United States District Court, N.D. Illinois, Eastern Division
September 30, 2005.
HAGOP DEMIRJIAN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
The § 2255 petition in this case is as unavailing as the
defense at trial. The petition is denied without an evidentiary
hearing for the reasons below.
The petitioner was one of a number of people charged with a
large scale cocaine conspiracy in which the seized drugs weighed
several hundred pounds. The prosecution had obtained considerable
evidence of his guilt. Petitioner was storing the seized cocaine,
and his fingerprints were also found on some of the drug
packaging. Additionally, two people that worked for the
petitioner, as well as his own fiancé, testified against him. He
even confessed at length to the FBI after receiving his Miranda
warnings. At trial, petitioner testified that he had in fact
performed the drug crimes described in the indictment, but sought
to excuse himself on the grounds that he was coerced by threats
from another conspirator named Moreno. This defense may have
suffered from an inherent lack of jury appeal, because Moreno's
threats were apparently motivated by the petitioner's failure to
pay a large drug debt. In essence, the petitioner admitted his
significant involvement in the drug trade. His complaint here is not that the coercion defense
itself was a mistake,*fn1 but that his counsel did not do a
good enough job in offering evidence to support the coercion
Petitioner's complaint about the ineffectiveness of his defense
counsel stems from injuries petitioner sustained in April of
1996. At that time, four men wearing masks beat him badly and
locked him in the trunk of a car. Although he somehow escaped the
trunk, he then lapsed into a four-day coma at a hospital.
Petitioner objects to his attorney's failure to present
sufficient evidence about this beating. However, the attack
petitioner is talking about is already clear from the trial
record, and he offers no description of any evidence other than
that which already emerged at trial. Also, the 1996 beating is,
at best, a minuscule part of the coercion evidence that was
offered. The majority of the evidence was petitioner's own
testimony that Moreno had threatened his family and forced him to
deal in drugs over a long period of time.
The problem with this incident, which occurred more than a year
before the events charged in the indictment, is the complete
absence of evidence that Moreno played any role in it. Petitioner
is convinced that Moreno was behind the beating, but his
suspicion is inadmissible opinion evidence. No reasonable jury
could find that Moreno had perpetrated or commissioned the
beating. I allowed petitioner to testify about how badly he had
been beaten and also that, regardless of whoever might have done
it, the beating made him particularly vulnerable to Moreno's
later threats. Unless he was able to offer some actual evidence
that Moreno was responsible for the attack, the petitioner was
not entitled to discuss the incident further.*fn2 At this point
he still has not put forth any additional evidence for his
The respondent points out an undeveloped claim that evidence of
the beating might have affected petitioner's physical or mental
ability to stand trial. This claim is meritless. Judging both
from his demeanor during trial as well as his extensive
testimony, petitioner gave no indicia of a lack of competence. If
counsel for either side had asked for an evaluation of his
competency at any point during the trial, I would have found no
bona fide doubt of competence.
Next, petitioner claims that defense counsel should have made
an issue out of his understanding of English. Petitioner's first
language is not English. He learned the language after many years
in this country and spoke with a pronounced accent and imperfect
grammar. At trial, defense counsel decided that, despite any
slight imperfections, it was better for the petitioner to testify
in the language of the jury rather than through an interpreter.
If counsel had raised the question of petitioner's familiarity
with English before trial, I might have just automatically called
for an interpreter, as most judges do. However, by the time
petitioner testified, it was quite clear that he did not need an interpreter. I also fail to see what difference
an interpreter would have made. His testimony was not credible in
English and there is no reason to believe the jury would have
found him credible when speaking Armenian instead. In light of
the petitioner's actual performance on the witness stand and his
remarks at sentencing, he has not shown any prejudice from the
lack of an interpreter at trial.
Petitioner claims that his sentence is unconstitutional because
it is disproportionate when compared to the sentences of others
involved in the conspiracy. Neither counsel at trial nor counsel
on appeal can be faulted for making this argument. Various
opinions contain language that can be patched together to support
a disproportional sentencing claim, but the holdings of the
decided cases have yet to actually open a door to this argument.
See Harmelin v. Michigan, 501 U.S. 957 (1991); Ewing v.
California, 538 U.S. 11 (2003). The sentences in this case are
not disproportionate, because the law allows the courts to impose
lower sentences in return for cooperation. The defendant closest
in culpability received a sentence of about two-thirds of the
sentence given to petitioner. However, that defendant was less
culpable than the petitioner and also had a lower Criminal
History Category. If the defendant Catano had been brought into
this jurisdiction, tried, and received a lower sentence than
petitioner, then there might be some moral force to petitioner's
argument, but that did not occur. At the time I sentenced
petitioner, I thought that the Guideline was too high. I still
believe that it was, but the sentence that I would have given
(about 25 years) would still have been greater than that of any
other defendant I sentenced. There is neither deficient conduct
by counsel nor prejudice to petitioner.
The next to last claim is based on the unconstitutionality of
the Guidelines. This claim was not raised in petitioner's
original § 2255 petition and is untimely. I do not need to
consider it, but I will note briefly that it is without merit.
The appeal of this conviction finished in the fall of 2001.
Defense counsel cannot be faulted for failing to anticipate the
decisions voiding sentencing guidelines almost three years later. Perhaps an argument could be made that
after Blakely was decided in 2004, but before Booker was
decided in 2005, a reasonable trial or appellate lawyer should
have challenged the Guidelines, but the same argument does not
apply in 2001. Additionally, the petitioner is barred from
raising the issue now because Booker does not apply to cases
after the appeal becomes final. See United States v. Ceja, No.
04-C899, 2005 U.S. Dist. LEXIS 4506, at *20 (N.D. Ill. Feb. 7,
Finally, there is the claim that petitioner confessed after
indictment, when the rule in Massiah v. United States,
377 U.S. 201 (1964) applied. See Fellers v. United States, 540 U.S. 519
(2004). Massiah, in contrast to Miranda, applies to
non-custodial interrogations. This attack on the confession and
the inadequacy of counsel to raise the issue at trial is both
untimely and wrong. There was some doubt about this during the
1960s and 1970s, but it is now settled law that Miranda waivers
are also Massiah waivers. See Patterson v. Illinois,
487 U.S. 285, 298-300 (1988). The trial established that Miranda
warnings were given and the petitioner waived his rights. Defense
counsel would have been wrong to raise this issue.
The petition to vacate the sentence is denied.
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