United States District Court, S.D. Illinois
October 17, 2005.
MARIO GRACIA, Petitioner/Defendant,
UNITED STATES OF AMERICA, Respondent/Plaintiff.
The opinion of the court was delivered by: G. MURPHY, Chief District Judge
MEMORANDUM AND ORDER
On July 9, 2002, Mario Gracia filed a motion pursuant to
28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a
person in federal custody (Doc. 1). This Court dismissed the
motion, and Gracia appealed. The United States Court of Appeals
for the Seventh Circuit reversed and remanded with instructions
for this Court to consider Gracia's ineffective assistance of
counsel claim on its merits (see Doc. 10). The Court directed
the Government to respond to the motion and allowed Gracia to
assert an additional argument that his sentence violated the
Sixth Amendment (see Doc. 16).
After numerous extensions of time, the Government filed its
response to the motion on November 12, 2004 (Doc. 26), and Gracia
filed a reply (Doc. 28).
Pursuant to Rule 8(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts,
If [a 2255] motion has not been dismissed at a
previous stage in the proceeding, the judge, after
the answer is filed and any transcripts or records of
prior court actions in the matter are in his
possession, shall, upon a review of those proceedings
and of the expanded record, if any, determine whether
an evidentiary hearing is required. If it appears
that an evidentiary hearing is not required, the
judge shall make such disposition of the motion as justice
The Seventh Circuit has noted that "[n]o hearing is required in
a section 2255 proceeding if the motion raises no cognizable
claim, if the allegations in the motion are unreasonably vague,
conclusory, or incredible, or if the factual matters raised by
the motion may be resolved on the record before the district
court." Oliver v. United States, 961 F.2d 1339
, 1343 n. 5
(7th Cir. 1992), citing United States v. Frye, 738 F.2d 196
(7th Cir. 1984). In this case, the Court finds that the
factual matters raised by the motion may be resolved on the
record, and the motion raises no cognizable claim. Accordingly,
the Court will resolve the motion without a hearing.
Mario Gracia was convicted by a jury of one count of conspiracy
to commit bank fraud in violation of 18 U.S.C. §§ 371 and 1344,
one count of bank fraud in violation of 18 U.S.C. § 1344, one
count of wire fraud in violation of 18 U.S.C. § 1343, and one
count of conspiracy to commit money laundering in violation of
18 U.S.C. § 1956(h). The undersigned presided over the jury trial
from April 18-21, 2000. On two occasions before the jury's
verdict was returned, Gracia attempted to enter a plea of guilty;
the Court refused to accept the plea when Gracia would not accept
the Government's recitation of the facts underlying the plea.
Gracia did not take the stand in his own defense.
On July 24, 2000, Gracia was sentenced to concurrent terms of
60 months on the count of conspiracy to commit bank fraud and 78
months on the other counts, followed by three years of supervised
release on the bank fraud and wire fraud counts and five years of
supervised release on the two conspiracy counts. He was ordered
to pay $142,500 in restitution and a $200 special assessment. Gracia appealed to the United States Court of Appeals for the
Seventh Circuit, and his conviction and sentence were affirmed on
November 19, 2001. See United States v. Gracia, 272 F.3d 866
(7th Cir. 2001). The facts underlying the case against Gracia
and his twenty one co-defendants is laid out in the Seventh
Title 28, United States Code, Section 2255 provides that "[a]
prisoner in custody under sentence of the 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." Thus,
collateral relief is available to Gracia only if any legal error
in his conviction is "jurisdictional, constitutional, or is a
fundamental defect which inherently results in a complete
miscarriage of justice." Oliver, 961 F.2d at 1341, quoting
Haase v. United States, 800 F.2d 123, 126 (7th Cir. 1986).
In other words, a Section 2255 motion does not serve as a
substitute for a direct appeal.
The United States Supreme Court has held that a defendant can
raise a claim for ineffective assistance of counsel in a
collateral proceeding even though he could have, but did not,
raise the claim on direct appeal. See Massaro v. United States,
538 U.S. 500, 508-509 (2003). Gracia claims that he was denied
effective assistance of counsel at trial when his trial counsel
neglected to object to the admission of incomplete telephone
recordings where complete recordings would have revealed
exculpatory evidence of his innocence.
