United States District Court, N.D. Illinois, Eastern Division
August 2, 2005.
ANSELMO CARRILLO, Movant,
UNITED STATES of AMERICA, Respondent.
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
Before the court is Anselmo Carrillo's Motion to vacate, set
aside, or correct his sentence brought pursuant to
28 U.S.C. § 2255. Movant, Anselmo Carrillo ("Carrillo"), challenges his
sentence for possession with intent to distribute cocaine, and
conspiracy with intent to distribute cocaine. For the reasons
stated below, the motion is denied.
In August 1998, Ross Braatsch ("Braatsch"), the owner of an
electronics store, agreed to provide information to Drug
Enforcement Administration ("DEA") agents regarding certain
customers whom Braatsch suspected were involved in drug
trafficking. Braatsch's store sold and installed hidden
compartments in cars, called "traps," which could only be opened
by remote control. These traps are commonly used for legitimate
purposes, such as the storage of car stereo components. However, Braatsch informed DEA agents that one of his
customers, Tavo Perez ("Perez") had these traps installed in
twelve different cars, and Braatsch suspected that Perez was
using the traps to transport drugs. Braatsch identified Carrillo
as one of the individuals who came to pick up Perez's cars after
the traps had been installed. Braatsch also indicated to the DEA
agents that he had shown Carrillo how to operate the traps.
In December of 1998, Perez brought two of his cars, including a
red Mercury Sable, into Braatsch's store for repairs. While the
Sable was being repaired, a DEA agent confirmed that it contained
a trap and recorded the license plate number. The DEA then began
conducting surveillance of Perez's residence. On January 27,
1999, the DEA observed the red Mercury Sable at Number 20, West
327 Belmont Place in Addison, Illinois and set up surveillance on
that location as well. At 3:45 P.M. on that date, Carrillo and
two other men arrived at the Belmont Place location. Carrillo
then got into the Sable and drove to 109 Clarendon Street in
Addison. Initially, the Sable was parked on the driveway of the
residence, but the DEA agents later noticed it was no longer on
the driveway, and the garage door had been closed.
Approximately two hours after the cars arrived at the
residence, Carrillo was seen driving away in the red Mercury
Sable. Two other men then left in a red Toyota pick-up truck. The
DEA agents attempted to follow the Toyota but it was driven
evasively, and the agents lost the car. Approximately twenty
minutes later they found the Toyota in a movie theater parking
lot, and there were now three men inside the cab of the truck.
The red Mercury Sable was also parked in the same lot. The Toyota
left the parking lot and was again driven in an evasive manner.
Upon returning to the movie theater parking lot, the truck was
stopped by the DEA agents. At the time the Toyota was stopped, Carrillo was in the
passenger seat. On his person, the agents found a garage door
opener for 109 Clarendon, a house key to the basement at 109
Clarendon, and a computer chip that operated the trap inside the
red Mercury Sable. Carrillo and the other two men were arrested
and taken to the Addison Police Department. Carrillo identified
himself using the alias of "Joshua Rivera," and had a driver's
license in that name. During questioning by investigators,
Carrillo gave multiple stories regarding his activities that day.
Upon receiving consent to search the Sable, the DEA agents
found 48 one-kilogram bricks of cocaine inside the car's trap.
The agents also received consent to search 109 Clarendon and 20
West 327 Belmont. The agents found a trap in the basement floor
of 20 West 327 Belmont that contained two kilograms of cocaine, a
scale, a semi-automatic handgun, ammunition, and drug ledgers.
Carrillo and another Defendant, Francisco Soto, were indicted for
possession with intent to distribute cocaine in violation of
21 U.S.C. § 841(a)(1), and conspiracy with intent to distribute
cocaine in violation of 21 U.S.C. § 846.
B. Procedural History
On December 10, 1999, a jury found Carrillo guilty of
possession with intent to distribute cocaine, and conspiracy with
intent to distribute cocaine. Carrillo called no witnesses on his
behalf. On June 21, 2000, the court sentenced Carrillo to 151
months imprisonment and five years supervised release. On appeal,
the Seventh Circuit affirmed both the conviction and sentence.
