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Pattalio v. United States

January 15, 2009

DAVID PATTALIO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Wayne R. Andersen District Judge

MEMORANDUM OPINION AND ORDER

This case is before the court on the petition of David Pattalio, as a prisoner in federal custody, for a writ of habeas corpus to correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the petition is denied.

BACKGROUND

On September 28, 2004, Petitioner David Pattalio ("Pattalio") and six other defendants were indicted by a federal grand jury on a number of drug related offenses. Pattalio was named in four of the counts in the indictment. The indictment described an international ecstacy (also known as MDMA) conspiracy that was run by Pattalio and had been operating for a number of years. On July 2, 2005, Pattalio, represented by his retained attorney Nishay K. Sanan, pled guilty to all four counts. Pattalio's plea was made "blind" without the benefit of a plea agreement. On November 7, 2005, Pattalio filed his objections to the Presentence Investigation Report ("PSI") and sentencing memorandum. Pattalio's objections stated that his role in the conspiracy was overstated, that he should not be held responsible for all of the ecstasy shipments, and that his criminal history was improperly calculated. On December 16, 2005 this court sentenced Pattalio to 108 months imprisonment. On December 20, 2005 Pattalio filed a notice of appeal. However, Pattalio filed a motion to dismiss the appeal on that same day, and signed the form acknowledging that he consented to the dismissal of the appeal and waived his rights to object or raise any issues on appeal. On February 27, 2006, the Court of Appeals granted Pattalio's motion to dismiss the appeal.

Pattalio filed the instant petition for habeas corpus on January 5, 2007. In his petition, Pattalio claims that he is entitled to relief due to the alleged ineffectiveness of his counsel. Specifically, Pattalio argues that his attorney: (1) failed to file a requested notice of appeal; (2) misadvised Pattalio about the consequences of filing an appeal; (3) failed to challenge the erroneous use of the incorrect guidelines at sentencing and on appeal; and (4) failed, at the sentencing proceeding and on appeal, to object to the fact that Pattalio's sentence was enhanced based on facts that were not included in the indictment, and to which Pattalio had not admitted. Based on these allegations, Pattalio requests that the court vacate, set aside or correct his sentence.

DISCUSSION

I. Standard of Review Under 28 U.S.C. § 2255

The federal habeas corpus statute, 28 U.S.C. § 2255, provides that: 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.

The court should grant a hearing on the issues raised in the petition unless the respondent demonstrates conclusively that the petitioner is not entitled to any form of relief. 28 U.S.C. § 2255. The court must grant a hearing if the habeas petition "alleges facts that, if proven, would entitle" the petitioner to relief. Stoia v. United States, 22 F.3d 766, 768 (7th Cir. 1994) (citing Pittman v. Warden, Pontiac Correctional Ctr., 960 F.2d 688, 691 (7th Cir. 1992)). The petitioner must make specific, detailed allegations in order to qualify for a hearing; conclusory statements are insufficient. See Daniels v. United States, 54 F.3d 290, 293-94 (7th Cir. 1995). Petitions filed by pro se petitioners will be held to a more liberal standard than those filed by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972). Even under this more liberal standard, however, no hearing is required if the record conclusively demonstrates that the petitioner is not entitled to any form of relief. Daniels, 54 F.3d at 293.

II. Petitioner's Claims of Ineffectiveness of Counsel

Pattalio claims that he is entitled to relief due to the alleged ineffectiveness of his counsel in violation of his Sixth Amendment rights. Ineffective assistance of counsel claims are examined under the two-pronged test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). This general test focuses on "the legal profession's maintenance of standards" rather than a critique of counsel's performance. Id. at 688. The petitioner must meet both prongs of the Strickland test or the claim fails. Id. at 687.

The first prong, the performance prong, examines whether counsel's defense meets the standard of "reasonably effective assistance." Id. To satisfy this prong, the petitioner must affirmatively demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. In making this determination, the court is to give a high level of deference to counsel because it is all too easy in hindsight, after the petitioner has lost his case, to find that counsel's lack of success fell below the level of representation required by counsel to provide. Id. at 689. The petitioner must provide clear evidence, in the form of specific acts or omissions, to overcome this presumption. Id. at 689-90. The court must view the facts that the petitioner presents from the perspective of counsel at the time of the conduct alleged to be inadequate. Id. at 689.

The second prong, the prejudice prong, examines whether counsel's act or omission had an adverse effect on the defense. Id. at 692. This prong protects against the situation where counsel may have acted unreasonably but the unreasonable act or omission did not prejudice the petitioner's defense. Id. at 691-92. To satisfy this prong, the petitioner must affirmatively demonstrate the prejudice that resulted, and must further demonstrate that there is a "reasonable probability" that his attorney's acts or omissions ...


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