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UNITED STATES v. VAZQUEZ

April 24, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS N. VAZQUEZ, Defendant.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is defendant Luis N. Vazquez's ("Vazquez") motion to vacate, correct or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons that follow, the motion is denied.

 I. Discussion

 On February 17, 1987, Vazquez and twenty others were indicted on narcotics felonies. On February 24, 1991, a grand jury returned a superseding indictment charging Vazquez and his twenty codefendants with additional violations.

 Count One of the superseding indictment charged Vazquez and his codefendants with conspiring to distribute heroin, marijuana, and cocaine in violation of 21 U.S.C. § 846. Vazquez was also charged in Counts 2, 3, 4, and 7 with specific instances of distributing quantities of heroin in violation of 21 U.S.C. § 841(a)(1). Vazquez was also charged in over twenty additional counts with violations of 21 U.S.C. § 843(b). These additional counts charged specific instances of using a telephone to facilitate the distribution of heroin, marijuana, and cocaine.

 On or about September 27, 1995, approximately sixty months after he was sentenced and forty-seven months after the Seventh Circuit Court of Appeals affirmed the sentence, Vazquez filed a petition under § 2255. On December 5, 1995, Vazquez filed the instant Amended Petition. He claims the following: 1) because his conviction was based on conduct occurring before November 15, 1988, this court impermissibly sentenced him to a sentence that including a term of supervised release (Ground Five); 2) his "double jeopardy protection was violated by the prosecution's obtaining his conviction and sentence while, in a collateral administrative and civil proceeding, forfeiting property of the defendant" (Ground Six); and (3) he was a victim of extraordinarily excessive fines and constitutionally excessive disparate punishment. In response, the government argues that these allegations are without merit. The government points out that some allegations have been rejected by this court and/or the Seventh Circuit; others are not supported by the evidence or by law; and still others are simply frivolous.

 After pleading not guilty on February 18, 1988, Vazquez pled guilty to all twenty-seven counts on November 23, 1988. On September 26, 1990, Vazquez filed his motion to correct the Presentence Investigation Report ("PSI") and on November 8, 1990, Vazquez filed the PSI as an Appendix to this motion. On November 9, 1990, the court sentenced Vazquez to: (1) five years incarceration on Counts 2 and 3, (2) four years incarceration on Counts 8, 13, 21, and 30, and (3) 192 months on the remainder of the counts. All sentences were subject to the Sentencing Guidelines and were to run concurrently. The court also imposed a mandatory $ 3,000,000 fine, a special assessment of $ 1,300 and concurrent terms of supervised release.

 On November 16, 1990, Vazquez timely filed his notice of appeal and challenged his sixteen-year sentence, contending that the government breached an unwritten promise to submit a motion for a sentence below the applicable Guidelines range because of Vazquez's "substantial assistance." On October 11, 1991, the Seventh Circuit Court of Appeals affirmed Vazquez's sentence. The Seventh Circuit held, in part, that the government agreed to inform the sentencing court of the cooperation Vazquez provided and that the sentencing transcript of Vazquez's sentencing hearing clearly evidenced the government's fulfillment of that agreement. United States v. Rosa, 946 F.2d 505, 509-510 (7th Cir. 1991).

 II. Discussion

 A. Waiver

 The court finds that every contention cited by Vazquez in his petition is devoid of merit and, accordingly, summarily denies the petition. Habeas corpus relief under 28 U.S.C. § 2255 is limited to "an error of law that is jurisdictional, constitutional, or constitutes a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (quoting Carreon v. United States, 578 F.2d 176, 179 (7th Cir. 1978). The court rules that Vazquez's claims, raised for the first time in a petition pursuant to 28 U.S.C. § 2255, are barred by his failure to raise them on direct appeal. Failure to raise a constitutional challenge at trial or on direct appeal bars a defendant from raising such issues in a federal habeas proceeding absent a showing of cause for the procedural default and actual prejudice resulting therefrom. United States v. Frady, 456 U.S. 152, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982); United States v. Norris, 687 F.2d 899 (7th Cir. 1982). The failure of a petitioner to establish either cause or prejudice requires dismissal of his habeas petition. Buelow v. Dickey, 847 F.2d 420, 425 (7th Cir. 1988), cert. denied, 489 U.S. 1032, 103 L. Ed. 2d 227, 109 S. Ct. 1168 (1989). Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) ("a section 2255 motion cannot raise . . . constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice resulting from the failure to appeal.").

 Vazquez may not challenge alleged sentencing errors in this § 2255 proceeding unless he can show cause for his failure to raise the matter on direct appeal and actual prejudice from the errors of which he complains. Degaglia v. United States, 7 F.3d 609, 611 (7th Cir. 1993). The government argues that in Degaglia, the defendant raised three evidentiary issues on his direct appeal after a narcotics conviction. Over a year after his conviction was confirmed, Degaglia filed a § 2255 petition in which he raised several sentencing issues for the first time. Degaglia, like Vazguez, did not show good cause for his failure to raise the issues earlier, and did not show resulting actual prejudice. The Court of Appeals denied Degaglia's relief, because of his failure to show actual prejudice and because his arguments were without merit.

 In its response, the government cites to transcripts of Vazquez's sentencing hearing, at which time the court went to great lengths to assure that Vazquez's sentencing rights were protected. Vazquez was represented by his present counsel at that hearing. Through his attorney, Vazquez raised some of the same sentencing complaints to which he cites in the instant petition. The ...


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