Worthington v. United States

936 F. Supp. 586, 1996 U.S. Dist. LEXIS 12394, 1996 WL 479507
CourtDistrict Court, E.D. Wisconsin
DecidedJune 19, 1996
DocketNo. 96-C-493, 92-CR-93
StatusPublished
Cited by1 cases

This text of 936 F. Supp. 586 (Worthington v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Worthington v. United States, 936 F. Supp. 586, 1996 U.S. Dist. LEXIS 12394, 1996 WL 479507 (E.D. Wis. 1996).

Opinion

DECISION AND ORDER

WARREN, District Judge.

Before the Court is the petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, [588]*588or Correct Sentence By a Person in Federal Custody. On April 24, 1996, the petitioner, Wayne Gene Worthington, filed a Section 2255 Motion arguing his conviction should be vacated in light of Bailey v. United States, — U.S.-, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Because the petitioner’s claims are either barred by procedural default or without legal merit, the petitioner’s Motion is DISMISSED.

I. BACKGROUND

On April 21, 1992, a two-count indictment was filed in the Eastern District of Wisconsin charging Wayne Gene Worthington with armed bank robbery in violation of 18 U.S.C. § 2113(a), (d), and use of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Worthington plead not guilty and the matter went to trial. On June 24, 1992, Worthington was found guilty by a jury on both counts. He was sentenced by this Court to a term of seventy-eight (78) months’ imprisonment on the bank robbery, and sixty (60) months’ imprisonment on the firearms charge, the sentences to run consecutively. The petitioner appealed his conviction on the sole ground that the government failed to prove him guilty beyond a reasonable doubt. In an unpublished opinion, the United States Court of Appeals for the Seventh Circuit affirmed Worthington’s conviction. United States v. Worthington, 998 F.2d 1017, 1993 WL 268894 (7th Cir.1993).

Worthington in his 28 U.S.C. § 2255 petition raises three issues for why his conviction and sentence should be vacated. First, Wor-thington argues a review of the evidence at trial indicates that he did not actively employ or carry a firearm in violation of 18 U.S.C. § 924(c) as that statute has been recently interpreted by the United States Supreme Court in Bailey v. United States, .—U.S.-, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Second, Worthington alleges he received ineffective assistance of counsel because his attorney failed to challenge the credibility of the government’s main witness, who identified him at trial as the bank robber who pointed a gun at her head. The petitioner continues to believe he was not proven guilty beyond a reasonable doubt “as no videotapes, recordings or other eyewitnesses supported the government’s only fact witness to sustain a conviction.” (Motion at 4.) Third, Wor-thington challenges the two-level increase in his sentence, pursuant to U.S.S.G. § 2B3.1(b)(4)(B), wherein the Court enhanced petitioner’s sentence for physically restraining a person to facilitate commission of the offense or to facilitate an escape.

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 appeal-able 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 [589]*589barred 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, 512 U.S. 339,-, 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, 510 U.S. 1099, 114 S.Ct. 939, 127 L.Ed.2d 229 (1994); Theodorou, 887 F.2d at 1339-40.

[5-7] 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).

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Bluebook (online)
936 F. Supp. 586, 1996 U.S. Dist. LEXIS 12394, 1996 WL 479507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worthington-v-united-states-wied-1996.