto contends that he could not be convicted of obstruction of justice because his actions which are alleged to be "corrupt endeavors" occurred when there were no judicial proceedings in existence for him to have obstructed. He also contends that it was impossible to conspire or agree to obstruct judicial proceedings that were not in existence. As a final attack on Count 2, Cueto asserts that the last act which could have been part of the conduct underlying that conviction was the filing of his brief in the Supreme Court on May 31, 1994. The maximum penalty for a violation of 18 U.S.C. § 1503 was 60 months imprisonment and a $5,000 fine, yet his sentence on that count exceeded those limits both as to incarceration and fine. He repeats this assertion as to Counts 6 and 7, and as to the fine of $20,000 on Count 1.
As to Count 6, Cueto contends that the acts associated with Count 6 occurred before the 1994-1 grand jury was empaneled and argues that there is an evidentiary insufficiency relating to Count 6. Count 7 is challenged by Cueto by contending that no false pleadings or papers filed in the racketeering prosecution were identified and linked to him. He contends that, at best, Count 7 could be based on a motion to recuse that was to be filed by attorney Alessi on behalf of defendant Erin Griffin in the racketeering prosecution, yet, technically, even that motion was not filed because it was returned unfiled to counsel. He also argues that if he cannot be convicted of the substantive offenses of Counts 2, 6 and 7, he cannot be convicted of conspiracy to obstruct the proceedings referred to in those counts.
Point Three: Cueto contends that the prosecutor assigned to his case should have been disqualified because of her involvement in other litigation, that the prosecutor acted in an irregular manner when the charges against Cueto were filed, and that these circumstances spilled over into evidentiary rulings made during the trial.
Point Four: Cueto contends that he was denied his right to self-representation.
Point Five: Cueto contends that Judge Stephen Limbaugh unduly restricted Cueto's testimony on direct examination and that he was denied the right to testify. He also contends that error was committed when his counsel were compelled to disclose that he was going to testify.
Point Six: Cueto contends that his Sixth Amendment right to have compulsory process for obtaining witnesses in his favor was denied.
Point Seven: Cueto contends that his right to confront witnesses was denied because a grand jury transcript of Albert Romanik's testimony was admitted into evidence over his objection. Romanik did not testify at trial. Cueto also claims that the prosecutor engaged in misconduct by stating to the jury that Romanik's guilty plea was vicariously applicable to Cueto.
Point Eight: Cueto contends that he was denied the right to confront witnesses with respect to Thomas Venezia.
Point Nine: Cueto contends that he was denied the right to a trial. In essence, this is the aggregate of the preceding errors he asserts, especially Points 2, 4, 5, 6, 7 and 8. Cueto argues that the combination of all of those errors resulted in his not actually having a trial.
Point Ten: Cueto contends that he was denied a fair trial because Judge Limbaugh was prejudiced against him.
Point Eleven: This point was raised in Cueto's filing on November 24, 2003, in an Addendum to his Memorandum in Support of the Count One Application for Writ of Habeas Corpus. In this point, Cueto argues that the Indictment which was the subject matter of the trial was not the indictment that was returned by the Grand Jury.
Non-claims: At the conclusion of his memo in support of his Amended Application for Writ of Habeas Corpus (pages 178-179), Cueto indicates that many other errors could have been raised through a habeas corpus proceeding, as he says, and "to argue them all would fill a tome longer than War and Peace."
III. Preliminary Matters, Post-Hearing Motions, and Further Findings
A. Forensic Testing and Additional Discovery
At the close of the evidentiary hearing and argument conducted on April 30, 2004, Cueto requested leave to have an audio tape and the recording equipment subjected to forensic testing. The requested testing is for the purpose of supporting Cueto's position that either he was not named in the indictment returned on July 18, 1996, or that the indictment returned on that date was a different indictment than that unsealed on August 9, 2005, all in United States of America v. Amiel Cueto, et al., Court No. 96-30070-SNL.
