United States District Court, N.D. Illinois, Eastern Division
September 16, 2004.
LUIS CASAS, Movant,
UNITED STATES of AMERICA, Respondent.
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
Before the court is Luis Casas' motion to vacate, set aside, or
correct his sentence brought pursuant to 28 U.S.C. § 2255.
Movant, Luis Casas ("Casas"), challenges his conviction for
conspiracy with intent to distribute cocaine. For the reasons
stated below, the motion is denied.
After an investigation by the Drug Enforcement Administration
("DEA"), Casas and his co-defendants were arrested after
transporting an automobile with 48 one kilogram bricks of cocaine
contained inside a trap compartment. On February 24, 1999, Casas
was indicted on two counts: conspiracy with intent to distribute
cocaine, in violation of 21 U.S.C. § 846; and possession with
intent to distribute cocaine, in violation of
21 U.S.C. § 841(a)(1).
On November 23, 1999, Casas pled guilty to one count of the
indictment, conspiracy with intent to distribute cocaine, in
violation of 21 U.S.C. § 846, and the remaining count was
dismissed. On April 4, 2000, Casas was sentenced to a 87 month term of
imprisonment, and the Judgment and Commitment Order was issued on
April 7, 2000. Thereafter, Casas took no additional steps to
directly or collaterally challenge his conviction, until he filed
the present motion.
Casas filed the present motion on March 26, 2001, within the
one-year limitations period imposed by the Antiterrorism and
Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2255 ¶ 6
(1-4). Casas' motion raises three arguments: (1) whether he
received constitutionally ineffective assistance of counsel; (2)
whether his plea was voluntary, knowing and intelligent; and (3)
whether 21 U.S.C. §§ 841 and 846 are unconstitutional on the
basis of Apprendi v. New Jersey, 530 U.S. 466 (2000).
On February 26, 2002, Respondent, United States of America
("Government"), filed a response to the § 2255 motion. The court
ordered that Casas file a reply, if any, by March 26, 2004. Casas
did not reply to the Government's response. Casas' § 2255 motion
is fully briefed and before the court.
A. Standard of Decision
Section 2255 allows a person convicted of a federal crime to
vacate, set aside, or correct his sentence. The relief is
available only in limited circumstances, such as where an error
is jurisdictional or of Constitutional magnitude. See Oliver
v. United States, 961 F.2d 1339, 1341 (7th Cir. 1995). The
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to
be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of
the United States, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack,
may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255 ¶ 1. If the court determines that any of these
grounds exists, it "shall vacate and set the judgment aside and
shall discharge the prisoner or resentence him or grant a new
trial or correct the sentence as may appear appropriate."
28 U.S.C. § 2255 ¶ 2. In making that determination, the court must
review evidence and draw all reasonable inferences from it in a
light most favorable to the government. See United States v.
Galati, 230 F.3d 254
, 258 (7th Cir. 2000); Carnine v. United
States, 974 F.2d 924
, 928 (7th Cir. 1992).
Section 2255 petitions are subject to various bars, including
that of procedural default. Section 2255 petitions are "`neither
a recapitulation of nor a substitute for a direct appeal.'"
McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996)
(citations omitted). Thus, a § 2255 motion cannot raise: (1)
issues that were raised on direct appeal, unless there is a
showing of changed circumstances; (2) non-Constitutional issues
that could have been raised on direct appeal, but were not; and
(3) Constitutional issues that were not raised on direct appeal.
See Belford v. United States, 975 F.2d 310, 313 (7th Cir.
1992) (overruled on other grounds by Castellanos v. United
States, 26 F.3d 717 (7th Cir. 1994)).
