Benabe v. United States

68 F.Supp.3d 858

Bolivar Benabe, Petitioner

v.United States of America, Respondent.

No. 13 C 1436

United States District Court, N.D. Illinois, Eastern Division.

Signed September 12, 2014

Patrick C. Pope, United States Attorney's Office, Chicago, IL, for Respondent.

Bolivar Benabe, Bruceton Mills, WV, pro se.

MEMORANDUM OPINION AND ORDER

Chief Judge RUBÉN CASTILLO, United States District Court

Presently before the Court are Petitioner Bolivar Benabe's pro se motions for reconsideration and clarification of this Court's order denying his petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 and his motion to quash the indictment. (R. 8, Mot. Clarify; R. 9, Mot. Quash; R. 11, Mot. Reconsider.) For the reasons set forth below, Petitioner's motions are denied, and this case is dismissed with prejudice.

BACKGROUND

The relevant facts relating to Petitioner's criminal conviction are set forth in a pair of opinions by the Seventh Circuit Court of Appeals, see United States v. Benabe, 654 F.3d 753, 757 (7th Cir.2011) ; United States v. Morales, 655 F.3d 608 (7th Cir.2011), and several by this Court, see, e.g., United States v. Delatorre, 572 F.Supp.2d 967 (N.D.Ill.2008) ; United States v. Delatorre, 522 F.Supp.2d 1034 (N.D.Ill.2007) ; United States v. Delatorre, 508 F.Supp.2d 648 (N.D.Ill.2007) ; United States v. Delatorre, 438 F.Supp.2d 892 (N.D.Ill.2006). The Court repeats the facts here only as they pertain to the Petition and the instant motion to reconsider.

Petitioner was one of sixteen individuals indicted by a federal grand jury on various racketeering-related charges in 2006. Petitioner and his codefendants were members of the Aurora Deuces, the Aurora, Illinois chapter of the Insane Deuce Nation street gang. Petitioner was the third-highest ranking leader in the Aurora Deuces and, because the top two leaders were incarcerated, Petitioner was the de facto head of the gang. Petitioner was charged with racketeering conspiracy (Count One), and narcotics conspiracy (Count Nine).¹

In an effort not to overwhelm the jury, and due to the logistical challenge of trying so many defendants in a single courtroom, this Court severed the case into two trials. Petitioner was tried with the alleged leaders of the gang. On April 21, 2008, after a two-month trial and more than two weeks of deliberation, a jury convicted Petitioner of participating in a racketeering conspiracy (Count One) and a narcotics conspiracy (Count Nine). On January 23, 2009, this Court sentenced Petitioner to life in prison on Count One and one year of incarceration on Count Nine, to be served concurrently, and imposed a $2,500.00 fine.

On January 27, 2009, Petitioner filed his notice of appeal challenging his conviction. The Seventh Circuit affirmed his conviction on August 18, 2011. United States v. Benabe, 436 Fed.Appx. 639, 660–62 (7th Cir.2011) ; Benabe, 654 F.3d at 757.² Petitioner filed a petition for writ of certiorari with the Supreme Court on February 21, 2012, and that petition was denied. (R. 1, Pet'r's Mot. at 2); Benabe v. United States, ––– U.S. ––––, 132 S.Ct. 1612, 182 L.Ed.2d 217 (2012).

Petitioner filed the instant habeas petition pursuant to 28 U.S.C. § 2255 on February 18, 2013, (R. 1, Pet.), and the Court denied his petition on February 28, 2013, (R. 4, Min.Entry). In its order, the Court stated:

After a careful review of Petitioner's motion pursuant to 28 U.S.C. Section 2255, said motion is denied with prejudice for the following reasons. The trial record and direct appeal opinion, U.S. v. Benabe, 654 F.3d 753 (7th Cir.2011) confirm that said petition fails to assert any valid, non-waived constitutional error. The defendant received a fair trial and sentence while represented by two competent trial counsel. Defendant's own misguided lack of cooperation with his trial counsel did not result in any prejudicial, constitutional error at trial. For all these reasons, the Court declines to issue a certificate of appealability in this case.

(Id. ) Petitioner now moves the Court to clarify its denial of the Petition. (R. 8, Mot.Clarify.) Petitioner's motion requests the Court to make findings of fact and law in accordance with Federal Rules of Civil Procedure 52(a) and 54(b). (Id. at 1.) Specifically, Petitioner presents 45 proposed findings of fact and requests that the Court either adopt the proposed findings or hold an evidentiary hearing on those matters. (Id. at 2–9.) Petitioner additionally moves the Court to quash the indictment pursuant to Federal Rule of Civil Procedure 12(b), (R. 9, Mot.Quash), and to reconsider its denial of the petition pursuant to Federal Rules of Civil Procedure 59(e) and 52(a), (R. 11, Mot.Reconsider).

