The opinion of the court was delivered by: Reagan District Judge
This case is now presented to the Court by motion under 28 U.S.C. § 2255. Bishawi raises six grounds challenging his conviction and sentence. However, many of Bishawi's claims have been procedurally defaulted, and all remaining claims are without merit. Thus, for the reasons stated below, Bishawi's motion must be denied.
1. Procedural History of the Underlying Criminal Case
Bishawi's underlying criminal case began on September 4, 1997, when the United States filed a one-count indictment against Bishawi alleging that he and others engaged in an illegal conspiracy in violation of 21 U.S.C. § 846, the object of which was to distribute cocaine and cocaine base under 21 U.S.C. § 841(a)(1) (Case No. 97-CR-40044-PER; see Doc. 1-20, Exh. A1). After Bishawi's first two appointed attorneys withdrew from the case, the Court appointed David Fahrenkamp as counsel. Bishawi proceeded to trial before the Hon. Paul E. Riley, and a jury found Bishawi guilty on January 19, 1999.
Post-trial, Bishawi indicated that he was yet again unhappy with his attorney's representation and sought new counsel. The Court appointed Eric Butts to represent Bishawi during the sentencing phase. At sentencing, the Court determined that Bishawi's criminal history category was IV, with a total offense level of 32. Because the Court found that Bishawi distributed more than 50 grams of crack cocaine after having been convicted of a felony drug offense, he was subject to a mandatory minimum of 20 years under 21 U.S.C. § 841(b)(1)(A). As a result, Judge Riley sentenced Bishawi to 240 months' imprisonment on October 1, 1999.
Bishawi appealed to the Seventh Circuit, but while his appeal was pending, the Honorable Philip M. Gilbert, Chief Judge for the Southern District of Illinois at the time, informed Bishawi that there was a possibility that Judge Riley had communicated ex parte with jurors during the trial. In light of this, the Seventh Circuit granted Bishawi's motion to remand his case to the district court so that he could pursue a motion for new trial.
Sitting by designation, District Judge Richard Mills granted Bishawi's motion for a new trial after finding a likelihood that Judge Riley had engaged in improper contact with the jury. United States v. Bishawi, 109 F.Supp.2d 997 (S.D. Ill. Aug. 28, 2000). On appeal, the Seventh Circuit reversed the decision and directed the district court to determine whether Judge Riley actually violated the defendant's rights by engaging in any improper communications. United States v. Bishawi, 272 F.3d 458 (7th Cir. 2001). After holding an evidentiary hearing, the district court determined that Bishawi's rights had not been violated and therefore denied the motion for new trial on February 25, 2002. United States v. Bishawi, 186 F.Supp.2d 889 (S.D. Ill. Feb. 25, 2002).
As the denial of his new trial motion made his conviction and sentence final, Bishawi filed an appeal arguing only that the original order granting him a new trial should have been allowed to stand. United States v. Bishawi, 2002 WL 1489412 (7th Cir. 2002). The Seventh Circuit disagreed and affirmed the district court's decision. Id. Bishawi then filed another notice of appeal attacking his conviction and sentence, but the Seventh Circuit dismissed his appeal as untimely and denied reconsideration.
On July 11, 2003, Bishawi moved the district court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Case No. 03-CV-4121-RHM). Therein, Bishawi raised seven grounds attacking the admissibility and sufficiency of the evidence at trial, attacking the sufficiency of the indictment, and arguing that he had not received effective assistance of counsel. See Bishawi v. United States, 292 F.Supp.2d 1122 (S.D. Ill. Nov. 24, 2003). The Government conceded that Bishawi had received ineffective assistance of counsel on his direct appeal, as counsel failed to file a single consolidated appeal attacking Bishawi's sentence and conviction after his motion for new trial was denied. Id. at 1126. The district court agreed, finding that Bishawi was entitled to relief for his attorney's ineffective assistance on appeal. Id. at 1128. Consequently, the court vacated and immediately reimposed Bishawi's conviction and sentence, so as to permit him the opportunity to timely challenge his conviction and sentence on direct appeal. Id. at 1129-30. Because Bishawi could still raise all other grounds on appeal, the Court found his other arguments to be premature. Id. at 1129.
On direct appeal, Bishawi was represented by Vilijia Bilaisis, his fifth attorney. Bishawi challenged his sentence on the grounds that the district court's finding with respect to the drug quantities involved in his case was erroneous. United States v. Bishawi, 2004 WL 2179228 (7th Cir. 2004). On September 10, 2004, the Seventh Circuit affirmed Bishawi's conviction and sentence. Id.
2. Bishawi's Current Motion
On July 8, 2005, Bishawi filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Doc. 1). The motion was fully briefed as of November 7, 2005, but it was reassigned from Judge Mills to the undersigned District Judge on April 24, 2007 (Doc. 9). Having conducted a review of Bishawi's motion under Rule 8(a) of the RULES GOVERNING SECTION 2255PROCEEDINGS, the Court found that an evidentiary hearing was warranted due to the complexity of the case's history (Doc. 13). Accordingly, the Court appointed counsel for Bishawi pursuant to Rule 8(c) and set a hearing for July 25, 2008. At the request of defense counsel, the Court continued the hearing to September 3, 2008 (Doc. 21). However, the Court converted that hearing to a status conference after Bishawi's counsel filed another motion to continue, having learned that Bishawi would probably not be present in this district prior to the hearing. Ultimately, the Court continued that setting and held the evidentiary hearing on September 18, 2008 (Doc. 31).*fn1
Having thoroughly reviewed the record and the parties' arguments, it is clear that Bishawi's § 2255 motion must be denied for the reasons stated below.
