The opinion of the court was delivered by: Herndon, District Judge
Before the Court is petitioner Natasha Moore's Section 2255 Petition, which seeks collateral review of her sentence on the ground that it was imposed in violation of her Fifth Amendment due process rights. Specifically, Petitioner claims "the Court was denied facts critical to assessing the criteria of 18 U.S.C. § 3553 [the sentencing guideline factors], specifically that [Natasha Moore] was pregnant and would be delivering her child during the term of her incarceration" (Doc. 1, p. 5). The Government has timely filed an opposing Response (Doc. 4), so the issue is now ripe for determination. For reasons as discussed within this Order, Petitioner's Section 2255 Petition must be denied.
Natasha Moore, along with her husband, Nathan Moore, were charged by Indictment, issued on April 22, 2004, with one count of Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. §§ 1341 and 1349. See United States v. Moore, Case No. 04-cv-30053-DRH (Doc. 1). Nearly a year later, the Moores entered open pleas of guilty to the Indictment on April 18, 2005. According to the Indictment, the Moores fraudulently posed as operators of businesses which promoted entertainment events in the St. Louis, Missouri area. Additionally, they assumed the names of certain performing art schools and related companies, all for the purpose of establishing corporate vendor accounts under these various assumed names. The Moores obtained lines of credit with the vendors by providing bogus credit references. Then, the Moores actually posed as their own credit references when contacted by the vendors for verification. The vendor lines of credit were necessary for the Moores to order merchandise, such as DVD's and books, which they subsequently sold on internet auction sites. The merchandise was shipped from the vendors to the Moores via United Parcel Service ("UPS") to a UPS store located in Belleville, Illinois. Because the Moores never paid the vendors for the merchandise ordered, the made a substantial profit. The telephone numbers listed for these bogus credit references actually belonged to the Moores.
The Addendum to Petitioner's Presentence Investigation Report ("PSR") showed the intended loss to the thirteen identified victim vendors was in an amount of $293,536.88, which included orders that had been fraudulently placed by not yet filled. On July 22, 2005, the Court sentenced Petitioner to 33 months' imprisonment and three years' supervised release under the advisory guidelines. She was also ordered to pay restitution in the amount of $132,425.14, with a special assessment of $100.00. Petitioner timely appealed her sentence with the Court of Appeals for the Seventh Circuit on the grounds that her sentence was unreasonable and excessive. After briefing by the parties and oral argument, the Seventh Circuit affirmed the judgment of the district court, finding Petitioner's sentence was reasonable and appropriately determined using post-Booker procedures. See United States v. Moore, Nos. 05-3281 and 05-3401, 2006 WL 906435 at *2-3 (7th Cir. Apr. 5, 2006).
Petitioner's sole ground asserted in her Section 2255 Petition is that she was denied her due process rights guaranteed by the Fifth Amendment because the Court, at the time of her sentencing hearing, was not aware and therefore could not take into consideration the fact that she was pregnant and would deliver her child while incarcerated. As the Government notes in its Response, this is the first time Petitioner has raised this issue and concludes that it must be procedurally barred from consideration.
A. Collateral Review and Procedural Default
Section 2255 provides, in pertinent part: 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 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.
However, a Section 2255 Petition "is neither a recapitulation of nor a substitute for a direct appeal." Omstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995)(quoting Daniels v. United States, 26 F.3d 706, 711 (7th Cir. 1994)).
The Seventh Circuit has made it very clear that there are three types of issues that cannot be raised in a Section 2255 motion:
(1) issues that were raised on direct appeal, absent showing of changed circumstances; (2) non constitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for ...