United States District Court, E.D. Wisconsin
DECISION AND ORDER
LYNN ADELMAN District Judge
Defendant Terry Anderson moves for an order requiring the government to file a Rule 35(b) motion on his behalf. Because defendant cannot show that he had an enforceable agreement with the government to file such a motion, or that the government’s refusal to file was based on an unconstitutional motive, I deny his request.
On October 22, 2012, pursuant to an agreement with the government, defendant waived indictment and pleaded guilty to an information charging two counts of bank fraud. On May 14, 2013, I sentenced him to 45 months in prison, five years of supervised release, and $2, 525, 553.45 in restitution.
Defendant took no appeal, but on May 14, 2014, filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. As grounds, he alleged:
Newly discovered evidence that could have reasonably changed the outcome of the case.
. . .
One of the banks I am accused of defrauding, AnchorBank, is currently being investigated by the United States Attorney’s Office for the Western District of Wisconsin for criminal lending practices.
This evidence would have changed the outcome of my case had this information been known to me prior to my agreement.
(Case No. 14-C-580, R. 1 at 4.)
Because defendant failed to identify any constitutional or jurisdictional error or other fundamental defect in his plea or sentence, I denied the motion. Defendant did not claim that his plea was unknowing or involuntary, that his lawyer provided ineffective assistance in connection with the plea, or that he was innocent of the crimes to which he pleaded guilty. He appeared to claim that knowledge of the Anchor Bank investigation would have changed his decision to resolve the case, but I noted that even on direct appeal a plea cannot be undone just because the defendant subsequently learns that the government’s case against him was weaker than he thought at the time he entered it. (Case No. 14-C-580, R. 2 at 2-3.)
In any event, defendant drew no connection between the newly discovered evidence of alleged criminal lending practices by Anchor Bank and his admitted fraud in procuring loans. (Id. at 3.) As he stipulated in the plea agreement, from 2005 through 2008, defendant applied for and obtained a series of loans from Anchor Bank and Horicon Bank. In order to obtain the loans, he represented that the proceeds would be used to purchase real estate and pay for the costs of construction for various projects; instead, he used the loan proceeds to pay expenses associated with other projects and otherwise diverted the funds from their intended purpose. (Plea Agreement [R. 2] at 5-6.)
I accordingly saw no basis for vacating his plea or sentence. I declined to issue a certificate of appealability (Case No. 14-C-580, R. 2 at 3-4), and defendant ...