UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

UNITED STATES OF AMERICA

v. Case No. 3:14-CR-55 JD

JAMES P. LEDONNE

OPINION AND ORDER

James LeDonne pleaded guilty to one count of wire fraud and one count of mail fraud. 

The Court sentenced him to 168 months of imprisonment. Mr. LeDonne now moves to vacate his 

conviction and sentence under 28 U.S.C. § 2255, asserting seven grounds on which he claims 

relief. Mr. LeDonne has also filed two motions seeking leave to amend his motion to vacate 

under § 2255. For the following reasons, the Court denies each of Mr. LeDonne’s motions.

A. Factual Background

From 2008 until 2014, Mr. LeDonne orchestrated a scheme to defraud purchasers of 

mobile fiber optic splicing and testing units. First, Mr. LeDonne represented to prospective 

buyers that his company could produce the units. He then demanded significant down payments

from these purchasers, typically around fifty percent of the total price. In actuality, Mr. 

LeDonne’s company had no capacity to manufacture the units. When refunds were ultimately 

sought by the victims, some through court judgments, Mr. LeDonne’s company would declare 

bankruptcy to avoid payment. Instead of ceasing to defraud his victims, Mr. LeDonne would 

create a new company to continue his scheme. By the time of his arrest in 2014, Mr. LeDonne 

had used six companies to defraud his victims, who had lost more than 1.5 million dollars. (DE 

335; DE 360.)

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Due to the number of claims for relief brought by Mr. LeDonne, the Court believes it 

helpful to recount the procedural history in detail. On May 14, 2014, Mr. LeDonne was indicted 

on 17 Counts for wire fraud (Counts 1–11), mail fraud (Counts 12–14), conspiracy to commit 

fraud (Count 15), interstate transportation of stolen goods (Count 16), and bankruptcy fraud 

(Count 17). (DE 1.) Mr. LeDonne was arrested on May 19, 2014, and has been continuously 

detained since then. (DE 4.) The ensuing proceedings were unusually prolonged, due in large 

part to multiple withdrawals of defense counsel caused by irretrievable breakdowns in 

communications with Mr. LeDonne. Mr. LeDonne was represented by six different attorneys

before he entered his guilty plea. (DE 10, 26, 114, 173, 190, and 203.) Each time new counsel 

was appointed, trial had to be continued to allow new counsel adequate time to prepare. 

Trial was also postponed when the Court ordered a competency evaluation on defense 

counsel’s motion. (DE 287.) Mr. LeDonne underwent a competency evaluation by Dr. Michael 

Fogel. Dr. Fogel conducted a forensic clinical interview with Mr. LeDonne, reviewed Mr. 

LeDonne’s medical records, and spoke with a number of individuals, before concluding that 

“Mr. LeDonne does not presently suffer from a mental disease or defect rendering him mentally 

incompetent to the extent that he is unable to understand the nature and consequences of the 

proceedings against him or to assist properly in his defense.” (DE 301 at 10.) The Court agreed 

with Dr. Fogel and found Mr. LeDonne competent to stand trial. (DE 309.)

Shortly after the Court found Mr. LeDonne to be competent and set a new trial date, Mr.

LeDonne pleaded guilty to two counts: Count 8, a wire fraud charge based on an email sent in 

March 2013; and Count 14, a mail fraud charge based on a check mailed in May 2013. (DE 320.)

He entered this plea without the benefit of a plea agreement. (Change of Plea Hr’g Tr., DE 379 at 

34.) At the change of plea hearing on April 19, 2017, Mr. LeDonne was represented by his sixth 

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counsel, Mr. Visvaldis Kupsis. (DE 320.) Prior to the hearing, Mr. Kupsis conveyed one plea 

offer from the government to Mr. LeDonne. (Change of Plea Hr’g Tr., DE 379 at 8.) This plea 

offer was a binding plea agreement in which Mr. LeDonne would serve 108 months in jail. 

(Letter from Visvaldis P. Kupsis, DE 476-1 at 6; Gov’t Response to § 2255 Motion, DE 480 (“A 

108-month plea offer was made by the government in late 2016 and early 2017.”).) However, 

Mr. LeDonne rejected the government’s 108-month offer. (Change of Plea Hr’g Tr., DE 379 at 

8.) The Court accepted Mr. LeDonne’s guilty pleas and adjudged him guilty of Counts 8 and 14. 

