ILNews

Man can't collaterally attack sentence again

Back to TopCommentsE-mailPrintBookmark and Share

The 7th Circuit Court of Appeals has again denied a man's attempt to have his drug conviction overturned or sentence reduced because he had used the one 28 U.S.C. Section 2255 motion he was allowed and he can't challenge his sentence again under the same section.

Kevin Unthank appealed his 262-month sentence for drug convictions in Kevin Unthank v. Brian Jett, Warden, Federal Correctional Institute at Terre Haute, Indiana, No. 08-1417, something he had been doing for more than a decade, the federal appellate court noted.

Unthank filed his latest post-conviction appeal in 2007 after he was transferred to the prison in Terre Haute. U.S. District Judge Larry J. McKinney dismissed that petition.

Unthank appealed because he believed since one of his state convictions was vacated, his federal sentence should be reduced. But his collateral attack in his 1998 motion under 28 U.S.C. Section 2255 blocks access to the kind of review of his case authorized by Johnson v. United States, 544 U.S. 295 (2005), wrote Chief Judge Frank Easterbrook. Section 2255 allows for only one collateral attack unless a prisoner meets the conditions under subsection (h), which Unthank doesn't qualify for, wrote the chief judge.

Unthank also can't use Section 2241 to challenge his sentence, which he thinks can be used when a motion under Section 2255 is inadequate or ineffective to test the legality of his detention. The case, Taylor v. Gilkey, 314 F.3d 832 (7th Cir. 2002), rejected this line of argument, wrote Chief Judge Easterbrook.

"If Unthank wanted to use (Section) 2255 to argue for a lower sentence after asking a state court to vacate one or more of his prior convictions, he had only to refrain from filing a collateral attack until the state court had acted," he wrote. "He may have used unwisely the one (Section) 2255 motion allowed as of right, but he did use it in 1998 and has not met the statutory requirements for an additional round of collateral review."

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT