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Jason David Lingo v. United States of America

December 2, 2010


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


This matter comes before the Court on Petitioner Jason David Lingo's Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1) pursuant to 28 U.S.C. § 2255. At the Court's direction, Respondent United States of America (hereinafter "the Government") filed a Response (Doc. 5), to which Lingo did not file a reply.

For the following reasons, the Court DENIES the instant motion.


On December 11, 2007, a grand jury charged Petitioner Jason David Lingo (hereinafter "Lingo") by Indictment (Doc. 1) with one count of possession of unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3). Then, on January 25 of the next year, a grand jury returned a Superseding Indictment (Doc. 13) against Lingo, which retained the possession of unauthorized access devices charge (Count I) and added counts of mail fraud (Count II) in violation of 18 U.S.C. § 1341 and aggravated identity theft (Count III) in violation of 18 U.S.C. § 1028A(a)(1).

Not more than three months after the filing of the superseding indictment, Lingo entered an open plea of guilty to all counts contained therein. When Lingo twice failed to appear for his sentencing hearing, the Court issued a warrant for his arrest. After United States Marshals picked up Lingo approximately two months later, the Court held sentencing on October 30, 2008. At the sentencing hearing, the Court determined that, for purposes of the United States Sentencing Guidelines (hereinafter "U.S.S.G."), Lingo's total offense level was 19*fn1 and his criminal history category was II, which rendered, inter alia, an advisory U.S.S.G. range of 33 to 41 months imprisonment for Counts I and II.*fn2 Bearing in mind the factors stated at 18 U.S.C. § 3553(a), the Court ultimately departed upward from the U.S.S.G. range and sentenced Lingo to 60 months imprisonment on Counts I and II and 24 months on Count III to run consecutive to Counts I and II for a total of 84 months imprisonment. The Court also ordered Lingo serve a total of three years supervised release upon his release from prison, pay restitution in the amount of $3,612.31 and a $300.00 special assessment.

Lingo never appealed his conviction or sentence, but he did timely file the instant habeas petition. In his petition, Lingo argues that the Court improperly calculated his advisory sentencing range by including an inapplicable 2 level enhancement pursuant to U.S.S.G. § 2B1.1(b)(10)(A)(ii) for possession or use of an authentication feature, specifically CV2 three-digit verification codes (hereinafter "2 level enhancement"). See supra note 1. Lingo also maintains that he suffered from ineffective assistance of counsel due to his attorney's failure to object and appeal application of the 2 level enhancement. Indeed, the Government concedes that the 2 level enhancement should not have applied to Lingo, although it disputes that any relief is warranted by his habeas petition. Doc. 5, p. 5. Had the Court not considered said enhancement, Lingo's total offense level would have been 17, which would have produced, inter alia, an advisory sentencing range of 27-33 months imprisonment on Counts I and II.


Following a brief overview of the law governing § 2255 motions, the Court will address each of Lingo's arguments in kind.

I. Section 2255 Generally

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 (2006). More precisely, "[r]elief 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). As a result, "[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).

Of course, a § 2255 motion does not substitute for a direct appeal. A defendant cannot raise constitutional issues that he could have but did not directly appeal unless he shows good cause for and actual prejudice from his failure to raise them on appeal or unless failure to consider the claim would result in a fundamental miscarriage of justice. Bousley v. United States, 523 U.S. 614, 622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. Meanwhile, a § 2255 motion cannot pursue non-constitutional issues that were unraised on direct appeal regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842 (7th Cir. 2000). The only way such issues could be heard in the § 2255 context is if the alleged error of law represents "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).

The failure to hear a claim for ineffective assistance of counsel in a § 2255 motion is generally considered to work a fundamental miscarriage of justice because often such claims can be heard in no other forum. They are rarely appropriate for direct review since they often turn on events not contained in the record of a criminal proceeding. Massaro v. United States, 538 U.S. 500, 504-05 (2003); Fountain, 211 F.3d at 433-34. Further, the district court before which the original criminal trial occurred, not an appellate court, is in the best position to initially make the determination about the effectiveness of counsel in a particular trial and potential prejudice that stemmed from that performance. Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel claims, regardless of their substance, may be raised for the first time in a § 2255 petition.

An evidentiary hearing on a § 2255 habeas petition is required when the motion is accompanied by "a detailed and specific affidavit which shows that the petitioner has actual proof of the allegations going beyond mere unsupported assertions." Barry v. United States, 528 allegations cannot sustain a petitioner's request for a hearing." Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir. 1989). As will be seen, Lingo's allegations are ...

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