(DE 320.)

The Probation Department prepared a Draft Presentence Investigation Report (“PSR”) 

and both the government and the defense submitted objections. (DE 325; DE 326; and DE 327.)

The Court resolved the PSR objections and calculated an applicable advisory guideline range of 

168 to 210 months of imprisonment. (DE 360.) Prior to sentencing, but after the Court resolved 

the PSR objections, Mr. LeDonne notified the Court that he now wanted to withdraw his guilty 

plea, eight months after making it. (DE. 368.) The Court then appointed a seventh attorney, Mr. 

Rodolfo Monterrosa, for the purpose of arguing the motion to withdraw the plea. (DE 368; DE 

369.) Mr. LeDonne made two arguments: (1) that Mr. Kupsis was ineffective as counsel, and (2) 

that he did not make his plea “knowingly and voluntarily.” (DE 389 at 4.) The Court denied the 

motion. (DE 398.) Afterwards, Mr. LeDonne requested that Mr. Kupsis continue as his counsel, 

even though his previous motion was premised on Mr. Kupsis’ alleged ineffectiveness. (DE 

404.)

On August 3, 2018, more than four years after his indictment was handed down, Mr. 

LeDonne was sentenced to 168 months imprisonment and one year of supervised release. (DE 

417.) Mr. LeDonne then appealed his conviction and sentence to the Seventh Circuit. His only 

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argument on appeal was that the district court erred by imposing an obstruction of justice 

enhancement for statements made by Mr. LeDonne during an interview with a pretrial services 

officer. (Appellant’s Br., 7th Cir. Case No. 18-2729, DE 24 at 25.) During that interview with the 

probation officer, Mr. LeDonne “denied and later minimized his criminal history, misrepresented 

his monthly income, and neglected to divulge the outstanding civil judgments against him.” 

United States v. LeDonne, 795 F. App’x 472, 473 (7th Cir. 2020). Mr. LeDonne argued that this 

omission was not material and was the result of “confusion.” Id. The Seventh Circuit rejected 

these arguments, finding that the omission was “most certainly material” and that it was 

reasonable to find that this omission was “clearly intentional” given “the years he spent in prison 

for prior fraud convictions.” Id. at 474.

On April 15, 2021, Mr. LeDonne moved to vacate his conviction and sentence under 

§ 2255. Mr. LeDonne made this motion without the benefit of counsel. However, in the motion, 

he requested that Counsel be appointed. He seeks relief under numerous different theories, many 

of them already previously argued:

Ground I – Ineffective Assistance of Counsel (DE 476 at 16–24);

Ground II – New Evidence Showing an Incorrect Finding Concerning a Bankruptcy 

Proceeding (Id. at 25–26);

Ground III – New Evidence Showing an Incorrect Finding Regarding the Amount of 

Compania Dominica’s Loss (Id. at 27);

Ground IV – Plea Not Entered Knowingly and Voluntarily (Id. at 28–29);

Ground V – Sentence Disparate with Sentences for Similar Crimes (Id. at 30);

Ground VI – Brady v. Maryland Violations (Id. at 31);

Ground VII – Counsel Failed to Present a Complete Set of 3553(a) Mitigating Factors (Id. 

at 32).

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On June 1, 2021, Mr. LeDonne brought his first motion requesting leave from the Court to file an

amendment to his Motion to Vacate under § 2255. (DE 484.) On August 16, 2021, Mr. LeDonne 

brought his second motion requesting leave from the Court to file an amendment to his Motion to 

Vacate under § 2255.

1 The Court now considers all three motions. 

B. Standard of Review

Section 2255(a) of Title 28 provides that a federal prisoner “claiming the right to be 

released upon the ground that the sentence was imposed in violation of the Constitution or laws 

of the United States . . . may move the court which imposed the sentence to vacate, set aside or 

correct the sentence.” 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief 

is appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a 

fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. 

United States, 366 F.3d 593, 594 (7th Cir. 2004). Relief under § 2255 is extraordinary because it 

seeks to reopen the criminal process to a person who has already had an opportunity of full 

process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United 

States, 467 F.3d 1063, 1068 (7th Cir. 2006)).

