The opinion of the court was delivered by: ALESIA
This matter is before the court on petitioner Walter Paredes' motion under 28 U S.C. § 2255 to vacate, set aside, or correct sentence.
In 1991 Petitioner Walter Paredes was found guilty by a jury for distributing cocaine in violation of 21 U.S.C. § 841(a)(1). Paredes was sentenced to 360 months in prison.
Apparently not pleased with trial counsel (who, incidentally, was privately retained by Paredes), Paredes sought new counsel following the guilty verdict. Federal Defender Luis Galvan was appointed to represent Paredes at sentencing -- he also represented him on appeal. After filing a brief on appeal, however, Galvan, with a signed waiver from Paredes, voluntarily dismissed the appeal. It appears Galvan and Paredes sought to pursue an ineffective assistance of trial counsel claim on appeal, but, realizing that evidence outside of the record was necessary to support the claim, decided that the claim was better suited for a collateral attack under 28 U.S.C. § 2255.
This matter is now before the court on Paredes' collateral attack under § 2255.
Paredes offers numerous arguments attacking his conviction and sentence. Each argument will be addressed in turn.
Prior to addressing the arguments, however, the court will first discuss the purpose of a § 2255 motion and the procedural steps that must be complied with in order to grant the reviewing court the authority to entertain the issues raised in the motion.
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:
the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.
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:
With these principles in mind, the court will address each of Paredes' arguments.
A. Ineffective Assistance of Appellate Counsel
First, Parades argues that appellate counsel Galvan provided ineffective assistance because he dismissed Paredes' appeal; thus, Paredes lost his only opportunity to have his case scrutinized by a higher court.
When a defendant tells his lawyer to appeal "and the lawyer dropped the ball, then the defendant has been deprived, not of effective assistance of counsel, but of any assistance of counsel on appeal." Castellanos v. United States, 26 F.3d 717, 718 (7th Cir. 1994). Thus, the failure to file an appeal when requested by the defendant -- abandonment -- is a per se violation of the Sixth Amendment. Id. Paredes believes that his claim falls into the "abandonment" category, thus, a per se violation of the Sixth Amendment ensued. The court doesn't think so.
To qualify as a per se violation, the defendant must actually instruct counsel to appeal. See Castellanos, 26 F.3d at 719-20. Here, Paredes never instructed appellate counsel to appeal. In fact, Paredes signed a waiver acquiescing to the dismissal of the appeal.
See Johnson v. United States, 838 F.2d 201, 203 (7th Cir. 1988) (as long as defendant files a waiver, criminal appeals can be dismissed). The waiver states that Paredes read the motion to dismiss filed before the appellate court and concurred "in everything that is said in that motion." The motion noted that additional evidence outside of the record needed to be gathered before the ineffective assistance of trial counsel claim could proceed.
Paredes' first argument is a loser.
B. Ineffective Assistance of Trial Counsel
Paredes offers numerous instances of the alleged ineffective assistance of trial counsel. As noted, however, because Paredes failed to raise the issue on appeal he is barred from raising it collaterally, unless he can establish good cause and prejudice for this failure. Although trial and appellate counsel were not the same -- thus, appellate counsel could argue on direct appeal that trial counsel performed ineffectively -- good cause includes the ineffective assistance of trial counsel when it is necessary to establish the claim by resorting to evidence outside of the trial record. See McCleese, 75 F.3d at 1178. Such a claim is properly raised for the first time in a § 2255 motion regardless of the fact that his appellate and trial counsel were not the same. Id.
Generally, to establish ineffective assistance of counsel one must satisfy two prongs: (1) that counsel's performance fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the outcome of the proceedings. See United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997) (citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). The defendant bears a "heavy burden" when attempting to establish an ineffective assistance claim. Drake v. Clark, 14 F.3d 351, 355 (7th Cir. 1994). Indeed, there is a "strong presumption" that counsel rendered reasonably effective assistance. United States v. Moralez, 964 F.2d 677, 683 (7th Cir. 1992).
With the Strickland standard in mind, the court will address each of Paredes' alleged ineffective assistance of trial counsel claims. Prior to that, however, the court needs to review one aspect of this case.
At trial, it was established that Paredes was both a drug dealer and a ticket scalper. It was the government's position that Paredes -- in an attempt to disguise his drug deals as ticket sales -- referred to one kilogram of cocaine as a "ticket" when arranging a transaction. For example, Paredes would say something like "I have five tickets available." This meant, to his buyers, that he had five kilograms of cocaine to sell. Paredes' primary defense was that the evidence against him had nothing to do with cocaine; rather, it merely ...