United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. Gettleman United States District Judge
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.
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.
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.
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.
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, 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).
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).
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)).
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.
Ground Two: Prosecutorial Misconduct
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 ...