Gracia also argues that his trial counsel, Douglas Forsyth,
failed to work with him to prepare for trial. He alleges that attorney Forsyth never visited him in
Arizona before trial and never met with him after the close of
court while the trial was in progress. Gracia also claims that
attorney Forsyth's decision to not call him to the stand was not
fully informed because of the lack of communication between them.
To establish a claim of ineffective assistance of counsel,
Gracia must show that his counsel's "performance was deficient,
which means that counsel's errors were so serious that they
deprived [him] of `counsel' within the meaning of the Sixth
Amendment, and that the deficient performance prejudiced him,
which means that counsel's errors were so serious that they
deprived him of a fair trial with reliable results." Mahafey v.
Schomig, 294 F.3d 907, 918 (7th Cir. 2002), citing
Strickland, 466 U.S. at 687. The Seventh Circuit has noted that
"[r]egardless of when it is made, because counsel is presumed
effective, a party bears a heavy burden in making out a winning
claim based on ineffective assistance of counsel." United States
v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995).
The Government correctly points out the standard upon which the
Court evaluates an ineffective assistance claim based on a
failure to object to the admissibility of evidence. "If evidence
admitted without objection was admissible, then the complained of
action fails both prongs of the Strickland test: failing to
object to admissible evidence cannot be a professionally
`unreasonable' action, nor can it prejudice the defendant against
whom the evidence was admitted." Hough v. Anderson,
272 F.3d 878, 898 (7th Cir. 2002). In other words, if the objection
would have been overruled under the prevailing law, the claim
The underlying evidence at issue here is the tape-recorded
phone calls placed by prisoners from within FCI-Greenville to
persons on the outside. The foundation for the tapes was
established by FBI Special Agent Kurt Schichtel. Counsel brought
out on cross-examination that the entire tapes were not transcribed and that the original tapes were
recycled and not preserved after a copy was made.
Gracia does not challenge the admissibility of any one phone
call. He argues that counsel was ineffective for failing to
exclude all of the tapes, but he offers no supporting evidence
for his claim that the tapes in their entirety contained
Federal Rule of Evidence 106 codifies the "rule of
completeness." It states,
When a writing or recorded statement or part thereof
is introduced by a party, an adverse party may
require the introduction at that time of any other
part or any other writing or recorded statement which
ought in fairness to be considered contemporaneously
FED. R. EVID. 106.
A proper foundation having been laid, the tapes were
admissible. At most, Gracia could have had additional portions of
the tapes played to the jury, had he been able to show that
something should have been considered contemporaneously with
them. Absent such a showing, this Court would never have allowed
Gracia to play all of the tapes in their entirety, even if they
existed. And, again, counsel elicited on cross-examination the
fact that the tapes were not available. The Court cannot overturn
Gracia's conviction on his naked assertion that the tapes in
their entirety would have exculpated him.
Gracia has not only failed to show that attorney Forsyth's
representation fell below an objective standard of
reasonableness, he has also failed to establish prejudice. This
Court presided over the jury trial for four days and agrees with
the Government that there was "abundant" evidence to allow a jury
to conclude that Gracia was a willing participant in the criminal
scheme, even if all the tapes had been excluded.
The Court has reviewed the affidavit submitted by attorney
Forsyth. Again, the Court recalls the trial well. Gracia was a difficult client, and attorney
Forsyth tried the case well. Attorney Forsyth attests that he
spent considerable time with his client and was fully prepared to
try the case. The Court finds the affidavit credible, and the
Court has no reason to believe that attorney Forsyth was
unprepared to try the case other than Gracia's naked assertion
that he was.
Finally, Gracia argues that his sentence violates the recent
Supreme Court cases of Blakely v. Washington, 542 U.S. 296
(2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000). After
these cases, and after the instant motion was fully briefed, the
Supreme Court held that defendants have a right to a jury trial
on any disputed factual subject that increases the maximum
punishment. See United States v. Booker, 125 S. Ct. 738 (Jan.
12, 2005). The problem for Gracia, however, is that the Seventh
Circuit recently ruled that Booker does not apply
retroactively. See McReynolds v. United States, 397 F.3d 479
(7th Cir. 2005). Gracia's conviction became final years
before Booker was decided. Thus, it provides him no relief.
For the foregoing reasons, the motion for relief pursuant to
28 U.S.C. § 2255 is DENIED, and this action is DISMISSED with
prejudice. The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
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