United States v. Anthony C. Kovic

WOOD, Before COFFEY and RIPPLE, Judges. Circuit COFFEY, Judge. Circuit Anthony appeals C. Kovic the district petition court’s of his to vacate or denial aside to 28 set his sentence U.S.C. 2255. We affirm. February jury convicted 1981 of mail in viola- 17 counts of fraud and count tion of U.S.C. one of knowingly willfully affecting com- and extortion, merce under of official color (Hobbs Act), right of 18 violation U.S.C. had of 1951. Kovic been chief Division, highest Motor Maintenance Chicago ranking Police civilian De- position public From partment. this initiate, trust, helped organize and eventually promote a scheme which bilked $600,000 by Chicago citizens of of over billing Department fraudulently Police performed repairs allegedly for excessive damaged police department vehicles. from his central Kovic’s conviction resulted “kingpin” of this massive fraud role as the Chicago. against City of Kovic was years imprison- to a term of sentenced Act; im- ment under Hobbs counts, mail fraud prisonment under the 17 concurrently run with the the latter sentence; together with a fine Act Hobbs $27,000. These to run sentences were previ- 12-year concurrently with ously imposed in a case. related represent appealed his conviction Attorney Schippers, P. who ed David counsel, claiming, also been trial alia, inter defendants prejudicial joinder of Feldman, Atty., Laurie N. Asst. U.S. sufficiency attacking the of the evi Div., Receiving, Appellate Chief Criminal conviction.1 Ko We affirmed the dence. Ill., plaintiff-appellee. Chicago, for began remain free on bond and chose to vic Abramovic, Chicago, Ill., January serving his sentence on Michael R. Lubell,2 on behalf defendant-appellant. On June David Cavale, in its brief that on states 2. The Government Cir.1982), denied, was a member June Lubell cert. 459 U.S. L.Ed.2d However, (Kovic’s does (1983) Schippers the record petition firm. for a writ of certio evident that questions concerning While this conclusion. rari was limited to relationship co-conspirators’ between Lubell and admissibility was a there severance). was in Schippers, Lubell it is unclear whether 35(b)3 Kovic, lating a Rule motion re Rule 32 the Federal made Rules 20-year of Kovic’s reduction questing pro- Criminal Procedure and Kovic’s due (1) set forth that The motion sentence. rights; cess suffering poor health Kovic was (2) that the district court Ko- coerced diseases, (2) threatening condi life cooperate vic to either with the Govern- overcrowded, prison tions ment and waive The (3) plea leniency. a court denied for privilege against self-incrimination or re- appeal.4 filed an motion Lubell *On the thereby incurring main silent a harsher 23, 1984, unpublished July court an this sentence; affirmed, holding that the district order5 (3) provided counsel that his ineffec- discretion in denying its court abuse alia, inter tive of by, assistance Rule 35 motion. the failing preserve to these said errors at 29, 1986, five over after by failing or them to raise sentencing, petition filed a to his subsequently. pursuant or set aside his sentence to vacate argued The Government prisoners’ federal 28 TJ.S.C. the § arguments waived these because he had corpus petition. equivalent of a habeas sentencing, failed asserted:6 to raise them either at appeal, direct (1) Rule 35 motion or on That the district court relied on er- appeal his from the Rule 35 Be- roneous facts contained motion. report excusing sentence cause Kovic to sentence vio- failed show cause Lubell, (2) if, Schippers’ a proceedings fact member of law firm. for a further bar, apparently proceedings, member of the New York main- after such the court determines a New York original tained office. Ko- that the sentence was incorrect. (b) Correction affidavit reveals that Kovic vic’s retained a New Sentence Changed Cir- of for attorney his court, York to handle Rule 35 motion and on motion of the cumstances. subsequent appeal. Government, its may year within one after sentence, imposition of a lower a to sentence 15, 1983, provided: On June Rule 35 3. subsequent, reflect a defendant's substantial (a) may The court Correction investigation prosecution Sentence. assistance in the or of illegal correct an may sentence time and person of another who has an of- committed imposed illegal correct a sentence in an fense, guidelines in accordance with the provided manner within time herein for policy Sentencing statements issued the reduction of sentence. pursuant to title Commission section 994 of (b) may The court Sentence. Reduction authority United States Code. The court’s days reduce a sentence within after the to lower a sentence under this subdivision imposed, days sentence is within or after authority includes the to lower such sentence receipt by upon the court aof mandate issued to a level below that established as statute judgment affirmance of the or dismissal of a minimum sentence. appeal, days entry the any or within after judgment Supreme order or Schippers 4. The record discloses also made of, having review or the effect of presentence report a motion to make Kovic’s upholding, judgment of conviction. The part appeal from the denial upon court also reduce revo- the Rule 35 motion. probation provided by cation of law. Changing a sentence from a sentence of incar- Kovic, F.2d 971 grant probation ceration to a shall consti- 1984). permissible tute a reduction of sentence un- der this subdivision. petition eight 6. Kovic’s asser- § 2255 Effective November Rule35 in its en- tions, peti- some of which redundant. His tirety provide will be to amended as follows: did, however, following tion raise the additional (a) Correction on Remand. Sentence of a longer pursues ap- issues which he no on this court shall correct a sentence that is deter- peal: appeal mined on 18 U.S.C. under 3742 to have court, (1) that the district law, to sentenc- imposed been in violation of to have ing, did not afford Kovic his counsel imposed and/or been appli- as a result an incorrect accuracy an comment as to sentencing guidelines, to cation of the unreasonable, or to be presentence report violating of 32(c)(3) Rule upon remand the case to the process rights; court— due (1) (2) imposition was denied his allo- sentence in accord that Kovic to findings appeals; violating process rights. with the court of or cution due prisoners, unlike their prejudice federal state coun and actual procedural defaults previously presented terparts, which he com- have their the errors of resulting from ap denied Kovic’s federal claims in federal trial and plained, the district 166, 102 Frady, pellate Kovic asserts courts. U.S. at petition.7 On contends that also errors and S.Ct said above discretion abused its district court Frady adopted cause and actual evidentiary (1) provide when it failed prejudice standard in Norris v. United (2) 2255, and denied 2255 motion. Norris prisoner’s we held that a federal to raise a constitutional issue8 on failure II raising it in direct bars a subse- argued and Kovic has The Government quent 2255 motion unless the defendant Frady dispute cause does can show cause and actual applicable prejudice standard resulting from the error of which he com- In United assertions. Kovic’s 2255 § Id. at 904. We noted: plained. 152, 167-68, 102 Frady, 456 U.S. States v. appeal, an as it “To take were re- (1982), 1584, 1594-95, 71 L.Ed.2d 816 S.Ct. appeal serve several issues for a second Supreme pris held that a federal Court from the denial of to be taken a 2255 § seeking relief oner collateral appeal motion after the first is decided 2255, errors which no “based trial § engage litigation in piecemeal ... is to in made, objection ... contemporaneous imagined. as blatant form as can be In (1) excusing his must show both ‘cause’ cases, may good some there be a reason default, (2) procedural ‘actual double procedure for this weird as incom- —such resulting from