C. Discussion

(1) Request for Counsel

1 Mr. LeDonne labels his two motions as “Motion[s] for Leave of this Court in order to Submit 

Supplemental.” However, they are in substance motions for leave to amend because they assert arguments that could

have been asserted in his initial motion to vacate, but which were omitted. Fed. R. Civ. P. 15(d) (“On motion and 

reasonable notice, the court may, on just terms permit a party to serve a supplemental pleading setting out any 

transaction, occurrence, or event that happened after the date of the pleading to be supplemented.”). The events Mr. 

LeDonne’s motions discuss occurred before the filing of his initial motion to vacate, and are therefore construed as 

motions to amend. 

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Mr. LeDonne has requested appointed counsel to assist him with his petition under 

§ 2255. (DE 476-1 at 4.) The Seventh Circuit has repeatedly held that “a prisoner seeking a 

sentence reduction does not have a right to appointed counsel.” United States v. Johnson, 304 F. 

App’x 464, 465 (7th Cir. 2008) (citing Pruitt v. Mote, 503 F.3d 647, 657 (7th Cir. 2007); United 

States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999)); see also LaClair v. United States, 374 F.2d 

486, 489 (7th Cir. 1967) (“We hold that the law in this circuit is that appointment of counsel for 

indigents in habeas corpus and section 2255 proceedings rests in the sound discretion of district 

courts unless denial would result in fundamental unfairness impinging on due process rights.”). 

After all, “[t]he right of access to the courts protects prisoners from being shut out of court; it 

does not exist to enable the prisoner to litigate effectively once in court.” Pruitt, 503 F.3d at 657 

(quotations omitted). As explained below, the Court believes that Mr. LeDonne’s arguments are 

baseless. Therefore, it denies his request for Counsel. 

(2) Ground I: Ineffective Assistance of Counsel

Mr. LeDonne first argues that he received ineffective assistance of counsel. The Sixth 

Amendment provides a criminal defendant with the right to counsel, U.S. Const. amend. VI, and 

“inherent in this right is that the defendant is entitled to the effective assistance of counsel.” 

United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009). In order to prevail on his claim for 

ineffective assistance of counsel, Mr. LeDonne must establish “that his ‘counsel’s performance 

was deficient’ and that ‘the deficient performance prejudiced the defense.’” Koons v. United 

States, 639 F.3d 348, 351 (7th Cir. 2011) (quoting Strickland v. Washington, 466 U.S. 668, 687 

(1984)). Meaning, he must establish “(1) that his attorney’s representation fell below an 

objective standard of reasonableness, and (2) that there is a reasonable probability that, but for 

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the ineffective assistance, the result of the proceedings would have been different.” Recendiz, 

557 F.3d at 531. The Court finds that Mr. LeDonne has not established either element. 

First, the Court finds that Mr. LeDonne has not established that his counsel’s

performance was deficient. When analyzing a counsel’s performance, a court must determine if 

counsel acted “outside the wide range of professionally competent assistance.” Strickland, 466 

U.S. at 690. “The question is whether an attorney’s representation amounted to incompetence 

under prevailing professional norms, not whether it deviated from best practices or most 

common custom.” Koons, 639 F.3d at 351 (citing Sussman v. Jenkins, 636 F.3d 329, 349 (7th 

Cir. 2011)). Furthermore, the Court “maintain[s] a strong presumption that the defendant 

received effective assistance,” Hardamon v. United States, 319 F.3d 943, 948 (7th Cir. 2003), 

and that the challenged conduct “might be considered a sound trial strategy.” Strickland, 466 

U.S. at 689 (citation and quotation omitted). 

Mr. LeDonne provides the Court with 37 allegations concerning his counsels’ 

performance. (DE 476 at 16–19.) An allegation that is unsupported cannot support an ineffective 

assistance of counsel claim. See United States v. Hodges, 259 F.3d 655, 660 (7th Cir. 2001) (“An 

ineffective assistance of counsel claim cannot stand on a blank record, peppered with the 

defendant’s own unsupported allegations of misconduct.”). Many of Mr. LeDonne’s 37

allegations are unsupported, undeveloped, and unconvincing. For example, Mr. LeDonne asserts 

that “Counsel failed to investigate and do due diligence prior to petitioning the court for pretrial 

release,” “failed to investigate and meet with witnesses,” and “did not review or address the 

charges, indictment, elements, relevant conduct, plea offering, sentencing options, and 

consequences.” But Mr. LeDonne does not identify which of his seven counsels he believes 

failed to investigate, what they failed to investigate, or the witnesses they failed to meet. Not 

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only are many of his allegations undeveloped, but some appear to be false. For instance, Mr. 

