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Carson v. United States

January 21, 2010

CASEY CARSON, PETITIONER/DEFENDANT,
v.
UNITED STATES OF AMERICA , RESPONDENT/PLAINTIFF.



The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 1). Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that upon preliminary consideration by the district court judge, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion." After carefully reviewing the motion in the present case and the Court's own records, the Court concludes that Petitioner is not entitled to relief; therefore, the motion is dismissed.

BACKGROUND

On February 2, 2007, Petitioner pleaded guilty to conspiring to transport a child in interstate commerce for illegal sexual activity in violation of 18 U.S.C. §§ 2423(a) and (e) and traveling in interstate commerce for the purpose of engaging in illicit sexual contact in violation of 18 U.S.C. § 2 and § 2423(b). No written plea agreement was entered between Petitioner and the Government. Petitioner, however, did sign a written Stipulation of Facts that was filed with the Court under seal (Doc. 36) (sealed).

On August 13, 2007, Petitioner was sentenced to a total of 540 months imprisonment: 360 months on the conspiracy to transport a child for illegal sexual activity charge and 180 months on the traveling in interstate commerce for the purpose of engaging in illicit sexual contact charge, to be served consecutive to the conspiracy sentence. Petitioner's sentence was affirmed on direct appeal. United States v. Carson, Case No. 07-2944 (7th Cir. Aug. 21, 2008). Petitioner did not seek a writ of certiorari to the Supreme Court of the United States.

DISCUSSION

A. General Principles

Relief under § 2255 is "reserved for extraordinary situations." Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). A criminal defendant may attack the validity of his sentence under § 2255 only if the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

28 U.S.C. § 2255. However, a § 2255 motion "is neither a recapitulation of nor a substitute for a direct appeal." Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). Therefore,

[a]n issue not raised on direct appeal is barred from collateral review absent a showing of both good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or if a refusal to consider the issue would lead to a fundamental miscarriage of justice.

Prewitt, 83 F.3d at 816. The Seventh Circuit has made it very clear that there are three types of issues that cannot be raised in a § 2255 motion:

(1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal.

United States v. Belford, 975 F.2d 310, 313 (7th Cir. 1992) (footnote omitted).

One of the most common methods of raising issues that might otherwise be barred in a § 2255 motion is for a petitioner to claim that counsel was ineffective at trial, at sentencing, or on direct appeal. To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate: (1) deficient performance by counsel and (2) resulting prejudice from that deficient performance. Strickland v. Washington, 466 U.S. 668, 694 (1984); Precin v. United States, 23 F.3d 1215, 1218 (7th Cir. 1994). To show this deficient performance by counsel, a petitioner bears the "heavy burden" of showing that counsel's performance fell well outside the range of professionally competent representation. United States v. Moya-Gomez, 860 F.2d 706, 763-64 (7th Cir. 1988). In making this assessment, a court must employ a "highly ...


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