Valona v. US

• Decision Date: 15 March 1996
• Docket Number: No. 96-C-0091.,96-C-0091.
• Citation: 919 F. Supp. 1260
• Parties: James Jeffrey VALONA, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

919 F. Supp. 1260

James Jeffrey VALONA, Petitioner, v. UNITED STATES of America, Respondent.

No. 96-C-0091.

United States District Court, E.D. Wisconsin.

March 15, 1996.

COPYRIGHT MATERIAL OMITTED

James Jeffrey Valona, Greenfield, WI, Pro Se.

Office of the U.S. Attorney, Milwaukee, WI, for respondent.

DECISION AND ORDER

WARREN, Senior District Judge.

Before the Court is the petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody. On January 25, 1996, the petitioner, James J. Valona, filed a Section 2255 Motion arguing his conviction violated the Double Jeopardy Clause of the Fifth Amendment. Because the petitioner's claims are barred by procedural default and without legal merit, the petitioner's Motion is DISMISSED.

I. BACKGROUND

On May 11, 1983, the petitioner, James J. Valona, attempted to purchase ten kilograms of cocaine from an undercover drug enforcement agent in exchange for a suitcase containing currency totalling $285,000, jewels and collector coins. Valona was arrested by federal agents and released the same day. On July 21, 1983, pursuant to 21 U.S.C. § 881, a complaint was filed for forfeiture in rem and warrant of arrest was issued in United States v. $284,960.00 in U.S. Currency, et al., case number 83-C-914. On November 25, 1983, a default judgment was entered forfeiting the above-mentioned property to the United States government. On July 2, 1985, a grand jury sitting in the Eastern District of Wisconsin returned an indictment against the petitioner charging attempted possession of cocaine with an intent to distribute in violation of 21 U.S.C. §§ 841, 846. The petitioner was found guilty by a jury on July 10, 1986, and sentenced by the Honorable John W. Reynolds on October 31, 1986 to fifteen (15) years imprisonment and a $25,000.00 fine.

On appeal, the petitioner raised three issues: (1) whether or not a twenty-eight month delay between the arrest and unsealing of the indictment, during which time a potential defense witness died, violated due process under the fifth amendment; (2) whether or not it was error for the trial court to deny petitioner's request for the informant's prior criminal record, record of performance as an informant, and details of the consideration he received; and, (3) whether or not the government's "pre-targeting" of the petitioner, providing him with cocaine, and entering into a contingent fee arrangement with the informant constituted outrageous conduct. United States v. Valona, 834 F.2d 1334, 1335 (7th Cir.1987). On November 20, 1987, the petitioner's conviction was affirmed by the United States Court of Appeals for the Seventh Circuit.

On April 19, 1988, the petitioner filed a motion to reduce his sentence pursuant to Rule 35 based on the impact of his incarceration upon his family. Further, the petitioner argued in the Rule 35 Motion that his sentence was substantially higher than the national average for offenses involving the distribution of more than 1,000 grams of cocaine and that had he been sentenced in 1983, his parole eligibility guidelines would have been 40 to 52 months as opposed to 52 to 80 months. Judge Reynolds denied Valona's motion for a reduction of sentence on June 2, 1989. On June 7, 1989, Valona filed a Motion to Reconsider which was denied by Judge Reynolds on February 7, 1990. The petitioner attempted to appeal this decision to the Seventh Circuit, however, on June 26, 1990, the appeal was dismissed for failure to prosecute.

Mr. Valona has served the incarceration portion of his sentence and is currently on parole in the Eastern District of Wisconsin; his parole expiration date is October 20, 2001. In his 28 U.S.C. § 2255 Motion, the petitioner argues that his conviction which included "forfeiture of ... money and property" totalling close to $500,000.00 violated the Double Jeopardy Clause of the Fifth Amendment. Petitioner also complains that he received ineffective assistance of counsel at both the trial and appellate level (petitioner was represented by different attorneys at trial and on appeal) because his trial counsel advised the petitioner "to relinquish the goods to the Government" and both trial and appellate counsel failed to raise the Double Jeopardy issue at trial or on appeal. (Motion at 5a.) Thus, petitioner argues he was "left like a waif in a lions sic den to fare for himself" because his attorneys "simply fed petitioner to the wolves." (Motion at 5b.)