LeDonne alleges that “Counsel failed to timely object to [the] PSR” and that “Counsel did not 

inform th[e] Court that [he] was challenging the amount of loss [in the PSR].” (DE 476 at 17.) 

But Mr. Kupsis did make timely objections to the PSR (DE 332), and multiple objections argued 

there were “[t]ransactions [that] should not be considered as relevant conduct” used when 

calculating the amount of loss. (DE 332 at 2.)

Additionally, Mr. LeDonne alleges that there was deficient performance during the plea 

stage. (DE 476 at 24.) Mr. LeDonne made similar allegations earlier in the case when he 

attempted to withdraw his plea. (DE 389 at 5.) In his motion to withdraw his plea, he argued that 

Mr. Kupsis did not submit all plea agreements to Mr. LeDonne and that he misrepresented the 

plea offer. (DE 389 at 5.) The Court rejected that argument, writing:

Mr. LeDonne [did] not identify what plea agreements his attorney failed to convey 

to him, how his attorney misrepresented the plea offer, or what guarantees his 

attorney allegedly made. And at the beginning of the change of plea hearing, Mr. 

LeDonne indicated that he wanted his attorney to withdraw a pending motion to 

withdraw as counsel and to continue representing him. (DE 379 p. 3–4 (“Mr. 

LeDonne has indicated to me that it is his wish that I withdraw the motion to 

withdraw and remain as his counsel in this matter. The Court: . . . Do you agree 

with that statement? The Defendant: Yes, Your Honor.”). Mr. LeDonne also 

testified under oath that he was satisfied with his attorney’s representation of him 

in this case, which contradicts his present claims of discontent. 

(DE 398 at 2–3.) Mr. LeDonne now argues that “had Mr. Kupsis fulfilled his obligations as counsel 

and properly advised LeDonne, to accept the capped plea from the Gov’t (Dan Bella); it would 

have resulted in a 108 month or less sentence, [rather] than the 168 month sentence imposed by 

the Court.” (DE 476 at 24.) But his dissatisfaction with Mr. Kupsis’ performance is still 

contradicted by his choice to have Mr. Kupsis continue representing him and by his statement, 

under oath, that he was satisfied with his attorney’s performance. Mr. LeDonne does include as an 

exhibit a letter from Mr. Kupsis to Mr. LeDonne explaining the 108-month binding plea 

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agreement. (DE 476-1.) Mr. LeDonne seems to believe the letter helps show that Mr. Kupsis’ 

performance was deficient. But in that letter, Mr. Kupsis explains the terms of the 108-month 

binding plea agreement the government was willing to enter and what he perceived to be the 

positives and negatives of entering the plea agreement. (DE 476-1.) Given that Mr. LeDonne had 

previously indicated he was satisfied with his attorney’s performance, and that the letter indicates 

his counsel informed Mr. LeDonne of the plea agreement, explained the terms, and discussed what 

he perceived as the positives and negatives, the Court finds that this allegation of deficient

performance is also unsupported, undeveloped, and unconvincing. See Hodges, 259 F.3d at 660.

But even if Mr. LeDonne could show deficient performance, he has not demonstrated that 

he was actually prejudiced. Mr. LeDonne had to show a “reasonable probability that, but for the 

ineffective assistance, the result of the proceedings would have been different.” Recendiz, 557 

F.3d at 531. “A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Ward v. Neal, 835 F.3d 698, 703 (7th Cir. 2016) (quoting Strickland, 466 U.S. at 

694). In the case of counsel’s failure to convey or advise a defendant about a plea offer by the 

government, the defendant must demonstrate prejudice by showing a reasonable probability that 

he “would have accepted the earlier plea offer had [he] been afforded effective assistance of 

counsel.” Missouri v. Fry ̧ 566 U.S. 134, 147 (2012); Lafler v. Cooper, 566 U.S. 156, 163 (2012) 

(“In the context of pleas a defendant must show the outcome of the plea process would have 

been different with competent advice.”). 

