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CASAS v. U.S.

September 16, 2004.

LUIS CASAS, Movant,
v.
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.

I. BACKGROUND*fn1

  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.

  II. ANALYSIS

  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 statute states:
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 ...


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