prejudice’ the errors petence in of counsel the first Supreme complains.” he The Court which evidence, newly discovered or an inter- adop overriding reasons for the noted two vening change in the if so the Jaw —and prejudice stan tion of the cause and actual appellant will be able to demonstrate Initially, under these circumstances. dard good appeal failure to cause govern the federal the Court observed that first time and will therefore be allowed in the finali significant ment interest has appeal a second time.” judgments. The Court ty of its criminal Id. at 903. We stated that there is a pre- appellate proce trial and stated that “[o]ur litigation sumption against piecemeal and it not so unreliable that we dures are is overcome the the movant’s burden to completed any operation afford their bind by establishing presumption cause for the ing beyond effect the next a series procedural prejudice default and actual post-conviction endless collateral attacks. resulting therefrom. Id. at 903-04. judgment contrary, To the final com 164-65, 102 Griffin, v. United States at In 765 F.2d 677 Id. respect.” mands S.Ct. Cir.1985), (7th validity reaffirmed the 1592-93. we have noted that we is intended to Norris. grant that a federal “the of a In we held habeas writ Griffin v. prisoner multiplicity not the rule.” Sanchez exception, who failed to raise be Miller, Cir.1986), 694, (7th argument appeal at trial and on direct must 792 F.2d 698 — denied, 933, U.S.-, cert. prejudice for and result- 107 S.Ct. show cause (1987). complained impor error of which he 93 L.Ed.2d 984 The second proce- reason the alluded to before we would excuse his double tant properly peti Kovic’s 8. Non-constitutional errors are not § court’s order no tion concluded prejudice there was cause or actual could in a 2255 motion because raised excusing procedural been, not, defaults. appeal. on direct have but were raised initially The court decided that Kovic’s claims 899, States, (7th 687 F.2d Norris v. United agree were without merit. of the trial court on a decision Cir.1982); Griffin, 765 See also basis; thus, we different 677, (7th F.2d affirm. v. United 821 F.2d Rizzo 1987); Rog see also Pfeil ers, (7th Cir.1985). at 682. We noted that dural default. Id. A. propounded Norris is that “the rule seeming While to cast aside the fact criminal defendant fails to when a federal “kingpin” that he was the of a massive his con- argue appeal issue on direct fraud on the Chicago, citizens of viction, bring issue on the failure to asserts that the court relied on raising that issue direct bars erroneous and false information found in good unless cause for not 2255 motion presentence report as the basis for his appealing is shown.” Id. at 680. Further- 20-year concurrent sentences which were more, prejudice the cause “[w]hen imposed May 1981. Specifically, he applied, the defendant standard is must asserts that two erroneous statements are prejudice satisfy the cause ele- both (1) report: 682; Frady, 456

