United States District Court, E.D. Wisconsin
CALVIN V. SANDERS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
STADTMUELLER U.S. DISTRICT JUDGE.
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.
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
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
[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.
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.
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
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.
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).
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)).
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.
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.
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.
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.
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