The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
On April 19, 2001, a federal grand jury indicted Petitioner Roy Young for kidnaping Beatrice Patrick, committing interstate domestic violence against her, and carrying a firearm during and in relation to the commission of a crime of violence. On August 28, 2001, the jury acquitted Young on the kidnaping charge, but found him guilty of the remaining counts. This court sentenced Young to five years for each count to run consecutively, for a total term of 120 months, and the Seventh Circuit affirmed his conviction and sentence.
Petitioner now collaterally attacks his conviction and sentence pursuant to 28 U.S.C. § 2255. Petitioner argues that his sentence violates the prohibition on ex post facto laws and transgresses the Federal Sentencing Guidelines. Petitioner also asserts that the jury had insufficient evidence upon which to convict him of interstate domestic violence or using a firearm to commit a crime of violence; the U.S. District Court for the Northern District of Illinois was an improper venue to try him under 18 U.S.C. § 924(c)(1)(A); and his trial and appellate counsel were unconstitutionally ineffective. For the reasons stated here, the court denies Young's petition.
The Seventh Circuit's decision affirming Petitioner's conviction provides an extensive overview of the facts giving rise to Petitioner's indictment and the trial proceedings. See United States v. Young, 316 F.3d 649, 652-56 (7th Cir. 2002). Patrick and Petitioner began dating as teenagers in the late 1980s. Id. at 652. The couple's stormy relationship produced three children, but was marred by physical violence from its inception, (Tr. at 373); in April 2000, Patrick obtained an order of protection. Young, 316 F.3d at 652. By January 2001, Patrick and Petitioner were living apart, she in Chicago, Illinois, and he in Michigan City, Indiana. Id.
On January 14, 2001, Petitioner drove from Michigan City to Chicago where he found Patrick in the company of another man. Id. at 653. After a struggle in which Petitioner punched Patrick, smashed a car window with a jack, and threatened to kill her, Patrick returned to Indiana with Petitioner.*fn1 Id. Once in Petitioner's apartment, Petitioner punched, kicked, and choked Patrick repeatedly over the course of four days. Id. Patrick testified to the grand jury that Petitioner loaded a gun and struck her in the face with it. Id. One of Petitioner's friends observed a gun in Petitioner's waistband (which Petitioner later asked the witness to hide) following a round of beatings during Patrick's confinement. Id. On January 19, 2001, Patrick persuaded Petitioner to drive her back to Chicago where she escaped into her grandmother's home and contacted the police. Id. at 654. Patrick told the 911 dispatcher that she was being held against her will by Petitioner and that he had a gun. Id.
Shortly thereafter, Patrick told attending medical personnel that Petitioner had kidnaped, beaten, and sexually assaulted her. Id. She told medical personnel as well as investigating law enforcement authorities that same evening that Petitioner had a gun with which he threatened her into going to Indiana. Id. The FBI arrested Petitioner on January 22, 2001. Id.
On April 19, 2001, a grand jury returned a three-count indictment. (Dkt. No. 26.) Count One charged Petitioner with kidnaping Patrick in violation of 18 U.S.C. § 1201(a)(1). (Id.) Count Two alleged that Petitioner "traveled across a State line, namely, from Illinois to Indiana, with the intent to injure, harass, and intimidate [Patrick] . . . and in the course of and as a result of such travel intentionally committed a crime of violence" in violation of 18 U.S.C. § 2261(a)(1), (b)(3).*fn2 (Id.) Count Three states Petitioner used and carried and brandished a firearm as defined in Title 18, United States Code, Section 924(c)(1)(A), during and in relation to the commission of a crime of violence, namely kidnapping [sic], in violation of Title 18, United States Code, Section 1201(a)(1), as more fully described in Count One of this indictment, and interstate domestic violence, in violation of Title 18, United States Code, Section 2261(a)(1), as more fully described in Count Two of this indictment, which crimes may be prosecuted in a court of the United States; In violation of Title 18, United States Code, Section 924(c)(1)(A)(ii). (Id.) At trial, Patrick recanted much of her story, including her statements that Petitioner had a gun and that he forced her to go to Indiana. Young, 316 F.3d at 654-55. The government, however, introduced Patrick's grand jury testimony to the contrary and offered an expert witness who testified to the self-defeating patterns of behavior exhibited by victims of domestic abuse, including a tendency to deny earlier accusations. Id. at 655.
