United States District Court, N.D. Illinois, Eastern Division
November 17, 2004.
JERRY LISCAK, 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 Jerry Liscak's motion to vacate, set aside,
or correct his sentence brought pursuant to 28 U.S.C. § 2255.
Movant, Jerry Liscak ("Liscak"), challenges his sentence for
extortion and various immigration related offenses. For the
reasons stated below, the motion is denied.
After an investigation by the Immigration and Naturalization
Service ("INS"), Liscak was arrested for extortion and various
violations of immigration laws. The investigation revealed that
Liscak had employed two men to pose as INS agents in an attempt
to "shake down" illegal aliens, that Liscak induced two
individuals to enter the United States illegally, that Liscak
subsequently harbored and concealed these individuals in rooms
above his business, and that Liscak was involved in the
production and sale of counterfeit immigration and identification
In February and March 1998, a federal grand jury handed down
two separate indictments, totaling eighteen counts, against
Liscak. On April 14, 1999, following a jury trial at which he testified in his own defense, Liscak was convicted on seventeen
of those counts. On October 14, 1999, this court sentenced Liscak
to a term of fifty months imprisonment.
Liscak filed a notice of appeal on October 15, 1999. However,
after numerous delays, this court granted Liscak's Motion to
Dismiss the appeal. Liscak filed the present collateral attack on
his sentence April 18, 2002. Liscak's 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. This relief is
available only in limited circumstances, such as where an error
is jurisdictional, of Constitutional magnitude, or there has been
a "complete miscarriage of justice." See Harris v. United
States, 366 F.3d 593, 594 (7th Cir. 2004). This 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 the 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). Therefore, a
§ 2255 motion cannot raise: (1) issues that were raised on direct
appeal, unless there is a showing of change 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 Liscak's motion.
B. Liscak's Claim of Ineffective Assistance of Counsel
In order to establish that his counsel was ineffective, Liscak
must "show that [his] counsel's performance was deficient, and
that the deficiency prejudiced [his] defense." See Wiggins v.
Smith, 539 U.S. 510, 521 (2003) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). An attorney's performance
is deficient if it falls "below an objective standard of
reasonableness." Wiggins, 539 U.S. at 521 (quoting
Strickland, 466 U.S. at 688). Prejudice is established by
showing that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Benefiel v. Davis, 357 F.3d 655,
662 (7th Cir. 2004) (quoting Strickland, 466 U.S. at 694). An
ineffective assistance of counsel claim may be brought in a § 2255 motion,
regardless of whether the claim was raised on appeal. Massaro v.
United States, 538 U.S. 500, 504 (2003).
Liscak makes a three-pronged ineffective assistance of counsel
argument. First, Liscak argues that his attorney was ineffective
in failing to ask for a continuance after Liscak became ill and
had to be hospitalized overnight during trial. Mot. Under
28 U.S.C. § 2255, at 2-3; Supp. Reply Mot. Under 28 U.S.C. § 2255,
at 4. Second, Liscak claims that his attorney was ineffective in
failing to call certain witnesses to testify during trial. Mot.
Under 28 U.S.C. § 2255, at 5; Supp. Reply Mot. Under
28 U.S.C. § 2255, at 5. Third, Liscak asserts that his attorney was
ineffective in failing to communicate a plea offer to him. Mot.
Under 28 U.S.C. § 2255, at 7; Supp. Reply Mot. Under
28 U.S.C. § 2255, at 7.
When a court reviews an ineffective assistance of counsel
claim, the court's review is "highly deferential" to the
attorney, "with the underlying assumption that `counsel's conduct
falls within the wide range of reasonable professional
assistance.'"' United States v. Holman, 314 F.3d 837, 840 (7th
Cir. 2002) (quoting Strickland, 466 U.S. at 689). There is
therefore a strong presumption that Liscak's counsel performed
reasonably. See Strickland, 466 U.S. at 690; see also
Cooper v. United States, 378 F.3d 638, 641 (7th Cir. 2004). To
succeed in his claim, Liscak must show "errors so serious that
counsel was not functioning as the `counsel' guaranteed [to him]
by the Sixth Amendment. . . ." See Holman, 314 F.3d at 839
(quoting Strickland, 466 U.S. at 687).
1. Failure to Request a Continuance
During the trial, on April 8, 1999, Liscak experienced chest
pains. Liscak's attorney asked for and received a continuance so
that Liscak could receive medical care. Liscak was hospitalized for one night, and was prescribed medication. The
trial resumed April 12, 1999. Liscak asserts that due to his
overnight hospitalization, and use of medication, his attorney
should have asked for another continuance. This failure, Liscak
asserts, amounts to ineffective assistance of counsel, as the
medication made him "drowsy" and "not completely cognizant"
during the trial. Mot. Under 28 U.S.C. § 2255, at 2-4; Supp.
