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Russell v. United States

United States District Court, Seventh Circuit

September 26, 2013

KENNEDY M. RUSSELL, SR., Petitioner,


David R. Herndon, Chief Judge United States District Court

I. Introduction and Background

Now before the Court is Russell’s 28 U.S.C. ' 2255 petition to vacate, set aside or correct sentence (Doc. 1). The government opposes the petition (Doc. 8). Russell filed a reply (Doc. 25). Based on the record and the applicable law, the Court DENIES the petition.

On October 20, 2010, the grand jury returned a five count indictment against Russell for willful failure to file income tax returns in violation of 26 U.S.C. § 7203. United States v. Russell, 10-30196-DRH; Doc. 1. On November 15, 2010, assistant Federal Public Defender Todd Schultz entered his appearance on behalf of Russell. Id. at Doc. 12. On April 19, 2011, assistant Federal Public Defender Thomas Gabel entered his appearance on behalf of Russell.

Prior to the commencement of trial, Russell filed a motion in limine asking the Court to prohibit his prior misdemeanor conviction for violating 18 U.S.C. § 873. Id. at Doc. 16.[1] On April 25, 2011, day one of the trial, the Court denied the motion in limine. Id. at Doc. 18. During opening arguments, Russell’s counsel set forth the defense that Russell had not willfully failed to file income tax returns as alleged in the indictment because of Russell’s honest beliefs about the federal tax code. At the close of the close of the government’s case, Russell orally moved for judgment for acquittal which the Court denied. On April 27, 2011, the jury returned guilty verdicts on Counts 1 through 5 of the indictment. Id. at Docs. 20, 21, 23, 25, 27 and 29. Id. at Doc. 34.

On July 11, 2011, Russell, pro se, filed a motion to terminate the services of the Federal Public Defender. Id. at Doc. 35.[2] On July 21, 2011, the Court held a hearing on the motion to terminate and after discussing the issue at length with Russell, he withdrew the motion to terminate services. Id. at Doc. 40. On July 26, 2011, Russell, by and through his attorney, filed objections to the Presentence Investigation Report. Id. at Doc. 41. Russell, by and through his attorney, also filed a sentencing memorandum. Id. at Doc. 49.

On September 16, 2011, the Court sentenced Russell to a total term of 27 months imprisonment consisting of 12 months on Counts 1 and 2 to run consecutively and a term of 3 months on Counts 3, 4 and 5, to run concurrently with each other. Id. at Docs. 58 & 61. The Court also ordered restitution in the amount of $109, 105.00. Id. Thereafter, Russell appealed his judgment and sentence to the Seventh Circuit Court. Id. at Doc 64. On March 15, 2012, the Seventh Circuit issued its Mandate affirming the judgment.[3] Id. at Doc. 76.

The Court notes that in his criminal case from March 30, 2012 to September 13, 2013, Russell has filed nine separate motions and two appeals pertaining to his criminal conviction. Id. at Docs. 77, 78, 85, 87, 89, 92, 94, 96, 98, 104 and 108. These motions contain arguments, inter alia, that contest his criminal conviction, challenge the Court’s jurisdiction and asks the Court to reevaluate the restitution in the criminal case. All of the motions have either been dismissed for lack of jurisdiction or denied with the exception of the motion to reevaluate the restitution which the Court has not issued a ruling as the motion becomes ripe on October 2, 2013.

In the meantime, on September 14, 2012, Russell filed this petition (Doc. 1). In his petition, Russell claims that he received ineffective assistance of counsel in violation of the Sixth Amendment. His gripes range from the pretrial process (counsel failing to advise him of the facts and law), trial process (counsel failed in the jury selection process, counsel failed to investigate or present witnesses at trial, counsel failed in the submission of jury instructions, counsel failed to set forth a defense) and sentencing process (counsel failed to object to restitution). These nonsensical arguments regarding his conviction that can be boiled down to two categories: (1) trial counsel's performance was constitutionally defective and (2) trial counsel failed at sentencing to oppose imposition of “restitution.”

The Court also notes that in this § 2255 proceeding, Russell has filed three interlocutory appeals, the last filed on September 24, 2013 (Docs. 32, 38 & 48). The Seventh Circuit has issued Mandates as to the first two (Docs. 32 & 46). In addition to these appeals, Russell filed a petition for writ of Mandamus with the Seventh Circuit on September 13, 2013 (Doc. 47). He has also filed a motion for declaratory judgment and a motion challenging the jurisdiction of this Court in this proceeding (Docs. 42 & 45).

As the § 2255 petition is ripe, the Court turns to address the merits.

II. Legal Standard

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. 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); Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).

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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (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 not raised 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 ...

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