Carrillo, 269 F.3d at 771.
On November 6, 2002, Carrillo filed his Motion under
28 U.S.C. § 2255. The court then ordered the government to file a Response
to Carrillo's Motion. On October 31, 2003, the government filed
its Response. Finally, Carrillo filed his Reply to the
Government's Response on December 4, 2003. Carrillo's Motion is
fully briefed and before the court. II. DISCUSSION
A. Standard of Decision
Section 2255 allows a person convicted of a federal crime to
vacate, set aside, or correct his or her 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). The 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 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. They 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).
Thus, a § 2255 motion cannot raise: (1) issues that were raised
on direct appeal, unless there is a showing of changed
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
There are two exceptions to the procedural default rule for
Constitutional issues not raised on appeal: (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 Carrillo's Motion.
B. Carrillo's Claims for Relief under § 2255
Carrillo raises a total of three claims which he asserts
entitle him to relief under § 2255. First, he asserts that this
court had an obligation to inform him of his right to an
interpreter when he was communicating with his counsel outside of
court. Carrillo next asserts that a stipulation he entered into
was improperly used by the government during its closing remarks.
Lastly, Carrillo asserts that his counsel at trial was
1. Carrillo's Claim that the Court had an Obligation to Inform
Him of his Right to have an Interpreter with Counsel Outside of
Carrillo asserts that he never received advice as to his right
to have an interpreter appointed to assist in his communications
with counsel outside of the courtroom. Mem. and Decl. on Mot. to
Vacate Sentence, at 2-3; Pet.'s Reply, at 3. Carrillo, however,
is procedurally barred from bringing this claim in his § 2255
motion, as he neglected to raise this issue on direct appeal to
the Seventh Circuit. See Carrillo, 269 F.3d at 766. Carrillo
makes no showing of cause or prejudice as to why he did not raise this issue on direct
appeal. See Menzer v. United States, 200 F.3d 1000, 1005 (7th
Cir. 1999) (quoting Barker v. United States, 7 F.3d 629, 632
(7th Cir. 1993)).
Moreover, this assertion fails on the merits. Carrillo's claim
that he could not communicate adequately with his
English-speaking attorney is directly refuted by both his
attorney and the record. George N. Leighton, Carrillo's attorney
at trial, has indicated that he was able to communicate
effectively with Carrillo. See Leighton Aff., ¶ 3. In addition,
Braatsch testified at trial that Carrillo was able to communicate
in English. Trial Tr., at 499. Carrillo's assertion that the
court had an obligation to inform him of his right to have an
interpreter outside the courtroom therefore fails.
2. Carrillo's Claim that the Government Improperly Used a
Stipulation during Closing Arguments
Carrillo next argues that the government, during closing
arguments, improperly transformed a factual stipulation regarding
the quantity and location of the seized cocaine into a
confession. Mem. and Decl. on Mot. to Vacate Sentence, at 3-4;
Pet.'s Reply, at 3. Carrillo, however, is procedurally barred
from bringing this claim under § 2255, as he also neglected to
raise this claim on direct appeal. See Carrillo,
269 F.3d at 766. A § 2255 motion is not intended to be a "substitute for a
direct appeal." McCleese, 75 F.3d at 1177. Carrillo again makes
no showing of cause or prejudice as to why he did not raise the
issue on direct appeal. See Menzer, 200 F.3d at 1005.
Carrillo's claim that the government improperly transformed
this stipulation into a confession fails on the merits as well.
The stipulation that Carrillo and the government entered into stated: "Government Exhibit Red Trap Car Cocaine is
approximately 47.96 kilograms of cocaine. The cocaine is 81% pure
cocaine hydrochloride." Trial Tr., at 599. In its closing
argument, the government made the following statement: "First of
all, there is no dispute among the parties that we are dealing
with 48 kilograms of cocaine and that it was that cocaine that
was seized from the red Mercury Sable on January 27th. No
dispute. That was stipulated to." Id. at 641. Contrary to
Carrillo's assertion, this statement does not convey the message
that he confessed to the charges before him. This statement
simply reiterated the stipulated-to fact that approximately 48
kilograms of cocaine were seized from a red car. This statement
also admittedly added the fact that this seizure occurred on
January 27th, but the defense did not dispute the date of the
seizure. See id. at 671-72. At any rate, there is no merit to
the claim that the use of this stipulation by the government was
improper or constituted any sort of a confession by Carrillo.
