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GONZALEZ v. UNITED STATES

June 11, 1997

JOHN GONZALEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: ALESIA

 This matter is before the Court on Petitioner John Gonzalez' motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. The motion is denied.

 I. BACKGROUND

 In April of 1992, Petitioner John Gonzalez was indicted along with Juan Hinojosa and Carl Carreno for narcotics conspiracy and attempting to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846. Gonzalez was also indicted for using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).

 In August of 1992, a jury found Gonzalez guilty of the drug-related crimes and the firearm-related crime.

 The U.S. Court of Appeals for the Seventh Circuit affirmed Gonzalez' conviction. United States v. Gonzalez, 19 F.3d 1169 (7th Cir. 1994).

 Gonzalez collaterally attacks, pursuant to 28 U.S.C. § 2255, several aspects of his conviction and sentence.

 II. SECTION 2255

 Relief under § 2255 "is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). Indeed, a criminal defendant may attack the validity of his sentence under § 2255 only if:

 28 U.S.C. § 2255. Importantly, however, "[a] § 2255 motion is neither a recapitulation of nor a substitute for a direct appeal." Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). This means that:

 
an issue not raised on direct appeal is barred from collateral review absent a showing of both good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or if a refusal to consider the issue would lead to a fundamental miscarriage of justice.

 Prewitt, 83 F.3d at 816.

 With these principles in mind, the court will address each of Gonzalez' arguments.

 III. DISCUSSION

 Gonzalez offers several arguments attacking the convictions. He failed to raise the arguments on appeal, however. Gonzalez was represented by different counsel at each stage of the criminal proceeding -- trial, sentencing, and appeal. Because Gonzalez is claiming that all three of his attorneys performed ineffectively, the court will address the arguments on their merits since ineffective assistance of counsel can qualify as cause for failing to raise an ...


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