The Court notes that Mr. LeDonne does not clearly address in his motion how he was 

prejudiced. For most of his allegations of deficient performance, Mr. LeDonne does not even 

attempt to explain how, but for that deficient performance, the result of the proceeding would 

have changed. For example, Mr. LeDonne alleges that “Counsel conveyed to LeDonne’s family 

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that he would win the enhancement arguments and gave his family hope” and that “Counsel 

ignored hundreds of calls from family and friends.” (DE 476 at 18, 19.) Even if this constituted 

deficient performance, Mr. LeDonne does not explain how counsel answering these calls or not 

telling the family he would win the enhancement arguments would have altered the procedural

outcome. 

The Court can only discern one allegation specifically identifying how counsel’s 

deficient performance would have affected the result of the proceeding. Mr. LeDonne asserts that 

“had Mr. Kupsis fulfilled his obligations as counsel and properly advised LeDonne, to accept the 

capped plea from the Gov’t (Dan Bella); it would have resulted in a 108 month or less sentence, 

[rather] than the 168 month sentence imposed by the Court.” (DE 476 at 24.) It appears as if Mr. 

LeDonne is arguing that he would have accepted the lower plea had Mr. Kupsis “properly 

advise[d]” him. 

As discussed above, the Court does not believe that Mr. Kupsis’ performance when 

advising Mr. LeDonne about the plea was deficient. However, even if Counsel’s performance 

were deficient, Mr. LeDonne has not shown there is a reasonable probability he would have 

accepted the plea but for that deficient performance. After Mr. Kupsis provided the 108-month 

binding plea agreement to Mr. LeDonne and explained the positives and negatives, Mr. LeDonne 

rejected the plea agreement. (Change of Plea Hr’g Tr., DE 379 at 8.) Additionally, Mr. 

LeDonne’s conduct throughout the trial indicates his reluctance to plead guilty. He did not enter 

a guilty plea until three years after his indictment. (DE 1; DE 320.) Repeatedly, throughout 

those three years, Mr. LeDonne referred to the case as “a mockery of justice” and asserted that 

he was, in fact, innocent. (DE 257; DE 289-2.) In the instant motion, Mr. LeDonne again 

suggests that he is actually innocent: “[C]ounsel asked LeDonne to be prepared to lie during the 

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plea colloquy, by admitting his guilt to two counts of the indictment, that LeDonne clearly had 

no intentions of defrauding these customers.” (DE 476 at 16.) Because Mr. LeDonne rejected the 

plea of 108 months, and has shown throughout trial reluctance to admit his guilt, the Court finds 

that Mr. LeDonne has not demonstrated a reasonable probability that, but for Mr. Kupsis not 

“properly advis[ing]” him to accept the plea, he would have accepted the plea. 

Because Mr. LeDonne has not demonstrated deficient performance by counsel that 

prejudiced his defense, the Court finds that his claim alleging ineffective assistance of counsel 

fails. Additionally, the Court notes that an evidentiary hearing is not warranted. A hearing is not 

required if ‘the motion and the files and records of the case conclusively show that the prisoner is 

entitled to no relief.” Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (quoting 28 

U.S.C. § 2255). An evidentiary hearing is also not required “if the petitioner makes allegations 

that are ‘vague, conclusory, or palpably incredible,’ rather than ‘detailed and specific.’” Id.

(quoting Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006)). As discussed above, Mr. 

LeDonne’s allegations of deficient performance suffer from being vague, conclusory, or patently

false. His claim of prejudice also suffers from being vague and conclusory. Therefore, no 

evidentiary hearing is required.

(3) Grounds II–VII

The Court finds that Mr. LeDonne’s remaining claims are procedurally defaulted. Except 

for a claim alleging ineffective assistance of counsel, “[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); Massaro v. United States, 538 U.S. 500, 509 (2003) 

(“[F]ailure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the 

claim from being brought in a later, appropriate proceeding under § 2255.”). Even a defendant’s 

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challenge of “the voluntariness and intelligence of [their] guilty plea” will be procedurally 

defaulted unless it is “first challenged on direct review.” Bousley v. United States, 523 U.S. 614, 

621 (1998). 

If a claim is procedurally defaulted, it may “only be raised in a § 2255 proceeding if the 

defendant demonstrates that he is actually innocent, or that there is cause and actual prejudice.”

Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008) (citation omitted). “To establish 

actual innocence, ‘a petitioner must show that it is more likely than not that no reasonable juror 

would have found petitioner guilty beyond a reasonable doubt.’” Lund v. United States, 913 F.3d 

665, 667 (7th Cir. 2019) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Cause can be 

shown if there is a demonstration that “some objective factor external to the defense impeded 

counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 

488 (1986). In order to demonstrate “actual prejudice,” the petitioner must show that had the 

claims been brought “on direct appeal there likely would have been a different outcome in his 

appeal.” McCleese v. United States, 75 F.3d 1174, 1181 (7th Cir. 1996).

The Court finds that Grounds II–VII are procedurally defaulted. When Mr. LeDonne 

appealed his conviction, the only issue he pursued was whether the Court erred by imposing an 

obstruction of justice enhancement for statements made by Mr. LeDonne during an interview 

with a pretrial services officer that misrepresented his criminal history. (Appellant’s Br., 7th Cir. 

Case No. 18-2729, DE 24 at 25.) But Grounds II–VII each assert claims that were not raised in 

that appellate proceeding.2 Therefore, these claims can only be raised if Mr. LeDonne 

2 Mr. LeDonne claims in Ground II that there is new evidence showing that a sentence enhancement for a 

misrepresentation in a bankruptcy proceeding was improper. In Ground III, he claims that there is new evidence 

showing that the total loss amount used for a sentence enhancement was incorrect. In Ground IV, he claims that his 

guilty plea was not entered knowingly and voluntarily. In Ground V, he claims his sentence was disparate when 

compared with similar sentences. In Ground VI, he alleges Brady violations. And in Ground VII, he claims that his 

Counsel did not present a complete set of 3553(a) mitigating factors at sentencing. 

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demonstrates actual innocence or cause and actual prejudice. Mr. LeDonne has not demonstrated 

either. 

Mr. LeDonne never argues in the instant motion that he is actually innocent. At one point, 

he vaguely alludes to his innocence, writing that “counsel asked LeDonne to be prepared to lie 

during the plea colloquy, by admitting his guilt to two counts of the indictment, that LeDonne 

clearly had no intentions of defrauding these customers.” (DE 476 at 16.) But this does not come 

close to showing that “it is more likely than not that no reasonable juror would have found” him 

guilty beyond a reasonable doubt. See Lund, 913 F.3d at 667. The Court emphasizes that this

standard is “demanding and permits review only in the extraordinary case.” House v. Bell, 547 

U.S. 518, 538 (2006) (citation and quotation omitted). Mr. LeDonne has not met this high bar.

Mr. LeDonne has also not demonstrated cause and prejudice. For Grounds IV–VII, Mr. 

LeDonne does not argue that an “objective factor external to the defense impeded [his appellate] 

counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 

488 (1986). For Grounds II and III, Mr. LeDonne does argue that he has “new evidence” that 

may have altered his sentence. (DE 473 at 25–27.) However, even if Mr. LeDonne could 

demonstrate cause with this “new evidence,” it’s clear to the Court that Mr. LeDonne cannot 

show actual prejudice. Cf. United States v. Evans, 224 F.3d 670, 675 (7th Cir. 2000) (finding that 

a petitioner who alleged he had “newly discovered evidence” was not entitled to a second round 

of review without a demonstration of actual prejudice.). 

In Ground II, Mr. LeDonne asserts that a two-level sentence enhancement was 

improperly given because he now has “evidence” that a document given to the trustee was a 

receivable report, not a production report, and that one of his attorneys wasn’t present. (DE 473 

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25–26.) However, the reason Mr. LeDonne was given a sentence enhancement was because 

certain testimony during a section 341 creditors meeting was indisputably false:

Trustee: All right. On the schedules that were filed with the Court, you show 

accounts receivable for the company with a face value of $558,000, 

but you indicate they’re uncollectible. Why do you feel these are 

uncollectible?

Mr. LeDonne: The product that was delivered was not complete.

Trustee: All right.

Mr. LeDonne: The orders were not complete.

Trustee: What needed to be done to complete them?

Mr. LeDonne: Various components and accessories.

Trustee: Were the products delivered –

Mr. LeDonne: Yes.

Trustee: So the customer could complete it for a price?

Mr. LeDonne: That’s correct.

(PSR, DE 335 ¶ 85.) Mr. LeDonne objected to this two-sentence enhancement previously. In 

finding the two-level sentence warranted, the Court wrote that “the products in question had 

never been delivered, [and] so this testimony was false.” (DE 360 at 12.) The fact that Mr. 

