Prewitt v. U.S., 95-3125
| Decision Date | 03 May 1996 |
| Docket Number | No. 95-3125,95-3125 |
| Citation | 83 F.3d 812 |
| Parties | Jack R. PREWITT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 95 C 246--Sarah Evans Barker, Chief Judge.
Patrick A. Tuite (argued), Arnstein & Lehr, Chicago, IL, for Jack Prewitt.
Christina McKee (argued), Office of U.S. Atty., Indianapolis, IN, for U.S.
Before CUMMINGS, CUDAHY, and MANION, Circuit Judges.
Jack Prewitt, a convicted insurance-scam artist, appeals from the denial of his habeas corpus challenge to his federal sentence for mail fraud. He asserts among other things that he received ineffective assistance of counsel because his attorney failed to argue for the application of a sentencing guideline provision. Because the provision under which Prewitt seeks a reduction in his sentence does not apply to him, and his other arguments are not well-founded, we affirm his sentence.
In the early 1980's Jack Prewitt and two other men concocted a scheme to sell stock in a corporation whose only assets were the investors' own funds. Approximately 140 victims invested over $2 million in the bogus company. While Prewitt realized $400,000 in gains, the victims lost all the money they invested. In a second scheme Prewitt convinced investors to cash in their existing life insurance policies and provide the cash to him on his promises that he would obtain better life insurance policies for them. Prewitt pocketed the money instead of paying the premiums and the new policies lapsed for non-payment, leaving the victims with no insurance and no cash value in their policies. This plot defrauded investors of $61,000.
In 1988 authorities in the Northern District of Indiana caught up to Prewitt, arrested him, and charged him with mail fraud and filing a false tax return in separate indictments for the separate schemes. He pleaded guilty to the charges pursuant to a plea agreement. The Northern District court sentenced Prewitt under pre-Guidelines law to concurrent prison terms of three years on the mail fraud counts and three years probation for filing a false tax return. He was also ordered to make restitution of $526,500. He spent just over two years in prison for these crimes.
From late 1989 through mid-1990, while released on bond pending the resolution of the Northern District charges, Prewitt and two different men perpetrated one more scheme to defraud thirteen victims of over $300,000 by falsely representing the investment potential of Sterling American Financial Group, Inc., another sham company. In October 1992--one week before his release from prison on the Northern District convictions--a grand jury sitting in the Southern District of Indiana indicted Prewitt (along with his codefendants) on five counts of mail fraud for the Sterling scheme. 1 A jury convicted him of these charges. The Southern District court sentenced Prewitt under the 1992 Sentencing Guidelines to 27 months imprisonment and three years supervised release.
Prewitt appealed this conviction arguing that he was charged with the same conduct in the Northern and Southern Districts of Indiana. This court affirmed Prewitt's Southern District conviction. United States v. Prewitt, 34 F.3d 436 (7th Cir.1994). We concluded that the plea agreement which resolved the two indictments in the Northern District did not preclude the U.S. Attorney for the Southern District from charging Prewitt with fraud for his 1989-90 scheme while out on bond because the indictment involved crimes separate and distinct from those in the Northern District prosecution. Id. at 440-41.
Prewitt later moved the Southern District court to declare his sentence concurrent with the Northern District sentence. He alleged the government delayed prosecuting him in the Southern District to deny him the benefit of United States Sentencing Guideline § 5G1.3, which governs the sentencing of a defendant who is convicted of a crime while subject to an undischarged term of imprisonment for a previous conviction. Prewitt sought application of § 5G1.3(c) which provides in part:
[T]he sentence for the instant offense shall be imposed to run consecutively to the prior undischarged term of imprisonment to the extent necessary to achieve a reasonable incremental punishment for the instant offense.
(Emphasis supplied.) The Southern District denied the motion stating that it lacked authority to modify Prewitt's sentence.
