Name of Assigned Judge Philip G. Reinhard Sitting Judge if Other or Magistrate Judge than Assigned Judge
For the reasons stated below, the court denies the § 2255 motion as to all claims, denies the request for an evidentiary hearing, and dismisses this cause in its entirety.
O [ For further details see text below.] Notices mailed by Judicial staff.
David England, a federal prisoner, filed a motion pursuant to 28 U.S.C. § 2255, challenging his conviction and sentence on numerous grounds. The Government has filed a response, and defendant has filed a lengthy reply. The record supports that this motion, as was defendant's trial, has been significantly complicated and protracted due to England's confrontational approach throughout this case.
While the court must grant a § 2255 motion when a prisoner's conviction or sentence was imposed in violation of the Constitution or the laws of the United States, such relief is reserved for extraordinary situations. Blake v. United States, 2011 WL 4475275, * 5 (S.D. Ill. Sept. 26, 2011) (citing Prewitt v. United States, 83 F. 3d 812, 819 (7th Cir. 1996)). Relief under § 2255 is available only if an error is jurisdictional, constitutional, or is a fundamental defect which inherently results in a complete miscarriage of justice. Blake, at * 5. A § 2255 motion is neither a recapitulation of nor a substitute for a direct appeal. Blake, at * 5.
Thus, a § 2255 motion cannot raise: (1) issues that were raised on direct appeal absent a showing of changed circumstances; (2) non-constitutional issues that could have been raised on direct appeal but were not; and (3) constitutional issues not raised on direct appeal unless the defendant demonstrates both cause for the procedural default as well as actual prejudice or that the failure to consider the issue would amount to a fundamental miscarriage of justice. Blake, at * 5.
Claims not raised on direct appeal that are couched in terms of ineffective assistance of counsel are not procedurally defaulted. Blake, at * 5. To establish constitutionally ineffective assistance of counsel, a defendant must show that: (1) his attorney's performance fell below an objective standard of reasonableness; and (2) but for counsel's unprofessional errors the result of the proceeding would have been different. Woods v. United States, 2009 WL 3787904, * 6 (N.D. Ill. Nov. 12, 2009) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). If a defendant fails to make a proper showing under either of the prongs, the court need not consider the other. Woods, at * 6. Because counsel is presumed effective, a defendant bears a heavy burden in challenging his attorney's effectiveness. Woods, at * 6.
As to the effectiveness of appellate counsel, the two-prong test of Strickland applies as well. Woods, at * 6. Under the performance prong, an appellate counsel's performance is constitutionally deficient if he fails to appeal an issue that is obviously and clearly stronger than the claims counsel actually raised on appeal. Woods, at * 6. To establish prejudice, a defendant must show that there is a reasonable probability that but for his appellate counsel's deficient performance the result of the appeal would have been different. Woods, at * 6.
Further, a hearing is not always required pursuant to a § 2255 motion. Blake, at * 5. A hearing is required only if a defendant alleges facts that, if proved, would entitle him to relief. Blake, at * 5. However, if the motion, files, and records in the case conclusively show that the defendant is entitled to no relief, then a hearing is not required. Blake, at * 5. To obtain such a hearing, a defendant must submit an affidavit setting forth the basis for relief. Blake, at * 5 (citing Kafo v. United States, 467 F. 3d 1063, 1067 (7th Cir. 2006)). The specific allegations in the motion and affidavit, however, must go beyond merely unsupported assertions. Blake, at * 5.
Here, defendant claims his sentence was illegal, some of the evidence was the product of an illegal search, he was denied the effective assistance of both trial and appellate counsel, he was prejudiced by various forms of prosecutorial misconduct, and this court was biased against him at trial and sentencing and committed errors during his trial, sentencing, and resentencings. The court will address each of these many claims.
The court rejects defendant's claim that 10 years' imprisonment is the statutory maximum for his four counts of conviction collectively. This claim was not raised on direct appeal. Further, the statutory maximum is 10 years on each count individually.
Defendant next asserts that his sentence must be concurrent as to all counts. This claim was rejected on direct appeal and may not be raised again in a § 2255 motion. Moreover, defendant's sentence of 262 months was properly calculated pursuant to U.S.S.G. § 5G1.2(d).
Defendant's claim that his sentence was improperly enhanced because the finding that he discharged a gun was required to be made by a jury as opposed to the court is defaulted as it was not raised on direct appeal. Additionally, as the established law now stands, such a finding may be made by the court for purposes of sentencing. See United States v. Spence, 450 F. 3d 691, 696-97 (7th Cir. 2006).
The court also rejects the claim that defendant's criminal history was improperly calculated as that claim was not raised on direct appeal. Contrary to defendant's assertion, his criminal history was properly calculated pursuant to U.S.S.G. § 4A1.1(a),(b),(c) based on his prior sentences of imprisonment.
Defendant's claim that the court improperly applied an obstruction enhancement based on his trial testimony is defaulted for not being raised on direct appeal. Moreover, the claim fails on its merits because the court made specific findings as to how defendant was wilfully untruthful and how such false testimony was material to the trial.
Plaintiff claims the court misapplied § 2A2.1 when determining his sentence. That issue was disposed of on direct appeal, United States v. England, 507 F. 3d 581, 590-91 (7th Cir. 2007), and may not be raised again in this proceeding.
Plaintiff next vaguely claims that the court misused information from his competency evaluation at both trial and sentencing. The claim is defaulted to the extent it applies to the trial and initial sentencing as it was not raised on direct appeal. As to defendant's second and third appeals based on his subsequent sentencings only, there was no claim that the use of the evaluation at those sentencings was erroneous. Further, the Seventh Circuit was aware of ...