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UNITED STATES v. RYAN

December 3, 1997

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



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Upon entering a plea of guilty on September 20, 1993, petitioner John Ryan was convicted of six counts of conspiracy to possess with intent to distribute, and the distribution of ritalin, dilaudid, and morphine sulfate in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 846. We sentenced Ryan to 185 months in prison on counts I, IV, V, and VI, with the sentences to run concurrently with each other, and to 60 months on counts II and III, to run concurrently with each other and with the sentences imposed on the other four counts. Ryan appealed, but the Seventh Circuit rejected his arguments and affirmed his sentence. See United States v. Ryan, 78 F.3d 587 (7th Cir. 1996) (table) (unpublished opinion available at 1996 WL 89229). Ryan now moves this court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied.

 I. Discussion

 Most of Ryan's arguments in this petition allege that his attorney rendered ineffective assistance to him, depriving him of his Sixth Amendment right to counsel. *fn1" To establish that he was deprived of effective assistance of counsel, Ryan must demonstrate that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 686-87, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). With respect to the first prong--known as the "performance" prong--the Supreme Court has observed:

 
The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted--even if defense counsel has made demonstrable errors--the kind of testing envisioned by the Sixth Amendment has occurred.

 United States v. Cronic, 466 U.S. 648, 656, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). The second prong--known as the "prejudice" prong--requires the defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A defendant asserting a Sixth Amendment claim has "the heavy burden of affirmatively establishing that counsel's performance was constitutionally deficient." United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir. 1990). We may not second-guess counsel's strategic decisions. See United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997). With these principles in mind, we consider each of Ryan's arguments in turn.

 A. Coerced Guilty Plea

 Ryan's first argument is that his attorney rendered ineffective assistance by "coercing" him into entering a guilty plea. Pet'r Br. at 6. Despite this claim, Ryan does not identify any act by his attorney that could even arguably be characterized as coercive, *fn2" and the transcript of his plea hearing clearly establishes the voluntariness of his plea:

 
THE COURT: Have there been any conversations or promises or threats or coercion made to you by the United States Attorney, your attorney or any other person to induce you to enter a plea of guilty against your will?
 
THE DEFENDANT: No.
 
THE COURT: Do you understand that any such promises, threats or coercion made to you by anyone would in no way be binding upon the Court? Do you understand?
 
THE DEFENDANT: Yes.
 
THE COURT: In other words, you're making this plea of guilty voluntarily and as a result of your ...

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