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JARA v. U.S.

United States District Court, N.D. Illinois, Eastern Division


May 19, 2005.

MARIO JARA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: AMY J. ST. EVE, District Judge

JUDGMENT IN A CIVIL CASE

? Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury rendered its verdict.
? Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that Memorandum Opinion and Order is entered. The Court grants Jara's motion to amend his original Section 2255 motion as to his ineffective assistance of counsel claim. The Court denies Jara's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Mario Jara's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Jara's Section 2255 motion.

  BACKGROUND

  On April 24, 2003, Jara pleaded guilty to (1) conspiracy to possess with intent to distribute and to distribute over five kilograms of mixtures containing cocaine in violation of Title 21, United States Code, Section 846; and (2) possession with intent to distribute over five kilograms of mixtures containing cocaine in violation of Title 21, United States Code, Section 841(a)(1). Jara did not enter into a written plea agreement with the government. Instead, he pled blind before the Court. On January 30, 2004, the Court sentenced Jara to 120 months imprisonment. Jara, without help from counsel, filed an untimely appeal of his conviction and sentence. On March 3, 2005, the Seventh Circuit dismissed Jara's appeal for lack of jurisdiction. On January 31, 2005, Jara filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On April 11, 2005, Jara filed a motion to amend his Section 2255 motion. Construing Jara's pro se motion under Section 2255 liberally, see Calhoun v. DeTella, 319 F.3d 936, 943 (7th Cir. 2003), he asserts the following claims: (1) the statutes to which he pleaded guilty were stated incorrectly in the indictment; (2) his codefendant's affidavit indicates that there is evidence that Jara did not have knowledge of the events that were taking place; and (3) he entered into his plea involuntarily and without understanding the nature of the charge and the consequence of his plea based on ineffective assistance of counsel.

  In his motion to amend his Section 2255 motion, Jara fleshes out his ineffective assistance of counsel claim by arguing additional theories in support of this claim. Although Jara's motion to amend is untimely, a new theory presented in an amendment to a Section 2255 motion relates back to the original motion under Federal Rule of Civil Procedure 15(c)(2) when it arises out of the same conduct, transaction, or occurrence as alleged in the original motion. Ellzey v. United States, 324 F.3d 521, 524-25 (7th Cir. 2003). "Conduct, transaction or occurrence" refers to events, not legal themes. Id. at 525. For instance, "[a] prisoner who comes up with ten different ways to contest his sentence still is litigating about a single transaction or occurrence (the supposedly unlawful sentence), so an amendment necessarily relates back under Rule 15(c)(2)." Id. Thus, Jara is allowed to bring his additional theories of ineffective assistance of counsel because they relate to the same conduct alleged in his original motion, that is, his attorney provided constitutionally ineffective assistance of counsel during the proceedings. Therefore, the Court, in its discretion, grants Jara's motion to amend his Section 2255 motion as to his ineffective assistance of counsel claims. Id. at 527.

  On the other hand, Jara's attempt to amend his Section 2255 motion by adding a claim under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), fails because he did not bring a claim based on the same conduct, transaction, or occurrence in his original motion. See Ellzey, 324 F.3d at 525. In addition, Jara's claim that the government failed to present sufficient evidence to support a finding of guilty, his claim based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and his confrontation clause claim similarly fail. See Ellzey, 324 F.3d at 525.

  LEGAL STANDARD

  A district court must grant a Section 2255 motion to vacate, set aside or correct a sentence under Section 2255 when a petitioner establishes "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Hays v. United States, 397 F.3d 564, 566-67 (7th Cir. 2005) (citations and quotations omitted). A Section 2255 motion, however, cannot be a substitute for a direct criminal appeal. Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003). Accordingly, if a petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, see Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005), or that enforcing the procedural default would lead to a "fundamental miscarriage of justice." Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003). Because claims of ineffective assistance of counsel usually involve evidence outside the record, such claims are properly brought for the first time in a Section 2255 petition. See Gailbraith v. United States, 313 F.3d 1001, 1007-08 (7th Cir. 2002); see also Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

  ANALYSIS

  I. Procedurally Defaulted and Non-Cognizable Claims

  Jara procedurally defaulted his first claim that the statutes to which he pleaded guilty were stated incorrectly in his indictment because he did not raise it on direct appeal. See Coleman, 318 F.3d at 760. Further, Jara's actual innocence claim based on his co-defendant's affidavit is not actionable because "actual innocence" is not a stand-alone claim cognizable on federal habeas review. See Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed. 203 (1993). Jara's actual innocence claim, however, may be the gateway for the Court to review his procedurally defaulted claim regarding the statutes in his indictment. See Herrera, 506 U.S. at 404. Jara, however, has not set forth "new reliable evidence" that "it was more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup v. Delo, 513 U.S. 298, 324, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).*fn1 Therefore, Jara's first two claims in his Section 2255 motion fail.

