The opinion of the court was delivered by: Joe Billy McDade United States District Judge
Before the Court is Petitioner's Motion to Vacate, Set Aside or Correct his sentence [Doc. 1] brought pursuant to 28 U.S.C. § 2255. The Court appointed counsel to represent Petitioner, and the appointed counsel filed an Amended Motion to Vacate [Doc. 13] on Petitioner's behalf along with an accompanying Memorandum [Doc. 14]. However, Petitioner requested that his Attorney be removed and his original Petition be reinstated. This request was granted and Petitioner proceeded pro se. The Government filed a Response [Doc. 20] to Petitioner's original Petition and Petitioner filed a Traverse [Doc. 22] to the Response. In addition, Petitioner has filed a Motion to Strike the Government's Response. [Doc. 24.] For the following reasons Petitioner's § 2255 Motion is DENIED.
On February 18, 1999, Petitioner was charged in a two count indictment by a federal grand jury in the Central District of Illinois. The indictment charged Petitioner with kidnapping in violation of 18 U.S.C. §§ 1201(a)(1) and with using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c).
At trial Frank Rivas, a government witness, testified that he had been kidnapped by Petitioner's brother, Marcelo Sandoval, because of a drug deal gone bad. [Doc. 20 at 5.] Rivas testified that Petitioner assisted Marcelo in the kidnapping by using a gun to keep Rivas from fleeing during the time Rivas was held in Chicago. [Doc. 20 at 8.] Petitioner was arrested when the Chicago City Police entered Marcelo's house where Rivas was held. Inside the house they found two handguns near where Petitioner was arrested.
Petitioner testified at trial and stated that he had no involvement in the kidnapping. [Doc. 20 at 12.] Petitioner asserted that he was only at Marcelo's house at the time of the arrest to see Marcelo's children and that he believed that Rivas was just a houseguest. [Doc. 20 at 12.] However, at trial there was evidence that Petitioner had been involved in the kidnapping for more than a day. In particular, there was evidence that Petitioner took Rivas with him when Petitioner went to run errands. And, Petitioner carried a firearm while he took Rivas out. Furthermore, Rivas's wife, who came looking for Rivas, saw Petitioner at Marcelo's house before the police arrived.
Petitioner was convicted by a jury on both counts of the indictment on August 26, 2002. Petitioner filed a motion for a new trial which was denied.
Petitioner received the following sentence: 121-month term of imprisonment for kidnapping, 120-month consecutive term of imprisonment for using and carrying a firearm during and in relation to a crime of violence, and three-year term of supervised release on both counts to run concurrently.
Petitioner filed a timely notice of appeal on December 26, 2002. A separate attorney represented him on appeal and argued that: (1) The prosecutor's statements during opening, closing, and sentencing constituted prosecutorial misconduct; (2) The Court plainly erred in its use of an uncertified interpreter; (3) The indictment was insufficient as a matter of law; and (4) Venue was improper. On October 20, 2003, the Seventh Circuit dismissed each of Petitioner's arguments and affirmed the decision of this Court.
The law in this Circuit is clear: § 2255 motions are not intended to substitute for direct appeals or enable an issue to be appealed a second time. Reed v. Farley, 512 U.S. 339, 354 (1994). In order to obtain relief under § 2255 a petitioner must show that the error asserted is "jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice." Barnickel v. U.S., 113 F.3d 704, 705 (7th Cir. 1997).
Constitutional errors may not be alleged for the first time in a § 2255 motion if they could have been raised at trial or on direct appeal unless good cause for the procedural default and actual prejudice resulting from the errors are shown. Bontkowski v. U.S., 850 F.2d 306, 313 (7th Cir. 1988). Moreover, non-constitutional errors may not be asserted if they were not raised on appeal but could have been, regardless of any cause or prejudice shown. Id. Such a non-constitutional assertion may only be raised for the first time in a § 2255 motion if it is demonstrated that a court's refusal to consider the claim "would lead to a fundamental miscarriage of justice." McCleese v. U.S., 75 F.3d 1174, 1178 (7th Cir. 1996).
Petitioner argues that he is entitled to relief under § 2255 because: (1) His counsel was ineffective for failing to call alibi witnesses; (2) The government failed to notify the Mexican Embassy of his arrest; (3) His Fifth and Sixth Amendment rights to a fair trial were violated under Schlup v. Delo, 513 U.S. 298, 315 (1995); and (4) The prosecuting attorney violated ...