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UNITED STATES v. LEVENTOPOULOS

September 23, 1993

UNITED STATES OF AMERICA, Respondent,
v.
PETER LEVENTOPOULOS, Petitioner.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Presently before the court are Peter Leventopoulos' motion to vacate his sentence pursuant to 28 U.S.C. § 2255 and motion for disqualification and or/recusal pursuant to 28 U.S.C. §§ 144, 455. Leventopoulos claims that he was denied effective assistance of counsel, that he did not have a full opportunity to review his presentence investigation report, and that the government has violated its plea agreement with him. In addition, he alleges various instances of prosecutorial misconduct. For the reasons set forth below, we deny Leventopoulos' motion.

 Discussion

 It is well established that a convicted defendant who fails to raise constitutional challenges to his conviction on direct appeal is barred from raising those challenges in a § 2255 proceeding, unless the defendant can demonstrate good cause for and prejudice from the failure to appeal. Norris v. United States, 687 F.2d 899 (7th Cir. 1982). The Seventh Circuit has extended that rule to apply to defendants who plead guilty, in addition to those who are adjudged guilty after a trial. Williams v. United States, 805 F.2d 1301 (7th Cir. 1986), cert. denied, 481 U.S. 1039, 95 L. Ed. 2d 818, 107 S. Ct. 1978 (1987) ("Because defendants who plead guilty have an opportunity to challenge their sentences directly and in Rule 35 proceedings, we hold that the Norris cause and prejudice standard is applicable when these defendants attack their sentences by raising new issues for the first time in a section 2255 proceeding."). Leventopoulos never appealed his sentence, nor did he file a motion to alter his sentence pursuant to Fed. R. Crim. P. 35 based upon any of the grounds included in his current motion. *fn1" Although he filed a § 2255 motion in the month following his sentence, he did not raise the claims currently before us, nor did he appeal denial of that motion. *fn2" Instead, he asserts these claims for the first time almost five years after he pled guilty to violating RICO and committing mail fraud. As a result, we will only reach the merits of the various issues he raises if he has demonstrated both good cause for and prejudice from his failure to raise those issues previously.

 I. Effective Assistance of Counsel

 Leventopoulos first argues that he was deprived of effective assistance of counsel, primarily because his lawyer was under indictment while representing Leventopoulos. Leventopoulos claims that, during that time, his attorney began working with the government in exchange for lenience in his own case, and that "it was obvious that my defense was being very much compromised in many regards, especially at (the) time of my guilty plea and during the sentencing phase of my trial." Leventopoulos therefore requests that his sentence be vacated, and that he be allowed to withdraw his guilty plea and plead again.

 However, Leventopoulos has failed to demonstrate cause for failing to raise the effective assistance of counsel claim on appeal or in a Rule 35 motion. He first argues that his codefendants "filed an appeal" with the Seventh Circuit, and that he was unaware of that filing. *fn3" This clearly does not establish "cause," as there is no obligation for codefendants to file a joint appeal, or to include all codefendants in any appeal that is filed. His more significant argument is his claim that his lawyer simply failed to file an appeal, and, at an unspecified time after sentencing, informed Leventopoulos that he would no longer represent him. Leventopoulos therefore asserts that he was "left in the dark" with respect to his right to appeal.

 Leventopoulos' claims, however, are not supported by the record. The docket reflects that the motion to substitute appointed counsel was made and granted on November 1, 1988. Leventopoulos was therefore represented by counsel during the entire time available for appeal of his sentence or the adverse § 2255 ruling. Furthermore, this representation was not merely illusory; Leventopoulos' attorney filed both the § 2255 motion and a motion for reconsideration of recommendation of deportation during the period following imposition of Leventopoulos' sentence.

 The record also reflects that Leventopoulos was repeatedly informed that he may have a right to appeal. When Leventopoulos entered his plea of guilty, Judge Leinenweber explicitly stated that Leventopoulos retained the right to appeal his sentence. *fn4" Transcript of Proceedings at 13 (March 3, 1988). In addition, when we sentenced Leventopoulos and the other defendants who pled guilty, we specifically stated that "you may or may not have certain rights of appeal. I would suggest that you consult with your attorneys and they will tell you what right of appeal remains, if any, after a plea of guilty and sentence of the Court." Transcript of Proceedings at 144 (June 30, 1988). It is therefore clear that Leventopoulos was made aware that he should consider whether to appeal.

 Leventopoulos' only remaining argument is that the ineffective assistance of counsel that he complains infected his guilty plea and sentencing hearing extended beyond his sentencing, and "caused" his failure to appeal. In the abstract, this argument has some appeal; an attorney is unlikely to challenge his own competence by arguing ineffective assistance of counsel on appeal. See, e.g., United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 111 S. Ct. 2046 (1991). On the facts of this case, however, we find Leventopoulos' assertions unavailing. First, we note that the attorney of whom Leventopoulos complains actually did challenge his own effectiveness in the earlier § 2255 motion; the attorneys for Leventopoulos' codefendants, either in § 2255 motions or on direct appeal, similarly challenged their own competence. See United States v. Arvanitis, 694 F. Supp. 510 (N.D. Ill. 1988), affirmed 902 F.2d 489 (7th Cir. 1990).

 More important, however, was Leventopoulos' failure to bring his dissatisfaction with his attorney to our attention at an appropriate time. The Seventh Circuit considered a claim similar to Leventopoulos' in Williams v. United States, 805 F.2d 1301 (7th Cir. 1986), cert. denied, 481 U.S. 1039, 95 L. Ed. 2d 818, 107 S. Ct. 1978 (1987). There, Williams, the petitioner pled guilty to possession of and dealing in firearms, and was sentenced accordingly. He did not appeal his sentence, but he did file a Rule 35 motion to have his sentence reduced. That motion was denied, and the denial was affirmed on appeal. In a subsequent § 2255 motion, Williams claimed for the first time that he had been "abandoned" by his attorney following sentencing, and that he had been therefore been denied assistance of counsel in his postsentencing proceedings.

 The Seventh Circuit rejected Williams' assertion that he had demonstrated cause for his failure to raise the issue in his earlier proceedings. The court acknowledged Williams' claim that he did not have the benefit of competent legal advice regarding the time limits to appeal or otherwise challenge his sentence. However, the court reasoned:

 
There is nothing in the record which would indicate that Williams was dissatisfied with his court-appointed trial attorney who Williams claims abandoned him. . . . He never indicated to anyone, including the trial judge, his displeasure with his first lawyer. . . . Although criminal defendants are accorded the right to counsel at critical stages in the proceedings against them, they must shoulder at least some responsibility in the attorney-client relationship and indicate to the court when, in their minds, appointed lawyers are either not doing their jobs or have ceased their representation entirely. Without such a minimal duty, defendants would be free ...

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