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Man can't collaterally attack sentence again

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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."

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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