The opinion of the court was delivered by: CHARLES NORGLE, District Judge
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.
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 ...