Bishawi raises six issues in the instant motion.
(1) First, Bishawi argues that his sentence is illegal and was imposed as an application of the incorrect sentencing range. Bishawi argues that the indictment did not charge a particular drug quantity, and the jury did not determine one. As a result, he claims that the judge's later determination of drug quantities (1) was not supported by the evidence, (2) was determined in violation of his Sixth Amendment right to trial on all facts that could increase his sentence, and (3) resulted in the application of an improper guideline range thereby making the sentence imposed unreasonable.
(2) Bishawi's second argument in many ways expounds on the first. He argues that by having the judge determine the relevant drug type and quantity by a preponderance of evidence, the Court denied him his right to have a jury determine all aggravating facts and elements of the charge beyond a reasonable doubt.
(3) Next, Bishawi claims that a variance existed between the charges in the indictment and the proof submitted at trial. Bishawi argues that the Court erred by instructing the jury to convict him if it found that he conspired to distribute either crack or cocaine base, even though the indictment charged him with distributing both crack and cocaine base. Bishawi also notes that the indictment did not charge him with conspiracies involving marijuana, yet the Government produced evidence of marijuana trafficking. Additionally, Bishawi argues that the Government produced inadmissible evidence of his prior bad acts, including his deportation and incidents involving drug use.
(4) Next, Bishawi argues that the Court erred in allowing F.B.I. Agent Robert Shay to testify at trial about an alleged confession. Bishawi claims that he never made any such confession. Rather, he claims that he was interviewed by Shay with respect to an unrelated bank fraud investigation, that he was never given Miranda warnings, and that when the topic of drugs came up, he invoked his Fifth Amendment privilege. Nonetheless, Shay testified that Bishawi admitted involvement with the drug conspiracy.
(5) Bishawi also argues that the Court lacked subject matter jurisdiction over his case because (a) the indictment was obtained solely on grand jury testimony provided by Agent Shay, which was based entirely on hearsay and unsupported by independent evidence, (b) the indictment was not returned by the Grand Jury in open court, (c) the indictment was not returned within the statute of limitations, (d) the indictment failed to state essential elements of the charged offense including the drug quantity, (e) the indictment was unsupported by a showing of jurisdiction, and (f) the indictment charged Bishawi with statutes that were either never adopted by Congress or were repealed.
(6) Finally, Bishawi argues that each of the five attorneys who represented him provided ineffective assistance at every stage of the case.
Generally, petitioners are not permitted to file a second or successive motion under § 2255 unless permission to do so is first obtained from the court of appeals. 28 U.S.C. § 2255(h); see Curry v. United States, 507 F.3d 603, 604-05. However, "an order granting a § 2255 petition, and reimposing sentence, resets to zero the counter of collateral attacks pursued." Shepeck v. United States, 150 F.3d 800, 801 (7th Cir. 1998) (per curiam) (emphasis in original).
In Bishawi's previous motion under § 2255, the court found that Bishawi received ineffective assistance from his appellate counsel, and then vacated and reimposed his sentence and conviction. See Bishawi v. United States, 292 F.Supp.2d 1122, 1128-30 (S.D. Ill. Nov. 24, 2003). Additionally, the Court found that the substantive issues raised by Bishawi were premature at that time, as the option of a direct appeal remained available. Id. As a result, though this is the second § 2255 motion Bishawi has filed, the instant motion does not constitute an impermissible successive petition.
Section 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 Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007)("[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process."); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) ("relief under 28 U.S.C. § 2255 is reserved for extraordinary situations").
1. Bishawi's First Four Claims
Bishawi has procedurally defaulted his first four claims because he either raised these issues on direct appeal, or else failed to raise them even though they were ripe for review. It is well-settled that issues raised on direct appeal may not be relitigated on collateral attack except in narrow circumstances where the substantive law has changed, or where new evidence surfaces and could not have been discovered earlier. Peoples v. United States, 403 F.3d 844, 847 (7th Cir. 2005); White v. United States, 371 F.3d 900, 902 (7th Cir. 2005). On direct appeal, Bishawi challenged the district judge's finding that the conspiracy involved more than 50 grams of crack cocaine. 2004 WL 2179228. Accordingly, all of Bishawi's challenges to his sentence with respect to this issue are barred from subsequent review.
Additionally, a petitioner under § 2255 generally may not litigate claims that he could have but failed to raise on direct appeal. Bousley v. United States, 523 U.S. 614, 621 (1998) (noting that "[h]abeas review is an extraordinary remedy and 'will not be allowed to do service for an appeal.'" (quoting Sunal v. Large, 332 U.S. 174, 178 (1947))); Young v. United States, 124 F.3d 794, 795-96 (7th Cir. 1997) ("Section 2255 is not a way to advance arguments that could have been presented earlier."). Here, none of Bishawi's other arguments in his first four claims were raised on direct appeal, ...