ments.” U.S. at robbery, (2) was arrested in 1948for 102 S.Ct. at unemployed sentencing. the time of Kovic contends that the district court’s re Williams United liance on these inaccurate Cir.1986), 1306-07 extended imposing his sentence pro violated his due applicability of the Norris cause and rights. Supreme cess Court has held to new issues standard raised that convicted defendants have pro a due attacking defendants when their sentences cess to be sentenced on the basis of proceeding. in a We noted that a accurate and See, reliable information. defendant can attack his sentence in a Rule e.g., Tucker, United States v. 404 U.S. appeal any free to 35 motion and is adverse 447, 589, 591, 92 S.Ct. 30 L.Ed.2d 592 ruling on the Rule 35 motion the district (1972). We too have had opportunity the court. Id. at 1306. It is now the well importance reaffirm the of the constitution established rule of this circuit that a feder- al sentencing to a fair procedure. prisoner seeking al 2255 review of issues § See, e.g., United States ex rel. Welch v. which could have and should have been Lane, (7th Cir.1984); 738 F.2d 863 United raised at trial and on direct in a Harris, (7th 558 F.2d 366 motion, Rule 35 or on of the Rule 35 1977). arguments Because Kovic’s raise motion, must establish cause possibility of a violation of his due prejudice resulting from the failure to process rights, required he is to establish viously raise the constitutional issue. cause for and actual prejudice resulting argues The Government that each of Ko- from his failure to prior raise this issue vic’s being 2255 assertions are raised for § his 2255 motion. As Griffin, we noted in the first time and are subject thus to the requires the Norris standard that Kovic Norris standard. Kovic asserts that his establish both cause preju for and actual previous provided counsel ineffective as- resulting dice from his failure to raise the sistance of counsel in that failed to petition. issues to his 2255 See preserve claims; raise or his constitutional 152, Frady, also United States v. 456 U.S. and that the ineffective assistance of coun- 168, 1584, 1594, 102 S.Ct. 71 L.Ed.2d 816 sel procedural constitutes cause for Kovic’s (1982). unnecessary We find it to deter defaults.9 Kovic prej- contends that actual mine whether Kovic can in fact establish udice has resulted his counsel’s fail- procedural cause for his defaults because timely ure to raise the issues he now from our review of the record we are confi presents motion; in his 2255 we address dent prejudice he suffered no actual result each separately. issue inconsequential from the inaccurate 9. We have noted Supreme that ineffective assistance of Court stressed when may provide pro- performance constitutionally sufficient cause for a counsel's inef- Clay cedural default. See v. Washington, Director Juvenile fective under the Strickland v. 466 Div., Corrections, 427, Dep't 668, 2052, (1984), 749 F.2d 430 U.S. 104 S.Ct. 80 L.Ed.2d 674 Cir.1984); 899, Norris v. United procedural 687 F.2d standard will cause for be default (7th Cir.1982); Carrier, 478, 903 Murray Johnson v. United 805 found. v. 477 U.S. 106 1284, (7th Cir.1986). Furthermore, 2639, 2646, (1986). F.2d 1291 S.Ct. 91 L.Ed.2d 397

