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United States v. Foster

United States District Court, N.D. Illinois, Eastern Division

January 3, 2017



          Robert W. Gettleman United States District Judge

         Petitioner Napoleon Foster has filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his conviction and sentence, alleging a multitude of reasons that his sentence of 284 months' imprisonment should be amended. The government opposes the motion. For the reasons discussed below, petitioner's motion is denied.


         The facts of the case are discussed at length by the Seventh Circuit in its July 21, 2011, opinion. See United States v. Foster, 652 F.3d 776 (7th Cir. 2011). Petitioner was charged in a three-count indictment with: bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d); possession of a firearm in furtherance of a bank robbery, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (2); and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). The charges stemmed from the January 19, 2006, robbery of the Acme Continental Credit Union in Riverdale, Illinois. Two armed and masked people robbed the credit union, aided by an accomplice who drove their getaway car. Law enforcement eventually identified Asia Hill and Charles Anderson as the masked robbers and petitioner as their getaway driver. Petitioner went to trial on August 31, 2009. Hill and Anderson both testifed against petitioner at trial, and the jury found him guilty on all three counts.

         On December 7, 2009, through newly appointed counsel, petitioner filed: (1) a motion for a new trial, challenging the court's process for selecting alternate jurors and alleging various evidentiary errors; and (2) a motion for acquittal, arguing that the evidence was insufficient to convict. On January 19, 2010, petitioner filed a motion to vacate the judgment and dismiss the indictment for lack of jurisdiction based on his civil rights allegedly being restored following one of his previous felony convictions. This court denied all of these motions on May 17, 2010. On August 18, 2010, petitioner filed objections to his Presentence Investigation Report. Pertinent here, petitioner argued that his 1980 conviction for robbery could not be used at sentencing because he was a juvenile when he committed the offense and, although he was charged as an adult, the Illinois Juvenile Court Act should have been observed, but was not. The court rejected this argument.

         At sentencing, the court concluded that petitioner's criminal history qualified him as an armed career criminal and sentenced him to 284 months in prison. Petitioner appealed his conviction and sentence, both of which were affirmed by the Seventh Circuit on July 21, 2011. See Foster, 652 F.3d 776. The United States Supreme Court denied certiorari on May 29, 2012. See Foster v. United States, 132 S.Ct. 2702 (2012). Petitioner's judgment of conviction became final on May 29, 2012. See United States v. Robinson, 416 F.3d 645, 647-48 (7th Cir. 2005).


         Petitioner submitted the instant motion by mail at the end of May 2013. It was docketed on June 3, 2013. In his motion, which is accompanied by nearly 300 pages of paperwork, [1]petitioner asserts: (1) ineffective assistance of trial counsel (Grounds One and Three); (2) prosecutorial misconduct (Ground Two); (3) unconstitutionality of the bank robbery statute, 18 U.S.C. § 2113 (Ground Four); (4) unconstitutionality of the felon in possession of a firearm statute, 18 U.S.C. § 922(g) and the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §§ 924(e) (Ground Five); and (5) ineffective assistance of sentencing and appellate counsel (Ground Six). On August 12, 2013, petitioner filed a motion to file a supplemental pleading and, in that motion, asserted two additional grounds for relief: (1) his sentences under 18 U.S.C. §§ 924(e) and (c) were unconstitutional pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013) (Ground Seven); and (2) his sentences are unconstitutional pursuant to United States v. Booker, 543 U.S. 220 (2005) (Ground Eight).

         I. Legal Standard

         Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct his sentence. This relief is available only in limited circumstances, such as where an error is jurisdictional, constitutional, or there has been a “complete miscarriage of justice.” See Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004); Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994) (internal quotations and citations omitted). The record is reviewed and all reasonable inferences are drawn in favor of the government. See United States v. Galati, 230 F.3d 254, 258 (7th Cir. 2000); Messinger v. United States, 872 F.2d 217, 219 (7th Cir. 1989).

         II. Analysis

         A. Procedural Default

         With the exception of his ineffective assistance of counsel claims, all of petitioner's claims are procedurally barred. The Seventh Circuit has noted that section 2255 petitions are “‘neither a recapitulation of nor a substitute for a direct appeal.'” McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (citations omitted). Therefore, a section 2255 motion cannot raise: (1) issues that were raised on direct appeal, unless there is a showing of changed circumstances; (2) non-constitutional issues that could have been raised on direct appeal, but were not; and (3) constitutional issues that were not raised on direct appeal. See 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. 1994)).

         To pursue a procedurally defaulted claim, “a section 2255 petitioner must show both (1) good cause for his failure to pursue an issue on direct appeal, and (2) actual prejudice stemming from the alleged constitutional violation.” Theodorou v. United States, 887 F.2d 1336, 1340 (7th Cir. 1989). Consequently, “absent a showing of cause and prejudice, a [petitioner] is barred from raising any constitutional challenge in a section 2255 proceeding which could have been raised in a direct appeal.” Id. at 1339-40. “Cause is defined as an objective factor, external to the defense, that impeded the defendant's efforts to raise the claim in an earlier proceeding.” Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). “Prejudice means an error which so infected the entire trial that the resulting conviction violates due process.” Id.

         1. Ground Two: Prosecutorial Misconduct

         Petitioner argues that the government committed prosecutorial misconduct in two ways. First, by labeling Randy Williams as a co-conspirator in order to admit recorded conversations between Williams and Anderson, and second by “suborning perjury” in ...

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