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Banks v. United States

January 23, 2009

ROBERT R. BANKS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the Petition for Federal Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255 (Doc. 5) filed by Petitioner Robert R. Banks (Banks). For the followings reasons, the Court DENIES the Petition.

BACKGROUND

I. Procedural Posture

On March 4, 2003, a federal grand jury sitting in Benton, Illinois, returned a one-count indictment charging Petitioner with conspiracy to distribute a mixture and substance containing cocaine base, "crack cocaine," in violation of 21 U.S.C. §§ 841(a)(1) and 846. On June 8, 2004, a six-count superseding indictment was returned, charging Petitioner with conspiracy to distribute 5 or more grams of a mixture and substance containing cocaine base, "crack cocaine," in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846; conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 846; conspiracy to distribute a mixture or substance containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846; distribution of a mixture or substance containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D); and two counts of distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). On November 2, 2004, a six-count second superseding indictment was returned. The second superseding indictment increased the amount of the crack cocaine conspiracy to 50 grams or more and increased the amount of the marijuana conspiracy to 50 kilograms or more.On November 6, 2004, the Government filed an Information to Establish Prior Conviction, pursuant to 21 U.S.C. § 851. On November 8, 2004, the day of jury selection, Petitioner entered a conditional plea of guilty to conspiracy to distribute cocaine (Count 2), distribution of marijuana (Count 4) and distribution of cocaine (Counts 5 and 6). On July 27, 2005, this Court sentenced Banks to concurrent terms of 360 months imprisonment on the three cocaine counts and 120 months imprisonment on the marijuana count. Petitioner was also fined $1000, ordered to pay a $400 special assessment, and was placed on 10 years supervised release. Petitioner filed his timely notice of appeal on July 29, 2005.

On appeal, the sole issue raised was whether this Court erred when it imposed, as a special condition of Petitioner's supervised release, substance abuse testing as directed by the supervising United States probation officer, without specifying the number of tests to which Petitioner was ordered to submit. See United States v. Banks, 05-3358. On July 13, 2006, the Seventh Circuit issued a limited remand, remanding the case for the "exclusive purpose of advising [Petitioner] that he shall submit to a substance abuse testing .... not to exceed 52 tests in one year." On May 17, 2007, an Amended Judgment was entered. No appeal was taken from the Amended Judgment.

On March 6, 2008, Petitioner filed the instant § 2255 petition. In it, Petitioner raises the following issues: 1) whether his guilty plea was knowing and voluntary; and 2) whether trial counsel provided ineffective assistance of counsel based on counsel's failure to object to the § 851 Information. Although not listed as an issue raised, Petitioner also complains that trial counsel failed to conduct adequate pre-trial investigation.

ANALYSIS

The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). "Relief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255

I. Timeliness of Petition

Prisoners used to be able to file motions under § 2255 at any time during their sentences. However, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, tit. I, § 106 (codified at 28 U.S.C. §§ 2244(a) & (b), 2255), which added a one-year limitations period for a motion attacking a sentence. The one-year limitations period runs from the latest of four events:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. ยง 2255. In this case, the one year limitations period began on the expiration of the tenday period for filing an appeal of the Amended Judgment, June 1, 2007. See Fed.R.App.P. 4(b)(1)(A)(i). Banks, therefore, had until June 1, 2008, to file a timely petition pursuant ...


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