685 sentencing hearing presentence re- infected it re- in his miscarriage jus- in a fundamental sulted port. tice. has refrained from Supreme Court “prej term to the content” giving “precise A convicted defendant has a due let Instead, chose to Court udice.” process right to on the be sentenced basis provide future cases in its presented facts of accurate information. United States v. “prejudice.” of the term See the “content” Tucker, 589, 404 92 U.S. S.Ct. 87, 72, 433 U.S. 97 Sykes, v. Wainwright 591, (1972); L.Ed.2d 30 592 also Town 2506, (1977). 2497, L.Ed.2d 594 53 S.Ct. Burke, 736, 1252, send v. 334 U.S. 68 S.Ct. Frady the Court Subsequently, (1948). We noted L.Ed. that: degree preju to address Tucker, “Under Townsend and a sen- prisoner must establish be dice federal tence must be set aside where de- collateral relief. could obtain fore he can fendant show false information There, procedural default occurred part the basis for the sentence. timely object failed to defendant when the are, showing The two elements at trial. The court jury instruction tó first, information before the sen- prisoner could sat that before stressed tencing inaccurate, court was and sec- Frady element of the isfy the ond, that the court relied on “ test, ailing establish that ‘the he must passing misinformation sentence.” by itself so infected entire instruction Lane, ex rel. Welch v. States resulting that the conviction violates trial ” 863, (7th Cir.1984); also see Unit- 169, 102 process.’ Frady, 456 due U.S. 366, Harris, ed v. States Kibbe, (quoting at 1595 Henderson S.Ct. Cir.1977)(wherein we stated: “Tucker and 145, 154, 97 S.Ct. 431 U.S. broadly read to pre- have been Townsend (1977) (quoting Cupp L.Ed.2d ‘improper upon clude reliance or inaccurate Naughten, 414 94 S.Ct. U.S. making information’ de- (1973))). L.Ed.2d 368 termination.”). Thus, “in order show a stated that: violation, process due must raise [Kovic] the burden of “[Frady] must shoulder grave veracity doubt as to the infor- showing, merely that the errors at his presentence in re- mation [contained possibility preju- his trial created port] show the court relied on that and that dice, his that worked to but determining false in information sen- disadvantage, infecting and substantial Eschweiler, 782 tence.” United States his error of constitution- entire trial with 1385, (7th Cir.1986). Only then al dimensions.” mis- can Kovic assert that fundamental 170, at The Court Id. at 1596. S.Ct. carriage justice his occurred at sentenc- “no noting perceived it risk concluded that ing hearing.11 justice.” miscarriage of a fundamental Therefore, argues Judge 172,102 Kovic that Getzendan at we S.Ct. 18, findings September ner's must demonstrate that conclude that Kovic alleged and establish that his the existence of two inaccurate Memorandum Order report report10 presentence so contained two inaccu- presentence statements in his 1948, (2) unemployed sentencing bery initially that he was that the in Kovic asserted sentencing. in his file which in time of court relied on letters found Additionally, fact Kovic did not exist. contend- ed had relied on informa- additionally that the district court asserts a violation of 11. that reports. presentence Judge tion other in Gétzen- Fed.R.Crim.P. 32 occurred when Judge allega- clearly pre- refuted these Getzendanner in danner "relied" on false information note, however, Opinion report. tions her and Order Memorandum such, complain Kovic does not a rule violation motion. cannot only arguments appeal; instead he due raise these but of violation under process rights. argues sentencing impermissibly Johnson v. United that the court Thus, we relied on two inaccurate statements (1) process claim. limit our review to Kovic’s due he was arrested rob- sentence: pared, dictated, typed rate statements. Getzendanner not- presented to the contemporaneous ed: sentencing Rather, hearing. upon incumbent two erroneous statements “There were counsel to examine and report review the presentence report. .contained in the with their notify clients and the court the defendant correct facts are that was hearing of the robbery defendant’s not arrested 1948 for and he changed circumstances, if any. Any inac- employed sentencing.” was at the time of employment curate information included in record, reviewing agree After we presentence Kovic’s report May as of presentence that the 1981, the date of the sentencing, is there report contained inaccurate information re- because of the defendant’s and/or his coun- robbery However, garding a 1948 arrest. sel’s failure object; and not due to the agree finding with her we cannot that the fault of the trial court12 or the U.S. Proba- presentence report included erroneous em- Department. tion ployment information. Our examination of We are aware report that Kovic presentence Kovic’s contends that reveals that the presentence report reviewed the report completed by a U.S. for the Probation first time in 20, 1981, March April at which time preparation officer on became aware of the May “inaccuracies” in sentencing hearing. report. Kovic asserts following employment that his failure to information is timely object report to the completed April 20, found “inaccuracies” was a result of 1981: ineffective assistance of counsel. argues that but for the ineffective 18,1980, “Since November the defendant presentence assistance of counsel the unemployed. has been Mr. Kovic ad- port would not contain the “inaccurate” supported by vised that he is personal Therefore, information. proceed, savings.” as- suming arguendo, Getzendan- May days thirteen after the correctly ner found presen- that Kovic’s report completed had been four report tence contained two inaccurate days before his hearing, Kovic (1) arrest, statements: robbery a 1948 employment. obtained Under these cir- (2) he unemployed when sentenced. cumstances we presentence hold that the report was not inaccurate Kovic, however, because neither completely utterly courts nor reasonably defendants can prove ex- fails to Getzendanner re- pect that a report can be alleged lied on the inaccuracies. As we 12. We petition alleged noted that Kovic’s hearing. § 2255 transcripts The record includes two court, sentencing, that the trial hearing, complete one tran- afford Kovic his counsel and/or script partial transcript. and a appears It accuracy to comment presen- as to the complete sentencing the transcript was report tence longer pursues but that Kovic no pared presumably in 1982 at the time of Kovic's appeal. Supra, this issue on note 6. The appeal sen- direct partial of his conviction. The tencing transcript disclosed transcript Getzen- prepared presumably was in in posed following question danner the to defense appeal connection with the from the court’s counsel: denial partial of the Rule 35 motion. The tran- script above-quoted dialogue did not contain the inquire "First let me of defense counsel transpired which had fendants, between the whether convicted de- opportunity have each had an to counsel, presentence their report respect review the Getzendan- to court, court, your ner. This anybody client? as well as the district oppor- Has not had that every tunity? expect right.” expect had highest degree to All and does the professional Inasmuch knowingly as conduct defendant's counsel verbally every attorney respond appearing chose riot to each and to the court’s before it. inquiry, respond, partial transcript his failure to Reliance on a as much under these response, direct incompetence, convinces circumstances us that counsel manifests either court, an presentence attempt to review the carelessness or an any inves- to mislead the tigation report. acceptable one of which falls far short of only We, course, professional We note that the record discloses that conduct. made the judge initial assertion rely upon only that the failed to effort to retrieve and thus the comply 32(c)(3) par- complete with Rule transcript May was based on a 1981 sentenc- transcript tial analysis. for our factual de- 554. This statement followed demonstrate, to establish Id. at Kovic failed will trial denial that the defendant improbable that the fense counsel’s “it is ‘not felony. Espi- convicted of a by improper factors had ever been influenced judge was ” petition v. for reduction of sen- United noza filed Rizzo imposing sentence.’ Cir.1987) (7th requesting to an tence Rule Harris, present 558 F.2d opportunity to evidence to rebut (quoting United States Cir.1977)). that the defendant’s 374-75 the court’s statement The court denied the mo- record was bad. begin analysis whether allowing the to re- tion defendant without informa- relied on inaccurate Getzendanner contested information. but the report imposing in the tion the Fifth Circuit noted that: September with her Kovic’s sentence case, it the record in this is readi- “From de- Opinion and Order Memorandum relied, ly apparent that the court below re- 2255 motion. She nying Kovic’s § part, appellant’s ‘bad least marked: long- assessing appellant record’ when were two erroneous “There co-defendants, er than his both The presentence report. contained in considerably charged whom were was are defendant correct facts appellant.” than more robbery in 1948 for arrested not sentencing. The Id. at 555. court concluded that time of employed was to district had erred because failed an arrest in 1948 court court did take in- present to rebuttal determining the defend- allow the defendant into account conclusion, rely reaching this does not formation. In The court ant’s sentence. arrests, only or in court noted: actual convictions The de- formal indictments. some cases for “Had the court below stated reasons employment also was or, fendant’s lack in the denial of the motion [Rule 35] into account. The defendant not taken alternative, greater de- disclosed in some ill, parent, caring aged was imposing the rather tail the basis adequately have ex- this fact would sentence, long posture of this plained unemployment. Rather, the defendant’s might are well be different. sum, not influenced disturbing record that dis- faced with a information.” the erroneous given closes that defendant lengthy possibly sentence on the basis argues that this statement of dis- and that the erroneous information judge is it was presiding unreliable because reasons, court, stating trict without made some after date five the factual permit rebuttal of fused sentencing. baldly asser- He makes this assumption.” any support tion without record. argues that because 557-58. report reflected that he was unem- holding in of no assist- Espinoza sentencing, the court ployed at the time scrutinizing Kovic’s cause. After ance to employment as his actual failed consider record, a scintilla of we have not found mitigating factor sentence. unsupported evidence other than Kovic’s directs our attention speculation, the defend- that would Espinoza, States allegation ant’s 1973), argument. Espi In imposing relied on a in Kovic’s 1948 arrest noza, sentencing court stated: sentencing note at the sentence. We urged “One of the defendants has been in trou- the Government on Ko- before, impose very a sentence part but are all substantial ble ” of very problem, he was the “mastermind to be a serious vic because what seems billing actually phony scheme that cost they have ever the brazen and whether $600,000 not, Chicago and Espinoza, your over or Mr. the citizens been convicted bad, of his deliberate and calculated your is record for threats and because public trust. Govern- violation assaults.” noted, agree, denying when that substantial the defendant’s ment and we mo- § any- fines do more than sentencing sentences and will tion that at the on discourage and deter thing we know to rely did she on the inaccurate arrest Getzendanner, public corruption. presentence information in counsel, com- hearing from defense after See, e.g., Johnson v. United report. for the record as follows: mented States, (7th Cir.1986). Kovic, going to make a I am not Johnson, “Mr. In the defendant’s you speech. I find the crime of which alia, investigation report contained, inter very me to be are convicted before listing charge arrests and a not on public. I am against crime serious judge year his record. The one later at a taking into account the recommendations hearing, denied that he relied on sentencing judges on the of the other any alleged of the misinformation. We I have taken into account council. noted that where there was no factual ba- department’s recommenda- probation sis for the judge defendant’s claim that the recommendation, tions, the Government’s relied on false information have no “[w]e behalf, argument your your counsel’s discrediting unequivocal basis for period to a of 20 recollections, port of persuade which us $27,000. and a maximum fine rely that he did not in fact on inaccurate It should be noted that Getzendan- Johnson.” Id. information specifically mention the inaccu- ner Similarly, Judge Getzendanner em- concerning rate information a 1948 arrest phatically denied reliance on robbery but does refer to Kovic’s “seri- inaccurate information referred to. In her against public” during crime ous her Opinion Memorandum Order sentencing. remarks at Nor did she com- specifically 2255 motion she unemployment. ment on the defendant’s unequivocally stated: motion, Subsequently, at Kovic’s Rule 35 “The court did not take an arrest Judge Getzendanner reaffirmed that Ko- determining into account in the defend- carefully vic’s sentence was considered ant’s sentence. rely The court does not imposed. explained when She that she im- arrests, only posed lengthy sentence because convictions or corruption extent of Kovic’s and her some cases belief formal indictments. The de- activity that similar can be deterred employment lack fendant’s also was substantial sentences. Kovic’s reliance on not taken into account. The defendant Espinoza nothing more than a strawman caring ill, aged parent, for an argument because the facts before us are adequately this fact would have ex- clearly distinguishable from Espinoza. plained unemployment. the defendant’s Here it is most evident that Getzen- sum, In the court was not influenced rely danner did not on Kovic’s “bad record” the erroneous information.” stated, as she judge contrasted to the responsible is a Espinoza. specifically she respected judge federal aware of her obli- reasoning delineated her when office, gations and oath of and further- sentence, i.e., punish pub- and deter more, rights is sensitive to the of all indi- corruption. lic nothing record, viduals. There is in this We have held that a district court unsupported specula- absent Kovic’s bald dismiss a 2255 motion if he or she recol- tion, specific to discredit her recollection lects that at the time of he or sentencing hearing. rely she did not on the void conviction. concluding, In we note that the facts Lawary v. United 599 F.2d 218 distinguishable before us are from those Cir.1979); see also United States v. Hub- bard, Rizzo v. United 821 F.2d 1271 (7th Cir.1979). 618 F.2d 422 This Rizzo, here, presentence report rule is applicable even more where Judge specificity previous Getzendanner stated noted the defendant’s record B. How- adjudications.13 delinquency juvenile represent- not ever, been the defendant Kovic also asserts that his constitutional delinquency juvenile in the by counsel ed rights violated the were because court at- his sixth proceedings violation tempted cooperating to coerce him into —a In sentenc- provide to counsel. the to identi- Government the amendment defendant, ty of the “man downtown.” Kovic claims court commented: the ing the classic he faced a “Hobson’s choice” —he Rizzo, your your conduct “Mr. uncooperative by remaining could be silent Id., nothing.” at 1272 you for commends lose receiveleniency the to added). court ex- Because the (emphasis cooperate by identifying he the or could “record” we pressly noted defendant’s the risk “man and face the of addi- downtown” judge may impermissibly have the held that prosecution.14 speculat- tional Once more adjudi- juvenile relied on the uncounselled ing, without scintilla presentence report the included in cations record, remaining Kovic contends that As noted imposing sentence. when silent, preserving thus his Fifth Amend- above, demonstrates the record rights, longer ment he received a sentence. emphatically stated that she Getzendanner price tag imper- that a contends rely inaccurate information on the did missibly placed rights. on his constitutional investiga- presentence in Kovic’s set forth argument, seemingly We find Kovic’s in- report. tion genious, no to be without substance and of rights cause.15 process due benefit to his We