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United States v. Sewell

United States District Court, N.D. Indiana, Fort Wayne Division

April 18, 2019




         Pending 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.


         The 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).

         The 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.

         Before 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].

         The 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.

         On 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.


         Section 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).

         Therefore, 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).

         A court 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).

         A. Procedurally Barred Claims

         The 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.

         This 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.

         The 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) ...

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