The opinion of the court was delivered by: CHARLES KOCORAS, District Judge
This matter comes before the court on the petition of Edward Gorniak to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
For the reasons set forth below, the petition is denied.
From about 1985 through 1998, Gorniak was employed by an illegal
bookmaking crew as a "clear clerk." In this role he checked betting
activity and verified amounts due from betting records that he
maintained. He was responsible for finding any math mistakes in the
records, correcting those mistakes, and ultimately determining what was
owed to bettors if they won or by them if they lost. Gorniak's records
allowed others in the operation to determine profits or, alternatively,
owed bettors. For performing these functions, Gorniak received $300
a week. On April 16, 1998, Chicago Police Department vice officers and
Cook County Sheriffs Police executed a search warrant at Gorniak's
residence. During the search they found a quantity of documents relating
to the group's operations, a shredder, three mobile phones, betting
records identifying more than 85 bettors, and $13,000.
On March 14, 2002, Gorniak pled to the second superseding indictment in
the case, which alleged violations of 18 U.S.C. § 1962(d) for
racketeering conspiracy and 18 U.S.C. § 1955 for conducting an illegal
gambling business. At sentencing the following September, Gorniak was
found to have a criminal history category of 1 and an offense level of
16. Neither he nor the government made any motions for departure from the
base guideline calculation, and Gorniak was sentenced to 21 months'
incarceration, the low end of the resulting guideline range.
Gorniak now contends that he was a minor participant in the criminal
activity for which he was convicted. Consequently, he argues, he should
have received a two-point reduction in his offense level, bringing the
applicable guideline range from 21-27 months down to 15-21 months.
Gorniak's petition asserts that his attorney's failure to seek this
departure at the time of sentencing constituted ineffective assistance of
counsel in violation of the Sixth Amendment.
The legal framework for evaluating a petition under 28 U.S.C. § 2255 is
well-established. Relief under a § 2255 claim is limited to situations
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) (quoting Borre v. United
States, 940 F.2d 215, 217 (7th Cir. 1991)). If the court finds that any
of the above errors occurred, then it will vacate and set aside the
judgment and discharge, resentence, or retry the prisoner as
appropriate. 28 U.S.C. § 2255. When reviewing a § 2255 petition, 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). We note that Gorniak has filed his petition pro se and
thus his petition is entitled to a liberal reading. Blake v. United
States, 841 F.2d 203, 205-06 (7th Cir. 1988).
Before addressing the merits of a § 2255 petition, the court must first
determine whether it is barred procedurally. Theodorou v. United States,
887 F.2d 1336, 1339 (7th Cir. 1989). Even though he did not waive any
appellate rights in pleading guilty, Gorniak did not appeal his sentence.
Typically, issues not raised in a direct attack on
a sentence or conviction are waived for § 2255 purposes. See Coleman v.
United States, 318 F.3d 754, 760 (7th Cir. 2003). However, claims of
ineffective assistance do not follow this general rule; in 2003 the
Supreme Court held that they "may be brought in a collateral proceeding
under § 2255, whether or not the petitioner could have raised the claim
on direct appeal." Massaro v. United States, 123 S.Ct. 1690, 1694
(2003). Thus, Gorniak's failure to appeal does not preclude our
consideration of his petition.
Gorniak has framed his petition as a claim of ineffective assistance of
counsel. Assistance of counsel is presumed to be effective and thus a
party bears a "heavy burden" in establishing ineffective assistance.
United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). To establish
that counsel provided ineffective assistance, a petitioner must
demonstrate: (1) cause, i.e., his attorney's performance was deficient;
and (2) the deficient representation prejudiced the case to such an
extent that the outcome is unreliable or fundamentally unfair. Barker v.
United States, 7 F.3d 629, 633 (7th Cir. 1993). The first prong is
satisfied by a showing that counsel's performance fell below the
"objective standard of reasonableness" guaranteed under the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy
the second prong, a petitioner must show that because of counsel's
errors, the outcome of the trial or sentencing was fundamentally
unreliable or unfair. Id. The
analysis set forth in Strickland applies at the sentencing phase of the
proceedings. Coleman, 318 F.3d at 760.
The specific aspect of the case with which Gorniak takes issue was his
attorney's decision not to argue that Gorniak was a minor participant in
the crime of which he was convicted, allowing a two-point reduction from
his baseline offense level. Reasonableness in an ineffective assistance
of counsel claim is measured under the standard of prevailing
professional norms. Strickland, 466 U.S. at 688. A reviewing court must
evaluate reasonableness from the perspective of counsel at the time of
the allegedly deficient performance, and not with the benefit of
hindsight. Id. at 689; United States v. Ashimi, 932 F.2d 643, 648 (7th
Cir. 1991). There is a high burden for the petitioner to meet in an
ineffective assistance of counsel claim due to the "presumption that an
attorney's conduct is reasonably proficient." Galbraith v. U.S.,
313 F.3d 1001, 1008 (7th Cir. 2002).
As is discussed in further detail below, the undisputed facts of this
case do not support the viability of an argument that Gorniak was "less
culpable than most other participants" in the bookmaking operation. Yet
this is the standard set forth in Application Note 5 of U.S.S.G. §
3B1.2. It was entirely reasonable for Gorniak's attorney, faced with this
situation at the time of sentencing, to conclude that a motion
for a minor role adjustment was destined to be unsuccessful. We cannot
view as unreasonable the failure to raise a losing argument. See
Rodriguez v. United States 286 F.3d 972, 985 (7th Cir. 2002); United
States v. ...