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LISCAK v. U.S.

November 17, 2004.

JERRY LISCAK, 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 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.

I. BACKGROUND

  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 documents.

  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.

  II. ANALYSIS

  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 ...


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