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Thursday, December 04, 2008

Ind. Decisions - 7th Circuit issues one today

In Kevin Unthank v. Brian Jett, Warden (SD Ind., Judge McKinney), a 5-page opinion, Judge Easterbrook writes:

More than a decade ago, we affirmed Kevin Unthank’s conviction and 262-month sentence for violating federal drug laws. United States v. Unthank, 109 F.3d 1205 (7th Cir. 1997). Ever since, he has been trying to have the conviction vacated or the sentence reduced. * * *

If Unthank wanted to use §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 may have used unwisely the one §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. * * *

Unthank does not contend that a glitch in §2255 prevents application to his situation of a retroactive decision of the Supreme Court. Nor does he claim to be innocent of the current crime. He says only that his sentence is too high, and as we explained in Hope v. United States, 108 F.3d 119 (7th Cir. 1997), this differs from a claim that he is innocent of the crime of which he was convicted. AFFIRRMED.

Posted by Marcia Oddi on December 4, 2008 12:08 PM
Posted to Ind. (7th Cir.) Decisions