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Ginglen v. United States

December 17, 2009

WILLIAM A. GINGLEN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Jeanne E. Scott United States District Judge

OPINION

JEANNE E. SCOTT, U.S. District Judge

This matter comes before the Court on Petitioner William Ginglen's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Petition), Ginglen's Amended § 2255 Motion with Supporting Memorandum (d/e 12) (Amended Petition), and Ginglen's Motion for Evidentiary Hearing and Appointment of Attorney (d/e 45). For the reasons set forth below, the Petition and Amended Petition are denied. Ginglen's Motion for Evidentiary Hearing and Appointment of Attorney is, likewise, denied.

STATEMENT OF FACTS

The following background facts are taken from United States v. Ginglen, 467 F.3d 1071 (7th Cir. 2006). Between November 10, 2003, and July 12, 2004, William Ginglen (Ginglen) robbed several central Illinois banks at gunpoint. On August 19, 2004, one of Ginglen's three sons, Jared, an officer for the Peoria, Illinois Police Department, recognized the bank robbery suspect in photographs as his father. Jared informed his brothers Garrett and Clay of his realization, and the three men decided to go to their parents' house in Lewiston, Illinois, to confront their father and convince him to turn himself in. If he refused to do so, the brothers planned to take him in forcibly. However, when the brothers arrived, Ginglen was not home. While the brothers were looking through the house for their father, they saw a pair of shoes, pants, and a shirt that matched those worn by the bank robber in the photographs.

The brothers then contacted the Lewiston police. The police used the brothers' observations to obtain a search warrant for Ginglen's home. A subsequent search of the home uncovered the clothes matching those worn by the robber as well as information which revealed that Ginglen was cheating on his wife and spending the proceeds from the bank robberies on his mistress. Four days after the police executed the search warrants, Ginglen's wife voluntarily consented to the search and seizure of a computer she shared with her husband.

The following information is taken from the record of Ginglen's criminal case. United States v. Ginglen, C.D. Ill. Case No. 04-30052. On August 20, 2004, Ginglen was charged by Complaint (Case No. 04-30052, d/e 1) with one count of armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d). He was subsequently indicted in September 2004. Case No. 04-30052, Indictment (d/e 8). Ginglen filed a Motion to Suppress (Case No. 04-30052, d/e 11) in October 2004, which this Court denied, following a hearing on November 18, 2004. Case No. 04-30052, Minute Entry, dated November 18, 2004; Case No. 04-30052, Transcript of Proceedings held November 14, 2004 (d/e 37) (Suppression Hearing Transcript).*fn1

On December 3, 2004, a grand jury returned a fourteen-count Superseding Indictment (Case No. 04-30052, d/e 14), charging Ginglen with seven counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d) and seven corresponding counts of carrying and using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1).

Ginglen was arraigned on the Superseding Indictment on December 9, 2004, at which time Magistrate Judge Byron Cudmore advised him of the charges and penalties. Case No. 04-30052, Minute Entry, dated December 9, 2004.

On January 6, 2005, a grand jury returned a fourteen-count Second Superseding Indictment (Case No. 04-30052, d/e 16), again charging Ginglen with seven counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d) and seven corresponding counts of carrying and using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). Ginglen was arraigned on the Second Superseding Indictment on January 12, 2005, at which time Ginglen, who was represented by counsel, waived the reading of the Indictment and admonishment of statutory penalties. Case No. 04-30052, Minute Entry, dated January 12, 2005.

On June 30, 2005, the Court was informed that Ginglen wished to plead guilty pursuant to a Plea Agreement. Case No. 04-30052, Text Order, dated June 30, 2005. The Plea Agreement (Case No. 04-30052, d/e 23), signed and dated July 8, 2005, was filed with the Court. In the Plea Agreement, Ginglen reserved his right to appeal the denial of his Motion to Suppress, but waived his right to appeal any other issues. Plea Agreement, p. 5, ¶ 10. Additionally, under the terms of the Plea Agreement, Ginglen waived his right to collaterally attack his conviction or sentence. Id., p. 5-6, ¶ 11.

