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SALAS v. UNITED STATES

March 16, 1998

EFRAIN SALAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Petitioner Efrain Salas' Motion Under 28 U.S.C § 2255 to Vacate, Set Aside, or Correct Sentence By A Person in Federal Custody. For the following reasons, the motion is denied.

 I. BACKGROUND

 On February 17, 1987, a grand jury returned an indictment against twenty-one defendants, including Petitioner Efrain Salas ("Salas"). Some time thereafter, the grand jury returned a superseding indictment. *fn1" On January 27, 1989, Salas entered a plea of guilty to Count One, and Count Sixty-One of the indictment. In Count One, Salas, and his co-defendants, were charged with conspiring to distribute heroin, marijuana, and cocaine in violation of violation of 21 U.S.C. § 846. In Count Sixty-One Salas was charged with specific instances of using a telephone to facilitate the distribution of heroin, marijuana, and cocaine in violation of 21 U.S.C. § 843(b).

 The Probation Department prepared the pre-sentence investigation report ("PSI"), and calculated Salas' base offense level at 34. The PSI calculation included the "total amount of heroin distributed by the larger conspiracy of which Salas was a participant." See United States v. Rosa, 946 F.2d 505, 508 (7th Cir. 1991) (Salas' direct appeal). On July 17, 1990, and August 16, 1990, Salas filed objections and supplemental objections, respectively, to his calculated base offense level.

 The District Court used the PSI as a guide in calculating Salas' base offense level for purposes of his sentence. Id. On August 21, 1990, the District Court sentenced Salas to the following: (1) 151 months of incarceration for Count One and 61 months of incarceration for Count Sixty-One to run concurrently; (2) five years of supervised release; and (3) a special assessment of $ 100. Salas received a two-point reduction from the base offense level of 34 for acceptance of responsibility under § 3E1.1 of the U.S. Sentencing Guidelines Manual ("Sentencing Guidelines"), resulting in a base offense level of 32. Id.

 On August 27, 1990, Salas filed a timely notice of appeal. On appeal, Salas contended that the District Court miscalculated his base offense level. Salas argued that his base offense level was erroneously calculated because it included the entire amount of drugs distributed by the conspiracy. Specifically, Salas argued that three to ten kilograms of heroin should not have been considered in calculating his base offense level, given his minor role in the conspiracy. Id. Salas concluded that his base offense level should have been 26 rather than level 34 which included the heroin.

 On October 11, 1991, the Seventh Circuit affirmed Salas' sentence. Id. at 505. The Seventh Circuit held that Salas' base offense level was properly calculated under the Sentencing Guidelines by including the heroin distributed by the conspiracy. Id. at 509.

 On September 25, 1995, Salas filed this pro-se petition pursuant to 28 U.S.C. § 2255 asserting two issues: (1) whether a correction in Salas' sentence is warranted due to a clarification in the Sentencing Guidelines ("Sentencing Guidelines"); and (2) whether Salas received ineffective assistance of counsel because his attorney (a) misinformed him of the ultimate sentence attached to his guilty plea; (b) failed to properly investigate the Sentencing Guidelines; and (c) lured him into pleading guilty with erroneous information ("Ineffective Assistance of Counsel").

 II. DISCUSSION

 Habeas corpus relief pursuant to § 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)); see also United States v. Ousley, 100 F.3d 75, 76 (7th Cir. 1996).

 A § 2255 motion is neither a recapitulation of, nor a substitute for, a direct appeal. See McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Therefore, a petitioner may not raise three types of issues: (1) issues that he or his attorneys raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been, but were not, raised on direct appeal; or (3) constitutional issues that were not raised on direct appeal, unless petitioner can show both good cause for, and prejudice from the procedural default. See Serfling v. United States, 958 F. Supp. 389, 391 (N.D. Ill. 1997); Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996).

 With these principles in mind, the court will consider, in turn, Salas' claims for habeas corpus relief: (1) Sentencing Guidelines; and (2) ...


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