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UNITED STATES v. DIAZ RODRIGUEZ

June 12, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
MIGUEL DIAZ RODRIGUEZ, a/k/a DAVID PEIRALLO, Defendant.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 ORDER

 FACTS

 On January 19, 1988, Rodriguez entered a plea of guilty to Counts One (21 U.S.C. § 846), Five (21 U.S.C. § 841(a)(1)), and Six (18 U.S.C. § 924(c)(1)) of the indictment.

 During the summer and early fall of 1987, defendant-petitioner Rodriguez and his co-defendants sold cocaine in the City of Chicago. On September 9, 1987, Rodriguez met his co-defendants at Wabansia and Artesian Street in Chicago, Illinois to effect delivery of one kilogram of cocaine, which Rodriguez had previously transported from Miami, to co-defendant Gerardo Perez. Rodriguez and his codefendants were arrested immediately following the drug transaction. During the arrest, the police officers discovered a .25 caliber automatic pistol with live rounds in Rodriguez's right pants leg pocket. Gerardo Perez testified at trial that prior to the transaction, Rodriguez had told him that he had a gun and would kill if anything went wrong.

 On May 1, 1988, Rodriguez received the following sentence: five years imprisonment under Count One for conspiracy; ten years imprisonment, plus four years supervised release under Count Five for possession of cocaine with intent to distribute; and five years imprisonment under Count Six for carrying a firearm during and in relation to a drug trafficking crime. The sentences on Counts Five and Six were consecutive and the sentence on Count One was concurrent with Counts Five and Six, resulting in a total of fifteen years imprisonment plus four years supervised release.

 Rodriguez did not file any motions or exercise any post-conviction procedural rights with respect to his conviction and sentence on March 1, 1988. He did not request reconsideration of his sentence, nor did he contest his sentence or allege violations of his constitutional rights through an appeal.

 On January 4, 1991, however, almost three years after sentencing, Rodriguez filed this petition pursuant to 28 U.S.C. § 2255 to vacate his five year consecutive sentence under 18 U.S.C. § 924(c), as well as his sentence to four years of supervised release under 21 U.S.C § 841(a)(1), (b)(1)(B). In the alternative, Rodriguez requests an evidentiary hearing. The court finds, however, there are no issues before the court which require an evidentiary hearing.

 DISCUSSION

 Rodriguez raises three grounds for relief under 28 U.S.C. § 2255. First, he claims that this court should not have sentenced him to a five year consecutive term under 18 U.S.C. § 924(c) because § 924(c) operates as an enhancement provision and not a "separate sentence," and Rodriguez was erroneously convicted based on the amended version of § 924(c)(1). Second, petitioner seeks to vacate or correct the five year supervised release period on the ground that 21 U.S.C. § 841(a)(1), (b)(1)(B) did not authorize such a sentence for offenses involving less than one kilogram of cocaine committed before November 1, 1987. Lastly, Rodriguez contends he received ineffective assistance of counsel during the plea and sentencing proceedings.

 The court agrees with the United States's response to the petition. A motion pursuant to 28 U.S.C. § 2255 cannot operate as a surrogate for a direct appeal. United States v. Frady, 456 U.S. 152, 165, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982); United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992); Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989); Johnson v. United States, 838 F.2d 201, 202 (7th Cir. 1988); United States v. Pierce, 1991 U.S. Dist. LEXIS 2896, 1991 WL 34636 (N.D. Ill. 1991). Consequently, a defendant may not raise via a § 2255 petition: 1) issues which were raised on direct appeal; 2) nonconstitutional issues which could have been, but were not raised on direct appeal; and 3) constitutional issues which were not raised on appeal, unless defendant demonstrates cause for the failure to raise the issue and actual prejudice resulting from it. Norris v. United States, 687 F.2d 899 (7th Cir. 1982). Under Norris, a petitioner such as Rodriguez who raises a matter in a § 2255 petition which could have been raised on appeal, must show that there was good cause for his failure to appeal and that he suffered prejudice as a result of that failure.

 Once the defendant's chance to appeal has been waived or exhausted . . . we are entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum. Our trial and appellate procedures are not so unreliable that we may not afford their completed operation ...


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