II. LEGAL STANDARD

28 U.S.C. § 2255 relief 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. "Moreover, in addition to restraints on the types of issues that may be raised, the failure to raise issues on direct appeal bars a petitioner from raising them in a section 2255 proceeding unless he or she makes a showing of good cause for and prejudice from that failure." Bischel v. United States, 32 F.3d 259, 263 (7th Cir.1994) (citations and internal quotation marks omitted). Thus, relief under Section 2255 is available if a prisoner can show that there are "flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude, or result in a complete miscarriage of justice." Boyer v. United States, 55 F.3d 296, 298 (7th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 268, 133 L.Ed.2d 190 (1995). An argument that was not raised on direct appeal cannot first be presented on collateral review "`absent showing of cause' for the failure to advance the argument sooner `and some showing of actual prejudice resulting from the alleged constitutional violation.'" Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir.1994) (quoting Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977)).

The Court emphasizes that "a Section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal." Daniels v. United States, 26 F.3d 706, 711 (7th Cir.1994) (citations omitted). A district court may not reach the merits of an appealable issue in a Section 2255 proceeding unless the issue has been raised in a procedurally appropriate manner. Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989). Thus, a petitioner who has failed to raise a constitutional issue on direct appeal is barred from raising the issue in a post-conviction proceeding unless he demonstrates both cause for the procedural default and actual prejudice from the failure to appeal. Reed v. Farley, ___ U.S. ___, ___, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994) (citing Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977)); Barker v. United States, 7 F.3d 629, 632 (7th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 939, 127 L.Ed.2d 229 (1994); Theodorou, 887 F.2d at 1339-40.

To show cause, the petitioner must demonstrate that an external objective factor impeded his ability to appeal. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). For example, "showing that the factual or legal basis for a claim was not reasonably available to counsel, or that `some interference by officials,' made compliance impracticable, would constitute cause under this standard. Id. (citations omitted). Ineffective assistance of counsel in violation of the Sixth Amendment may constitute "cause" under Wainwright for a procedural default. Id. When assessing whether a party has established cause the Court may only examine that party's proffered reasons for not appealing and not speculate about other possible explanations. Williams v. United States, 805 F.2d 1301, 1304 (7th Cir.1986), cert denied, 481 U.S. 1039, 107 S.Ct. 1978, 95 L.Ed.2d 818 (1987).

The "miscarriage of justice" exception to cause and prejudice is narrow: "In an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986); see also Schlup v. Delo, ___ U.S. ___, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The fundamental miscarriage of justice exception is reserved solely for those with a claim of actual innocence. Boyer, 55 F.3d at 298, 300. That is, the petitioner's claim must be one of factual innocence, not legal innocence. Id.

III. DISCUSSION

Valona argues that his criminal conviction is barred by the Double Jeopardy Clause which provides "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend V. Valona submits that his criminal prosecution violates this principle on the grounds that the forfeiture in civil case 83-C-914 of $284,960.00 in United States currency, 188 assorted coins, one diamond and ruby bracelet and one diamond bracelet constitutes a former jeopardy, making a criminal conviction for the same crime a second barred punishment. In civil case 83-C-914, Valona did not contest the forfeiture and the court entered a default judgment on November 25, 1983.

In this case, Valona's failure to address his Double Jeopardy claim on appeal constitutes a procedural default. See Doe v. United States, 51 F.3d 693, 698 (7th Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 205, 133 L.Ed.2d 139 (1995). However, petitioner argues that he received ineffective assistance of counsel at both the trial and appellate level which may excuse a procedural default. See Van Russell v. United States, 976 F.2d 323, 327 (7th Cir.1992), cert denied, 508 U.S. 923, 113 S.Ct. 2376, 124 L.Ed.2d 280 (1993). To establish that counsel provided ineffective assistance, Valona, must demonstrate: (1) deficient performance by his attorney, and (2) prejudice from the representation. Precin v. United States, 23 F.3d 1215, 1218 (7th Cir. 1994).

To demonstrate a violation of the Sixth...