The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
On October 18, 2002, Galanos entered a plea of guilty to two
counts of bank robbery and one count of robbery under the Hobbs
Act. On December 20, 2002, I sentenced Galanos to 63 months
imprisonment, applying the "organizer/leader" enhancement under
USSG § 3B1.1(c). Galanos did not appeal his sentence, but on
August 16, 2004, filed a pro se motion under 18 U.S.C. § 2255
to vacate his sentence.
Galanos raises two grounds for relief in his motion. He first
claims that he received ineffective assistance of counsel in
violation of the Sixth Amendment because his attorney never told
him to appeal or that he had a right to appeal his sentence and
because his attorney failed to file a written motion prior to the
sentencing hearing objecting to the sentencing enhancement.
Galanos also claims that my application of the "organizer/leader"
enhancement violated his Fifth, Sixth and Eighth Amendment
rights, presumably pursuant to Blakely v. Washington,
124 S. Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738
(2005), which he mentions in his petition for relief. I dismissed
the second ground of his petition on January 19, 2005, as
Booker does not apply retroactively to criminal cases that
became final prior to January 12, 2005. See McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).
Therefore, only Galanos's ineffective assistance of counsel
argument remains as a basis for § 2255 relief.
As a preliminary and dispositive matter, I find that
Galanos's petition is untimely. Section 105 of the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA") establishes a
one-year limit for motions seeking collateral relief under §
2255. The one-year period runs from "the latest of" four
specified events, only two of which are relevant here: "the date
on which the judgment of conviction becomes final" and "the date
on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence."
28 U.S.C. § 2255 P6(1) and (4). Galanos's conviction became final on
December 26, 2002. Unless there are grounds to toll the one-year
time period or Galanos can point to facts that, through the
exercise of due diligence, could only have been discovered within
one year of his August 2004 petition, the petition is untimely.
In some cases, equitable tolling may apply to the one-year
statutory deadline governing § 2255 motions. However,
"[e]xtraordinary circumstances far beyond the litigant's control
must have prevented timely filing." United States v. Marcello,
212 F.3d 1005, 1010 (7th Cir. 2000) (citation omitted). In
support of his petition, Galanos explains that he "was ignorant
to the law" and "did not know what to do, because this was my
first time in any federal trouble." Galanos's ignorance of the
law is not a sufficient reason to toll the filing deadline.
Godoski v. United States, 304 F.3d 761, 762 (7th Cir. 2002)
("[i]gnorance of the law does not justify an extension of the
one-year period to commence a collateral attack") (citing Wilson
v. Battles, 302 F.3d 745 (7th Cir. 2002)). See also Miller v.
Marr, 141 F.3d 976, 978 (10th Cir. 1998) (ignorance of law not
grounds for equitable tolling). Alternatively, Galanos might have argued that his claim was
filed within one year of "the date on which facts supporting
[his] claim . . . could have been discovered through the exercise
of due diligence." 28 U.S.C. § 2255 P6(4).*fn1 In his
petition Galanos states that he discovered his attorney's
purportedly ineffective assistance after reading relevant law.
Galanos's ignorance prior to that discovery does not trigger the
alternative time frame identified in § 2255 P6(4). As discussed
below, Galanos cannot claim ignorance of the fact of his
attorney's failure to advise him to appeal, or the fact of his
lawyer's failure to file a written motion objecting to the §
3B1.1(c) enhancement. Galanos was aware of these facts during and
immediately after the sentencing. He can only claim ignorance of
the "legal significance" of these facts, which does not toll the
one-year deadline. Cf. Godoski, 304 F.3d at 762 (noting that
petitioner claimed "ignorance of the legal significance of the
fact" that one attorney represented two defendants). Galanos's
petition contains no mention of newly-discovered facts that might
properly invoke § 2255 P6(4). Moreover, Galanos fails to explain
precisely when he discovered that his attorney's alleged conduct
was ineffective and why it took him nearly 20 months after his
sentencing became final to file his § 2255 petition. For these
reasons, his petition is untimely.
Despite this bar to Galanos's claim, I take a moment to discuss
why Galanos's petition would also fail on the merits. Relief
under § 2555 generally is limited to situations in which a
conviction or sentence was based on "an error of law that is
jurisdictional, constitutional, or constitutes a fundamental
defect which inherently results in a complete miscarriage of
justice." Bischel v. United States, 32 F.3d 259, 263 (7th Cir.
