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Sanders v. United States

United States District Court, E.D. Wisconsin

July 27, 2018

CALVIN V. SANDERS, Petitioner,



         Petitioner Calvin V. Sanders (“Sanders”) pleaded guilty to one count of wire fraud and one count of aggravated identity theft, as part of a scheme to fraudulently obtain unemployment insurance benefits from the State of Wisconsin. United States v. Calvin V. Sanders, 14-CR-28-1-JPS (E.D. Wis.) (the “Criminal Case”), (Docket #64). On December 16, 2014, the Court sentenced him to 52 months of imprisonment on the wire fraud count, to be followed by 24 months on the identity theft count, for a total term of 76 months of imprisonment, to be followed by five years of supervised release. Id., (Docket #123). The sentence on the wire fraud count reflected a downward adjustment of eight months from the 60-month sentence the Court would have otherwise imposed pursuant to U.S.S.G. § 5G1.3(B) to ensure that Sanders received credit for time he spent in state custody on a related revocation proceeding which the Bureau of Prisons (“BOP”) would not have otherwise credited under 18 U.S.C. § 3585(b). Id. at 2. The Court further ordered Sanders and his co-defendants to pay over $350, 000 in restitution to the Wisconsin Department of Workforce Development. Id.

         Sanders appealed. On June 25, 2015, the Court of Appeals issued its mandate granting a joint motion of the parties for summary reversal. Id., (Docket #139). The parties agreed that the Court had not explained its reasoning for imposing certain conditions of supervised release. Id. On March 23, 2016, the Court held a new sentencing hearing and resentenced Sanders to precisely the same terms. Id., (Docket #162). Sanders took another appeal. The Court of Appeals again reversed, this time on the ground that the maximum allowable period of supervised release was only three years. Id., (Docket #172). The Seventh Circuit directed the Court to amend its judgment to reflect a three-year term of supervised release, which was done on July 12, 2017. Id., (Docket #173). No. further appeals were taken.

         On June 18, 2018, Sanders filed a motion pursuant to 28 U.S.C. § 2255 to vacate, modify, or correct his sentence. (Docket #1). That motion is now before the Court for screening. At the screening stage,

[i]f it plainly appears from the motion, any attached exhibits, and the record of the prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States Attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         Rule 4(b), Rules Governing Section 2255 Proceedings. The Court accepts as true the petitioner's well-pleaded factual allegations, but not any of his legal conclusions. See Gibson v. Puckett, 82 F.Supp.2d 992, 992 (E.D. Wis. 2000).

         Upon Rule 4 review, the Court ordinarily analyzes preliminary procedural obstacles, such as whether the petitioner has complied with the statute of limitations, avoided procedural default, and set forth cognizable claims. If those issues do not preclude a merits review of the claims, the Court directs the government to respond to the petition. Yet here, for the reasons explained below, the Court can fully dispose of Sanders' motion on screening, as only one of Sanders' claims has merit and relief can be granted on that claim summarily, without the added expense and delay of further proceedings.[1]

         1. TIMELINESS

         The Court begins by addressing the timeliness of Sanders' motion. Section 2255(f) provides a one-year limitations period in which to file a motion thereunder. 28 U.S.C. § 2255(f). That period runs from the date on which the judgment of conviction becomes final. “[T]he Supreme Court has held that in the context of postconviction relief, finality attaches when the Supreme Court ‘affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.'” Robinson v. United States, 416 F.3d 645, 647 (7th Cir. 2005) (quoting Clay v. United States, 537 U.S. 522, 527 (2003)). Sanders' motion was filed just over eleven months after the Court issued its latest amended judgment. Thus, it appears to be timely.


         The Court next considers whether Sanders' claims suffer from procedural default. Section 2255 relief is appropriate if the Court determines that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). However, this form of action is not a substitute for a direct appeal. Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007). Therefore, any claims that Sanders did not raise at trial or on direct appeal are procedurally defaulted and he cannot raise them. Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008).

         There are two exceptions to this rule. First, claims of ineffective assistance of counsel may be raised for the first time in a Section 2255 motion. Massaro v. United States, 538 U.S. 500, 504 (2003). Second, Sanders may raise a claim on which he otherwise procedurally defaulted if he demonstrates that there was cause for his failure to raise the claim earlier and that the failure has actually prejudiced him. Torzala, 545 F.3d at 522 (citing Bousley v. United States, 523 U.S. 614, 621 (1998)).

         To evaluate the issue of procedural default, the Court must briefly identify each of Sanders' claims. He asserts four grounds for relief in his motion. In Ground One, he claims that the BOP has denied him full sentence credit for time spent in state custody. (Docket #1 at 7-8). He contends that receipt of this credit was contemplated in his plea agreement, and it was the Court's intention to provide such credit at the time of sentencing. Id. Sanders says that the probation officer at the sentencing hearing erroneously advised the Court that the BOP would allow him full credit for his time in state custody, when in reality it shorted that credit by ninety days. Id.

         Grounds Two and Four assert claims of ineffective assistance of counsel against Sanders' trial and appellate counsel, respectively. Id. at 8- 10. Sanders contends that his trial counsel's errors led to his two incorrect sentences, and that appellate counsel failed to catch the improper term of supervised release on the first appeal and failed to raise the issue of sentence credit discussed above. Id.

         Finally, Ground Three alleges that Sanders' plea was invalid because of various errors committed by his trial counsel. Id. at 9. He charges that his trial counsel erred in not objecting to certain aspects of his presentence report, including the amount of restitution he owed and the two-point Guideline enhancement based on the existence of ten or more victims of his offense. See U.S.S.G. § 2B1.1(b)(2)(A). He also claims that his counsel was ineffective for not ensuring that he was present for a restitution hearing and for not succeeding in arguing his motion to withdraw his guilty plea. (Docket #1 at 9). Sanders asserts that these errors of action and advice rendered his guilty plea invalid because it was not knowing, intelligent, and voluntary. Id.

         Some of these claims are not properly cognizable or lack plausible merit, but for purposes of procedural default, all survive. Grounds Two and Four are claims of ineffective assistance of counsel and so may be lodged for the first time in this proceeding. Ground Three, while grounded in the validity of Sanders' plea, is functionally a claim of ineffective assistance of counsel, and so it too avoids procedural default. See Gaylord v. United States, 829 F.3d 500, 506 (7th Cir. 2016). Similarly, as will be explained further below, the sentence credit problem posed in Ground One can be framed as an ineffective assistance claim. Thus, Sanders' claims do not appear to be procedurally defaulted.


         Having determined that Sanders' claims do not fall to the statute of limitations or procedural default, the Court will finally consider whether the claims are cognizable and ...

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