United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE.
In 2011, petitioner Gale Rachuy pleaded guilty to a charge of knowingly transporting a stolen vehicle across state lines in violation of 18 U.S.C. § 2312. United States v. Rachuy, Case No. 10-cr-141-wmc. On February 6, 2012, this court sentenced him to serve 90 months in prison, to be followed by 3 years of supervised release. The petitioner filed and lost a direct appeal, a motion to withdraw his guilty plea and several motions related to seized property. He has now filed a motion for post-conviction relief under 28 U.S.C. § 2255, arguing that his conviction and sentence should be vacated for numerous reasons. The petitioner has also filed several motions to supplement his petition with additional grounds for relief, as well as motions requesting release from custody, an evidentiary hearing and orders compelling discovery from the government.
The court will grant petitioner’s motions to supplement his petition with additional claims, but will deny his requests for release, discovery and an evidentiary hearing. Indeed, none of petitioner’s challenges support overturning his conviction or reducing his sentence, either because: (1) they were previously decided against him on appeal; or (2) he has no evidence to support them. Accordingly, his petition will be denied.
Following a joint investigation by federal and state officials in Minnesota and Wisconsin, Rachuy was charged with transporting stolen vehicles across state lines, as part of a scheme to commit fraud. He stole the vehicles by passing worthless checks drawn on four bank accounts that he knew were closed or had no funds. Rachuy entered into a written plea agreement with the government, agreeing to plead guilty to Count 4 of the superseding indictment. That count carried a maximum prison sentence of 10 years, but the parties agreed to recommend that the court impose a 5-year sentence of imprisonment followed by a 3-year term of supervised release that would run concurrently with a sentence Rachuy was serving in Minnesota. (Dkt. #67 at 2, in 10-cr-141-wmc.) Among other things, the government also promised:
4. . . .[T]o recommend that the court calculate loss amount based only on the checks returned on the four bank accounts involved in the purchase of the vehicles charged in the superseding indictment. . . . [and]
6. [N]ot to oppose any request by Rachuy for return of any of his property currently held in the custody of state or local authorities.
The plea agreement also included a provision stating that:
By his signature below, the defendant acknowledges his understanding that the United States has made no promises or guarantees regarding the sentence which will be imposed. The defendant also acknowledges his understanding that the Court is not required to accept any recommendations which may be made by the United States and that the Court can impose any sentence up to and including the maximum penalties set out above.
(Id. at 3.)
At the November 8, 2011, plea hearing, the court discussed with Rachuy what expectations he had, if any, as to the specific or particular sentence that he might receive. As an initial matter, the court confirmed with Rachuy’s counsel that he had discussed with his client the possibility of receiving the maximum penalties applying to the offense. (Dkt. #90 at 4, in 10-cr-141-wmc.) The court then asked Rachuy a series of questions to confirm that his plea was knowing and voluntary. (Id. at 4-10, 14.) Rachuy acknowledged that he understood the terms of his agreement, and in particular (1) the rights he was giving up by pleading guilty and (2) that he would not be free to withdraw his guilty plea, even if the court decided not to follow the government’s recommendations regarding sentencing. (Id. at 4-10, 14-15.) The government then summarized the evidence that would be offered at trial to prove Rachuy’s guilt, including that: (1) he stole a Pathfinder from Kathy Sheff by giving her a check for $3, 600 written on a closed Bank of America account in exchange for the keys to the vehicle; (2) he knew the account had no money in it at the time he wrote the check; and (3) he took the stolen vehicle across state lines. (Id. at 16-22.) After the government’s recitation of this evidence, Rachuy also acknowledged that the government would be able to prove these facts at trial. (Id. at 22.)
The court then asked Rachuy to explain in his own words what happened. Rachuy stated first that he “bought a vehicle with no means of paying for it” and then caused the vehicle to be transported to Wisconsin. (Id. at 22-23.) He then stated that at one point, he was “on [his] way to meet Kathy Sheff to pay her, ” but she called and said “she was not going to be around.” (Id. at 23.) The court then asked follow-up questions regarding Rachuy’s intent:
Court: When you wrote the check, you know you did not have funds to pay - Rachuy: Yes, I did.
Court: -- for the car.
Rachuy: That’s correct.
Court: And you caused it to be driven away across state lines knowing you had provided no monies to pay for it.
Rachuy: That’s correct.
The government further asked that Rachuy expressly confirm that he not only knew there were no funds in the checking account, but knew it was a closed account at the time he gave Ms. Sheff the check. (Id.) Rachuy responded that he could not admit knowing that the account was closed, but that he did know that the account had no money in it. (Id. at 24.) The court then allowed the parties to confer about whether Rachuy’s statements were sufficient. After a short break, the court again asked Rachuy to explain his knowledge as to the lack of funds in the account at the time he provided the check to Ms. Sheff. Rachuy responded as follows:
I gave her a check. There was no funds in the account. There will not be any funds in that account, not one nickel. I took the vehicle ...