Opinion
No. 91 CR 921-3
February 11, 2000
MEMORANDUM OPINION AND ORDER
Before the court is petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied.
BACKGROUND
On November 18 1992, petitioner Daniel Nungaray-Robles was convicted by a jury of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. He was subsequently sentenced to 121 months in prison. On July 8, 1993, he appealed his conviction, asserting one argument. He claimed that this court erred in replying to a note sent by the jury inquiring about the meaning of the terms "entrapment" and "ensnarement." On March 19, 1996, the Seventh Circuit affirmed petitioner's conviction, holding that this court's supplemental jury instruction on entrapment was correct. United States v. Rios-Calderon, 80 F.3d 194, 197 (7th Cir. 1996).
On December 20, 1995, while the Seventh Circuit appeal was still pending, petitioner filed a § 2255 motion in this court. Proceeding pro se, he argued that he was subjected to double jeopardy in his criminal trial based on an earlier civil forfeiture proceeding regarding a 1989 Chevrolet van. On February 14, 1996, the government filed a four-page response explaining why this claim lacked merit.
On April 29, 1997, petitioner filed a second § 2255 motion, arguing that the government introduced an erroneous transcript of a telephone conversation in violation of his Fifth and Sixth Amendment rights. Shortly thereafter, on May 15, 1997, petitioner filed an "Amended Version" to his § 2255 motion, adding a claim that this court violated his constitutional rights by reading the jury instructions without him or his counsel being present. The government filed a second response brief addressing the two new claims contained in the second § 2255 motion and the amended version.
This motion was given a new civil case number, 97 CV 3136.
On June 23, 1997, petitioner filed a "Motion For Relief" in which he did not advance any new claims and essentially just asked that his sentence be set aside.
The government initially failed to file a response on the original date set by this court. Later, this court issued an order setting a new response date, resulting in the filing of the current response on October 15, 1999.
DISCUSSION
Petitioner has advanced three claims in three separate filings. To summarize, in his 1995 § 2255 motion, he argues double jeopardy. In his 1997 § 2255 motion, he raises the claim concerning the allegedly erroneous transcript, and in his "amended version," he raises the claim about not being present during the reading of the jury instructions.We first address the double jeopardy claim in the original § 2255 motion. Petitioner says that he was subjected to double jeopardy at his criminal trial based on an earlier administrative forfeiture proceeding concerning a 1989 Chevrolet van. The government argues that this claim is meritless.
In a footnote, the government suggests that this claim also could be dismissed on grounds of procedural default because it was not raised in petitioner's direct appeal. Because the government did not pursue this argument, we have not addressed it.
After the government seized the Chevrolet van, it sent notice to the petitioner (who was in prison) as well as to his home address. Petitioner's wife submitted a claim as an innocent owner/mortgagee, but petitioner never submitted any claim. The government therefore argues that he cannot be subject to double jeopardy based on the administrative proceeding because he was never a party to that proceeding. See United States v. Torres, 28 F.3d 1463, 1465-66 (7th Cir. 1994) (defendant who received notice inviting him to make a claim in a civil forfeiture proceeding but who did not make a claim was not put in jeopardy by that proceeding); United States v. Penny, 60 F.3d 1257, 1261-62 (7th Cir. 1995) (same). We agree and therefore deny the first § 2255 motion.
We now turn to the two claims contained in the second § 2255 motion and the amended version, both filed in 1997. In its second response brief, the government argues that these claims are barred by the statute of limitations, are procedurally defaulted, and are meritless. In addition, in a footnote, the government suggests that the two 1997 filings could be viewed as second or successive motions, which are barred because petitioner never obtained prior appellate approval before filing them. 28 U.S.C. § 2244 (b), 2255 ¶ 8.
We address this latter question first, as it is jurisdictional. Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). The government relegates this argument to a footnote because it realizes there is a question whether the two 1997 filings are really successive motions, given that they were filed before the first motion had been ruled upon, or whether they instead could be viewed as amendments to the 1995 motion. In Johnson v. United States, 196 F.3d 802 (7th Cir. 1999), the Seventh Circuit discussed this situation and stated that a "prisoner [filing a claim under § 2255] receives one complete round of litigation, which as in other civil suits includes the opportunity to amend a pleading before judgment." Id. at 805. To determine whether to allow an amendment, the district court should turn to Fed R. Civ. P. 15(a). Id.
In this case, petitioner simply filed a second § 2255 motion and did not label it an amendment nor did he request leave to file it. In addition, there was some delay between the filing of this second motion and the first one, which was filed in 1995. See id. (noting that "delay is a standard reason for denying leave to amend the pleadings in civil litigation"). On the other hand, petitioner is proceeding pro se, and Rule 15(a) says that leave should be "freely given when justice so requires." For these latter reasons, we will construe the 1997 filings as proposed amendments and grant leave for them to be filed. See, e.g., Grossi v. United States, 1999 WL 439237, *9 (N.D. Ill. June 28, 1999).
