Borchert v. USA
OPINION AND ORDER The motions to supplement (filed in the criminal case) are GRANTED and the Court considered the motions and attachments in determining the merits of Borcherts section 2255 motion. The section 2255 motion is DENIED. The Clerk is ORDERED to DISMISS this civil action WITH PREJUDICE. Additionally, the Court DECLINES to issue a certificate of appealability. Signed by Judge Rudy Lozano on 1/30/17. cc: Borchert at FCI Pekin. Signed by Judge Rudy Lozano on 1/30/16. (kjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
UNITED STATES OF AMERICA,
OPINION AND ORDER
This matter is before the Court on the: (1) Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody, filed by Petitioner, Steven Borchert, on
September 8, 2016 (DE #85); (2) “Motion to Supplement 2255 Motion
with IRS Evidence Dated 10/5/2016,” filed by Petitioner, Steven
Borchert, on October 24, 2016 (DE #89); (3) “Motion to Supplement
Petitioner, Steven Borchert, on December 14, 2016 (DE #92); and (4)
12/16/2016,” filed by Petitioner, Steven Borchert, on January 3,
2017 (DE #93). For the reasons set forth below, the motions to
considered the motions and attachments in determining the merits of
Borchert’s section 2255 motion. The section 2255 motion (DE #85) is
The Clerk is ORDERED to DISMISS this civil action WITH
PREJUDICE. Additionally, the Court DECLINES to issue a certificate
The Clerk is FURTHER ORDERED to distribute a
copy of this order to Petitioner (Inmate Reg. No. 13054-027), Pekin
FCI, Federal Correctional Institution, Inmate Mail/Parcels, P.O.
Box 5000, Pekin, IL 61555, or to such other more current address
that may be on file for the Petitioner.
On June 19, 2013, Borchert was charged with nine counts of
filing false tax returns in violation of 26 U.S.C. § 7206(1).
#1). Following a jury trial, Borchert was found guilty of all nine
On April 17, 2014, this Court sentenced Borchert to a term of
26 months for each of Counts 1, 2, 3, 4, and 5 to be served
concurrently, and a term of 25 months for each of Counts 6, 7, 8,
and 9, to be served concurrently with each other, but to run
consecutively to Counts 1-5; for a total of 51 months imprisonment.
This Court found that Borchert had failed to report
approximately 1.9 million dollars of gross income (sales) from his
$617,760 between 2010-2012. (PSR ¶¶ 6-16; 26-29.) The tax loss was
calculated at $647,415. (PSR ¶ 34.) Judgment was entered on April
Borchert did not appeal his convictions or sentence.
Borchert filed the instant motion to vacate his sentence under
section 2255 on September 8, 2016 (DE #85). He argues that despite
the one-year applicable statute of limitations, his petition is
timely under section 2255(f)(4), because it was filed less than one
year from the date he learned supporting facts after the IRS
completed its civil settlement examination.
(DE #85 at 10.)
Government filed a response in opposition on October 12, 2016 (DE
Borchert filed a reply on October 24, 2016 (DE #88).
Borchert also filed several motions to supplement the section 2255
motion, attaching additional paperwork from a recent IRS audit
which he claims is new evidence showing his tax returns are not
false. (DE ##89, 92, 93.)
Habeas corpus relief under 28 U.S.C. section 2255 is reserved
for "extraordinary situations."
812, 816 (7th Cir. 1996).
Prewitt v. United States, 83 F.3d
In order to proceed on a habeas corpus
petition pursuant to 28 U.S.C. section 2255, a federal prisoner
must show that the district court sentenced him in violation of the
Constitution or laws of the United States, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject
to collateral attack.
recapitulation of a direct appeal.
Id.; Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
[T]here are three types of issues that a
section 2255 motion cannot raise: (1) issues
that were raised on direct appeal, absent a
nonconstitutional issues that could have been
but were not raised on direct appeal; and (3)
constitutional issues that were not raised on
direct appeal, unless the section 2255
procedural default as well as actual prejudice
from the failure to appeal.
Belford, 975 F.2d at 313.
Additionally, aside from demonstrating
"cause" and "prejudice" from the failure to raise constitutional
alternatively pursue such errors after demonstrating that the
district court's refusal to consider the claims would lead to a
fundamental miscarriage of justice.
McCleese v. United States, 75
F.3d 1174, 1177 (7th Cir. 1996).
