United States v. Anthony C. Kovic

830 F.2d 680, 1987 U.S. App. LEXIS 14018
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 17, 1987
Docket86-2617
StatusPublished
Cited by72 cases

This text of 830 F.2d 680 (United States v. Anthony C. Kovic) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Anthony C. Kovic, 830 F.2d 680, 1987 U.S. App. LEXIS 14018 (7th Cir. 1987).

Opinions

COFFEY, Circuit Judge.

Anthony C. Kovic appeals the district court’s denial of his petition to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. We affirm.

I

On February 26, 1981 a jury convicted Kovic of 17 counts of mail fraud in violation of 18 U.S.C. § 1341, and one count of knowingly and willfully affecting commerce by extortion, under color of official right (Hobbs Act), in violation of 18 U.S.C. § 1951. Kovic had been the chief of the Motor Maintenance Division, the highest ranking civilian in the Chicago Police Department. From this position of public trust, Kovic helped to initiate, organize and promote a scheme which eventually bilked the citizens of Chicago of over $600,000 by fraudulently billing the Police Department for excessive repairs allegedly performed on damaged police department vehicles. Kovic’s conviction resulted from his central role as the “kingpin” of this massive fraud against the City of Chicago. Kovic was sentenced to a term of 20 years imprisonment under the Hobbs Act; 20 years imprisonment under the 17 mail fraud counts, the latter to run concurrently with the Hobbs Act sentence; together with a fine of $27,000. These sentences were to run concurrently with a 12-year sentence previously imposed in a related case.

Kovic appealed his conviction represented by Attorney David P. Schippers, who also had been his trial counsel, claiming, inter alia, prejudicial joinder of defendants and attacking the sufficiency of the evidence. We affirmed the conviction.1 Kovic chose to remain free on bond and began serving his sentence on January 3, 1983. On June 15, 1983, David Lubell,2 on behalf [682]*682of Kovic, made a Rule 35(b)3 motion requesting a reduction of Kovic’s 20-year sentence. The motion set forth that (1) Kovic was in poor health and was suffering from life threatening diseases, (2) conditions in the prison were overcrowded, and (3) a plea for leniency. The court denied the motion and Lubell filed an appeal.4 *On July 23, 1984, this court in an unpublished order5 affirmed, holding that the district court did not abuse its discretion in denying the Rule 35 motion.

On May 29, 1986, over five years after his sentencing, Kovic filed a petition to vacate or set aside his sentence pursuant to 28 TJ.S.C. § 2255, the federal prisoners’ equivalent of a habeas corpus petition. Kovic asserted:6

(1) That the district court relied on erroneous facts contained in Kovic’s presentence report in imposing sentence violating Rule 32 of the Federal Rules of Criminal Procedure and Kovic’s due process rights;
(2) that the district court coerced Kovic to either cooperate with the Government and waive his right of appeal and privilege against self-incrimination or remain silent thereby incurring a harsher sentence;
(3) that his counsel provided ineffective assistance of counsel by, inter alia, failing to preserve these said errors at sentencing or by failing to raise them subsequently.

The Government argued that Kovic had waived these arguments because he had failed to raise them either at sentencing, on direct appeal, at the Rule 35 motion or on his appeal from the Rule 35 motion. Because Kovic failed to show cause excusing [683]*683his procedural defaults and actual prejudice resulting from the errors of which he complained, the district court denied Kovic’s petition.7 On appeal, Kovic asserts the above said errors and also contends that the district court abused its discretion when it (1) failed to provide an evidentiary hearing pursuant to § 2255, and (2) denied his § 2255 motion.

II

The Government has argued and Kovic does not dispute that the Frady cause and actual prejudice standard is applicable to Kovic’s § 2255 assertions. In United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982), the Supreme Court held that a federal prisoner seeking collateral relief pursuant to § 2255, “based on trial errors to which no contemporaneous objection was made, ... must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” The Supreme Court noted two overriding reasons for the adoption of the cause and actual prejudice standard under these circumstances. Initially, the Court observed that the federal government has a significant interest in the finality of its criminal judgments. The Court stated that “[o]ur trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless post-conviction collateral attacks. To the contrary, a final judgment commands respect.” Id. at 164-65, 102 S.Ct. at 1592-93. Furthermore, we have noted that “the grant of a habeas writ is intended to be the exception, not the rule.” Sanchez v. Miller, 792 F.2d 694, 698 (7th Cir.1986), cert. denied, —U.S.-, 107 S.Ct. 933, 93 L.Ed.2d 984 (1987). The second important reason the Court alluded to is that federal prisoners, unlike their state counterparts, have previously presented their federal claims in our federal trial and appellate courts. Frady, 456 U.S. at 166, 102 S.Ct at 1593.

We adopted the Frady cause and actual prejudice standard in Norris v. United States, 687 F.2d 899 (7th Cir.1982). In Norris we held that a federal prisoner’s failure to raise a constitutional issue8 on direct appeal bars raising it in a subsequent § 2255 motion unless the defendant can show cause for and actual prejudice resulting from the error of which he complained. Id. at 904. We noted:

“To take an appeal, and as it were reserve several issues for a second appeal to be taken from the denial of a § 2255 motion after the first appeal is decided ... is to engage in piecemeal litigation in as blatant a form as can be imagined. In some cases, there may be a good reason for this weird procedure — such as incompetence of counsel in the first appeal, newly discovered evidence, or an intervening change in the Jaw — and if so the appellant will be able to demonstrate good cause for his failure to appeal the first time and will therefore be allowed to appeal a second time.”

Id. at 903. We stated that there is a presumption against piecemeal litigation and it is the movant’s burden to overcome the presumption by establishing cause for the procedural default and any actual prejudice resulting therefrom. Id. at 903-04.

In United States v. Griffin, 765 F.2d 677

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830 F.2d 680, 1987 U.S. App. LEXIS 14018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-anthony-c-kovic-ca7-1987.