LeDonne may have been reviewing a different report and that one of his attorney’s was not 

present is simply irrelevant to the fact that he lied about the products being delivered. Therefore, 

he has not demonstrated the actual prejudice necessary to raise Ground II. 

In Ground III, Mr. LeDonne asserts that he has new evidence showing that he actually 

delivered vehicles to a company (Compania Dominica), and therefore the $52,000 loss 

attributable to that transaction the Court used when calculating the total loss for a sentence 

enhancement was improper. (DE 473 at 27.) The Court first notes that Mr. LeDonne has not 

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provided any evidence supporting this claim beyond his bare assertion that various reports were 

“inaccurate.” The Court also notes that his claim is contradicted by Compania Dominica, who 

reported a loss of $52,000 (PSR, DE 335 ¶ 39.) But even if his claim were true, he has not shown

that the result of the proceeding would have been different. The Court noted during sentencing 

that “in [some] instances, if the Court had sustained the defendant’s objections, the guidelines 

would fail to account for aggravating factors relating to the scope and duration of the scheme, its 

effect on the victims beyond just the loss amount, and the defendant’s own history of engaging in 

this type of conduct. Thus, even if the guideline range were different, the Court would vary to 

this same range to achieve a reasonable sentence.” (Sentencing Hearing Tr., DE 423 at 71.)

Because the Court would have likely imposed the same sentence, even if Mr. LeDonne had 

evidence that the loss amount was improperly included, he has not demonstrated actual 

prejudice.

 Without a showing of actual innocence or cause and actual prejudice, any claims not 

asserted on appeal are procedurally defaulted. Torzala v. United States, 545 F.3d 517, 522 (7th 

Cir. 2008). Accordingly, the Court finds that the claims brought in Grounds II-VII are 

procedurally defaulted. 

Finally, the Court finds that an evidentiary hearing is not warranted for these claims. A 

hearing is not required if ‘the motion and the files and records of the case conclusively show that 

the prisoner is entitled to no relief.” Martin, 789 F.3d at 706. For Grounds II–VII, the record, 

files, and motions conclusively show that Mr. LeDonne’s claims were procedurally defaulted. 

Therefore, no evidentiary hearing is needed. 

(4) Motions Seeking Leave to Amend

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Mr. LeDonne’s arguments in his motions seeking leave to amend are unclear, but the 

Court does its best to summarize them. In Mr. LeDonne’s first motion seeking leave to amend, 

he argues that his attorney, Mr. Kuspis, was ineffective as counsel because he should have filed a 

“motion to dismiss the indictment” given that “improper evidence substantially influenced the 

grand jury’s decision to indict LeDonne . . . .” (DE 484 at 3.) In his second motion seeking leave 

to amend, Mr. LeDonne argues that the statute of limitations had expired, and that Mr. Kupsis 

was ineffective by not noticing. (DE 487.)

A district court may apply the Federal Rules of Civil Procedure in a lawful manner 

consistent with the Rules Governing § 2255 Proceedings. Rule 12, Rules Governing Section 

2255 Proceedings for the United States District Courts. The entitlement to modify, add, or drop 

issues while the litigation proceeds is “circumscribed by Federal Rule of Civil Procedure 15(a).” 

Vitrano v. United States, 643 F.3d 229, 234 (7th Cir. 2011). Rule 15(a) provides that a party may

amend a pleading once “as a matter of course at any time before a responsive pleading is 

served,” or, otherwise, “only by leave of court or by written consent of the adverse party.” Fed.

R. Civ. P. 15(a). The Court should grant leave to amend freely “when justice so requires.” Fed. 

R. Civ. P. 15(a)(2). Reasons for finding that leave should not be granted include “undue delay, 

bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of 

the amendment, [and] futility of amendment . . . .” Airborne Beepers & Video, Inc. v. AT&T

Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007) (quoting Foman v. Davis, 371 U.S. 178 (1962)

(emphasis added).

The time has passed for Mr. LeDonne to amend as a matter of course and the Court 

believes that granting either one of Mr. LeDonne’s motions for leave to amend would be futile.

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An amendment is futile if it lacks legal substance. United States v. Reynolds, No. 2:10-CR-164, 

2018 WL 4076986, at *10 (N.D. Ind. Aug. 27, 2018) (“Because petitioner’s] argument with

regard to his claim lacks merit, the amendment is denied as futile.”); General Elec. Capital Corp.

v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997) (finding that an amendment to a 

complaint is futile if it would not survive a motion to dismiss for failure to state a claim). 