3. Carrillo's Claim of Ineffective Assistance of Counsel
In order to establish that his counsel was ineffective,
Carrillo 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." Id. at 521 (quoting
Strickland, 466 U.S. at 688) (internal quotations omitted).
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, 663 (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 or not the claim was raised on appeal. Massaro v. United
States, 538 U.S. 500, 504 (2003). When a court reviews an ineffective assistance of counsel
claim, the court's review is "highly deferential" to the
attorney, "with the underlying assumption that `counsel's conduct
falls within the wide range of reasonable professional
assistance.'" United States v. Holman, 314 F.3d 837, 840 (7th
Cir. 2002) (quoting Strickland, 466 U.S. at 689); see also
Coleman v. United States, 318 F.3d 754, 758 (7th Cir. 2003).
There is therefore a strong presumption that Carrillo's attorney
performed reasonably. See Strickland, 466 U.S. at 690; see
also Cooper v. United States, 378 F.3d 638, 641 (7th Cir.
2004). To succeed in his claim, Carrillo must show "`errors so
serious that counsel was not functioning as the `counsel'
guaranteed [to him] by the Sixth Amendment.'" See Holman,
314 F.3d at 839 (quoting Strickland, 466 U.S. at 687).
Carrillo advances four arguments that his counsel's performance
was deficient. First, Carrillo asserts that his counsel erred in
not securing interpreter services for their communications
outside of the courtroom. Mem. and Decl. on Mot. to Vacate
Sentence, at 4-5. Secondly, Carrillo asserts that counsel failed
to give him sufficient information regarding the nature of
factual stipulations, specifically that they could be used as
confessions, and that Carrillo therefore entered into the
stipulation unknowingly and unintelligently. Id. at 5. Carrillo
also argues that his counsel did not inform him of the difference
between a guilty plea and a jury trial, and also failed to
mention the possibility that he could enter a conditional plea of
guilty. Id. Lastly, Carrillo asserts that counsel did not make
a reasonable argument on his behalf during sentencing, and also
unreasonably neglected to seek a downward departure based on
Carrillo's status as a deportable alien. Id. at 6. a. Counsel failed to arrange for an interpreter outside of the
Carrillo asserts that his counsel was ineffective because he
did not arrange for an interpreter to be present during
communications outside of the courtroom. According to Carrillo,
this impeded his understanding of issues pertinent to trial
because he speaks no English. See id. at 4-5; Def.'s Decl. ¶
Counsel's performance may be deemed ineffective if he or she
was unable to communicate with his or her client due to a
language barrier. Gallo-Vasquez v. United States, 402 F.3d 793,
799 (7th Cir. 2005). At the outset, the court notes that
Carrillo's failure to raise this issue at an earlier time speaks
against its credibility. See id. at 799 n. 1 ("petitioner's
failure to complain earlier about a problem that would have been
obvious to him an almost complete inability to communicate with
his lawyer calls into question whether such a problem really
existed"). Moreover, defense counsel submitted an affidavit
explaining that he had no difficulty communicating with Carrillo
in English, and based upon his experience did not feel that an
interpreter was needed. Leighton Aff., ¶ 3. There is also
evidence from the record that Carrillo had communicated with
Braatsch in English. Trial Tr., at 499. In light of these
circumstances, defense counsel's decision not to retain an
interpreter for communications with Carrillo outside the
courtroom was not objectively unreasonable. See Wiggins,
539 U.S. at 521 (quoting Strickland, 466 U.S. at 688).
Carrillo also fails to establish that this alleged failure
prejudiced him. As stated above, the record shows that there were
no problems in communication between Carrillo and his attorney.
