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March 25, 2003


The opinion of the court was delivered by: Charles P. Kocoras, Chief Judge, United States District Court


This matter is before the court on Petitioner Casey J. Tolar's ("Tolar") petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2255. For the reasons set forth below we deny the petition.


In November 1999, Tolar transported illegal drugs from Texas to Illinois in propane tanks. The police had received a tip that the propane tanks contained drugs and were conducting a surveillance of Tolar's trucking business in Harvey, Illinois when Tolar arrived back in Illinois from Texas. The police saw Tolar unloading propane tanks from a tractor-trailer and entered the premises. Tolar signed a consent form allowing the police to search the tractor—trailer for drugs. Tolar claims in his petition that he signed a blank consent form because the police told him they were going to search the truck even if Tolar did not sign the form. The police found cocaine and marijuana in the propane tanks that were being unloaded from the tractor-trailer. The police also discovered a revolver in the sleeping compartment of Tolar's trailer. Tolar was arrested and later convicted by a jury in federal court of possession with intent to distribute cocaine and marijuana. Following the conviction Tolar was sentenced to life in prison. He appealed the conviction and it was affirmed on October 9, 2001. On February 25, 2002, the Supreme Court of the United States denied his petition for writ of certiorari.


Relief under 28 U.S.C. § 2255 is limited to where a conviction or sentence is based on "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994). If the Court finds that any of the above errors occurred, then the prisoner's conviction will be "vacated or set aside, and the petitioner will be discharged, resentenced, or granted a new trial." Dikeocha v. United States, 2002 WL 31006136, *1 (N.D. Ill. 2002). When reviewing a § 2255 motion the district court must review the record and draw all reasonable inferences in favor of the government. Carnine v. United States, 974 F.2d 924, 928 (7th Cir. 1992); United States v. Boyd, 2002 WE 1949724, *1 (N.D. Ill. 2002). Before addressing the merits of a § 2255 petition the court must determine whether the claims are barred procedurally. Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989). We note that Tolar has filed his petition pro se and thus his petition is entitled to a liberal reading. Blake v. United States, 841 F.2d 203, 205 (7th Cir. 1988).


I. Procedurally Barred Claims

A § 2255 habeas petition is not a "substitute for a direct appeal." McCleese v. United States, 75 F.3d 1174, 1177-78 (7th Cir. 1996) (quoting Bedford v. United States, 975 F.2d 310, 313 (7th Cir. 1992)). Thus, if a defendant fails to raise an issue on direct appeal he is barred from raising it in a § 2255 habeas petition absent a showing: 1) of good cause for failing to assert the claim on direct appeal and "actual prejudice from the failure to raise [the claim]," or 2) that the "court's refusal to consider the claims would lead to a fundamental miscarriage of justice." Id.

Tolar claims that he received ineffective assistance of counsel at trial because his counsel failed to move for a dismissal based on violations of the Speedy Trial Act. 18 U.S.C. § 3161 et seq. However, in his direct appeal Tolar did not argue ineffective assistance of counsel and he has not shown that he suffered actual prejudice because of the failure to raise those claims. Tolar also claims that the informant's tip did not provide the government with probable cause, and that he was improperly detained while the police searched the tractor—trailer. However, Tolar did not present those arguments in his direct appeal to the Seventh Circuit and he has not shown good cause for failing to assert the claims or that actual prejudice resulted from the failure. Tolar also claims that the police should not have searched the propane tanks because the consent form did not mention the trailer or the propane tanks, and he claims that he could not consent to a search of the propane tanks because he did not own them. Tolar argued at trial and on appeal that he did not consent to a search at all, but he did not raise these specific consent issues at trial or on direct appeal and offers no explanation for the failure to do so. Neither does he show that a prejudice resulted from that failure to raise those issues. No fundamental miscarriage of justice will occur if we decline to consider Tolar's arguments that were not presented in his direct appeal. Therefore, we find that all the arguments included in the petition except for the ineffective assistance of counsel on appeal are procedurally barred.

II. Ineffective Assistance of Counsel on Appeal

A criminal defendant has a right to counsel "through his first appeal of right." Kitchen v. United States, 227 F.3d 1014, 1018 (7th Cir. 2000) (citing Evitts v. Lucey, 469 U.S. 387, 396 (1985)). However, because assistance of counsel is presumed effective, a party bears a "heavy burden" in establishing ineffective assistance of counsel. United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance fell below an objective standard of reasonableness and that the deficient performance so prejudiced the petitioner's defense that the trial was unfair and the result was thus unreliable. Strickland v. Washington, 466 U.S. 668, 687-94 (1984). In assessing counsel's performance, we "evaluate the conduct from counsel's perspective at the time, and must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." United States it Ashimi, 932 F.2d 643, 648 (7th Cir. 1991) (quoting Strickland, 466 U.S. at 689)). If the record supports a finding of substandard performance, we then determine whether there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." United States v. Starnes, 14 F.3d 1207, 1210 (7th Cir. 1994) (quoting Strickland, 466 U.S. at 695).

Under a liberal reading of Tolar's petition, Tolar claims he received ineffective assistance of counsel on appeal because his appellate counsel failed to argue ineffective assistance of counsel at trial. He claims that there was ineffective assistance of counsel at trial because his trial counsel failed to raise the above mentioned arguments that are now procedurally barred. Therefore, although the arguments are procedurally barred, we shall need ...

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