We now turn to the government's three formal arguments. The government first argues that the 1997 motion and amended version are barred by the one-year statute of limitations added by the Antiterrorism and Effective Death Penalty Act. Petitioner falls within the one-year grace period set forth in Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), and thus was required to file by April 23, 1997. Although the second habeas motion was filed on April 29th, it possibly could meet the April 23rd deadline by virtue of the prison mailbox rule. See Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999) (habeas petitions are "deemed filed when given to the proper prison authorities and not when received by the district court clerk"). And if the April 29th motion is timely, then the claim in the May 15th filing possibly could "relate back" under Fed.R.Civ. 15(c) if it arose out of the same conduct, transaction, or occurrence as the claim in the April 29th motion. See, e.g., Grossi, 1999 WL 439237 at *10-11.
There is no evidence in the record as to when the motion was delivered to the prison authorities. However, given the fact that the motion was filed a mere six days after the deadline, it is reasonable to assume that it was delivered to the prison authorities on April 23rd.
For these reasons, rather than deny the two 1997 claims on statute of limitations ground, we will turn to the government's second argument — procedural default. It is undisputed that neither of the two 1997 claims was raised in petitioner's direct appeal, which only involved the one issue of whether this court properly responded to the jury's note about the terms "entrapment" and "ensnarement." Rios-Calderon, 80 F.3d at 197. Therefore, these claims are procedurally defaulted unless petitioner can demonstrate cause and prejudice. Bousley v. United States, 118 S.Ct. 1604, 1611 (1998). The government argues that petitioner cannot demonstrate either cause or prejudice for either of the two 1997 claims.
Of course, petitioner also could try to show that refusal to consider his claims would result in a fundamental miscarriage of justice, but he has not attempted to do so, nor could he based on the facts provided here.
We first consider the claim that the government introduced an erroneous transcript. As the government correctly points out, petitioner has not offered any reason why he did not raise this claim on direct appeal. Although he does argue that his other 1997 claim (discussed below) was not raised on direct appeal due to ineffective assistance of counsel, he does not cite this as a reason for not raising this particular claim. Even if we gave him the benefit of the doubt and assumed his counsel was defective for not raising this claim on direct appeal, we would still reject this claim. Petitioner simply has not shown any prejudice. In particular, he does not make clear which transcript he is complaining about, nor explain how the transcript was erroneous or how those alleged errors affected the trial.
Turning to the second 1997 claim, we find that it is procedurally defaulted based on the same reasoning. Petitioner argues that he was not present during the reading of the jury instructions, which took place on a Monday. In fact, none of the attorneys or parties was present during this reading. This was the result of a procedure agreed upon by the court and counsel to deal with the fact that one of petitioner's co-defendants' attorneys could not be present on that Monday. After discussing a number of possible ways to deal with this problem, the parties all agreed that the best approach would be simply to have none of the attorneys or defendants present rather than try to explain why one particular attorney was not present. Petitioner's own counsel explicitly said that he preferred this particular approach.
As the government recognizes, a defendant has a constitutional right to be present at all stages of his trial, including communications with the jury. See Rogers v. United States, 422 U.S. 35, 39 (1975). However, this right can be waived. See United States v. Gagnon, 470 U.S. 522, 527 (1985). Relying on Gagnon, the government first argues that petitioner waived his right to be present when he failed to voice an objection when this procedure was discussed in open court. Although it is likely that defendant was present when this procedure was discussed, the transcript does not clearly reflect this fact.
Therefore, rather than relying on waiver, we find it easier to examine whether there was any prejudice. In other words, could petitioner's presence have made a difference in the outcome? The answer is clearly no. It is important to make clear what we are talking about, which is simply the reading of the jury instructions. This court already had conducted an extensive jury instruction conference, at which petitioner's counsel objected to various instructions. After considering these objections and after conducting its own independent research, this court decided on the final instructions, which were put in writing. Thus, if petitioner or his counsel had been present at the reading of these instructions, they could have done nothing. They would not have been allowed to make any objections as to which instructions were being used. At the very most, they could have pointed out that the court misspoke in its reading of the previously decided-upon written instructions. With regard to this slight possibility, the government represents to this court that it has read the transcript and compared it to the written instructions and found no discrepancy between the two.
In accordance with this court's standard practice, in reading the instructions to the jury, the court also indicated that it would pass out written copies of the instructions to the jury.
In sum, any failure of petitioner's counsel to raise this argument on direct appeal resulted in no prejudice. See generally United States v. Coffman, 94 F.3d 330, 336 (7th Cir. 1996) ("infringement of [defendant's right to be present at all stages of his trial] does not entitle the petitioner to a new trial if it is unlikely to have affected the jury's verdict"); United States v. Pressley, 100 F.3d 57, 61 (7th Cir. 1996) ("because the judge's ex parte conversation did not affect the verdict, any error resulting from the judge's failure to secure [defendant's] presence or consult with [defendant's] counsel before communicating with the juror was harmless"); United States v. Rodriguez, 67 F.3d 1312, 1316 (7th Cir. 1995) ("failure to secure the defendant's presence is harmless if the issue is not one on which counsel would be likely to consult the defendant, or if it is not one for which the defendant, if consulted, would be likely to have an answer that would sway the judge").
In the latter portion of his May 15th "amended version," petitioner briefly argues that the evidence was not sufficient to convict him. Although the government did not specifically respond to this argument, we find no merit in it.
CONCLUSION
For the foregoing reasons, this court denies petitioner's § 2255 motions in Case Nos. 91 CR 921-3 and 97 CV 3136.