Both of Mr. LeDonne’s proposed claims of ineffective assistance of counsel claims are

baseless. As discussed above, an allegation that is unsupported cannot support an ineffective 

assistance of counsel claim. See Hodges, 259 F.3d at 660. The claim that Mr. Kupsis’ performance 

was deficient when he didn’t object to the grand jury’s indictment is conclusory, vague, and 

incoherent. For example, Mr. LeDonne asserts that the Prosecutor, Mr. Schmid, committed 

“misconduct” by representing certain documents as “unlawful” to the grand jury when “NONE 

OF THE DOCUMENTS RELATED TO THE PAUL TRANSACTIONS WERE UNLAWFUL.” 

(DE 484 at 2.) Mr. LeDonne then asserts that “this may have been only one of the many issues that 

AUSA Schmid presented in conflicting roles as prosecutor and witness.” (DE 484 at 2.) His 

counsel was allegedly ineffective because he did not notice these defects. (DE 484 at 3.) But this 

is precisely the type of conclusory statement, supported by vague assertions, that cannot support 

an ineffective assistance of counsel claim. See Hodges, 259 F.3d at 660. Therefore, the Court finds 

that granting Mr. LeDonne’s first motion seeking leave to amend would be futile. 

Granting Mr. LeDonne’s second motion seeking leave to amend would also be futile. In 

this motion, Mr. LeDonne claims that Mr. Kupsis was ineffective because he didn’t notice the 

statute of limitations had expired. (DE 487.) But despite Mr. LeDonne’s protestations, it’s clear 

that the statute of limitations had not expired. For purposes of mail fraud and wire fraud, a fiveyear statute of limitations begins to run from the date of mailing of the fraudulent information. 

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United States v. Barger, 178 F.3d 844, 847 (7th Cir. 1999). Each mailing constitutes a separate 

offense. Id. at 847. In his change of plea hearing, Mr. LeDonne, under oath, agreed that the two 

events underlying the offenses he was ultimately convicted of (Counts 8 and 14) took place in 

2013. (Change of Plea Hr’g Tr., DE 379.) Mr. LeDonne’s indictment was handed down on May 

14, 2014. This is well within the five-year statute of limitations for mail and wire fraud. 

Therefore, the Court finds that granting Mr. LeDonne’s second motion seeking leave to amend 

would also be futile. 

Accordingly, the Court denies both motions seeking leave to amend. (DE 484; DE 487.)

(5) Certificate of Appealability

The Court also declines to issue a certificate of appealability. A certificate of 

appealability may be issued “only if the applicant has made a substantial showing of the denial of 

a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11, Rules Governing Section 2255 

Proceedings for the United States District Courts. The substantial showing standard is met when 

“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 

been resolved in a different manner or that the issues presented were ‘adequate to deserve 

encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see Young v. United States, 523 F.3d 717 

(7th Cir. 2008). For the reasons the Court already discussed in denying the motion, the Court 

does not believe that the resolution of this motion is debatable or that the issues deserve 

encouragement to proceed further.

The Court advises Mr. LeDonne, though, that pursuant to Rule 22(b) of the Federal Rules 

of Appellate Procedure, when the district judge denies a certificate of appealability, the applicant 

may request a circuit judge to issue the certificate. If Mr. LeDonne wishes to appeal this 

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judgment, a notice of appeal must be filed within 60 days after the judgment is entered. Rule 11, 

Rules Governing Section 2255 Proceedings for the United States District Courts; Fed. R. App. P. 

4(a); Guyton v. United States, 453 F.3d 425, 427 (7th Cir. 2006).

D. Conclusion

The Court DENIES Mr. LeDonne’s motion to vacate under § 2255, his request for an 

evidentiary hearing, and his request for counsel. (DE 476). The Court also DENIES Mr. 

LeDonne’s motions seeking leave to amend. (DE 484; DE 487.). Lastly, the Court DENIES the 

issuance of a certificate of appealability. The Clerk is DIRECTED to enter judgment 

accordingly.

SO ORDERED.

ENTERED: September 20, 2021

 /s/ JON E. DEGUILIO 

Chief Judge

United States District Court

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