United States District Court, N.D. Illinois, Eastern Division
May 19, 2005.
MARIO JARA, Petitioner,
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.
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
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.
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).
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.
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
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.