United States District Court, S.D. Illinois
LARRY A. BECHEL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
R. HERNDON UNITED STATES DISTRICT JUDGE.
matter is before the Court on petitioner's May 22, 2015
motion to vacate, set aside, or correct sentence, pursuant to
28 U.S.C. § 2255 (Doc. 1). The government opposes the
motion (Doc. 5). Based on the record and the applicable law,
the Court denies Bechel's § 2255 motion. Further,
having closely examined the record, the Court concludes that
an evidentiary hearing is not necessary in this matter. It is
proper to deny a § 2255 motion without an evidentiary
hearing if “the motion and the files and records of the
case conclusively demonstrate that the prisoner is entitled
to no relief.” 28 U.S.C. § 2255(b); Cooper v.
United States, 378 F.3d 638, 641-42 (7th Cir. 2004)
(district court did not abuse its discretion in denying
petitioner an evidentiary hearing where petitioner did not
provide additional facts or assertions that would warrant a
January 21, 2009, the grand jury returned a three count
indictment against Larry Bechel for sexual exploitation of a
minor, transportation of child pornography, and possession of
child pornography (Doc. 1). See United States v.
Bechel, 09-30007-DRH; Doc. 1. On June 8, 2010, the grand
jury returned a superseding indictment against Bechel for
sexual exploitation of a minor; transportation of depiction
of minor engaging in sexual explicit conduct; and possession
of matter containing depiction of minor engaging inn sexually
explicit conduct. Id. at Doc. 68. Thereafter, on
July 2, 2010, Bechel pled guilty to the charges before
Magistrate Judge Donald G. Wilkerson. Id. at Docs.
81, 82, 83 & 84. On August 12, 2010, the Court sentenced
Bechel to 200 months imprisonment. See Id. at Docs.
94 & 96. During the proceedings, Bechel was represented
by attorney James Gomric. Bechel did not appeal his
sentence and conviction.
§ 2255 petition, defendant raised three issues for
relief: (1) ineffective assistance of counsel for failing to
object to the Magistrate Judge exceeding his authority by
accepting the plea in violation of the Federal
Magistrate's Act; (2) ineffective assistance of counsel
by advising Bechel to plead guilty to a plea agreement that
contained a collateral waiver provision; and (3) ineffective
assistance of counsel for failing to object to the use of
restraints, handcuffs and shackles, at the change of plea
hearing and the sentencing. On May 28, 2015, the Court found
that Bechel may proceed only on his claim contained in 1 as
it is based on United States v. Harden, 758 F.3d 886
(7th Cir. 2014); directed the government to respond to that
claim and dismissed as untimely the claims contained in 2 and
3 (Doc. 2). Thereafter, on July 28, 2015, the government
filed its thorough response (Doc. 5). On August 20, 2015, the
Court granted Bechel an extension of time to file a reply
brief after the Seventh Circuit renders its Opinion in
McCoy v. United States, 14-2741, a case that Bechel
maintains is similar as to his Harden issue (Doc.
7). On June 8, 2016, the Seventh Circuit issued its Mandate
in McCoy, 815 F.3d 292 (7th Cir. 2016). Therefore,
the Court directed Bechel to file a reply on or before July
11, 2016 (Doc. 8). On July 8, 2016, Bechel requested an
extension of time to file his reply (Doc. 9) and the Court
granted him up to and including August 11, 2016 to do so
(Doc. 10). On August 1, 2016, Bechel filed a motion to amend
the Section 2255 motion to add two claims: (1) that he is
innocent of any crime against the United States; and (2) that
the Court lacks jurisdiction over his criminal matter (Doc.
11). The Court notes that Bechel did not file a reply
addressing the McCoy/Harden issues and
McCoy's applicability to his case.
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
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 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, 99 S.Ct. 2235, 60 L.Ed.2d
805 (1979). Moreover, a § 2255 petition is subject to a
one-year time limitation that generally runs from “the
date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1).
addressing the merits of the Harden issue, the Court
must address his motion to amend the Section 2255 motion
(Doc. 11). After reviewing the claims the Court finds that
these claims are untimely and suffer the same fate as the
untimely claims that were contained in his original Section
2255 motion. “A motion by a federal prisoner for
postconviction relief under 28 U.S.C. § 2255 is subject
to a one-year time limitation that generally runs from the
‘the date on which the judgment of the conviction
becomes final.'” Clay v. United States,
537 U.S. 522, 524 (2003), quoting 28 U.S.C. §
2255(f)(1). As mentioned before, Bechel did not file a notice
of appeal after sentence was imposed and judgment of
conviction was entered. Therefore, Bechel's conviction
became final, at the latest, in September 2010, and a timely
motion under § 2255 had to be filed by September 2011.
