The opinion of the court was delivered by: Reagan, District Judge
A. Factual and Procedural Background
This civil proceeding challenges the sentence which the undersigned District Judge imposed on Marvis "the Swamp Dog" Bownes in the second of two criminal prosecutions (Case No. 03-cr-30097; referred to herein as "the underlying case").
In the underlying case, Bownes -- represented by retained counsel -- waived indictment and pled guilty to an information charging him with mail fraud (Count I) and engaging in monetary transactions involving criminally-derived property (i.e., money laundering, Count II), in violation of 18 U.S.C. §§ 1341, 1342 and 1957. Sentencing was scheduled for July 14, 2003, with a separate hearing on Bownes' objections to the pre-sentencing investigation report ("PSR") set July 1, 2003.
On June 9, 2003, Bownes' attorney (William D. Stiehl, Jr.) moved to withdraw, citing serious differences of opinion with his client. The Court granted that motion following a hearing on June 23, 2003. Attorney Charles Stegmeyer, Jr. then entered an appearance on Bownes' behalf. The change of counsel resulted in the Court resetting both the hearing on objections to the PSR and the sentencing hearing (allowing additional time for Bownes and his new counsel to prepare).
Ultimately, in late October 2003, the undersigned Judge sentenced Bownes to 210 months in prison on Count 1 and 120 months in prison on Count 2, the two terms to be served concurrently with each other and with the sentence Bownes received in case number 02-cr-30115 (the "first criminal case"). The prison term was to be followed by supervised release -- five years on Count 1 and three years on Count 2 (again, to be served concurrently with each other and with the term imposed in the first criminal case), plus a special assessment, a fine and restitution. Judgment was entered, and Bownes appealed to the United States Court of Appeals for the Seventh Circuit.*fn1
A Restitution Order entered on January 23, 2004 resulted in an Amended Judgment and a second appeal. A Supplemental Restitution Order in February 2004 was followed by a Second Amended Judgment and a third appeal. The Seventh Circuit consolidated -- and eventually dismissed -- Bownes' appeals. See Docs. 48, 78 & 111 in the underlying case (03-cr-30097).
The Court of Appeals' April 2005 written opinion, United States v. Bownes , 405 F.3d 634 (7th Cir. 2005), enforced Bownes' waiver of appeal rights, which was part of the plea agreement he had signed. The Court found that the United States ("the Government") had made concessions in exchange for Bownes' waiver -- concessions that both defense counsel and Bownes "considered adequate to induce him to forego his right to appeal." Id. at 636. The United States Supreme Court denied a petition for certiorari on October 3, 2005.
A motion under 28 U.S.C. § 2255 must be filed within one year of the date the judgment of conviction becomes final. Finality attaches for § 2255 purposes "when the Supreme Court affirms on the merits of direct review or denies certiorari, or the time for filing a certiorari petition expires." Robinson v. United States , 415 F.3d 645 (7th Cir. 2005). Here, Bownes filed his § 2255 motion just before the one-year deadline expired.
The timely-filed motion has been briefed fully. Indeed, the undersigned Judge granted Bownes' counsel additional time to explore "new issues" discovered in June 2007, to serve subpoenas duces tecum on Bownes' prior counsel (Mr. Stiehl), and to obtain documents thereby which might be useful in Bownes' reply brief. By affidavit filed July 17, 2007 (Doc. 17), Bownes' current counsel attested that she obtained Bownes' "entire file" (over 1000 pages of documents) from his prior counsel. Bownes' detailed reply brief followed (accompanied by exhibits), with an additional exhibit filed shortly thereafter, rendering the matter ripe for review in late August 2007. For the reasons stated below, Bownes' § 2255 motion must be denied.
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." But 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 Corcoran v. Sullivan , 112 F.3d 836, 837 (7th Cir. 1997)(§ 2255 relief is available only to correct "fundamental errors in the criminal process").
The Seventh Circuit has declared that § 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 can be used neither as a substitute for a direct appeal nor to re-litigate issues already raised on direct appeal. Coleman v. United States , 318 F.3d 754, 760 (7th Cir.), cert. denied , 540 U.S. 926 (2003). Accord Theodorou 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. His conviction resulted from a guilty plea he made unknowingly, involuntarily and under duress.
2. His conviction was obtained only because the Government used evidence gained from ...