hold that Kovic’s not violated because the district The Government and Kovic state that rely on inaccurate statements did not the initially this issue was raised the report imposing sen- when his the Norris standard. petition subject to failed demonstrate Kovic has to tence. argues procedural cause de- prejudice as a re- he suffered actual faults exists because his counsel were presentence report in his failing preserve sult of the errors in either to the ineffective hearing raising sentencing relief. error at or is not entitled to collateral No, are Mr. Honor. We have noted that district courts al Kovic: your juvenile Do to he lowed to consider the defendant’s Court: wish to what you reply Madison, record, see United States F.2d said? (7th Cir.1982), as well as the defend Mr. I think No, Honor, Kovic: your see, e.g., general, criminal record in ant’s has heard evidence. Hoffman, argued From this Kovic in his 2255 motion 1986), inquired directly peti- when sentence. that: “The court tioner he wished to to the whether respond argues governments dialogue also that if he have [sic] [sic] 14. Kovic would coop- attorneys’ identifying governments downtown, the man [sic] erated had described to the court the by electing forego fact would in have been to efforts have the co- to petitioner non-productive added). (Emphasis remedies. At post-conviction operate.” hearing, Kovic maintained that he innocent full However, transcript identifying have, so he the "man down- reads as follows: town”, waived certain issues on because wish address The Court: Does Mr. Kovic to identifying the man downtown implicit the Court? in the scheme and an admis- own involvement Mr. No. Kovic: guilt to some if not all of the counts for sion No, Mr. Honor. your Schipper: which he was indicted. to— Mr. Do wish us Tarum: you Government) (Representing As we have noted in footnote to The Court: Do wish reply? 2255 motion relied on a partial transcript Getzendanner time pres- sentencing hearing for Ko- factual support. sen- sure to the Government’s respond based, assertion vic again, tencing part, present once either remarks. Counsel was coerced cooper- relied or carelessly, par- incompetently found in ate with the Government before tial and confused the issues transcript That the partial transcript. partial transcript relying on com- Now court. apparently reads as follows: assert, almost he continues transcript, plete conduct Getzendanner’s The Court: Does Mr. Kovic wish to address frivolously, rights. the court? violated Kovic’s constitutional crimes subsequently. But our review that was convicted of. the issue consti- But— discloses that sentence has been tutionality of Kovic's really an It is not issue. The Court.- by Kovic the Rule 35 raised previously beg your pardon? Mr. Lubell: I 15, 1983. June motion I say really The it is an Court: not issue. place dialogue following took be- Mr. Lubell-. Not an issue. Lubell, Kovic’s counsel at the David tween clearly Counsel raised the issue of time, Getzendanner. rights whether Kovic’s constitutional guilt, admits [Kovic] Mr. Lubell: by cooperate. been violated his failure to guilt for his punished but he should be clearly challenged I punished respectfully would be can’t the court as to whether Kovic’s sentence that, rephrase me let submit—or lengthened was because of his failure to Honor can answer it. And Your cooperate. argument Lubell’s While was this, put is question I would most the . phrased in not the same vein Kovic now day If one respectfully: mind —never issue, is raises the there no that doubt he is eight day but one extra —if raising the same issue. imposed this court imposed of the fact that because David Lubell did not raise issue cooperate, you the defendant appeal on his from the Rule 35 motion. We may consider want to whether that is recognized have noted there a well or point not. Because in constitutional rule a 2255 motion not be used fact—of as a appeal. substitute for a direct Court: it is not even an issue. I Oh Levine v. United issue, at the time that it wasn’t an said (7th Cir.1970); see also Norris a times I have said it thousand since 687 F.2d 899 in other cases. then have also noted that the absence of “[i]n My sentencing philosophy, which was changed we not circumstances will recon quite early, is formed failure appeal sider in an from the denial cooperate taken should not be into previously section 2255 motion an issue de account; cooperation be should taken cided us on direct con very positive way, into account in Norris, viction.” F.2d at 900. Consist and I do that. have reduced sen- precedent ent we hold that absent tences this case for defendants who changed circumstances an heard on issue cooperated, have and I realize that that appealed Rule 35 motion not directly but tends to people possi- benefit who are subsequent cannot be raised in bly more guilty people, peo- than other motion. has failed to establish ple something who have can changed circumstances is not entitled cooperate to, respect but relief. collateral can’t eliminate that unevenness. So, sentences have been reduced this if Even we consider this cooperation. case based on affirmative issue, course, assuming, of that Kovic had Well, asking Mr. Lubell: of course I was or could have cause for the established question opposite perspec- procedural defaults, from the affirm would tive, your already Honor has an- Getzendanner. The record conclu day sively swered that not one extra demonstrates that Kovic's sentence imposed upon imposed this defendant reason was because at the time sen cooperate, unrepentant “kingpin” tencing failure to whether he he was the not, or agree public, could both because we a massive fraud on the citi glimmer Chicago, flagrantly then that until the last zens of and had violat extinguished has been position public of reasonable ed his trust. At doubt, course, punished sentencing hearing, Judge could he be Getzen under our for anything law other than danner remarked: cooperat- for who have make a case defendants going not to Kovic, I am “Mr. ed, I tends you and realize that that to bene- the crime of which speech. I find very people possibly guilty me fit who are more to be before are convicted people, people who against public.” than other have some- crime serious cooperate thing that can Rule Additionally, Kovic’s June to, spect you but can’t eliminate that motion, stated: Judge Getzendanner unevenness.”16 careful- very 20-year “The sentence punished cooperating was not for not lot of Kovic I have received considered. ly bargain away he asked to his a lot nor was sentence from that comments about rights leniency. to obtain As constitutional people. of different kinds mastermind of a substantial fraud he who friends Mr. Kovic’s Obviously proportionately received a substantial sen- very it a consider me letters have written tence. suspect they have I that harsh sentence. in- money was much Furthermore, no idea as to how Thomas v. United involved, volved, years many (5th Cir.1966), how which Kovic corruption, the Kovic’s Mr. relies, clearly the extent of In Thom- distinguishable. is department; not corruption entire as, the Fifth Circuit'held that the sentenc- took, money money but the impermissibly threatened the de- him all at- everybody below took is that it when stated: fendant him. It would not have to tributable you “If will come clean and make a clean take the boss was on the occurred unless all, thing of this once breast and for taxpay- theft from the also. Affirmative court will that into take account long of time. City period over ers length imposed. to be If If more very It is a serious crime. however, your denial, you persist, 20-year there judges imposed sentences ago, you partici- did a moment that activity, of this kind of would be less robbery, in this pated court also must going to 20-year I think sentences are that into Now will take account. which kinds of more common those become it be?” cases____ Judge Id. not at Getzendanner did is can be activity This the kind promise time to reduce Kovic’s sen- high deterred sentences.” “man if identified the downtown” tence him if he did she threaten chose to while review nor Judge silent. There is no record revealed Getzendanner remain claim; inquired clearly as to the de- it is with- the Government record for Kovic's cooperation with the “man down- fendant’s merit. out

