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Sewell v. United States

December 5, 2007

WILBERT M. SEWELL, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM & ORDER

I. INTRODUCTION

Now before the Court is petitioner Wilbert M. Sewell's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255,and his supporting memorandum. (Docs. 1 & 3.) RespondentUnited States of America opposes the motion. (Doc. 7.) Sewell filed a Reply. (Doc. 10.) For the reasons discussed herein, the Court denies Sewell's Motion.

On September 25, 2004, security guards for the Club Casino in East Saint Louis, Illinois, observed Sewell stuff what appeared to be a handgun down the front of his pants. (Case No. 3:05-cr-30059-DRH, Stipulation of Facts, Doc. 21, p.1.) When the guards attempted to apprehend Sewell, he fled. During the chase, Sewell tossed the firearm into a weeded area. He was apprehended shortly thereafter. The firearm was recovered from the weeded area; subsequently, law enforcement determined that the firearm had been reported stolen. (Id.) During his arrest, Sewell was uncooperative with law enforcement officials, providing them with false identities in an attempt to avoid arrest. (See id., Presentence Investigation Report, Doc. 27, p.7.) His evasive conduct ultimately resulted in a conviction in the state of Illinois for obstruction of justice, entered on December 6, 2004. (Id.) Because Sewell had a prior felony conviction,*fn1 he was also charged with the federal crime of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). (See id., Indictment, Doc. 1.) Sewell pled guilty to the federal charge and was sentenced to 46 months imprisonment on September 6, 2005. (Id., Judgment, Doc. 29.) He did not directly appeal. Sewell now attacks his federal sentence, arguing that his state sentence for obstruction of justice should have been credited to his federal sentence. (Case No. 06-686, supporting memorandum, Doc. 3, p.1.)

II. DISCUSSION

A. 28 U.S.C. § 2255

Sewell petitions the Court for relief under 28 U.S.C. § 2255, which provides:

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 sentence was in excess of the maximum authorized by law . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Sewell seeks relief based upon two grounds. He asserts that he is entitled to appeal his sentence directly to the Seventh Circuit because his attorney's failure to file an appeal regarding proper application of the sentencing guidelines deprived him of his Sixth Amendment right to effective assistance of counsel. The underlying basis for his ineffective assistance of counsel claim also serves as the other basis for his petition. first asks the Court to reconsider his sentence because he alleges it deviates from the Federal Sentencing Guidelines.

Section 2255 provides an extraordinary remedy reserved to correct a narrow subset of judicial error. Generally speaking, a § 2255 proceeding may not provide backdoor access for making the kind of garden variety arguments which could have-but were not-made on direct appeal. See Arias v. United States, 484 F.2d 577, 579 (7th Cir. 1973) (error which would require reversal on direct appeal is not reviewable on § 2255 motion unless the error is constitutional or jurisdictional in character); Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) ("non-constitutional issues that could have been but were not raised on direct appeal" are not reviewable on § 2255 motion"). Moreover, the Seventh Circuit has specifically held that errors in the determination of a sentence (without more) are not the proper subject matter of § 2255 review. See Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) ("relief under 28 U.S.C. § 2255 is reserved for extraordinary situations . . . [it] is rarely if ever the proper vehicle by which to challenge the application of a Sentencing Guideline provision where the sentence has become final and the petitioner did not directly appeal the issue"); United States v. Wisch, 275 F.3d 620, 625 (7th Cir. 2001) ("Allegations that the district judge misapplied the sentencing guidelines are not reviewable under § 2255."). However, certain constitutional claims are allowed whether or not they were made on direct appeal:

Although non-constitutional issues cannot serve as an independent basis for section 2255 relief, the fact that the non-constitutional issues were not raised on direct appeal can be used as evidence of ineffective assistance of counsel. Ineffective assistance of counsel, because it is a constitutional issue, can in turn serve as a valid basis for section 2255 relief.

Belford, 975 F.2d at 313, n.1.

On its own, Sewell's claim that his sentence was improperly calculated under the Guidelines is not cognizable under ยง 2255. Thus, this Motion presents the singular question of whether the failure of Sewell's attorney to file a ...


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