United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
before the Court is the Defendant's Motion to Vacate
Pursuant to 28 U.S.C. § 2255 [ECF No. 247]. Having
considered the submissions of the parties, the Motion will be
denied for the reasons stated in this Opinion and Order.
Defendant, Booker T. Sewell, is currently serving a term of
imprisonment after being convicted by a jury of being a felon
in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1), and maintaining a place for the purpose of
distributing and using a scheduled II controlled substance,
cocaine, and a schedule I controlled substance, marijuana, in
violation of 21 U.S.C. § 856(a)(1).
Defendant was indicted after police obtained a warrant to
search a residence at a particular address on Sawmill Woods
Court in Allen County, Indiana (the Residence). The warrant
was based on information provided in an affidavit that
outlined how controlled purchases of crack and powder cocaine
led to court authorization to wiretap the telephones of
several individuals in efforts to determine the supply
network. Through these wiretaps, investigators identified
Silvestre Castaneda as a drug supplier. By intercepting
Castaneda's communications, they also identified the
Defendant as a person involved in the drug trafficking
organization. During the execution of the search warrant, the
police found incriminating evidence.
trial, the Defendant moved to suppress the evidence obtained
during the search. The Court denied the motion in an Opinion
and Order dated November 17, 2011 [ECF No. 32]. On March 26,
2012, the Defendant went to trial and, on March 29, 2012, a
jury found him guilty of both counts [ECF No. 55]. The jury
also rendered a special forfeiture verdict, finding the gun
and ammunition to be involved in Count 1, and finding the
cash, gun, and ammunition to be used or intended to be used
to commit or to facilitate the commission of Count 2 [ECF No.
60]. On October 3, 2012, the Court held an evidentiary
hearing regarding sentencing issues [ECF No. 87], and on
February 10, 2014, the Court sentenced the Defendant to 360
months of imprisonment on Count 1 and a concurrent 240 months
of imprisonment on Count 2, with the Defendant being an armed
career criminal [ECF Nos. 113, 114].
Defendant filed a direct appeal. The Seventh Circuit held
that search warrant was supported by probable cause, that
sufficient evidence supported the Defendant's conviction
of being a felon in possession of a firearm, and that the
district court properly applied a sentencing enhancement for
the drug quantity and for possession of a firearm in
connection with a controlled substance offense. United
States v. Sewell, 780 F.3d 839, 847-50 (7th Cir. 2015).
However, the court vacated the conditions of supervised
release and remanded for reconsideration of the conditions.
Id. at 850-52.
January 12, 2016, the Court resentenced the Defendant, based
on the limited remand, to the same 360 months on Count 1 and
concurrent 240 months on Count 2 [ECF Nos. 160, 161].
However, after Johnson v. United States, 135 S.Ct.
2551 (2015), the Defendant was no longer an armed career
criminal, and on October 4, 2017, the Court conducted a
resentencing hearing [ECF No. 225]. The Court sentenced the
Defendant to 312 months of imprisonment total: 120 months on
Count 1 and 192 months on Count 2, consecutive.
(Id.) The Defendant appealed the sentence, but the
Seventh Circuit agreed with appellate counsel that this
appeal was frivolous. United States v. Sewell, 715
Fed.Appx. 567 (7th Cir. Mar. 22, 2018). On October 29, 2018,
the Defendant filed his § 2255 Motion to Vacate.
2255 allows a person convicted of a federal crime to seek to
vacate, set aside, or correct his sentence. This relief is
available only in limited circumstances, such as where an
error is of jurisdictional or constitutional magnitude, or
where there has been an error of law that “constitutes
a fundamental defect which inherently results in a complete
miscarriage of justice.” See Harris v. United
States, 366 F.3d 593, 594 (7th Cir. 2004) (internal
quotation omitted). Motions to vacate a conviction or correct
a sentence ask a court to grant an extraordinary remedy to a
person who has already had an opportunity of full process.
Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir.
2006). A Section 2255 motion is not a substitute for a direct
criminal appeal nor is it a means by which a defendant may
appeal the same claims a second time. See Bousley v.
