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GIL v. UNITED STATES

March 31, 1998

DIEGO GIL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: ALESIA

MEMORANDUM OPINION AND ORDER

 Before the court is petitioner Diego Gil's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, petitioner's motion is denied.

 I. BACKGROUND

 Petitioner Diego Gil ("Gil"), along with Vincente Echeverri ("Echeverri"), was charged with conspiring to possess with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (Count I) and attempting to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (Count II). A jury found Gil guilty on both counts.

 On Count I, the court sentenced Gil to a term of 210 months confinement to be followed by ten years of supervised release. The court imposed an identical sentence on Count II. Both periods of confinement and supervised release were to run concurrently.

 Gil appealed. The Seventh Circuit affirmed his conviction and sentence. United States v. Gil, 46 F.3d 1134, 1995 WL 23136 (7th Cir. 1995). Gil now collaterally attacks several aspects of his conviction and sentence pursuant to 28 U.S.C. § 2255.

 II. DISCUSSION

 A. Standard for deciding a § 2255 motion

 Relief under § 2255 "is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). To succeed on a § 2255 motion, the petitioner must demonstrate that the sentence imposed on him was in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a 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; Arango-Alvarez v. United States, 134 F.3d 888, 890 (7th Cir. 1998).

 A § 2255 motion "is neither a recapitulation nor a substitute for a direct appeal." Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). This means that

 
an issue not raised on direct appeal is barred from collateral review absent a showing of both good cause for the failure to raise the claims on direct appeal and actual prejudice from the failure to raise those claims, or if a refusal to consider the issue would lead to a fundamental miscarriage of justice.

 Prewitt, 83 F.3d at 816.

 B. Ineffective assistance of counsel

 Gil first argues that he is entitled to relief under § 2255 because he was denied his Sixth Amendment right to effective assistance of counsel. This claim was not raised on direct appeal; however, as Paul Wagner ("Wagner") was Gil's trial and appellate counsel, Gil may bring this claim in his § 2255 motion. United States v. Taglia, 922 F.2d 413, 418 (7th Cir. 1991).

 A petitioner's claim that his counsel was ineffective is analyzed under the two-prong test of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To show ineffective assistance of counsel, the petitioner must show (1) that his counsel's performance fell below an objective standard of reasonableness (the performance prong) and (2) that this deficiency prejudiced the petitioner (the prejudice prong). Arango-Alvarez, 134 F.3d at 892.

 As to the performance prong, the petitioner must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed [to] defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. In determining whether counsel's performance was deficient, the court must "judge ... counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct." Id. at 690.

 As to the prejudice prong, the petitioner must show that his counsel's deficient performance rendered the outcome of his trial or proceeding unreliable or fundamentally unfair. Lockhart v. Fretwell, 506 U.S. 364, 372, 122 L. Ed. 2d 180, 113 S. Ct. 838 (1993); Mason v. Hanks, 97 F.3d 887, 892-93 (7th Cir. 1996). While it is essential to petitioner's claim that he prove both prongs of the Strickland test, Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996), "it is often beneficial for courts to consider the prejudice prong of Strickland's test before delving into murkier questions of whether certain acts or decisions constituted reasonable legal advocacy." Winsett v. Washington, 130 F.3d 269, 280-81 (7th Cir. 1997). If the court finds no evidence of prejudice, the court need not determine whether counsel's performance was deficient. Melvin v. United States, 78 F.3d 327, 329 (7th Cir. 1996).

 In this case, Gil points to several instances of Wagner's alleged ineffectiveness. Because counsel is presumed effective, Gil bears a heavy burden to prove that Wagner was ineffective and his defense was prejudiced. Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993). The court addresses each of Gil's arguments below. *fn1"

 1. Failure to conduct an investigation

 Gil first argues that Wagner was ineffective because he failed to conduct an investigation into the issue of "who the cocaine was destined for." Pet. at 7, 10-13. Specifically, Gil argues that Wagner should have pursued certain leads which could have produced evidence that showed that the cocaine was not intended to be delivered to Gil but was actually intended to be delivered to a party in Memphis. Gil contends that it was "likely" that the result of his trial and sentencing would have been different if such evidence had been produced.

 The court rejects Gil's claim because he has failed to show that this alleged failure to investigate affected either the outcome of his trial or sentencing proceeding. First, Gil has failed to show that the alleged failure to investigate affected the outcome of his trial. The government did not have to prove that the cocaine was originally intended to be delivered to Gil. See 21 U.S.C. §§ 841(a), 846. What the government had to prove is that Gil conspired or attempted to commit the offense of possession with the intent to distribute the cocaine, which consists of (1) the knowing possession of the cocaine and (2) an intent to distribute it. United States v. Marin, 7 F.3d 679, 688 (7th Cir. 1993); see Trial Transcript (hereinafter "Trial Tr."), Dec. 10, 1993 at 537-542. Thus, the alleged evidence was not critical to Gil's defense, ...


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