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").
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) Ineffective Assistance of Counsel.
A. Sentencing Guidelines
First, Salas argues that he is entitled to a sentence correction due to a clarification in the Sentencing Guidelines.
At his sentencing hearing, the District Court calculated his base offense level by including the total amount of heroin distributed by the conspiracy. On appeal to the Seventh Circuit, Salas argued that the District Court miscalculated his base offense level under the Sentencing Guidelines. He argued that the heroin distributed by the conspiracy was not reasonably foreseeable to him given his limited participation in the conspiracy. The Seventh Circuit rejected his argument and held that Salas was properly sentenced under the Sentencing Guidelines. See Rosa, 946 F.2d at 509.
In his habeas motion, Salas points out that since his sentence and appeal there have been two changes to the Sentencing Guidelines: (1) deletion of § 2D1.4 effective November 1, 1992; and (2) a new example in the commentary of § 1B1.3 which is allegedly similar to Salas' case. Thus, Salas argues in his § 2255 motion that he is entitled to a sentence correction due to the changes.
Where a petitioner raises an issue on appeal, he is barred from raising the same issue in his § 2255 motion, unless he can show a change of circumstances, such as an intervening change of law. See United States v. Anderson, 1997 U.S. Dist. LEXIS 9291, No. 96 C 2263, 91 CR 692-1, 1997 WL 370254, at *10 (N.D. Ill. June 30, 1997). Salas argued on appeal to the Seventh Circuit that the heroin distributed by the conspiracy should not be attributed to him because of his limited role in the conspiracy. See Rosa, 946 F.2d at 509. Petitioner makes the same argument in his § 2255 motion, and relies on the deletion of § 2D1.4 and the addition of a new example clarifying § 1B1.3 to show a change of circumstances.
The Seventh Circuit has stated that the Sentencing Guidelines and the Commission's interpretations of the Guidelines are authoritative. See United States v. Hill, 48 F.3d 228, 231 (7th Cir. 1995). Therefore, it would seem that a change in the Sentencing Guidelines would constitute a change in law. However, Congress directed courts to apply the Sentencing Guidelines in effect at the time of sentencing. See 18 U.S.C. § 3553 (a)(4), (a)(5); United States v. Bader, 956 F.2d 708, 709 (7th Cir. 1992). In addition, Congress gave the Sentencing Commission the power to decide whether its amendments will be given retroactive effect. Cf. 28 U.S.C. § 994(u). To this end, § 1B1.10 of the Sentencing Guidelines sets forth the amendments that apply retroactively. See U.S. Sentencing Guidelines Manual § 1B1.10.
Neither the amendment adding Application Note (c)(7) to § 1B1.3 nor the amendment deleting § 2D1.4 from the Sentencing Guidelines are included in the list of amendments which apply retroactively. Id. Therefore, those amendments to the Sentencing Guidelines do not constitute a sufficient change of circumstances to allow Salas to repeat his Sentencing Guidelines argument in his § 2255 motion.
However, even assuming that the change in the Sentencing Guidelines did constitute a sufficient change of circumstances, Salas' argument fails on its merits. The crux of Salas' argument is that the fact pattern described in Application Note 2 (c)(7) to § 1B1.3 of the Sentencing Guidelines is applicable to his situation.
Application Note 2(c)(7) states:
Defendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant S knows that Defendant R is the prime figure in a conspiracy involved in importing much larger quantities of cocaine. As long as Defendant S's agreement and conduct is limited to the distribution of the 500 grams, Defendant S is accountable only for that 500 gram amount (under subsection (a)(1)(A)), rather than the much larger quantity imported by Defendant R.