In assessing Petitioner's motion, the Court is mindful of the
petitioner's complaint or section 2255 motion, district courts have
a "special responsibility" to construe such pleadings liberally.
Donald v. Cook Cnty. Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir.
1996); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (a "pro se
complaint, 'however inartfully pleaded' must be held to 'less
stringent standards than formal pleadings drafted by lawyers'")
(quoting Haines v. Kerner, 404 U.S. 519 (1972)); Brown v. Roe, 279
F.3d 742, 746 (9th Cir. 2002) ("pro se habeas petitioners are to be
afforded 'the benefit of any doubt'") (quoting Bretz v. Kelman, 773
F.2d 1026, 1027 n.1 (9th Cir. 1985)).
In other words:
The mandated liberal construction afforded to
pro se pleadings "means that if the court can
reasonably read the pleadings to state a valid
claim on which the [petitioner] could prevail,
it should do so despite the [petitioner's]
failure to cite proper legal authority, his
confusion of various legal theories, his poor
syntax and sentence construction, or his
unfamiliarity with pleading requirements."
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas
petition from state court conviction) (alterations in original)
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
On the other hand, "a district court should not 'assume the role of
advocate for the pro se litigant' and may 'not rewrite a petition
to include claims that were never presented.'"
Court assessed Borchert’s claims with these guidelines in mind.
Motions to Supplement
Borchert filed three motions to supplement (DE ##89, 92, and
93), attaching new IRS documents in support of his original section
Generally, a section 2255 motion “may be freely
amended as long as the amendments do not add entirely new claims
after the statute of limitations for filing the motion has passed.”
United States of America v. Hull, No. 2:02-CV-2, 2006 WL 752481, at
*1 (N.D. Ind. Mar. 21, 2006) (citing Rodriguez v. United States,
286 F.3d 972, 980-81 (7th Cir. 2002); Johnson v. United States, 196
F.3d 802, 805 (7th Cir. 1999)).
As discussed below, Borchert’s
section 2255 motion was filed after the statute of limitations has
passed (thus the motions to supplement were filed even later).
However, because the additional documentation relates to Borchert’s
argument that his section 2255 motion was filed timely pursuant to
section 2255(f)(4), and the supplements did not add entirely new
claims, the Court has considered the motions in determining the
merits of Borchert’s section 2255 petition.
Section 2255 Petition
Section 2255 contains a 1-year statute of limitations which
runs from the latest of:
(1) the date on which the judgment of
conviction becomes final; (2) the date on which an unlawful or
unconstitutional government-created impediment to filing has been
removed; (3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or (4) the date on which the facts
supporting the claim presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2255(f).
collateral attack under § 2255 must be filed within one year after
the date on which the judgment of conviction becomes final . . . ."
United States v. Woods, 169 F.3d 1077, 1078 (7th Cir. 1999).
In this case, Borchert had 14 days to file a notice of appeal,
or until May 7, 2014.
May 7, 2014.
Therefore, his conviction became final on
See Clarke v. United Sates, 703 F.3d 1098, 1100 (7th
Cir. 2013) (“the sentence did not become final until the deadline
for filing a notice of appeal expired”).
Borchert’s section 2255
motion was not filed until September 8, 2016, well outside of the
1-year statute of limitations.
No Government action prevented
Borchert from filing a timely petition, and there is no Supreme
Court decision that creates a retroactively applicable right for
Borchert argues that his motion is timely under Section
2255(f)(4), which allows the statute of limitations “to begin to
run later, namely on the date on which the facts supporting the
claim or claims presented could have been discovered through the
This Court has reviewed the alleged “newly
discovered evidence” that Borchert attached to his original motion
and the motions to supplement.
In a nutshell, the attachments do
not show that his tax loss was zero.
Rather, the recent IRS audit
assessed a total tax due and owing of $525,978 for 2001-2009 (which
mirrors the Court’s finding of a tax loss of $524,445 for 2001-2009
($1,873,057 x .28)). (DE #85, Attachment A4, Form 870; see also DE
90-1 Ex. A.)
Borchert misunderstands the other documentation he
submits (DE ##90, 92, 93), and the paperwork simply does not show
that filing his “0" tax returns was not false.
does not qualify as newly discovered facts to extend the statute of
because it was procedurally defaulted.
“A claim cannot be raised
for the first time in a § 2255 motion if it could have been raised
at trial or on direct appeal.”
