Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ross v. United States

June 5, 2009

CHARLES ROSS, PETITIONER,
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 is pro se Petitioner Charles Ross' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Ross' Section 2255 motion.

BACKGROUND

I. Procedural Background

On August 8, 2003, Ross and his co-defendant Derek Wilson (along with a third co-defendant, Richard Johnston) robbed a United States Post Office and were subsequently charged with conspiring to commit an offense against the United States, in violation of 18 U.S.C. § 371 (Count I), and with robbing persons having custody of United States property in violation of 18 U.S.C. § 2114(a) (Count II). Ross was also charged with possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Count III), and with possessing ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g) (Count IV). On January 27, 2005, a jury convicted Ross and Wilson on all counts in which each was charged. On April 28, 2005, the Court sentenced Ross to 108 months' imprisonment.

Ross appealed his conviction to the United States Court of Appeals for the Seventh Circuit raising the following issues: (1) the district court erred when it failed to sever Count IV, felon in possession of ammunition, from the Second Superseding Indictment; (2) the district court erred in denying his motion to sever his trial from his co-defendant, Derek Wilson; (3) the district court erred when it failed to suppress Ross' confession; and (4) the district court erred when it did not order a psychological examination for competency. On December 14, 2007, the Seventh Circuit affirmed Ross' conviction on appeal. See United States v. Ross, 510 F.3d 702 (7th Cir. 2007). Subsequently, Ross petitioned for certiorari, and on April 28, 2008, the United States Supreme Court denied his petition. See Ross v. United States, 128 S.Ct. 2099 (2008). On April 1, 2009, Ross filed the present pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

II. Relevant Facts

Ross' Section 2255 claims center on his contention that the January 12, 2004, search of his apartment by United States Postal Inspectors was done without a search warrant. To clarify, the Court held a status hearing on September 9, 2004, in which the Court discussed the relevant search warrant with Ross. (R. 50-1, Gov't Resp., Ex. A, Hr'g Tr. at 3-6.) At that time, the government informed the Court it had produced a copy of the search warrant to Ross, but that there was no arrest warrant in the matter. (Id. at 5.) Although the government produced a copy of the search warrant to Ross, Ross explained to the Court that he wanted to see the original copy of the search warrant. (Id. at 3-5.) At no time during the September 9, 2004 hearing did the government admit that there was no search warrant for the January 12, 2004 search of Ross' apartment as Ross continues to argue.*fn1 (See id.) Thereafter, on September 28, 2004, the government produced the original, signed search warrant to Ross that contained the Magistrate Judge's signature, as well as the stamp and signature of the Deputy Clerk of the United States District Court and the affiant's signature. (Id., Ex. B., Search Warrant & Aff.)

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 constitutionally ineffective assistance of counsel usually involve evidence outside the 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); Torzala v. United States, 545 F.3d 517, 524 (7th Cir. 2008).

ANALYSIS

Construing Ross' pro se Section 2255 motion liberally, see Dale v. Poston, 548 F.3d 563, 568 (7th Cir. 2008), he brings the following claims: (1) the January 12, 2004 search of his home by United States Postal Inspectors was warrantless, and thus illegal; (2) introduction of the evidence obtained pursuant to the Postal Inspector's illegal search deprived him of a fair trial; (3) appellate counsel provided constitutionally ineffective assistance of counsel; and (4) the district court should have recused itself from the matter.

I. Fourth Amendment Claims

In his first two Section 2255 claims, Ross argues that the Postal Inspectors' search of his apartment was warrantless, and thus illegal, and that the introduction of evidence obtain during the searched deprived him of a fair trial in violation of his rights under the Fourth Amendment's prohibition against illegal searches and seizures. See, e.g., United States v. Sims, 553 F.3d 580, 581-82 (7th Cir. 2009); United States v. Budd, 549 F.3d 1140, 1144 (7th Cir. 2009). Before trial, Ross filed a motion to suppress statements and evidence obtained during the search of his apartment. Ross specifically argued that the residential search warrant at issue was facially invalid because it lacked probable cause and that the copies of the warrant, application, and affidavit produced to him during discovery did not contain original signatures of the issuing Magistrate Judge and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.