Susinka v. United States
| Decision Date | 14 May 2014 |
| Docket Number | No. 13 C 1693.,13 C 1693. |
| Parties | Stephen SUSINKA, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
AUSA, Patrick C. Pope, United States Attorney's Office, Chicago, IL, for Respondent.
Stephen Susinka, Adelanto, CA, pro se.
Presently before the Court is Petitioner Stephen Susinka's pro se motion to reconsider this Court's order denying his petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (R. 10, Pet'r's Mot.) For the reasons set forth below, Petitioner's motion is denied, and this case is dismissed with prejudice.
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 responsible for carrying guns and going on missions for the Insane Deuces. On more than one occasion, he served as a driver for other Insane Deuces who murdered or attempted to murder members of rival gangs. Petitioner was charged with racketeering conspiracy (Count One) and narcotics conspiracy (Count Nine).
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 was unable to reach a verdict on the narcotics conspiracy charge in Count Nine. The Court declared a mistrial on Count Nine. On January 20, 2009, this Court sentenced Petitioner to twenty years of incarceration on Count One to run concurrently with his pending state sentence, followed by five years of supervised release, and imposed a $2,500.00 fine.
On January 22, 2009, Petitioner filed his notice of appeal, challenging both his conviction and his sentence. The Seventh Circuit affirmed his conviction on August 18, 2011, and modified his sentence to impose a term of three years of supervision upon his release from prison rather than five. United States v. Benabe, 436 Fed.Appx. 639, 660–62 (7th Cir.2011).
Petitioner filed a petition for writ of certiorari with the Supreme Court on January 26, 2012.1 (R. 10, Pet'r's Mot. at 1; R. 24, Pet'r's Decl. ¶ 5.) He states that his original deadline for filing was January 26, 2012, but his petition was returned for corrections twice, and the Supreme Court extended his deadline for filing his certiorari petition until July 14, 2012. (R. 10, Pet'r's Mot. at 1–2.) Petitioner does not contend that he filed his corrected petition, nor was this Court able to locate a grant or denial of certiorari from the Supreme Court.
Petitioner filed the instant habeas petition pursuant to 28 U.S.C. § 2255 on March 5, 2013. (R. 1, Pet'n.) On March 18, 2013, he filed an amended petition (the “Petition”), (R. 6, Am. Pet'n), and moved to toll the deadline for filing his petition, (R. 5, Mot. Toll Deadline). The Court denied Petitioner's motion to toll the deadline and his amended petition on March 21, 2013. (R. 7, Min. Entry.) In its order, the Court stated:
After a careful review of Petitioner's untimely 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 untimely 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.
(Id. ) Petitioner now moves the Court to reconsider its denial of the Petition. (R. 10, Pet'r's Mot.) Petitioner argues that the Petition was not untimely because he received multiple extensions from the Supreme Court to his deadline for filing his certiorari petition. (Id. at 2–3.) Petitioner additionally argues that the Court's statement that Petitioner failed to “assert any valid, non-waived constitutional error” requires further explanation because Petitioner asserted valid constitutional claims of ineffective assistance of counsel and a Sixth Amendment violation at sentencing. (Id. at 3–8; R. 21, Pet'r's Suppl. at 19–51.) Finally, Petitioner contends that even if the Court denies his section 2255 petition, it should correct his sentence to credit the time he served in state custody as part of his federal sentence. (R. 10, Pet'r's Mot. at 8.)
Subsequent to and in support of his motion for reconsideration, Petitioner has filed two declarations, (R. 19; R. 24); a supplement, (R. 21); a special supplement regarding the applicability of Alleyne v. United States, –––U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), (R. 23); and an appendix to his statement of facts, (R. 26). The Court has considered these materials in its ruling.
A “motion to reconsider” does not exist under the Federal Rules of Civil Procedure. Talano v. NW. Med. Faculty Found., 273 F.3d 757, 760 n. 1 (7th Cir.2001). A motion that seeks to challenge the merits of a ruling by a district court will automatically be considered as having been filed under Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. Mares v. Busby, 34 F.3d 533, 535 (7th Cir.1994) . When determining whether a motion to reconsider comes under Rule 59 or Rule 60, the substance of the motion rather than the form is determinative. Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir.2008). Because Petitioner challenges the Court's substantive application of law, the Court treats his motion as one under Rule 59(e). Compare Fed.R.Civ.P. 59(e)with Fed.R.Civ.P. 60(b).
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). For a motion to alter or amend a judgment pursuant to Rule 59(e) to succeed, the movant “must demonstrate a manifest error of law or fact or present newly discovered evidence,” Boyd v. Tornier, Inc., 656 F.3d 487, 492 (7th Cir.2011), and he “must ‘clearly establish’ one of the aforementioned grounds for relief.” Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir.2006) (quoting Romo v. Gulf Stream Coach, Inc., 250 F.3d 1119, 1122 n. 3 (7th Cir.2001) ). A manifest error of law under Rule 59(e) is the “wholesale disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir.2000) (quoting Sedrak v. Callahan, 987 F.Supp. 1063, 1069 (N.D.Ill.1997) ). This is a high standard that is “not demonstrated by the disappointment of the losing party.” Id. It is well-settled that it is improper to use a Rule 59(e) 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) ), nor should a movant seek to rehash previously rejected arguments, Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir.1996). Motions pursuant to Rule 59(e) should only be granted in rare circumstances. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990).
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)).
Petitioner first argues that the Court's denial of the Petition as untimely was an error of law. (R. 10, Pet'r's Mot. at 3.) A petition for habeas corpus must be filed, as relevant here, within a year of “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). “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.” Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). Accordingly, when petitioners fail to file a petition for certiorari,...
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