There are two exceptions to the procedural default rule: (1) if
the movant demonstrates cause for failing to raise the issue and
actual prejudice resulting therefrom; or (2) the court's refusal
to consider the Constitutional issue would result in a
fundamental miscarriage of justice, which requires a showing of
actual innocence. See Belford, 975 F.2d at 313 (collecting
authority); see also McCleese, 75 F.3d at 1177-78
(discussing fundamental miscarriage of justice). With these
principles in mind, the court examines Casas' motion. B. Ineffective Assistance of Counsel Claim
Casas claims that his Sixth Amendment right to the effective
assistance of counsel was violated by his counsel's failure to
file a notice of appeal. A claim of ineffective assistance of
counsel can be raised for the first time in a § 2255 petition.
See Massaro v. United States, 538 U.S. 500, 509 (2003);
Richardson v. United States, 379 F.3d 485, 486 (7th Cir. 2004).
The court evaluates such a claim under the principles set forth
in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on
a claim his counsel was ineffective, below the standard required
by the Sixth Amendment, Casas must demonstrate that his counsel's
representation was objectively deficient and that the deficient
representation prejudiced him. See Galbraith v. United
States, 313 F.3d 1001, 1008 (7th Cir. 2002) (citing
Strickland, 466 U.S. at 688). "[T]his test applies to claims
. . . that counsel was constitutionally ineffective for failing
to file a notice of appeal." Roe v. Flores-Ortega,
528 U.S. 470, 477 (2000). Where an attorney ignores a defendant's specific
request and fails to initiate or prosecute an appeal, that
conduct is professionally unreasonable, and prejudice is
presumed. See id.; see also Kitchen v. United States,
227 F.3d 1014, 1021 (7th Cir. 2000).
A section 2255 motion claiming ineffective assistance of
counsel typically requires the submission of evidence that will
allow the court to determine whether an evidentiary hearing or
ultimate relief is proper. See Galbraith, 313 F.3d at 1009.
"[A] hearing is not necessary if the petitioner makes allegations
that are `vague, conclusory, or palpably incredible,' rather than
`detailed and specific.'" Bruce v. United States, 256 F.3d 592,
597 (7th Cir. 2001). In Galbraith, the Seventh Circuit held
that the district court had not erred in denying a section 2255
motion alleging ineffective assistance of counsel in the complete
absence of evidence supporting the allegation. See Galbraith,
313 F.3d at 1009. The court noted that, at the district court,
the appellant "present[ed] no affidavit from himself or his trial counsel supporting his version of his
attorney's conduct, nor any other available, probative evidence
that would effectively support [his] claim." Id.
Similarly, in this case, Casas has produced no evidence, let
alone sworn affidavits, in support of his claims. The petition
merely makes bare allegations that counsel for Casas failed to
file a notice of appeal without providing detailed and specific
allegations that Casas instructed his counsel to do so. Casas
provides no details of these bare allegations, such as where or
when these alleged conversations occurred or what was said and by
whom. Absent such evidence, Casas has no probative evidence that
would support his claim. See Galbraith, 313 F.3d at 1009; see
also United States v. Jordan, 870 F.2d 1310, 1318 (7th Cir.
1989) (finding no ineffective assistance of counsel where
petition was not supported by any evidence of counsel's failure
other than petitioner's "bare allegations").
Further, Casas does not assert that his counsel failed to
consult with him at all or that he would have appealed absent
whatever consultation he received from his counsel. See Roe,
528 U.S. at 484. The plea agreement contained a waiver of appeal
provision. Additionally, after Casas was sentenced, the court
informed him of his right to appeal. The following excerpt from
the sentencing hearing is instructive:
. . . Mr. Casas, to the extent that you have not
waived your right to appeal under the terms of the
written plea bargain agreement, you have the right to
You should discuss this with Mr. Walsh or any
If you cannot afford an attorney for purposes of the
appeal, then the Court would appoint one to represent
But you must look to the terms of the written plea
bargain agreement to see what appellate rights, if
any, you have preserved.
This is something you can discuss with Mr. Walsh, but
if you then decide that there is a basis to appeal
and you do want to appeal, then you must file the
notice of appeal in the Clerk's Office in this
building on the 20th floor within ten days. Do you understand the things that I have just said to
See Gov't. Resp., Ex. 2 at 10-11 (transcript of sentencing
Again, Casas has provided no probative evidence that his
counsel failed to file a notice of appeal, nor that he wished to
appeal. Therefore, Casas' ineffective assistance of counsel claim
is without merit.
C. Remaining Claims
Casas took no steps to directly challenge his conviction, and
he has provided no evidence that he instructed counsel to do so.
As such, his remaining claims concerning the voluntariness of his
plea and the constitutionality of 21 U.S.C. §§ 841 and 846 are
procedurally defaulted. See, e.g., McCleese,
75 F.3d at 1177. Also, Casas presents no argument in an attempt to
demonstrate cause for the failure and resulting prejudice, and he
makes no claim of actual innocence. See id. at 1177-78. Thus,
the claims cannot be addressed through the instant § 2255
petition. See id. (stating that § 2255 petitions are "neither
a recapitulation of nor a substitute for a direct appeal").
1. Voluntary, Knowing and Intelligent Guilty Plea
Even if the court were to address the merits of Casas' claim
concerning the voluntariness of his plea, the record from the
underlying criminal conviction belies such a claim. Casas pled
guilty following an extensive plea colloquy. See Gov't. Resp.,
Ex. 1 (transcript of plea colloquy). Casas acknowledged under
oath that he had met with counsel on several occasions to review
the plea agreement, and that he had no questions concerning it.
See id., Ex. 1 at 3-5, 9, 13-16. Casas further acknowledged
that a Spanish interpreter was present while he and counsel
reviewed the plea agreement. See id., Ex. 1 at 5. The
following excerpt from the plea colloquy is instructive: COURT:
Okay. Are you entering into this plea bargain
Are you being threatened in any way?
Are you being forced into this?
From your point of view, are you being tricked into
Have you had enough time to think about all of this?
Now, while you have been at the MCC have you been
able to make telephone calls?
Did you talk to friends and relatives?
Have you had visitors at the MCC?
* * *
Has anyone visited you?
* * *
And Mr. Walsh was there at least four or five times?
COURT: And the interpreter was there as well?
Did you sign the last page of this written plea
And Mr. Walsh, your attorney, also signed the last
Is this ten-page written plea bargain agreement the
only agreement between you, your lawyer, and the
Is there any other agreement except this written plea
No. No, sir.
And you went over this with your lawyer?
And the interpreter was there at the time you went
over the written plea bargain agreement with your
Okay. Once again, have you had enough time to think
about all of this?
Do you know what you are doing?
On the plea of guilty there is a finding of guilty
and the matter is continued for sentencing.
See id., Ex. 1 at 13-16. "Voluntary responses made by a
defendant when entering a guilty plea are binding." United States v. Price, 988 F.3d 712, 717 (7th Cir.
1993); see also United States v. Stewart, 198 F.3d 984
(7th Cir. 1999). The statements made during Casas' plea colloquy
are entitled to a "presumption of verity," United States v.
Martinez, 169 F.3d 1049
, 1054 (7th Cir. 1999), and Casas has
presented nothing to undermine that presumption.
2. Constitutionality of 21 U.S.C. §§ 841 and 846
Even if the court were to address the merits of Casas'
Apprendi-based claim concerning the constitutionality of
21 U.S.C. §§ 841 and 846, the claim is without merit. The Seventh
Circuit has held that Apprendi should not be applied
retroactively on collateral review. See Curtis v. United
States, 294 F.3d 841, 842-44 (7th Cir. 2002) (agreeing with
other circuits that Apprendi does not fall within any
exceptions that would allow retroactive application on collateral
review as stated in Teague v. Lane, 489 U.S. 288 (1989)).
"Apprendi therefore does not disturb sentences that became
final before June 26, 2000, the date of its release." Id. at
For the foregoing reasons, Luis Casas' motion to vacate, set
aside, or correct his sentence brought pursuant to
28 U.S.C. § 2255 is denied.
IT IS SO ORDERED.