Reply Mot. Under 28 U.S.C. § 2255, at 4.
Deciding whether to ask for a continuance is a strategic
decision attorneys must routinely make during the course of
trials. These strategic decisions, even if made in error, cannot
sustain an ineffective assistance of counsel claim. See
Strickland, 466 U.S. at 689. The court notes that Liscak's
attorney did in fact ask for, and was granted, one continuance so
that Liscak could receive medical care. Liscak's attorney's
decision not to ask for a second continuance after Liscak had
received medical care, and was released from the hospital, was
not ineffective assistance of counsel.
2. Failure to Interview Defendants or Government's Witnesses
and Failure to Call Specific Witnesses at Trial
Liscak next asserts that his attorney failed to properly
investigate the background of his case. Mot. Under
28 U.S.C. § 2255, at 5. However, Liscak fails to establish what type of
exculpatory evidence the investigation would have turned up, or
how his defense would have been helped by these witnesses. A §
2255 petitioner alleging ineffective assistance of counsel due to
counsel's failure to investigate has the "burden of providing . . .
a comprehensive showing as to what the investigation would have
produced." Hardamon v. United States, 319 F.3d 943, 951 (7th
Cir. 2003); see also United States v. Hubbard,
929 F.2d 307, 310-11 (7th Cir. 1991). Liscak has made no such showing.
Liscak also asserts that he provided his attorney with the
names of nine individuals who possessed information that could
refute the government's evidence. Mot. Under 28 U.S.C. § 2255, at
5. Liscak's Motion includes a list of seven potential witnesses,
and brief, speculative explanations of what these witnesses could
have testified to during his trial. Mot. Under 28 U.S.C. § 2255,
Ex. C. In rare cases, an attorney's failure to investigate or
call certain witnesses can constitute ineffective assistance of
counsel. See Sullivan v. Fairman, 819 F.2d 1382, 1390 (7th
Cir. 1987). However, "[u]sually, counsel's decision not to call a
witness is a tactical decision not subject to review." Barnhill
v. Flannigan, 42 F.3d 1074, 1078 (7th Cir. 1994). The court is
reluctant to engage in second guessing, or "Monday morning
quarterbacking," regarding counsel's strategic decisions in this
case. See Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990).
Liscak fails to show that his attorney's decisions regarding the
investigation of witnesses, and the presentation of witnesses at
trial, were objectively unreasonable at the time they were made.
Counsel's performance regarding these strategic decisions was
therefore not ineffective. See id. ("objectively reasonable
strategic decisions . . . are virtually unchallengeable").
3. Failure to Communicate Plea Offer
Liscak then asserts that his attorney was ineffective in
failing to communicate a plea offer to him. Supp. Reply Under
28 U.S.C. § 2255, at 6-7; Mot. Under 28 U.S.C. § 2255, at 7.
Liscak's argument fails for two reasons. First, Liscak provides
no evidence that the government made any plea offer at all. See
Gray-Bey v. United States, 156 F.3d 733, 739 (7th Cir. 1998)
(noting that § 2255 petitions must be accompanied by proof of
petitioner's allegations); see also Mitchell v. United
States, 359 F.2d 833, 837 (7th Cir. 1966) ("concerning petitions
under § 2255: specific facts should be alleged to support the claim . . .
petitioner must show that he has proof of his allegations beyond
unsupported assertions"). Second, Liscak fails to indicate that
he would have accepted a plea offer. Liscak's continued
assertions that he is innocent of the charges casts doubt on
Liscak's intentions to enter into a plea agreement with the
government. Counsel's performance was therefore not ineffective
regarding any plea offer by the government.
C. Liscak's Request for an Evidentiary Hearing
Liscak requests an evidentiary hearing in order to more fully
examine his ineffective assistance of counsel claims. Evidentiary
hearings, however, are not required if the § 2255 "motion and the
files and the records of the case conclusively show that the
prisoner is entitled to no relief." 28 U.S.C. § 2255 ¶ 2; see
also Bruce v. United States, 256 F.3d 592, 597 (7th Cir.
2001); Daniels v. United States, 54 F.3d 290, 293 (7th Cir
1995). In this case, Liscak asserts purely strategic errors by
his attorney, and provides no evidence that the government
presented his attorney with any plea offer. The record thus
conclusively shows that Liscak is entitled to no relief under §
2255. Liscak's request for an evidentiary hearing is therefore
For the foregoing reasons, Jerry Liscak's motion to vacate, set
aside, or correct his sentence brought pursuant to
28 U.S.C. § 2255 is denied.
IT IS SO ORDERED.
© 1992-2004 VersusLaw Inc.