of counsel when his attorney failed to file an appeal is merit less because there is no assertion or evidence that petitioner ever requested his attorney to file an appeal. The government further contends that the fact the sale proceeds from the jewelry were less than the appraised value does not show that petitioner was punished because petitioner agreed, via the joint motion, to the interlocutory sale of the jewelry.
The failure to raise a constitutional challenge at trial or on direct appeal bars a petitioner from raising such issues in a federal habeas proceeding absent a showing of cause for the procedural default and actual prejudice. Salberg v. United States, 969 F.2d 379, 381 (7th Cir. 1992). The failure of a petitioner to establish either cause or prejudice requires dismissal of his section 2255 petition. Id. Moreover, where a petitioner claims ineffective assistance of counsel for failure to take a direct appeal, that claim is precluded in a § 2255 petition unless the petitioner can show that he made a timely request for his counsel to do so. See Castellanos v. United States, 26 F.3d 717, 718-19 (7th Cir. 1994).
Here, petitioner never filed a direct appeal. At the time of his sentencing, this court unequivocally admonished petitioner of his right to appeal from the sentence and the plea proceeding. The court further advised petitioner that if he desired to file an appeal that all he need do is tell his lawyer and the lawyer would process the appeal for him. Petitioner orally acknowledged his understanding of these rights. The court further instructed petitioner's attorney to file the appeal in the clerk's office if petitioner requested an appeal be filed. Finally, the court explained to petitioner that he could have a court-appointed counsel represent him on appeal and that he would be able to appeal without cost. Petitioner has not asserted in his petition, nor pointed to any evidence showing, that he ever requested that his trial counsel file an appeal on his behalf.
Under these circumstances, petitioner's claim that his trial counsel was ineffective for failing to file an appeal is meritless. It does not constitute cause sufficient to excuse the failure to raise the double jeopardy issue or any other issue on direct appeal. Thus, on this basis alone, the court denies petitioner's entire section 2255 petition.
Furthermore, even had an appeal been filed and the double jeopardy issue not been raised, petitioner could not excuse such a procedural default on the basis of appellate counsel's ineffectiveness. This is so because the double jeopardy claim lacks efficacy as the civil forfeiture in this case resulted in the forfeiture of drug trafficking proceeds under 18 U.S.C. § 881(a)(6).
Such a forfeiture does not constitute punishment for double jeopardy purposes. United States v. Tilley, 18 F.3d 295, 300 (5th Cir. 1994) (forfeiture of illegal proceeds does not punish defendant because it exacts no price in liberty or lawfully derived property from him); United States v. Leaniz, No. CR-2-90-18, 1995 U.S. Dist. LEXIS 4039 (S.D. Ohio March 31, 1995) (defendant has no legitimate right in drug proceeds forfeited under section 881(a)(6) such that their forfeiture would constitute a punishment); see also United States v. Wild, 47 F.3d 669, 674 n. 11 and 676 (4th Cir. 1995) (forfeiture of property constituting, or derived from, proceeds of an illegal activity is not punishment and, hence, not covered by the Excessive Fines Clause of the Eighth Amendment) (citing Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488, 113 S. Ct. 2801, 2812 n.14 (1993)); United States v. Alexander, 32 F.3d 1231, 1236 (8th Cir. 1994) (forfeiture of proceeds cannot be considered punishment in excessive fines context as it simply parts the owner from the fruits of the criminal activity). If there is no punitive effect to the forfeiture, as there is not in a section 881(a)(6) forfeiture, then a key element of a double jeopardy claim is missing. Thus, any failure to raise such a claim in either this court or a direct appeal does not rise to the level of ineffective assistance of counsel.
As for the other issues raised by petitioner in his original petition, the Commerce Clause and Second Amendment claims, petitioner has not responded to the government's procedural default argument. He has not, as he has with his double jeopardy claim, pointed to counsel's ineffectiveness as the cause for his failure to raise these claims in either this court or in a direct appeal. Consequently, this court will not analyze either claim under the ineffective assistance standard.
Petitioner also argues that he can raise the double jeopardy issue for the first time in a section 2255 petition because this court was without jurisdiction to sentence him for a second punishment. An unconditional guilty plea, such as the one entered by petitioner here, generally waives all nonjurisdictional defects in the proceeding. United States v. Markling, 7 F.3d 1309, 1312 (7th Cir. 1993). Double jeopardy is a defense personal to a defendant and is nonjurisdictional. See Paul v. Henderson, 698 F.2d 589, 592 (2d Cir. 1983); United States v. Herzog, 644 F.2d 713, 716 (8th Cir. 1981); see also United States v. Buonomo, 441 F.2d 922, 924 (7th Cir. 1971) (double jeopardy is a personal right which if not affirmatively pleaded at the time of trial will be regarded as waived).
Lastly, the court denies petitioner's motion for appointment of counsel and for an evidentiary hearing. There is no need for an evidentiary hearing in light of this court's disposition of the section 2255 petition without considering extrinsic matters. Petitioner's request for appointed counsel is tied to his motion for an evidentiary hearing. Thus, there is no need to appoint counsel either.
For the foregoing reasons, the court denies the petition filed pursuant to section 2255 and further denies the motions for appointment of counsel and for an evidentiary hearing as moot.
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT
DATED: October 10, 1995