United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
WILLIAM C. LEE UNITED STATES DISTRICT COURT.
Swift (“Swift”) is currently serving a five-month
sentence subsequent to a revocation of his supervised
release. He now moves this Court pursuant to 28 U.S.C.
§2255 to vacate his sentence due to what he believes was
an inaccurate sentencing guidelines calculation by the
probation officer and a violation of due process. [DE 65].
For the following reasons, Swift's motion will be DENIED.
28, 2008, Swift was sentenced on his convictions for
Possession with Intent to Distribute Cocaine and Use of a
Firearm in Relation to a Drug Trafficking Crime to serve a
total of 120 months in the Bureau of Prisons (BOP) and a five
year term of supervised release. Swift's supervised
release term began on March 13, 2017. On January 8, 2019,
U.S. Probation Officer Heidi Skaggs filed a Petition,
requesting the Court issue a warrant for Swift's arrest
alleging 16 violations of Swift's supervised release
conditions. (DE 47-1). On February 4, 2019, Swift admitted
guilt to violating conditions of his supervision and the
Court found him guilty of thirteen violations. (DE 63). The
Court sentenced Swift to five months in the BOP and imposed a
new supervised release term of one year. (DE 63). He then
filed the present motion claiming that his violations were
inaccurately classified as Class B instead of Class C.
petitioner may avail himself of § 2255 relief only if he
can show that there are “flaws in the conviction or
sentence which are jurisdictional in nature, constitutional
in magnitude or result in a complete miscarriage of
justice.” Boyer v. United States, 55 F.2d 296,
298 (7th Cir. 1995). However, a § 2255 motion is not a
substitute for a direct appeal. Doe v. United
States, 51 F.3d 693, 698 (7th Cir. 1995), cert.
denied, 116 S.Ct. 205 (1995); McCleese v. United
States, 75 F.3d 1174, 1177 (7th Cir. 1996). Federal
prisoners may not use § 2255 as a vehicle to circumvent
decisions made by the appellate court in a direct appeal.
United States v. Frady, 456 U.S. 152, 165 (1982);
Doe, 51 F.3d at 698. Accordingly, a petitioner
bringing a § 2255 motion is barred from raising: (1)
issues raised on direct appeal, absent some showing of new
evidence or 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, absent a showing of cause for the default and
actual prejudice from the failure to appeal. 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, 710-20 (7th Cir. 1994). Indeed, a
petitioner's “failure to raise an issue on direct
appeal generally bars a [petitioner] from raising it later in
a post-conviction proceeding.” Barker v. United
States, 7 F.3d 629, 632 (7th Cir. 1993).
Swift did not take a direct appeal of the revocation of his
supervised release. Moreover, his petition does not make any
showing of cause for not taking a direct appeal nor does it
explain any actual prejudice to him from the failure to do
so. As a result, Swift is procedurally defaulted from raising
the due process claim he makes presently in a petition under
§2255. See United States v. Sewell, 2019 WL
1755301 (outlining the three types of issues that are
procedurally barred and noting that “meeting the cause
and prejudice standard is more difficult than establishing
‘plain error.'”); The Court also notes,
however, that at the revocation of his supervised release
Swift, who was represented by counsel, entered into an agreed
disposition as to his sentence with the Government. [DE 62].
Thus, even if he was not procedurally defaulted, he would
certainly have an uphill battle in this Court given that he
agreed to the underlying disposition at his revocation
to Rule 11 of the Rules Governing Section 2255 Proceedings,
the Court must “issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” A certificate of appealability may be
issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); Rule 11 of Rules Governing Section
2255 Proceedings. The substantial showing standard is met
when “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quotation marks omitted); Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983). Where the
district court has rejected the constitutional claim on the
merits, “the showing required to satisfy § 2253(c)
is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack, 529 U.S. at 484. A defendant is
not required to show that he will ultimately succeed on
appeal. Miller-El v. Cockrell, 537 U.S. 322, 337,
342 (2003) (stating that the question is the
“debatability of the underlying constitutional claim,
not the resolution of that debate”). “Where a
plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable
jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner
should be allowed to proceed further.” Slack,
529 U.S. at 484. Here, no reasonable jurist could conclude
anything other than Swift is procedurally barred.
Accordingly, the Court will not issue Swift a certificate of
on the foregoing, Swift's Motion to Vacate Sentence
pursuant to 28 U.S.C. §2255 to Vacate, Set Aside, or
Correct Sentence is DENIED. The Court ...