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