United States v. Cephus
| Decision Date | 04 February 2015 |
| Docket Number | NO. 2:09-cr-43,NO. 2:13-cv-396,2:09-cr-43,2:13-cv-396 |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JUSTIN PHILLIP CEPHUS, Defendant/Petitioner. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the Court on the: (1) "Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody," filed by Petitioner, Justin Phillip Cephus, on November 5, 2013 (DE #494); (2) "Motion to Recuse Judge for Misconduct Motion to Vacate Order of Encumbrance Motion to Stay 2255-Extension to File," filed by Petitioner, Justin Phillip Cephus, on June 30, 2014 (DE #567); (3) "Motion For Judicial Intervention Jury Tampering - Obstruction of Justice," filed by Petitioner, Justin Phillip Cephus, on August 18, 2014 (DE #576 and in civil case no. 2:13-cv-396 DE #18); and (4) "Motion for Judicial Intervention Jury Tampering - Obstruction of Justice," filed by Petitioner, Justin Phillip Cephus, on September 8, 2014 (DE #580 and in civil case no. 2:13-cv-396 DE #19). For the reasons set forth below, the motion to recuse (DE #567), and motions for judicial intervention (DE #576 and DE #580) are DENIED. The section 2255 motion (DE #494) is also DENIED.Cephus' request for an evidentiary hearing (DE #512, p. 11), is also DENIED. Cephus' request for appointment of counsel (DE #569, p. 6) is DENIED. The Clerk is ORDERED to DISMISS this civil action WITH PREJUDICE. Additionally, the Court DECLINES to issue a certificate of appealability. The Clerk is FURTHER ORDERED to distribute a copy of this order to Petitioner (Inmate Reg. No. 10106-27), Tucson USP, US Penitentiary, Inmate Mail/Parcels P.O. Box 24550, Tucson, Arizona 85734, or to such other more current address that may be on file for the Petitioner.
On July 2, 2009, Justin Cephus ("Cephus") was charged with four co-defendants in a superseding indictment (DE #35). Cephus was charged with: Count 1 - conspiracy under 18 U.S.C. § 371 to commit various violations of 18 U.S.C. §§ 2, 1591(a)(1), (b)(2), 2421, and 2423(a); in Counts 4, 6, 8, 10, 12, 14, 16 and 18 - substantive violations of 18 U.S.C. § 1591(a)(1) and (b)(1) for his role in recruiting, enticing, harboring, transporting, providing, and obtaining victims A.C., A.H., A.W., B.G., C.V., J.O., L.G., and S.K., knowing that force, fraud, or coercion would be used to cause them to engage in commercial sex acts; in Counts 5, 7, 9, 11, 13, 15, 17, 19, 20, and 21, with substantive violations of 18 U.S.C. §§ 2, 2421, for his role in transporting victims A.C., A.H., A.W., B.G., C.V., J.O., L.G., S.K., A.B.3, and L.E. in interstatecommerce with intent that they engage in prostitution; and Counts 2 and 3 for violation of 18 U.S.C. §§ 2, 2423(a), and 2423(e), for his role in transporting minor victims A.B.1 and A.B.2 in interstate commerce with intent that they engage in prostitution. (DE #35.)
Following a ten-day jury trial, Cephus was found guilty of all charges against him. (DE #203.) At trial, Cephus was represented by attorney Visvaldis Kupsis. On December 6, 2010, this Court held a sentencing hearing for Cephus, and he was sentenced to: 60 months for Count 1; 120 months for each of Counts 5, 7, 9, 11, 13, 15, 17, 19, 20, and 21; and life imprisonment for each of Counts 2, 3, 4, 6, 8, 10, 12, 14, 16 and 18, all terms to be served concurrently. (DE #338.) Judgment was entered on December 8, 2010. (DE #344.)
Through appointed appellate counsel, Martin J. Vogelbaum, Cephus filed a direct appeal with the Seventh Circuit on December 9, 2010 (DE #340, 373). On appeal, Cephus raised the following arguments: (1) The Government's "incessant leading" of its witnesses amounted to credibility vouching, violating Defendant's rights to confrontation and due process; (2) this Court improperly excluded evidence of a victim's prior sexual behavior under Federal Rule of Evidence 412; (3) Defendant was unfairly prejudiced by the admission of evidence that he had beaten and hung to death a dog and by the use of his "mug shot" in a witness identification; (4) this Court erred by allowing a superseding indictment that wasduplicitous as to every count; and (5) Defendant's life sentence without parole violated the Eighth Amendment prohibition against cruel and unusual punishment. See United States v. Cephus, 684 F.3d 703 (7th Cir. 2012), cert. denied, 133 S. Ct. 588 (Nov. 5, 2012). The Seventh Circuit rejected all of Cephus' arguments.