town,” the is clear Kovic’s sen- Ill imposed because he failed to tence was not clearly ar- are cooperate. remaining Getzendanner claims also with- sentencing philosophy Initially, her asserts his ticulated merit. out hearing: provided prior June ineffective assist- provides of counsel. While Kovic ance “My sentencing philosophy, which deficiencies, alleged essen- endless list quite early, is that failure to formed down to is that tially what claim boils cooperate not be into ac- should taken raise count, prior counsel failed to should into cooperation be taken already above. I do serve the issues discussed very positive way, account in a in this have held that suffered that. have reduced sentences Because we co-owner, Get- but [Mr. Cavale,] 16. This statement is consistent with ation to another punitive made at to Mr. it is Cavale, zendanner’s remarks respect sentencing hearing. cooperation There with re- to credit Mr. Nawrocki’s she stated really Cavale, co-defendant, Kovic's that: Mr. government.” spect with the Getzendanner punish any as to the Court Clearly, "It is a how clearly puzzle cooperating with the the defendants for not on two [Mr. Nawrocki] one co-owner canput give of incarcer- Government. period years' probation failing previ- finality criminal convictions. no actual This suffer dragged issues he cannot now case has been ously raise the out over six alleged counsel’s while the prejudice from “mastermind” of this extensive to the same said respect fraud on Chicago deficiencies with the citizens of appealed conviction, errors. See Johnson challenged pur- his sentence (7th Cir.1986). appealed suant to Rule from the denial motion, of the Rule 35 then sought collat- Next, if we contends that even now, eral relief do, hold, as we again court, once before this he contests information, inaccurate rely on the his sentence on what can be at best charac- still her discretion she abused terized purely trifling speculative as from the 20-year sentence. alleged assertions errors the trial motion, held that: “There is no Rule 35 often, court and his counsel. All too say can that the dis- upon which we basis seeing case, as arewe in this the defense its discretion in trict court abused approach takes a buckshot hoping motion.” We will not now Rule 35 pellet instead, will strike —but our over- previous holding. reconsider our judicial system put burdened has been Finally, Kovic asserts that the dis through yet another needlessly repetitious trict court abused its discretion because and wasteful collateral attack. Some evidentiary hearing pur to order an failed place, somewhere, somehow, put we must The standard deter suant to 2255. repetitious an end to this and meritless mining when a 2255 motion can be denied litigation if we are to attempt be able to evidentiary hearing without an is whether justice render timely fashion to those conclusively the record demonstrates that a with meritorious claims. is entitled to no relief. defendant We Affirm. Robinson, United States 585 F.2d denied, (7th Cir.1978), cert. U.S. RIPPLE, Judge. Circuit concur (1979). 99 S.Ct. 60 L.Ed.2d 1051 result. Because we hold the record before us con