The jury acquitted Petitioner on Count One but found him guilty on Counts Two and Three. Id. at 656. The government sought a sentence of 144 months, five years for the interstate domestic violence violation and seven years for carrying a firearm. (1/29/02 Tr. at 3.) The defense argued for ninety-three months, with thirty-three months for Count Two and five years for Count Three.*fn3 (Id.) With respect to Count Two, the parties differed on the question of whether the evidence in support of the interstate domestic violence charge established by a preponderance that use of the kidnaping Guideline was appropriate. (Id. at 17.) The disagreement with respect to Count Three turned on whether Petitioner had "brandished" his firearm in the course of committing interstate domestic violence. (Id.) The court made findings in favor of the government with respect to Count Two and in favor of the Petitioner with respect to Count Three, sentencing Petitioner to five years (the statutory maximum) for Count Two and five years (the statutory minimum) for Count Three, to run consecutively, for a total term of 120 months. (Id. at 22-23.)
On appeal from his conviction and sentence, Petitioner argued that this court's decision to admit the testimony of the government's expert witness and Patrick's grand jury testimony were in error. Young, 316 F.3d at 656. Petitioner also appealed the sufficiency of the evidence with respect to his conviction under 18 U.S.C. § 924(c)(1)(A) and challenged a supplemental instruction given by this court in response to a question from the jury during deliberation. Id. The Young court found against Petitioner on each ground and affirmed this court's decision. Id. at 662.
Petitioner now raises six issues in his collateral attack on his conviction and sentence. Specifically, Petitioner argues that his sentence with respect to Count Two violates the constitutional prohibition on ex post facto laws and the Federal Sentencing Guidelines. (Memorandum of Law in Support of 28 U.S.C. § 2255 Motion (hereinafter, "Pet. Mem.,) at 1-8.) Petitioner also challenges the sufficiency of the evidence with respect to Counts Two and Three. (Id. at 9-19.) Moreover, Petitioner asserts that the Northern District of Illinois was an improper venue, (id. at 20-22), and, finally, that defense counsel was ineffective. (Id. at 23-29.)
A § 2255 petition, however, "is not a to be used as a substitute for a direct appeal." United States v. Barger, 178 F.3d 944, 848 (7th Cir. 1999). For any issue raised collaterally, Petitioner must either show "good cause for, and prejudice from, the failure to raise the issue on direct appeal," id., or "that a refusal to consider the issue would be a fundamental miscarriage of justice." Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002) (internal quotation marks omitted). With the exception of the challenge to his conviction under 18 U.S.C. § 924(c)(1)(A), Petitioner did not raise any of his objections on direct appeal. Young, 316 F.3d at 656. The Supreme Court's decision in Massaro v. United States, 538 U.S. 500, 504 (2003), forgives Petitioner's failure to raise his ineffective of counsel claims in an earlier proceeding; however, Petitioner has failed to show cause for the failure to raise his remaining issues. Moreover, the Seventh Circuit equates the "fundamental miscarriage of justice" with "the conviction of an innocent person," Hayes v. Battaglia, 403 F.3d 935, 938 (2005), a state of affairs Petitioner does not allege. The court concludes that Petitioner has defaulted his sentencing challenge,*fn4 his challenge to the sufficiency of the evidence on Count Two, and his venue objections.
In any event, the arguments on Count Two and venue would fail on their merits. Petitioner contends that a federal interstate domestic violence violation may only lie under 18 U.S.C. § 2261 when the assault takes place while actually driving on an interstate highway (possibly in a commercial vehicle). (Pet. Mem. at 15-16.) The testimony at trial shows that any physical injuries Patrick sustained at the hands of Petitioner occurred in stationary residences in Illinois and/or Indiana. But the plain language of the statute proscribes both crimes of violence committed against an intimate partner "in the course of" interstate travel and crimes of violence that occur "as a result of" such travel. 18 ...