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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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