clusively demonstrates that Kovic is enti relief,

tled to no we find no basis for hold

ing that the district court abused its discre

tion. insists that because the two inac- curate presen- remain in his COLLINS, Margaret Plaintiff-Appellant, report may tence suffer by being future denied an early parole. ILLINOIS, STATE OF Illinois State Li- recently pro- stated that “Section 2255 brary, Bridget Lamont, individual- procedure vides the challenging federal ly capacity and in her as former associ- sentences; convictions if prisoner library development ate director of wants ‘out’ for some other reason his reme- present capacity acting in her di- dy exhausting his administrative [after Library, rector of the Illinois State De- remedies], corpus.” is habeas fendants-Appellees. Mittelsteadt, 40-1 86-1659, Nos. 86-1810. (7th Cir.1986). obligated But we feel point out to Kovic’s counsel that he is free Appeals, United States Court of informally bring the matter to the atten- Seventh Circuit. authorities, parole tion of the and we are Argued Feb. Commission, convinced that the Parole if Sept. Decided so, asked to do would honor Getzen- findings danner’s of fact. reaching affirming decision court,

district we are mindful of the need Kovic, 83-2296, (table) unpub- 17. United States v. No F.2d 971 ]. 23, 1984) July lished order 6at Cir. [740

Case Details

Case Name: United States v. Anthony C. Kovic

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 17, 1987

Citation: 830 F.2d 680

Docket Number: 86-2617

Court Abbreviation: 7th Cir.