Carrillo does not explain how the ultimate result of his trial
and sentencing would have been changed by the presence of an
interpreter in communications with counsel outside of the court proceedings. Carrillo's ineffective assistance of counsel
claim based on the failure to have an interpreter present during
communications outside of the court therefore fails.
b. Counsel failed to give Carrillo sufficient information
Carrillo next asserts that counsel did not provide him with
sufficient information regarding the nature of factual
stipulations, thus causing Carrillo to enter into a stipulation
unknowingly and involuntarily. Mem. and Decl. on Mot. to Vacate
Sentence, at 5. Carrillo also challenges counsel's failure to
object to the government's alleged use of the stipulation as a
Carrillo is operating under the mistaken impression that the
simple factual stipulation he entered into somehow operated as,
or was improperly transformed into, a confession of his guilt as
to these offenses. As the court explained earlier, this was a
simple stipulation to certain facts regarding the amount of
cocaine seized, and the color of the automobile from which the
cocaine was seized. See infra II.B.2. This factual
stipulation in and of itself cannot be understood as a unknowing
and involuntary confession.
As to Carrillo's assertion that counsel's failure to object to
the Government's use of this stipulation constituted the
ineffective assistance of counsel, Carrillo must show that
counsel's actions were objectively unreasonable, and that
counsel's deficient performance prejudiced Carrillo's defense.
See Wiggins, 539 U.S. at 521 (quoting Strickland,
466 U.S. at 687). When counsel enters into a stipulation, the decision is
considered a tactical one. United States v. Kennedy,
797 F.2d 540, 543 (7th Cir. 1986). The court is reluctant to engage in
second guessing, or "Monday morning quarterbacking," regarding
counsel's strategic decisions in this case. See Harris v. Reed,
894 F.2d 871, 877 (7th Cir. 1990). Moreover, a competent defense
attorney may reasonably decide not to draw excessive attention to unflattering
facts by declining to object to their presentation during closing
arguments. See United States v. Allen, 390 F.3d 944, 951 (7th
Cir. 2004). Counsel's performance regarding this stipulation was
thus not objectively unreasonable. See Wiggins,
539 U.S. at 521 (quoting Strickland, 466 U.S. at 688).
Carrillo also fails to assert how the trial or sentencing would
be different if his counsel had objected to the stipulation's use
during the government's closing arguments. Given the substantial
evidence presented against Carrillo at trial, such an objection
would not have made any difference in the outcome of this trial.
See Carrillo, 269 F.3d at 769-70 (explaining that in addition
to the stipulation regarding the cocaine, the government
presented evidence showing, inter alia, that Carrillo had
picked up cars from Braatsch after traps had been installed, that
Braatsch had shown Carrillo how to operate the traps, and that
Carrillo had keys to the red Sable). Counsel's performance
regarding this stipulation was therefore not prejudicial to
Carrillo. See Wiggins, 539 U.S. at 521 (quoting Strickland,
466 U.S. at 688). Carrillo's ineffective assistance of counsel
claim based on counsel's alleged failure to explain the nature of
a stipulation therefore fails.
c. Counsel failed to adequately inform Carrillo of the
difference between a guilty plea, a conditional guilty plea, and
a jury trial
Carrillo's next claim is that counsel did not give him
sufficient information pertaining to the difference between a
guilty plea and a jury trial. Mem. and Decl. on Mot. to Vacate
Sentence, at 5. According to Carrillo, this failure caused him to
reject an offer of a plea bargain from the government, which
ultimately resulted Carrillo's receiving a lengthier sentence of
imprisonment at trial. Id. The record in this case, however,
does not reveal the existence of any alleged plea bargain between the government and Carrillo. At any
rate, the difference between a guilty plea and a jury trial ought
to be self-evident to most individuals.
Carrillo also asserts that counsel's failure to inform him of
the option of making a conditional plea of guilty falls below the
level of accepted professional norms for defense counsel. Id.