After he received new counsel Prewitt moved to vacate the Southern District sentence pursuant to 28 U.S.C. § 2255. He argued that but for the government's delay in indicting him in the Southern District, he still would have been in prison under his Northern District sentence when he was sentenced in the Southern District, entitling him to the benefits of § 5G1.3(c) and (he asserts) a shorter sentence. The Southern District court denied Prewitt's petition reasoning that § 5G1.3(c) did not apply and that misapplication of a Sentencing Guideline was not an appropriate basis for relief under § 2255.
The district court had jurisdiction over this case pursuant to 28 U.S.C. § 2255 and we entertain this appeal pursuant to 28 U.S.C. § 2253. We review de novo the district court's denial of a § 2255 motion. McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir.1996).
Habeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations. Brecht v. Abrahamson, 507 U.S. 619, 633-34, 113 S.Ct. 1710, 1719-20, 123 L.Ed.2d 353 (1993). To succeed on a § 2255 petition a convicted defendant must show that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack. Theodorou v. United States, 887 F.2d 1336, 1338 n. 2 (7th Cir.1989).
Prewitt starts far behind in his quest for relief under § 2255 because in the direct appeal of his Southern District conviction he failed to argue that § 5G1.3(c) applied to him. A § 2255 motion is not a substitute for direct appeal. Theodorou, 887 F.2d at 1339. As the district court noted, a habeas corpus petition is rarely if ever the proper vehicle by which to challenge the application of a Sentencing Guideline provision where the sentence has become final and the petitioner did not directly appeal the issue. Scott v. United States, 997 F.2d 340, 342 (7th Cir.1993). In Scott, we postulated a scenario of "a district court's refusal to implement a provision of the Guidelines designed for the defendant's benefit, coupled with 'cause' [such as ineffective assistance of counsel] for not taking a direct appeal." Id. at 343 (citation omitted). Prewitt attempts to fit into this rare exception.
An issue not raised on direct appeal is barred from collateral review absent a showing of both good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or if a refusal to consider the issue would lead to a fundamental miscarriage of justice. Reed v. Farley, --- U.S. ----, ----, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) (quoting Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977)); Dawson v. United States, 77 F.3d 180, 183 (7th Cir.1996); McCleese, 75 F.3d at 1177-78. Prewitt does not assert that he falls into the "miscarriage of justice" exception. Rather, he claims that "good cause" exists to overcome his procedural default because his attorney rendered ineffective assistance by failing to raise § 5G1.3(c). Attached to his motion is an affidavit in which his former attorney avers she was unaware of § 5G1.3(c). Prewitt claims that his counsel's errors have resulted in actual prejudice to him because he received a stiffer sentence. Because Prewitt had the same attorney at trial and on appeal, he has shown good cause for his failure to raise the ineffective assistance of counsel claim on direct appeal. United States v. Hall, 35 F.3d 310, 316 (7th Cir.1994) (citing Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993)). Our analysis consequently focuses on the issue of prejudice. Unless Prewitt can convince us that he suffered actual prejudice by ineffective assistance of his counsel, he has procedurally defaulted and his § 2255 petition must be denied.
To show ineffective assistance of counsel, Prewitt must show that (1) his attorney's representation was deficient and that (2) this deficient performance so prejudiced his defense that the resulting proceedings against him were fundamentally unfair and unreliable. United States v. Kellum, 42 F.3d 1087, 1094 (7th Cir.1994) (). Prewitt asserts his trial counsel ineffectively represented him because she failed to argue that § 5G1.3(c) applied to his sentence. He argues that although at the Southern District sentencing he had been discharged from prison on the Northern District charges, his Northern District sentence had not yet ended because he was still on probation for the false tax return crime. Prewitt thus concludes he falls into the definition in § 5G1.3(c) of "undischarged term of imprisonment." He contends that if the sentencing court had used that guideline his sentence would have been much shorter because, when considered in conjunction with the 36-month sentence he had already received from the Northern District court, only a few more months were required to reach a "reasonable incremental penalty." 2
Section "5G1.3 operates to mitigate the possibility that the fortuity of two separate prosecutions will...
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