Bechel's motion to amend was filed almost 5 years late
and the original petition was filed over 3 and a half years
late and, thus, these claims clearly are untimely.
Bechel's claims contained in the motion to amend should
have been raised and could have been raised within the
statute of limitations as Bechel was/should have been aware
of them. Thus, the Court dismisses these claims as untimely
and denies the motion to amend.
the Harden issue, the Court finds that claim lacks
merit and that Bechel is not entitled to relief. In his
petition, Bechel maintains that the Seventh Circuit's
decision in Harden applies retroactively and bars
his guilty plea. In Harden, the Seventh Circuit
determined that, under the Federal Magistrates Act,
magistrate judges are “not permitted to accept guilty
pleas in felony cases and adjudicate a defendant
guilty.” Harden, 758 F.3d at 888-91. While
Bechel's plea of guilty was accepted by Magistrate Judge
Wilkerson, there are several reasons why Harden does
not apply to Bechel.
unlike Harden, Bechel did not appeal his sentence or
conviction, thus, he did not raise this issue or the
circumstances surrounding his plea before a magistrate with
the Seventh Circuit Court of Appeals. The Court finds that
Bechel has waived this issue as he failed to raise this claim
on appeal. Harden is premised on longstanding
Supreme Court precedents. See, e.g., Peretz v.
United States, 501 U.S. 923, 931-33 (1991); Johnson
v. Ohio, 419 U.S. 924, 925 (1974); Brady v.
United States, 397 U.S. 742, 748 (1970). The claim of
prejudice, resulting from his plea before a magistrate, was
ripe at the time of Bechel was allowed to file a direct
appeal. Failure to raise an issue available at the time of
appeal, forfeits the claim during a future collateral attack.
See 28 U.S.C. § 2255; McCoy, 815 F.3d
at 295; Belford v. United States, 975 F.2d 310, 313
(7th Cir. 1992), overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir.
1997)(A Section 2255 petition cannot raise nonconsitutional
issues that could have been but were not raised on direct
appeal); Barnickel v. United States, 113 F.3d 704,
706 (7th Cir. 1997)(“Nonconstitutional claims like this
one, which could have been raised on direct appeal but were
not, are deemed waived even without taking cause and
prejudice into account.”). Bechel failed to appeal this
issue, and, consequently Bechel waived the claim during this
Bechel's petition is untimely as Harden is not
retroactive. Bechel's appeal and conviction became final
around September 2010 (as he did not file an appeal) - before
the Seventh Circuit decided Harden on July 14, 2014.
See Sanchez-Castellano v. United States, 358 F.3d
424, 428 (6th Cir. 2004); Moshier v. United States,
402 F.3d 116, 118 (2d Cir. 2005); United States v.
Plascencia, 537 F.3d 385, 392 (5th Cir. 2008) Bechel did
not file this 2255 petition until May 22, 2015. As stated
above Harden is premised on longstanding Supreme
Court precedent and is not a new rule. Further, neither the
Supreme Court nor the Seventh Circuit has proclaimed
Harden to be so.
assessing whether Harden applies retroactively, in
the absence of such a proclamation, the Court applies the
standard in Teague v. Lane, 489 U.S. 288 (1989).
See United States v. Van Daalwyk, 21 F.3d 179, 183
(7th Cir. 1994). Teague, as a general rule, forbids
the applications of new rules of criminal procedure on
collateral review. Teague, 489 U.S. at 310.
Teague creates exceptions for the retroactive
application of a new rule on collateral review “only if
(1) the rule is substantive or (2) the rule is a watershed
rule of criminal procedure implicating the fundamental
fairness and accuracy of the criminal proceeding.”
Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct.
1173, 1180 167 (2007) (internal alterations and quotation
marks omitted). Neither exception applies to Harden.
rule is substantive rather than procedural if it alters the
range of conduct or the class of persons that the law
punishes.” Schiro v. Summerlin,542 U.S. 348,
353, 124 S.Ct. 2519, 2223 (2004). “In contrast, rules
that regulate only the manner of determining the
defendant's culpability are procedural.” Id.
Harden provides that an Article III judge, and not a
magistrate, must accept felony guilty pleas. This does not
“narrow the scope of a criminal statute” or
“place particular conduct or persons covered by the
statute beyond the State's power to ...