Bechel v. USA

Filing 2

ORDER DIRECTING the government to respond to Claim 1 in the 28 U.S.C. Section 2255 petition on or before June 29, 2015. Further, the Court dismisses as untimely the Claims 2 and 3 contained in the petition. Signed by Judge David R. Herndon on 5/28/15. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY A. BECHEL,
Petitioner,
No. 15-0572-DRH

vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER
HERNDON, District Judge:
This matter is before the Court on petitioner’s May 22, 2015 motion
to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (Doc.
1).

On August 12, 2010, the Court sentenced Bechel to 200 months

imprisonment. See United States v. Bechel, 09-30007-DRH; Docs. 94 & 96.
During the proceedings, Bechel was represented by attorney James Gomric.
Bechel did not appeal his sentence and conviction.
In his § 2255 petition, defendant raises three issues for relief: (1)
ineffective assistance of counsel for failing to object to the Magistrate Judge
exceeding his authority by accepting the plea in violation of the Federal
Magistrate’s Act; (2) ineffective assistance of counsel by advising Bechel to
plead guilty to a plea agreement that contained a collateral waiver
provision; and (3) ineffective assistance of counsel for failing to object to the
use of restraints, handcuffs and shackles, at the change of plea hearing and
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the sentencing. Based on the following, the Court finds that Bechel may
proceed on his §2255 petition if he can show either “cause for the default
and actual prejudice as a result of the alleged violation of federal law,” or
“that failure to consider the claims will result in a fundamental miscarriage
of justice.” Coleman v.Thompson, 501 U.S. 722, 750 (1991) (emphasis
added); see also Edwards v. Carpenter, 529 U.S. 446, 455 (2000).
In Murray v. Carrier, the Supreme Court held that ineffective
assistance of counsel may constitute cause. However, “[s]o long as a
defendant

is

represented

by

counsel

whose

performance

is

not

constitutionally ineffective under the standard established in Strickland v.

Washington, [466 U.S. 668 (1984),] [there is] no inequity in requiring him
to bear the risk of attorney error that results in a procedural default.”

Murray, 477 U.S. at 488 (emphasis added).
In order to show ineffective assistance of counsel under Strickland, a
petitioner must satisfy yet another two pronged test by showing: (1)
“counsel’s

representations

fell

below

an

objective

standard

of

reasonableness” (the performance prong); and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different” (the prejudice prong). Strickland,
466 U.S. at 688, 694.
The Court finds that Bechel’s claims in 2 and 3 are untimely.

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“A motion by a federal prisoner for postconviction relief under 28
U.S.C. § 2255 is subject to a one-year time limitation that generally runs
from the ‘the date on which the judgment of the conviction becomes final.’”

Clay v. United States, 537 U.S. 522, 524 (2003), quoting 28 U.S.C. §
2255(f)(1). Here, Bechel did not file a notice of appeal after sentence was
imposed and judgment of conviction was entered.

Therefore, Bechel’s

conviction became final, at the latest, in September 2010, and a timely
motion under § 2255 had to be filed by September 2011. Bechel’s motion
was filed over 3 and a half years late and clearly is untimely.

Bechel’s

claims 2 and 3 should have been raised and could have been raised within
the statute of limitations as Bechel should have been aware of them. Thus,
the Court dismisses as untimely claims 2 and 3.

However, the Court finds

that Bechel may proceed with claim 1 as it is based on United States v.

Harden, 758 F.3d 886 (7th Cir.2014). The Court ORDERS the government
to file a response to petitioner’s motion within THIRTY (30) DAYS of the
date of this Order. The government shall, as part of its response, attach all
relevant portions of the record. Further, the government shall address the
timeliness of claim 1.
IT IS SO ORDERED.
Signed this 28th day of May, 2015.

Digitally signed
by David R.
Herndon
Date: 2015.05.28
14:40:49 -05'00'
United States District Court

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