  II. Ineffective Assistance of Counsel Claims Jara contends that his trial attorney provided constitutionally ineffective assistance of counsel during various stages of his criminal proceedings. To establish ineffective assistance of counsel, Jara must show (1) his attorney's performance "fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (2) "but for counsel's unprofessional errors the result of the proceeding would have been different." Id. at 694. If a defendant fails to make a proper showing under one of the Strickland prongs, the Court need not consider the other prong. Id. at 697.

  A. Castellanos Claim

  The Court first addresses Jara's ineffective assistance of counsel claim that he instructed his attorney to file a notice of appeal, yet counsel failed to do so. The Seventh Circuit has held that an attorney's "failure to take an appeal, despite the defendant's request, is ineffective assistance without regard to the probability of success on appeal." Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994); see also Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). In Flores-Ortega, the Supreme Court explained that relevant to this inquiry is whether a defendant sets forth evidence that he promptly expressed a desire to appeal. See id. at 485.

  Here, the key to the Court's analysis is whether Jara has offered any evidence substantiating his claim that he requested his attorney to file an appeal. Although Jara attached an affidavit to his motion to amend, he does not aver any facts supporting his claim that he requested counsel to appeal. Indeed, the affidavit does not mention that he requested his attorney to file an appeal, instead, it concerns his actual innocence claim. Finally, the Court notes that Jara did not make his allegations in his Section 2255 motion and amended motion under oath.

  The Seventh Circuit has unequivocally held that unsubstantiated and conclusory statements do not support ineffective assistance of counsel claims. See, e.g., United States v. Turcotte, ___ F.3d ___, 2005 WL 949138, at 19 (7th Cir. Apr. 19, 2005); see also United States v. Jones, 208 F.Supp.2d 929, 934 (N.D. Ill. 2002) (vague and undeveloped ineffective assistance of counsel claim waived). As the Turcotte court notes, that defendant bears the burden of proof and persuasion when establishing an ineffective assistance of counsel claim. Id., 2005 WL 949138, at 19. Here, Jara has failed in his burden. Thus, Jara's ineffective assistance of counsel claim based on his unsubstantiated allegation that he requested his counsel to file an appeal must fail.*fn2

  B. Other Ineffective Assistance of Counsel Claims

  In the context of a guilty plea, the Supreme Court has articulated that "a defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received was constitutionally ineffective." Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quotations omitted). In this context, under the prejudice prong of the Strickland standard, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." United States v. Villegas, 388 F.3d 317, 323 (7th Cir. 2004); see also Hill, 474 U.S. at 58-60. Here, Jara claims that his attorney was ineffective for failing to file a motion to suppress his incriminating statements based on the police's failure to give him his Miranda warnings. Jara argues that without these statements, he "would not have felt compelled to plead guilty." Jara, however, has failed to provide any information or substantiation of his claim that the police failed to give him his Miranda warnings. Indeed, the record is silent as to whether the police gave Jara his Miranda warnings and the Court is reluctant to fill in the blanks using Jara's cursory allegations. See United States v. Harris, 394 F.3d 543, 555 (7th Cir. 2005). As such, Jara has failed to establish either prong under Strickland. See Long v. Krenke, 138 F.3d 1160, 1164 (7th Cir. 1998) ("mere possibility of success based on a defense for which there existed little or no evidentiary support is not enough to establish constitutionally inadequate counsel").

  Finally, the Court examines Jara's remaining ineffective assistance of counsel claims turning to the Strickland prejudice prong because it is dispositive. After reviewing Jara's motion and amendment, Jara has failed to present any evidence or argument that he was prejudiced by his counsel's allegedly deficient performance. Jara's mere statement stated that he was prejudiced does not establish actual prejudice under Strickland. See United States v. Fudge, 325 F.3d 910, 924 (7th Cir. 2003) (mere allegation by defendant that he would have insisted on going to trial is insufficient to establish prejudice); see also United States v. Farr, 297 F.3d 651, 658-59 (7th Cir. 2002) (conclusory statements unsupported by facts do not satisfy prejudice prong of Strickland).

  Recently, the Seventh Circuit has made it abundantly clear that "perfunctory or undeveloped arguments are waived." Estate of Moreland v. Dieter, 395 F.3d 747, 759 (7th Cir. 2005). Thus, Jara's failure to articulate how he was prejudiced due to his counsel's alleged deficient performance is fatal to these remaining claims. CONCLUSION

  The Court grants Jara's motion to amend his original Section 2255 motion as to his ineffective assistance of counsel claim. The Court, however, denies Jara's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.


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