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Brian Burnside v. United States of America

August 8, 2011

BRIAN BURNSIDE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

Monday, 08 August, 2011 11:43:58 AM

Clerk, U.S. District Court, ILCD

OPINION & ORDER

This matter is now before the Court on Petitioner Brian Burnside's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (RII.1).*fn1 For the reasons set forth below, Burnside's Motion is DENIED.

PROCEDURAL HISTORY

Petitioner was charged in a criminal complaint on September 12, 2007 with the offense of Possession with Intent to Distribute more than 50 grams of Cocaine Base (crack). (RI.1). His initial appearance was before United States Magistrate Judge Gorman on September 13, 2007. (RI. d/e 9/13/07). During this appearance, Petitioner was advised by Judge Gorman that he would receive a mandatory sentence of life imprisonment if (1) he was convicted of the charged offense and (2) Petitioner had two or more prior felony convictions. (RI.7-1 at 1). Petitioner acknowledged that he understood this. (RI.7-1 at 1).

An indictment charging the same offense was returned on September 19, 2007. (RI.8). On September 25, 2007 the United States filed a Notice of Intent to Use Evidence of Prior Convictions, in which Petitioner was notified that the United States would seek an enhanced sentence pursuant to 21 U.S.C. § 851 on account of Petitioner having a history of numerous felony drug convictions. (RI.10).

Petitioner filed a Motion to Quash Arrest and Suppress Evidence and a Motion to Quash Search Warrant on April 21, 2008. (RI.26, RI.27, RI.29). This Court heard the motions to quash on June 11 and June 19, 2008. (RI. d/e 6/11/08, RI. d/e 6/19/08). By written Order dated July 1, 2008 this Court denied the motions. (RI.41).

Petitioner entered a plea of guilty without a plea agreement on July 30, 2008. (RI. d/e 7/30/08). At the plea hearing, Petitioner reserved for appeal the adverse decisions rendered on his motions to quash. (RI.43). On December 2, 2008 Petitioner was sentenced to life imprisonment. (RI. d/e 12/2/08). This Court entered judgment on December 4, 2008. (RI.52).

Petitioner took a direct appeal in which he challenged the denial of his motions to quash and the voluntariness of his plea of guilty. His conviction was affirmed on December 4, 2009. United States v. Burnside, 588 F.3d 511 (7th Cir. 2009).

Petitioner filed the instant § 2255 motion on October 4, 2010. He asserts four claims, which are as follows: (1) his plea of guilty was involuntary; (2) his trial counsel was ineffective; (3) his enhanced sentence was improper; and (4) his appellate counsel was ineffective. (RII.1, RII.3).

DISCUSSION

A petitioner may avail himself of § 2255 relief only if he can show that there are "flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude, or result in a complete miscarriage of justice." Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995). Section 2255 is limited to correcting errors that "vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude." Guinan v. United States, 6 F.3d 469, 470 (7th Cir. 1993), citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993).

A § 2255 motion is not, however, a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Federal prisoners may not use § 2255 as a vehicle to circumvent decisions made by the appellate court in a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Doe, 51 F.3d at 698. Accordingly, a petitioner bringing a ยง 2255 motion is barred from raising: (1) issues raised on direct appeal, absent some showing of new evidence or changed circumstances; (2) non-constitutional issues that could have been but were not raised on direct appeal; or (3) constitutional issues that were not raised on direct appeal, absent a showing of cause for the default and ...


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