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Bownes v. United States

June 8, 2007

MARVIS BOWNES, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

MEMORANDUM AND ORDER

A. Factual and Procedural Background

Between the Fall of 2002 and the Spring of 2003, Marvis "the Swamp Dog" Bownes was charged in two separate criminal cases in this District. The charge involved in the first of those two prosecutions underlies the above-captioned civil proceeding.

In Case No. 02-cr-30115, Bownes waived indictment and pled guilty to one count of transmitting threatening communications in interstate commerce (via telephone) -- a violation of 18 U.S.C. § 875(c). By detailed written plea agreement (Doc. 12 in 02-cr-30115), in exchange for concessions from the United States ("the Government"), Bownes waived his right to directly appeal his sentence and waived his right to collaterally attack the sentence pursuant to 28 U.S.C. § 2255 (id., pp. 7-8).

The plea agreement (signed by both Bownes and his attorney, William Stiehl, Jr.) concluded:

Defendant agrees that this Plea Agreement and Stipulation of Facts constitutes the entire agreement between him and the United States and that no promises, inducements or representations, other than those specifically set forth in this Plea Agreement, were made to induce him to enter into this Plea Agreement.

Id., p. 8.

Bownes also executed a Stipulation of Facts (Doc. 13 in 02-cr-30115) in which he admitted that (a) he was involved in purchasing and reselling real estate in East St. Louis, Illinois, and (b) after a local newspaper reporter (Michael Fitzgerald of the Belleville News-Democrat) published a series of articles indicating that Bownes was fraudulently "flipping" property, Bownes made verbal threats against Fitzgerald in phone calls to Fitzgerald and phone calls to another News-Democrat reporter (George Pawlaczyk). Specifically, Bownes admitted that -- in the September 2002 telephone calls -- he threatened to "injure" Fitzgerald (id., p. 2).

Bownes pled guilty on October 2, 2002. Sentencing was scheduled for January 13, 2003. Three weeks after the plea, the Court released Bownes on bond awaiting sentencing. Just prior to the January 13th sentencing date, Bownes requested a continuance. The Court granted the motion, allowing Bownes to stay on bond until the revised sentencing date -- March 7, 2003. Three days prior to that date, Bownes again asked to continue the sentencing. The Court again granted the motion, resulting in Bownes continuing on bond until the new date -- April 14, 2003.

Five days before that date, Bownes -- for a third time -- moved to continue the sentencing. The Court again obliged, leaving Bownes on bond until the new date -- July 14, 2003.

Just before the July 2003 sentencing hearing, Bownes and Stiehl reported that "serious and substantial differences of opinion" between them warranted Stiehl withdrawing as Bownes' counsel (Doc. 32 in 02-cr-30115). After holding a hearing in June 2003, the undersigned Judge granted the motion and permitted Stiehl to withdraw (Doc. 36 in 02-cr-30115). Attorney Charles Stegmeyer then entered on behalf of Defendant Bownes.

Ultimately, the Court sentenced Defendant Bownes to 30 months in prison. He was allowed to remain on home detention until his sentencing hearing in the second criminal case, Case No. 03-cr-30097. Judgment was entered on July 18, 2003 and amended in September 2003, after a Restitution Order was entered.

Bownes appealed his sentence in both criminal cases. The Seventh Circuit dismissed those appeals in April 2005, finding that Bownes gave up his right to appeal when he executed the plea documents. United States v. Bownes, 405 F.3d 634, 638 (7th Cir.), cert. denied, Bownes v. U.S., 126 S.Ct. 320 (Oct. 3, 2005).

The Seventh Circuit's mandate was issued on June 1, 2005 and docketed in this Court the following day (Doc. 61 in 02-cr-30115). Sixteen months later, Bownes commenced the above-captioned civil case, attempting to collaterally challenge his sentence in Case No. 02-cr-30115.

B. Analysis

28 U.S.C. § 2255 authorizes a federal prisoner to ask the court which sentenced him to vacate, set aside, or correct his sentence, if "the sentence was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law."

Relief under § 2255 is limited. Unlike a direct appeal, in which a defendant may complain of nearly any error, § 2255 proceedings may be used only to correct errors that vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude. See, e.g., Corcoran v. Sullivan, 112 F.3d 836, 837 (7th Cir. 1997)(§ 2255 relief is available only to correct "fundamental errors in the criminal process").

As the Seventh Circuit has declared, § 2255 relief "is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004), citing Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991). Accord Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)("... relief under 28 U.S.C. § 2255 is reserved for extraordinary situations").

Section 2255 cannot be used as a substitute for a direct appeal or to re-litigate issues already raised on direct appeal. Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003). AccordTheodorou v. United States, 887 F.2d 1336 (7th Cir. 1989)(§ 2255 petition "will not be allowed to do service for an appeal.").

Bownes' § 2255 petition advances five claims:

1. Bownes' sentence resulted from a guilty plea "unlawfully induced by duress and ... not made voluntarily with understanding of the nature of the charges and consequences of the plea."

2. Bownes' conviction was obtained "because the government seized records and evidence based on unconstitutional searches and seizures."

3. Bownes was denied effective assistance of counsel.

4. Bownes was denied his "right to appeal."

5. The prosecution "failed to disclose favorable evidence" to Bownes.

Doc. 2-1, pp. 7-8. All five of these grounds are meritless, and Bownes has failed to demonstrate any entitlement to relief under § 2255.

As a threshold matter, although the parties' briefs do not discuss it, Bownes' § 2255 petition appears to have been timely filed. Here, the one-year limitations period for seeking § 2255 relief began to run when the United States Supreme Court denied Bownes' petition for certiorari on October 3, 2005. See Robinson v. United States, 416 F.3d 645, 648 (7th Cir. 2005)("Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires."). See also Gildon v. Bowen, 384 F.3d 883, 885 (7th Cir. 2004), citing Clay v. United States, 537 U.S. 522, 527 (2003).Bownes moved to vacate or correct his sentence on October 3, 2006.

The next question is whether Bownes' waiver of the right to collaterally attack his sentence bars this § 2255 petition. The law of this Circuit instructs that a § 2255 waiver in a plea agreement is fully enforceable "unless the waiver was involuntary or counsel was ineffective in negotiating the ...


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