United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
LOZANO, Judge United States District Court
matter is before the Court on the: (1) Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody, filed by Petitioner, Steven
Borchert, on September 8, 2016 (DE #85); (2) “Motion to
Supplement 2255 Motion with IRS Evidence Dated 10/5/2016,
” filed by Petitioner, Steven Borchert, on October 24,
2016 (DE #89); (3) “Motion to Supplement 2255 Motion
with IRS Evidence Dated 11/17/2016, ” filed by
Petitioner, Steven Borchert, on December 14, 2016 (DE #92);
and (4) “Motion to Supplement 2255 Motion with IRS
Evidence Dated 12/16/2016, ” filed by Petitioner,
Steven Borchert, on January 3, 2017 (DE #93). For the reasons
set forth below, the motions to supplement (DE ##89, 92, and
93) are GRANTED and the Court considered the motions and
attachments in determining the merits of Borchert's
section 2255 motion. The section 2255 motion (DE #85) is
DENIED. The Clerk is ORDERED to DISMISS this civil action
WITH PREJUDICE. Additionally, the Court DECLINES to issue a
certificate of appealability. The Clerk is FURTHER ORDERED to
distribute a copy of this order to Petitioner (Inmate Reg.
No. 13054-027), Pekin FCI, Federal Correctional Institution,
Inmate Mail/Parcels, P.O. Box 5000, Pekin, IL 61555, or to
such other more current address that may be on file for the
19, 2013, Borchert was charged with nine counts of filing
false tax returns in violation of 26 U.S.C. § 7206(1).
(DE #1). Following a jury trial, Borchert was found guilty of
all nine counts. (DE #60).
April 17, 2014, this Court sentenced Borchert to a term of 26
months for each of Counts 1, 2, 3, 4, and 5 to be served
concurrently, and a term of 25 months for each of Counts 6,
7, 8, and 9, to be served concurrently with each other, but
to run consecutively to Counts 1-5; for a total of 51 months
imprisonment. (DE #80). This Court found that Borchert had
failed to report approximately 1.9 million dollars of gross
income (sales) from his carpet cleaning business during
2001-2009, and an additional $617, 760 between 2010-2012.
(PSR ¶¶ 6-16; 26-29.) The tax loss was calculated
at $647, 415. (PSR ¶ 34.) Judgment was entered on April
23, 2014. Borchert did not appeal his convictions or
filed the instant motion to vacate his sentence under section
2255 on September 8, 2016 (DE #85). He argues that despite
the one-year applicable statute of limitations, his petition
is timely under section 2255(f)(4), because it was filed less
than one year from the date he learned supporting facts after
the IRS completed its civil settlement examination. (DE #85
at 10.) The Government filed a response in opposition on
October 12, 2016 (DE #87). Borchert filed a reply on October
24, 2016 (DE #88). Borchert also filed several motions to
supplement the section 2255 motion, attaching additional
paperwork from a recent IRS audit which he claims is new
evidence showing his tax returns are not false. (DE ##89, 92,
corpus relief under 28 U.S.C. section 2255 is reserved for
"extraordinary situations." Prewitt v. United
States, 83 F.3d 812, 816 (7th Cir. 1996). In order to
proceed on a habeas corpus petition pursuant to 28 U.S.C.
section 2255, a federal prisoner must show that the district
court sentenced him in violation of the Constitution or laws
of the United States, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack. Id.
section 2255 motion is neither a substitute for nor
recapitulation of a direct appeal. Id.; 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). As a result:
[T]here are three types of issues that a section 2255 motion
cannot raise: (1) issues that were raised on direct appeal,
absent a showing of changed circumstances; (2)
nonconstitutional issues that could have been but were not
raised on direct appeal; and (3) constitutional issues that
were not raised on direct appeal, unless the section 2255
petitioner demonstrates cause for the procedural default as
well as actual prejudice from the failure to appeal.
Belford, 975 F.2d at 313. Additionally, aside from
demonstrating "cause" and "prejudice"
from the failure to raise constitutional errors on direct
appeal, a section 2255 petitioner may alternatively pursue
such errors after demonstrating that the district court's
refusal to consider the claims would lead to a fundamental
miscarriage of justice. McCleese v. United States,
75 F.3d 1174, 1177 (7th Cir. 1996).
assessing Petitioner's motion, the Court is mindful of
the well-settled principle that, when interpreting a pro se
petitioner's complaint or section 2255 motion, district
courts have a "special responsibility" to construe
such pleadings liberally. Donald v. Cook Cnty.
Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir.
1996); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (a
"pro se complaint, 'however inartfully pleaded'
must be held to 'less stringent standards than formal
pleadings drafted by lawyers'") (quoting Haines
v. Kerner, 404 U.S. 519 (1972)); Brown v. Roe,
279 F.3d 742, 746 (9th Cir. 2002) ("pro se habeas
petitioners are to be afforded 'the benefit of any
doubt'") (quoting Bretz v. Kelman, 773 F.2d
1026, 1027 n.1 (9th Cir. 1985)). In other words:
The mandated liberal construction afforded to pro se
pleadings "means that if the court can reasonably read
the pleadings to state a valid claim on which the
[petitioner] could prevail, it should do so despite the
[petitioner's] failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999) (habeas petition from state court conviction)
(alterations in original) (quoting Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991)). On the other hand,
"a district court should not 'assume the role of
advocate for the pro se litigant' and may 'not
rewrite a petition to include claims that were never
presented.'" Id ...