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United States v. Borchert

United States District Court, N.D. Indiana, Hammond Division

January 30, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
STEVEN BORCHERT, Defendant/Petitioner.


          RUDY LOZANO, Judge United States District Court

         This 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 Petitioner.


         On June 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).

         On 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 sentence.

         Borchert 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, 93.)


         Habeas 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.

         A 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).

         In 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 requirements."

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 ...

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