A few days after his original filing, Petitioner filed a motion to supplement his petition. (R. 6, Mot. Suppl.) The motion was timely filed pursuant to the mailbox rule, but by the time it arrived to the court, this Court had already denied the petition. The Court subsequently denied Petitioner's motion to supplement in light of the final order already entered. (R. 7, Min.Entry.) Much of the substance of the motion was redundant with the petition. Nevertheless, for the sake of completeness, the Court will briefly address any non-redundant arguments in its findings here.

LEGAL STANDARDS

Section 2255 allows an incarcerated prisoner to request his sentence be vacated on “the ground 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. “[R]elief under 28 U.S.C. § 2255 is limited to an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Bischel v. United States, 32 F.3d 259, 263 (7th Cir.1994) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir.1991) (internal quotation marks omitted)).

Rule 52(a) requires a court to find facts and make conclusions of law on certain matters, and under Rule 52(b), a party may move a court to amend its findings or make additional findings. Fed. R. Civ. P. 52. Rule 59(e) “enables a district court to correct its own errors, sparing the parties and the appellate courts the burden of unnecessary appellate proceedings.” Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir.1995). It is well-settled that it is improper to use a post-judgment motion “to advance arguments or theories that could and should have been made before the district court rendered a judgment.” Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 512 (7th Cir.2007) (quoting LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir.1995) ); see also United States ex rel. Russo v. Att'y Gen. of Ill., 780 F.2d 712, 715 n. 4 (7th Cir.1986) (“Rule 52(b) and Rule 59 motions may not be used to relitigate issues or to present the party's case under a new legal theory; rather these motions are intended to correct manifest errors of law or fact or to present newly-discovered evidence.”).

ANALYSIS

I. Petitioner's Motion for Clarification

Petitioner's first post-judgment motion requests that the Court adopt 45 proposed findings of fact and conclusions of law in accordance with Rule 52(a). (R. 8, Mot.Clarify.) The Court declines to do so, as most of the statements are mischaracterizations of the issues or irrelevant to the Petition. In the alternative to adopting Petitioner's proposed findings, he requests an evidentiary hearing. (Id. at 9.) To the extent Petitioner seeks written findings, the Court briefly sets forth below the reasons for its denial of his petition. As to the proposed findings of fact and conclusions of law, however, Petitioner's motion for clarification (R. 8) is denied. The Court also denies Petitioner's request for an evidentiary hearing; none of the issues he raised in his petition require an evidentiary hearing to resolve.

In his petition, Petitioner raised nine grounds on which this Court should vacate his sentence. He contended that: (1) he did not receive the trial transcripts in sufficient time to prepare his section 2255 petition; (2) he received ineffective assistance of counsel at trial and on appeal; (3) the jury's special verdict form was insufficient to establish all the elements of a RICO violation; (4) the jury instructions were misleading and incorrect; (5) the display of firearms at trial was prejudicial and in violation of the Sixth Amendment; (6) the trial court made improper “secret deals” with the Government; (7) the trial court deprived Petitioner of his right to a public trial; (8) the trial court allowed the jury to be tainted; and (9) the trial court incorrectly instructed the jury as to the elements of a RICO violation. (R. 1, Ex. 1, Pet. Suppl.)

A. Petitioner had sufficient time to prepare his section 2255 petition (ground one)

Petitioner urged this Court to recognize his pro se status and grant him leniency in considering his petition, (R. 1, Ex. 1, Pet. Suppl. at 1), which the Court certainly did and continues to do in ruling on his instant motions. Petitioner argued that he had insufficient time to complete his section 2255 petition because he only received the trial transcripts four months prior to the deadline to file his section 2255 petition. (Id. at 2.) This argument is unavailing, however, as Petitioner did timely file his petition. The Seventh Circuit has held that delay in obtaining a transcript does not excuse an untimely petition. Lloyd v. Van Natta, 296 F.3d 630, 633–34 (7th Cir.2002). Petitioner's absence at his trial may make his need for transcripts more critical, but even habeas petitioners who were tried in absentia have not been granted equitable tolling based on delayed access to transcripts. See, e.g., Heilman v. Hardy, 849 F.Supp.2d 796, 801 (C.D.Ill.2012). At any rate, Petitio...