On July 8, 2005, a change of plea hearing was held before this Judge. Case No. 04-30052, Minute Entry, dated July 8, 2005; Case No. 04-30052, Transcript of Proceedings held July 8, 2005 (d/e 36) (Plea Transcript). At the plea hearing, Ginglen was placed under oath, and the Court conducted a colloquy to determine whether Ginglen's plea was knowing and voluntary. Plea Transcript, p. 5-71; see also Fed. R. Crim. P. 11. During the colloquy, the Court discussed the terms of the Plea Agreement as well. At the conclusion of the hearing, the Court accepted Ginglen's plea of guilty to counts 1, 3, 5, 7, 9, and 11-14 of the Second Superseding Indictment. Case No. 04-30052, Minute Entry, dated July 8, 2005; Plea Transcript, p. 71-72.

Ginglen was sentenced on December 29, 2005. Case No. 04-30052, Minute Entry, dated December 29, 2005; Case No. 04-30052, Transcript of Proceedings held December 29, 2005 (d/e 26) (Sentencing Transcript). There were no objections to the Presentence Report (Case No. 04-30052, d/e 32), and the Court adopted its findings. Ginglen was sentenced to ninety-seven months imprisonment on each of the seven bank robbery counts, Counts 1, 3, 5, 7, 9, 11 and 13 of the Second Superseding Indictment, with these sentences to run concurrently. Ginglen was also sentenced to eighty-four months imprisonment on the § 924(c) charge in Count 12 of the Second Superseding Indictment, with this sentence to run consecutively to the one imposed on Count 11. Ginglen was also sentenced to 300 months imprisonment on the § 924(c) charge in Count 14 of the Second Superseding Indictment, with this sentence to run consecutively to those imposed on Counts 11 and 13. Thus, Ginglen was sentenced to a total of 481 months imprisonment. Ginglen was also ordered to serve five years on supervised release following his release from prison, to pay $56,382.00 in restitution, and to pay a $900.00 special assessment. Counts 2, 4, 6, 8, and 10 of the Second Superseding Indictment were dismissed on motion of the Government.

On January 3, 2006, Ginglen, through counsel, filed a Notice of Appeal (Case No. 04-30052, d/e 27), challenging the denial of his Motion to Suppress. The appeal was argued on September 28, 2006, and the Court of Appeals issued an opinion affirming this Court's ruling on November 6, 2006. Ginglen, 467 F.3d 1071.

ANALYSIS

Ginglen now seeks relief under 28 U.S.C. § 2255. A § 2255 motion allows a person in federal custody to attack his sentence collaterally on constitutional grounds, because it is otherwise illegal, or because the court that imposed it was without jurisdiction. 28 U.S.C. § 2255(a). Ginglen raises a number of grounds for relief. This Court must determine whether he is entitled to an evidentiary hearing on any of these claims. Section 2255 Rule 8(a). Under Seventh Circuit precedent, "[a] section 2255 petitioner is entitled to an evidentiary hearing on his claims, when he alleges facts that, if proven, would entitle him to relief." Stoia v. United States, 22 F.3d 766, 768 (7th Cir. 1994). However, before he is entitled to an evidentiary hearing, Ginglen bears the burden of filing a detailed and specific affidavit showing that he has actual proof of the allegations, rather than mere unsupported assertions. Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002).

In addition to the Petition and Amended Petition, Ginglen has filed a number of supplemental pleadings adding claims for relief. For clarity, the Court will apply a consecutive numbering system to Ginglen's claims, regardless of the pleading in which they were presented. Ginglen asserts the following grounds for relief in his Petition and Amended Petition:

1. his guilty plea was unknowing, unintelligent, and involuntary;

2. ineffective assistance of trial counsel in connection with the guilty plea, specifically, failure to explain the Plea Agreement, failure to prepare Ginglen for the change of plea hearing, failure to apprise Ginglen of the mandatory minimum sentences under 18 U.S.C. § 924(c), and failure to follow through on competency issues;

3. ineffective assistance of trial counsel with respect to failure to investigate, failure to call witnesses at the detention hearing and to appeal the Magistrate Judge's detention order, failure to call witnesses at the hearing on the Motion to Suppress, failure to communicate, failure to act, misleading the court, failure to attend a presentence interview with Ginglen and probation officer, and failure to provide effective assistance at sentencing;

4. ineffective assistance of appellate counsel, specifically failure to perform as contracted, substitution of counsel without authorization, failure to file requested motions, and failure to communicate; and

5. his sentence was improper due to impermissible double counting, was unreasonable and irrational, failed to comply with

18 U.S.C. § 3553, and resulted in a violation of Ginglen's rights under the Fifth and Eighth Amendments.

Ginglen raised the following grounds for relief in various supplemental filings allowed by the Court as set forth below:

6. ineffective assistance of counsel regarding the failure to challenge the validity of search warrants authorizing search of ...


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