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McMahan v. United States

March 2, 2009

ANTONIO MCMAHAN (#16971-424) AND GINO MCMAHAN (#21547-424), PETITIONERS,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court are Petitioners Antonio and Gino McMahan's separate motions to vacate, set aside, or correct their sentences pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies both Antonio and Gino McMahan's Section 2255 motions.

BACKGROUND

Gino and Antonio McMahan, along with their co-defendants, took part in a long-term drug business on the west side of Chicago and were charged with conspiracy to possess with the intent to distribute narcotics in violation of 21 U.S.C. § 846. In addition, Gino McMahan was charged with one count of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and two counts of use of a communication facility to commit a drug trafficking crime in violation of 21 U.S.C. § 843(b). Antonio McMahan was charged with one count of distribution of cocaine and two counts of distribution of heroin in violation of 21 U.S.C. 841(a)(1), as well as three counts of using a communication facility in violation of 21 U.S.C. § 843(b). After a jury trial, the jury found Gino McMahan guilty of conspiracy and distribution of cocaine, but found him not guilty on the Section 843(b) charges. The jury also found Antonio McMahan guilty of all charges against him. The Court then sentenced Gino McMahan to 312 months' imprisonment and Antonio McMahan to 324 months' imprisonment.*fn1 Thereafter, Gino and Antonio McMahan appealed their convictions, which the Court of Appeals for the Seventh Circuit affirmed. See United States v. McMahan, 495 F.3d 410 (7th Cir. 2007).

LEGAL STANDARD

"[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." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). A district court will only grant a Section 2255 motion to vacate, set aside or correct a sentence if the petitioner establishes "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Hays v. United States, 397 F.3d 564, 566-67 (7th Cir. 2005) (citations and internal quotations omitted). A Section 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal the same claims a second time. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (Section 2255 motion is "neither a recapitulation of nor a substitute for a direct appeal.") (citation omitted). Accordingly, if a Section 2255 petitioner does not raise a claim in his direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, see Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005), that enforcing the procedural default would lead to a "fundamental miscarriage of justice," see Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006), or a change of circumstances involving facts or law. See Varela, 481 F.3d at 935-36. Because claims of ineffective assistance of counsel usually involve evidence outside the trial record, such claims may be brought for the first time in a Section 2255 motion. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

ANALYSIS

I. Limitations Period -- 28 U.S.C. § 2255(f)(1)

The government first argues that both Antonio and Gino McMahan's motions are time-barred pursuant to 28 U.S.C. § 2255(f)(1), which allows a federal prisoner one year from the date on which his judgment becomes final to file a Section 2255 motion. See Clay v. United States, 537 U.S. 522, 524-25, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003); Latham v. United States, 527 F.3d 651, 651 (7th Cir. 2008). A judgment is "final" for purposes of Section 2255(f)(1) when the Supreme Court affirms the federal appellate court, denies certiorari, or the time to file a writ of certiorari lapses. See Clay, 537 U.S. at 527 ("Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires"); see also Robinson v. United States, 416 F.3d 645, 646 (7th Cir. 2005). The one-year limitations period is subject to equitable tolling, which is granted only if "extraordinary circumstances beyond the litigant's control" prevented the timely filing of a Section 2555 motion. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000).

On appeal, the Seventh Circuit affirmed both Petitioners' convictions on July 20, 2007. Using the anniversary date method, Gino and Antonio McMahan's judgments became final on October 18, 2007 -- ninety days after the Seventh Circuit affirmed their convictions -- which is when the timing for filing a certiorari petition expired. See United States v. Marcello, 212 F.3d 1005, 1009-10 (7th Cir. 2001). Both Antonio and Gino McMahan's Section 2255 motions were entered on the Court's docket on October 23, 2008, more than one year after their judgments became final. Under the "prison mailbox rule," however, a prisoner's correspondence is filed with the district court on the date that the correspondence is delivered into the prison mail system. See Houston v. Lack, 487 U.S. 266, 275-76, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988); Jones v. Bertrand, 171 F.3d 499, 501-02 (7th Cir. 1999). Also, Rule 3(d) of the Rules Governing Section 2255 Proceedings Rule requires that a petitioner demonstrate timely filing by a sworn declaration complying with the requirements of 28 U.S.C. § 1746 or a notarized statement.

Here, the portion of the 28 U.S.C. § 2255 forms indicating when Antonio and Gino McMahan placed their Section 2255 motions in the prison mailing system was left blank, although both Gino and Antonio McMahan signed their separate Section 2255 motions on October 17, 2008. Meanwhile, Antonio and Gino McMahan's Reply Briefs were due on or before February 6, 2009, yet -- to date -- they have failed to file their Reply Briefs explaining when they placed their Section 2255 motions in the prison mailing system or if equitable tolling applies under the circumstances. Accordingly, both Gino and Antonio McMahan's Section 2255 motions are time-barred under Section 2255(f)(1). Nevertheless, for the sake of completeness, the Court will address the merits of Gino and Antonio McMahan's Section 2255 motions.

II. Merits Analysis

Construing Antonio and Gino McMahan's pro se Section 2255 motions liberally, see Dale v. Poston, 548 F.3d 563, 568 (7th Cir. 2008), they bring the following identical claims: (1) ineffective assistance of trial and appellate counsel; (2) their convictions were obtained in violation of the United States ...


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