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CORREA v. UNITED STATES

June 13, 1997

IVAN J. CORREA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: ALESIA

 Before the court is petitioner Ivan J. Correa's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. *fn1" For the reasons that follow, the court denies Correa's petition.

 I. BACKGROUND

 The facts underlying Correa's conviction and sentence were set out by the Seventh Circuit in its opinion affirming Correa's and his co-defendants' convictions and sentences. See United States v. Ortiz, 5 F.3d 288, 290 (7th Cir. 1993). In short, though, an undercover DEA agent arranged to buy seven kilograms of cocaine from suspected drug dealers. The drug transaction took place at Correa's apartment, and Correa actively participated in the drug transaction. Correa and his co-defendants were arrested, indicted, and ultimately convicted of conspiracy to distribute and possession with intent to distribute approximately seven kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.

 For his role in the conspiracy, Correa was sentenced to 168 months' imprisonment. Correa appealed his sentence, arguing only that this court erred in finding that he was a manager or supervisor of the conspiracy, resulting in a three-level increase in his offense level under the United States Sentencing Guidelines. See Ortiz, 5 F.3d at 292. The Seventh Circuit found that evidence in the record supported this court's finding, and affirmed Correa's sentence. See id.

 Correa now petitions the court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

 II. DISCUSSION

 Correa raises essentially four arguments in support of his petition. First, he contends that he was entrapped by government officials in violation of his constitutional rights to due process and equal protection. Second, he contends that because he is actually innocent of the offenses of which he was convicted, the government violated his constitutional rights by charging him with the offenses. Third, he argues that he was denied his sixth amendment right to effective assistance of counsel. Fourth, he contends that he was denied his fifth amendment right to a fair trial and sentencing when the trial judge became prejudiced toward him and no longer could remain impartial throughout trial and sentencing.

 Correa has waived each of these arguments by not presenting it on direct appeal. Moreover, even if Correa had not waived his arguments, they are without merit.

 A. Waiver of arguments

 Section 2255 permits a court to vacate, set aside, or correct a sentence that "was imposed in violation of the Constitution or laws of the United States, ... or is otherwise subject to collateral attack...." 28 U.S.C. § 2255. However, a section 2255 petition is not a substitute for direct appeal. Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (citations omitted). Consequently, a defendant who has failed to raise a claim on direct appeal cannot raise it in a section 2255 petition unless he can establish both good cause for the failure to appeal the issue and actual prejudice resulting from the error of which he complains, for a constitutional claim, United States v. Frady, 456 U.S. 152, 167, 102 S. Ct. 1584, 1594, 71 L. Ed. 2d 816 (1982); see also Barker v. United States, 7 F.3d 629, 632 (7th Cir. 1993), cert. denied, 510 U.S. 1099, 114 S. Ct. 939, 127 L. Ed. 2d 229 (1994), or that the alleged error constituted a "fundamental defect" that "inherently resulted in a complete miscarriage of justice," for a non-constitutional claim. Reed v. Farley, 512 U.S. 339, 354, 114 S. Ct. 2291, 2300, 129 L. Ed. 2d 277 (1994) (quotations omitted); see also McCleese v. United States, 75 F.3d 1174, 1177-78 (7th Cir. 1996).

 Correa did not present any of his section 2255 arguments on direct appeal, where he simply raised the issue of whether the court erred in finding him a manager or supervisor of the conspiracy. Thus, unless Correa can show good cause for his failure to raise his section 2255 petition arguments on direct appeal and actual prejudice from the errors of which he complains, or that a complete miscarriage of justice resulted from the alleged errors, his arguments are waived.

 Correa has not offered any explanation for his failure to raise his section 2255 arguments on direct appeal. All of the issues raised in Correa's section 2255 petition could have been raised on direct appeal, because they involve facts or legal arguments that were or should have been apparent to Correa or his counsel during or immediately after trial or sentencing. While Correa claims that his trial counsel was ineffective, he does not contend that his appellate counsel was ineffective. Thus, because "no reason is presented for [Correa's] having waited, the interest in finality requires that the failure to have raised the issue[s] on appeal be deemed a waiver of [them]." Guinan v. United States, 6 F.3d 468, 472 (7th Cir. 1993).

 Moreover, even if Correa had established good cause for his failure to raise the issues on direct appeal, he could not have established prejudice from the alleged errors, or that a complete miscarriage of justice resulted from the ...


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