1994) (citation omitted). In this case, Galanos claims an error
of constitutional proportions. Defendants are typically barred
from raising issues on collateral review that could have been raised
earlier, absent a demonstration of good cause and actual
prejudice. Massaro v. United States, 538 U.S. 500, 504 (2003).
However, claims of ineffective assistance of counsel may be
raised for the first time in a § 2255 petition. Id. at 504-05.
Galanos pleaded guilty on October 18, 2002, pursuant to a
written plea agreement with the government. The plea agreement,
which Galanos signed, stated that the guidelines calculation was
preliminary and that I would ultimately determine the facts and
law relevant to sentencing. Before entering judgment against
Galanos, I determined that he had assistance of counsel,
understood his trial rights and the maximum penalties, and was
pleading voluntarily. I informed Galanos that the calculations
that would be used to determine his sentence were subject to
change and that I was not bound by the guidelines calculation in
the plea agreement. Galanos stated that he understood this and
was entering a voluntary plea.
Galanos was sentenced on December 20, 2002. At both his
change-of-plea and sentencing hearings, Galanos was represented
by his attorney, Joseph DiNatale. During the hearing, defense
counsel made an oral objection to the pre-sentence report's
recommendation of a two-level adjustment under USSG § 3B1.1(c).
Counsel argued that the "organizer/leader" enhancement should not
apply to Galanos because of his cocaine habit and other facts set
forth in the plea agreement. I considered counsel's arguments,
but overruled the objection because, under the law, Galanos's
admissions in the plea agreement warranted the recommended
enhancement. I applied the enhancement and sentenced Galanos to
63 months imprisonment, at the low end of the applicable
guidelines range. Before concluding the hearing, I advised
Galanos that he had the right to appeal the sentence and that if he
wished to appeal, his attorney would tell him how to do so.
Galanos failed to file an appeal.
In his § 2255 petition, Galanos contends that defense counsel
provided ineffective assistance by failing to file a written
objection to the enhancement and by failing to advise him to
appeal or of his right to appeal. To prevail on a claim that his
counsel's performance fell below constitutional standards,
Galanos must prove both that counsel's representation was
objectively deficient and that it was prejudicial. Galbraith v.
United States, 313 F.3d 1001, 1008 (7th Cir. 2002) (citing
Strickland v. Washington, 466 U.S. 668 (1984)). This standard
applies to counsel's performance at sentencing as well as at
trial. United States v. Delgado, 936 F.2d 303, 310 (7th Cir.
1991) (citation omitted). The Strickland standard imposes a
heavy burden on Galanos, as defense counsel's conduct is presumed
effective. United States v. Trevino, 60 F.3d 333, 338 (7th Cir.
Counsel's decision to make an oral, rather than written,
objection to the Probation Department's proposed sentencing
enhancement during the sentencing hearing was not objectively
deficient. Defense counsel frequently make oral objections to
pre-sentencing reports during sentencing hearings; in light of
this accepted practice, counsel's decision was not "outside the
wide range of professionally competent assistance." Strickland,
466 U.S. at 690. Moreover, even if counsel had filed a written
objection in advance of the hearing, my decision would have been
no different. Galanos fails to satisfy both the first and second
prongs of the Strickland test.
Galanos's second ineffective assistance claim also lacks merit.
Galanos was informed at sentencing of his right to file an
appeal. Galanos does not claim that he asked his attorney to file
an appeal and that his attorney disregarded that request. Rather,
he states that "my lawyer never told me to appeal, or that I have the right to appeal, and his
exact words were `you only received 10 months extra.'" In support
of its position, the Government submitted an affidavit from
defense counsel, who avers that "[a]fter sentencing, I advised
defendant of his right to appeal the sentence within 10 days of
the judgment of conviction being entered . . . Defendant told me
he did not want to appeal the sentence."
Based on the record before me, I believe that Galanos's
attorney discussed the possibility of appeal with his client. I
place greater weight on Galanos's statements that "my lawyer
never told me to appeal" (emphasis added) and "you only
received 10 month's extra" than on his statement that his lawyer
never told him of the right to appeal. It appears from the former
two statements that lawyer and client discussed the outcome of
the sentencing hearing and the possibility of appeal, and that
Galanos is now upset that this attorney did not instruct him to
appeal an obligation his attorney did not bear. Additionally, I
find defense counsel's affidavit, in which he states that he
consulted with his client after sentencing and that his client
told him he did not wish to appeal, credible. Nothing about the
discussion suggests that defense counsel's advice was objectively
deficient and it is clear that counsel did not ignore his
client's direct request to appeal. Defense counsel's actions did
not violate Strickland.
For these reasons, Defendant's Motion to vacate ...