McCoy v. United States, 815 F.3d
292, 295 (7th Cir. 2016) (citing Sandoval v. United States, 574
petitioner must show good cause for not raising the claim earlier
and that he would suffer actual prejudice for the default.
United States, 710 F.3d 711, 713 (7th Cir. 2013); Gant v. United
States, 627 F.3d 677, 683 (7th Cir. 2010). Borchert never asked the
Seventh Circuit to review whether the evidence produced at trial
was sufficient to support the claims of false tax returns, nor did
he appeal the calculation of the tax loss.
impediment to Borchert making this argument.
There was no external
“Absent a showing of
both cause and prejudice, procedural default will only be excused
if the prisoner can demonstrate that he is actually innocent of the
crimes of which he was convicted.”
McCoy, 815 F.3d at 295 (citing
Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008)).
Here, any claim of actual innocence fails because, as mentioned
earlier, the IRS audit does not show that Borchert was innocent.
argument to the Seventh Circuit on direct appeal, he is barred from
raising such claims in a collateral attack under section 2255. See
United States v. Dubrovich, 815 F.Supp. 272, 273 (N.D. Ill. 1993)
(finding in an analogous tax evader case that petitioner’s claims,
which were not presented on direct appeal, were procedurally
Finally, a further reason Borchert’s motion fails is that
Section 2255 relief “is available only in extraordinary situations,
such as an error of constitutional or jurisdictional magnitude or
where a fundamental defect has occurred which results in a complete
miscarriage of justice,” including where the sentence imposed by
the court exceeded the maximum sentence authorized by law.
v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013); 28 U.S.C.
Here, Borchert was sentenced under the Guidelines, and
any claim for miscalculation of his tax loss simply does not
involve the magnitude of a constitutional error.
Judge Philip Simon recently found a claim made by a defendant who
had failed to appeal an alleged error in calculating the Guidelines
was not cognizable in a Section 2255 proceeding:
This argument is the kind of bread-and-butter
Guidelines application issue that is not cognizable
as a claim under § 2255. Ordinarily, in the postBooker era in which the Sentencing Guidelines are
not mandatory, relief is not available under § 2255
for errors in Guidelines calculations unless the
error is of constitutional dimension. Hawkins v.
United States, 706 F.3d 820, 826, 828 (7th Cir.
2013) (Hawkins I), citing Welch v. United States,
604 F.3d 408, 412 and n. 4 (7th Cir. 2010); Hawkins
v. United States, 724 F.3d 915, 916 (7th Cir. 2013)
Velasquez’s argument “involves no
claim of constitutional error,” but is “just a
claim that the sentencing judge miscalculated the
advisory guidelines range and might have given a
lower sentence had he not miscalculated it.”
Hawkins II, 724 F.3d at 916-17. This kind of claim
could’ve been made at sentencing (but wasn’t), or
been raised on direct appeal (unless waived), but
can’t be brought under § 2255. Hawkins I, 706 F.3d
United States v. Velasquez, 2:11-CR-77-PPS, 2016 WL 5916007, at *2
(N.D. Ind. Oct. 11, 2016).
Because Borchert’s claim does not
involve constitutional error, it fails for that reason too.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
A certificate of appealability may issue only if the
applicant “has made a substantial showing of the denial of a
28 U.S.C. § 2253(c)(2).
To make such a
showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should
have been resolved in a different manner or that the issues
Slack v. McDaniel, 529 U.S. 473, 475 (U.S. 2000)
(internal quotation marks and citation omitted).
For the reasons set forth above, Borchert has not stated any
grounds for relief under section 2255.
encouragement to proceed further.
The Court finds no basis
Therefore, a certificate of
appealability will not be issued.
For the reasons set forth below, the motions to supplement (DE
##89, 92, and 93) are GRANTED and the Court considered the motions
and attachments in determining the merits of Borchert’s section
The section 2255 motion (DE #85) is DENIED.
Clerk is ORDERED to DISMISS this civil action WITH PREJUDICE.
The Clerk is FURTHER ORDERED to distribute a copy
of this order to Petitioner (Inmate Reg. No. 13054-027), Pekin FCI,
Federal Correctional Institution, Inmate Mail/Parcels, P.C. Box
5000, Pekin, IL 61555, or to such other more current address that
may be on file for the Petitioner.
DATED: January 30, 2017
/s/ RUDY LOZANO, Judge
United States District Court
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