In response to Cephus' arguments that the prosecution asked too many leading questions, the Seventh Circuit found some of those questions were leading and some were not, but regardless, "the leading questions in this case could not have affected the verdict of a reasonable jury, given the overwhelming evidence of the defendants' guilt." (Id. at 708.) Regarding the Rule 412 evidence Defendant sought to offer that the victim engaged in other sexual behavior, the Court found that "testimony sought to be elicited by the cross-examination would have been irrelevant." Id. Likewise, admission of evidence that Cephus beat and hung a dog was affirmed because it was "relevant to show a method by which Cephus coerced his recruits into obeying his illegal commands and was not unduly prejudicial in light of the extensive evidence that Cephus beat women who worked for him." (Id. at 709.) Similarly, the Court found no error in allowing a head and shoulders photograph of Cephus, which was never identified for the jury as a "mug shot," to be used for a witness identification. (Id. at 709.)
Regarding the allegedly "duplicitous" indictment, the Seventh Circuit found defendants waived the issue for not having brought itup in district court and "[a]nyway none of the counts was likely to be thought duplicitous by the jurors." (Id. at 706.) Although Counts 2-21 incorporated by reference the allegations in Count 1, "[a] normal reader would understand each subsequent count's invocation of the first count to mean that the substantive offense alleged . . . in the subsequent count was one of the offenses the defendants had conspired to commit." Id. Finally, Cephus' contention that his life sentence violated the cruel and unusual punishment clause of the Eighth Amendment was rejected. (Id. at 709.) The United States Supreme Court denied Cephus' petition for writ of certiorari. Cephus v. United States, 133 S. Ct. 588 (Nov. 5, 2012).
Cephus filed the instant motion to vacate his sentence under section 2255 on November 5, 2013 (DE #494). He received an extension of time to file his memorandum in support, and filed the brief on January 13, 2014 (DE #512). The Government filed a response on June 11, 2014 (DE #564). Cephus then filed a reply on July 7, 2014 (DE #569).1 As such, this motion is fully briefed, and ripe for adjudication.
In addition to the current section 2255 Petition, Cephus has filed additional related motions. On June 30, 2014, he filed a"Motion to Recuse Judge for Misconduct" (DE #567); on August 18, 2014, he filed a "Motion for Judicial Intervention Jury Tampering - Obstruction of Justice" (DE #576); and on September 8, 2014, he filed another "Motion for Judicial Intervention Jury Tampering - Obstruction of Justice" (DE #580). These motions all relate to Cephus' claim that when he was reviewing his file, he discovered new information - that he actually knew a member of the jury (whom he allegedly did not recognize during trial), and that the juror knew his "former girlfriend that [he] had a 'violent domestic incident' with." (DE #576, pp. 2-3.) These motions have also been fully briefed and will be addressed and ruled upon in this order as well.
Habeas corpus relief under 28 U.S.C. section 2255 is reserved for "extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). In order to proceed on a habeas corpus petition pursuant to 28 U.S.C. section 2255, a federal prisoner 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. Id.
A section 2255 motion is neither a substitute for nor recapitulation of a direct appeal. Id.; Belford v. United States,975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). As a result:
[T]here are three types of issues that a section 2255 motion cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) nonconstitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal.
Belford, 975 F.2d at 313. Additionally, aside from demonstrating "cause" and "prejudice" from the failure to raise constitutional errors on direct appeal, a section 2255 petitioner may alternatively pursue such errors after demonstrating that the district court's refusal to consider the claims would lead to a fundamental miscarriage of justice. McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996).
In assessing Petitioner's motion, the Court is mindful of the well-settled principle that, when interpreting a pro se petitioner's complaint or section 2255 motion, district courts have a "special responsibility" to construe such pleadings liberally. Donald v. Cook Cnty. Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996); Estelle v. Gamble, 429 U.S. 97, 106 (1976) ()(quoting Haines v. Kerner, 404 U.S. 519 (1972)); Brown v. Roe, 279 F.3d 742, 746 (9th Cir. 2002) () (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 198...
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