The court finds from the trial court's records and from the evidence at the hearing of April 16, 2004, however, that Cueto was charged in the indictment contained in the court's records. That indictment was returned on July 18, 1996. It was unsealed on August 9, 2005. Further explanation of the circumstances under which this indictment was returned, and the manner in which it was processed by the Clerk's Office, is set forth in Part III.C. of this Entry. The court's finding on this point makes the requested forensic testing an exercise in futility and a waste of time and other resources. Because an indictment carries a "presumption of regularity," United States v. R. Enters., Inc., 498 U.S. 292, 300-01 (1991), based on the present state of the record, the court concludes that in this case the indictment was properly returned and it will not indulge Cueto in what can only be described as a fishing expedition. The request for forensic testing of the cassette tape and recording equipment is denied. The same conclusion is reached, and the same ruling is made, with respect to the possible depositions of persons not called as witnesses on April 30, 2004.
B. Post-Hearing Disclosure by United States and Motions
As the parties recognize, and as a refrain which must be repeated throughout this decision, the court's first task in this case is not to fix errors, nor to revisit points at which challenged decisions were made, nor to opine on whether it would have ruled differently, but to first of all determine whether the habeas court has the authority to make such inquiries given the circumstances of the case. See Sherman v. Cmty. Consol. Sch. Dist. 21, 980 F.2d 437, 440 (7th Cir. 1992) ("judges must consider jurisdiction as the first order of business."). Not even by agreement could the parties enlarge the court's jurisdiction-and, of course, the United States has consistently argued that jurisdiction is absent.
Following the proceeding on April 30, 2004, the United States filed certain material under seal. This material consisted of a transcript of the grand jury testimony of Congressman Jerry Costello given on April 15, 1996. One subject of that testimony was Congressman Costello's meeting with St. Clair County State's Attorney Robert Haida. The United States now concedes that the grand jury testimony of Congressman Costello could be read as partially contradicting the testimony given by Haida at Cueto's trial. The United States submitted this material with the view that this transcript "should have been disclosed to the defense under the general principles of Brady v. Maryland, 373 U.S. 83 (1963)." "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87.*fn2
The transcript of Congressman Costello's April 15, 1996, testimony before the grand jury need not be disclosed at this point. Apart from its content and potential use to Cueto, one prong of a so-called Brady violation is that the evidence was of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. United States v. Aldaco, 201 F.3d 979, 982-83 (7th Cir. 2000). In this instance, Cueto knew about Congressman Costello's testimony before the grand jury and could have elicited information concerning that testimony, and hence the basis for contradicting any part of Mr. Haida's testimony, by interviewing the Congressman before trial or calling him as a witness at trial. Cueto did neither of these things.*fn3 Nonetheless, it is clear from assertions made by Cueto prior to, during, and after trial that Cueto knew that Costello's testimony would have been favorable to him. Additionally, Cueto plumbed the depths of Congressman Costello's testimony before the grand jury previously, in the § 2255 motion itself, and any effort to do so again by capitalizing on the United States' in camera filing of September 30, 2004, would come too late. Taylor v. United States, 3:04-CV-1865-P, 2004 WL 2479913 (N.D. Tex. Nov. 2, 2004) ("Nor does Petitioner's Brady claim fall under the savings clause. His Brady claim is not (i) based on a retroactively applicable Supreme Court decision which established that the petitioner may have been convicted of a nonexistent offense, and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner's trial, appeal or first § 2255 motion.") (citing Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001)). Indeed, Cueto's "point 6" in his § 2255 motion includes explicit reference to the undisclosed grand jury testimony of Congressman Costello. In explaining why he did not call Congressman Costello as a witness at trial, Cueto states on pages 59-60 of the Memorandum he filed on June 1, 2000, in No. 99-831-SNL, that:
The defense was faced with the dilemma of whether the assertions of the Congressman's lawyers--that the grand jury testimony was exculpatory--were correct; or whether the pleadings and assertions of the Government--that Congressman Costello's testimony was inculpatory--were true. The Government had not disclosed the Costello grand-jury transcript as it was bound to do under Brady v. Maryland, if the testimony of the Congressman was exculpatory or impeaching. The defense finally decided to take the ...