United States, 523 U.S. 614, 621 (1998) (relief under
2255 “will not be allowed to do service for an
appeal”); Varela v. United States, 481 F.3d
932, 935 (7th Cir. 2007) (Section 2255 motion is
“neither a recapitulation of nor a substitute for a
direct appeal.”) (citation omitted). Issues that were
raised on direct appeal may not be reconsidered on a §
2255 motion absent changed circumstances. Olmstead v.
United States, 55 F.3d 316, 319 (7th Cir. 1995).
three types of issues are procedurally barred in a §
2255 motion: (1) those that were raised on direct appeal,
absent a showing of changed circumstances; (2)
non-constitutional issues that could have been but were not
raised on direct appeal; and (3) constitutional issues that
were not raised on direct appeal. Belford v. United
States, 975 F.2d 310, 313 (7th Cir. 1992) (overruled on
other grounds). There are exceptions to the procedural bar.
First, a petitioner may raise a procedurally barred
constitutional issue if he can show that there was cause for
failing to raise the issue on appeal and that prejudice
resulted therefrom. Id. ; see also Cross v.
United States, 892 F.3d 288, 294-95 (7th Cir. 2018).
Meeting the cause and prejudice standard is more difficult
than establishing “plain error.” See United
States v. Frady, 456 U.S. 152, 162-66 (1982). Second, he
can raise a barred constitutional issue if he can show that
the Court's failure to hear the issue would result in a
fundamental miscarriage of justice-which requires an actual
showing of innocence. McCleese v. United States, 75
F.3d 1174, 1177 (7th Cir. 1996); see also U.S. ex rel.
Bell v. Pierson, 267 F.3d 544, 551-52 (7th Cir. 2001)
(explaining that petitioner must show that “it is more
likely than not that no reasonable juror would have convicted
him in light of new evidence”) (citing Schlup v.
Delo, 513 U.S. 298, 327 (1995) (ellipses omitted)).
There is no cause and prejudice exception for
non-constitutional errors that could have been raised on
appeal but were not. Arango-Alvarez v. United
States, 134 F.3d 888, 891 (7th Cir. 1998). Finally,
ineffective assistance of counsel claims may always be raised
in § 2255 cases. Massaro v. United States, 538
U.S. 500, 504 (2003).
may deny a § 2255 motion without an evidentiary hearing
if “the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b).
Procedurally Barred Claims
Defendant argues that he is entitled to habeas relief because
the search warrant affidavit for his residence did not
establish probable cause. He contends that there was
insufficient information presented in the affidavit to show
that he was involved in drug trafficking, or that drug
activity was connected to the residence.
claim is procedurally barred because it was addressed on
direct appeal, see Sewell, 780 F.3d at 844-45, and
the Defendant has not identified changed circumstances, such
as new evidence or binding caselaw. On appeal, the Seventh
Circuit conducted an independent review of the affidavit and
was convinced that the “magistrate judge had a
substantial basis for his probable-cause finding.”
Id. at 845. The appellate court's review
included a rejection of the Defendant's “backup
argument” that the affidavit did not connect him and
the drug activity to the residence to be searched.
Id. at 846 (holding that it was reasonable to
believe that the Defendant lived at the residence with his
wife and that he operated his drug business from the home).
The court unambiguously concluded, “[f]or all these
reasons, [the Defendant's] arguments regarding probable
cause are unavailing. [The agent's] comprehensive
affidavit established probable cause, and the magistrate
judge made the correct call in issuing the warrant. We will
not disturb it on appeal.” Id. at 847. The
issue of whether the search warrant was supported by probable
cause requires no further consideration.
Defendant also challenges the Court's drug quantity
findings and the scope of the relevant conduct relied upon at
sentencing. He submits that he should have been sentenced
only on the basis of marijuana found during the execution of
the search warrant. Again, the Defendant is reiterating
arguments that he presented on direct appeal and that the
Seventh Circuit rejected. Id. at 849-50 (holding
that the court's estimation that the Defendant possessed
30 to 40 kilograms of cocaine was reasonable based on the
record before it); see also United States v. Sewell,
715 Fed.Appx. 567 (7th Cir. Mar. 22, 2018) ...