Carrillo, however, fails to explain how a conditional plea of
guilty would have changed his ultimate conviction or sentence. A
conditional plea of guilty allows a defendant to reserve the
right "to have an appellate court review an adverse determination
of a specified pretrial motion." FED. R. CRIM. P. 11(a)(2). If on
appeal the defendant prevails, he is then entitled to withdraw
the plea. Id. Here, Carrillo appealed the motions that were
denied by this court directly to the Seventh Circuit. Carrillo,
269 F.3d at 766. However, the appellate court affirmed the denial
of those motions. Id. at 767. Carrillo therefore fails to
establish how the trial or sentencing would have been different
if not for counsel's alleged error. Carrillo's assertion that
counsel was ineffective for failing to fully explain the nature
of guilty pleas and trials therefore fails.
d. Counsel made no reasonable argument on Carrillo's behalf at
sentencing nor asked for a downward departure
Lastly, Carrillo asserts that counsel made no reasonable
argument on his behalf during sentencing. Mem. and Decl. on Mot.
to Vacate Sentence, at 6. He specifically contends that it was
unreasonable for defense counsel to not request a downward
departure based on Carrillo's status as a deportable alien. Id.
The contention that counsel did not make a reasonable argument
during sentencing is clearly belied by the record. The record
demonstrates that defense counsel did present mitigating factors during the sentencing hearing. For example, defense
counsel explained to the court that Carrillo had a child and a
fiancée. Sentencing Hr'g Tr., at 23-24. This argument was at
least partially successful, because the court gave Carrillo the
minimum sentence allowable under the Sentencing Guidelines, 151
months imprisonment. Id. at 25-26.
Carrillo also asserts that his counsel's performance was
deficient because counsel did not request a downward departure
based on Carrillo's status as a deportable alien. The Seventh
Circuit has indicated that in some cases, it may be a reasonable
tactical decision of counsel's to refrain from requesting a
downward departure. See United States v. Bradford,
78 F.3d 1216, 1227 (7th Cir. 1996). Again, the court is reluctant to
engage in second guessing, or "Monday morning quarterbacking,"
regarding counsel's strategic decisions in this case. See
Harris, 894 F.2d at 877. Moreover, it was not objectively
unreasonable for counsel not to request this departure, as the
court had rejected a co-defendant's argument for a similar
departure earlier that same day. See Sentencing Hr'g Tr., at
In addition, no prejudice resulted from counsel's failure to
request a downward departure. In order to succeed in a request
for a downward departure based on a defendant's deportable alien
status, circumstances must show that the alien's imprisonment
would result in severe or unusual conditions of confinement.
See United States v. Egwaoje, 335 F.3d 579, 588 (7th Cir.
2003); see also United States v. Meza-Urtado, 351 F.3d 301,
305 (7th Cir. 2003) (quoting United States v. Farouil,
124 F.3d 838, 847 (7th Cir. 1997)). Carrillo fails to explain why his
confinement would be more difficult to endure than that of a
United States's citizen. Moreover, the court asked Carrillo
whether he wished to speak on his own behalf during his
sentencing hearing. Carrillo responded, "No. I have nothing to
say." Sentencing Hr'g Tr., at 24. Carrillo's assertion that
counsel's performance at the sentencing hearing was ineffective
therefore fails. 4. Carrillo's Request for an Evidentiary Hearing
Carrillo requests an evidentiary hearing in order to examine
the actions of the court and his counsel. Mem. and Decl. on Mot.
to Vacate Sentence, at 6. Evidentiary hearings are not required
if the § 2255 "motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief."
28 U.S.C. § 2255 ¶ 2; see also Bruce v. United States,
256 F.3d 592, 597 (7th Cir. 2001); Daniels v. United States,
54 F.3d 290, 293 (7th Cir. 1995). Two of Carrillo's claims in his §
2255 motion are procedurally defaulted, and are meritless. His
assertions of ineffective assistance of counsel fall well short
of the Strickland standard. The record thus conclusively shows
that Carrillo is not entitled to relief under § 2255. Carrillo's
request for an evidentiary hearing is therefore denied.
For the foregoing reasons, Anselmo Carrillo's Motion to vacate,
set aside, or correct his sentence brought pursuant to
28 U.S.C. § 2255 is denied.
IT IS SO ORDERED.