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Ghilarducci v. United States

May 11, 2009

AUGUST C. GHILARDUCCI, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: David H. Coar United States District Judge

Judge David H. Coar

MEMORANDUM OPINION AND ORDER

Petitioner August C. Ghilarducci ("Petitioner") is currently serving a 190 month sentence for his 2004 convictions for racketeering, 18 U.S.C. § 1962, wire fraud, 18 U.S.C. § 1343, money laundering, 18 U.S.C. § 1957(a), making false statements on a loan application, 18 U.S.C. § 1014, and filing a false tax return, 26 U.S.C. § 7206. Pet. for Writ of Habeas Corpus ("Pet.") 1, No. 02 CR 1101 Dkt. ("Dkt.") #1. The convictions stemmed from a fraudulent investment scheme operated by Petitioner and his co-defendant, Ronald J. Richardson, involving the sale of worthless financial instruments to investors. Dkt. #1.

On December 3, 2002, Petitioner waived formal reading of the indictment and entered a plea of not guilty to all charges. Dkt. #6. On June 9, 2003, this Court appointed Gerald Collins to serve as counsel for petitioner. Petitioner was subsequently charged in three superseding indictments. Each time, Petitioner waived formal reading of the indictment and entered a plea of not guilty to all charges. Dkt. #32, 35, 44, 53, 112, 117. A jury convicted Petitioner of all but two counts of the third superseding indictment on December 15, 2004. After his conviction, Petitioner filed a notice of appeal with the Seventh Circuit. Petitioner's appellate attorney, Danial La Fave, filed a motion to withdraw because he could not discern a non-frivolous basis for appeal; the motion was granted. United States v. Ghilarducci, No. 05-2836 (7th Cir. March 14, 2007). Petitioner's appeal was dismissed, and the United State Supreme Court denied Petitioner's petition for writ of certiorari.

In September 2006, Petitioner filed this pro se motion pursuant to 28 U.S.C. § 2255. Petitioner asserts several claims of ineffective assistance of counsel, loosely grouped into three categories, and contends that Collins had (1) failed to review the government's discovery material or interview witnesses prior to trial, (2) failed to engage in plea negotiations with the government, and (3) failed to explain to Petitioner the charges and what the government needed to prove in order to secure a conviction, the unlikelihood of his success at trial and the advantages of pleading guilty, and the Sentencing Guidelines. Pet. 4-7, Mem. 2-5. Petitioner concludes that he was prejudiced by Collins' deficient performance, and that but for Collins' errors, Petitioner would have entered a plea of guilty before the third superseding indictment and pled to a lower sentence than the 190 month term he ultimately received. Pet. 4, 32, 44-45. Petitioner seeks to vacate his conviction and to be resentenced to a reduced term. Petitioner also seeks an evidentiary hearing on his ineffective assistance of counsel claims, and the appointment of representation. Pet. 47-48.

STANDARD

To prevail on a claim of ineffective assistance of counsel, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness" and "any deficiencies in counsel's performance [were] prejudicial to the defense . . . . " Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984). With regard to the first prong, "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. Courts reviewing claims of ineffective assistance of counsel "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (citations omitted). "Judges must not examine a lawyer's error (of omission or commission) in isolation . . . . It is essential to evaluate the entire course of the defense, because the question is not whether the lawyer's work was error-free, or the best possible approach, or even an average one, but whether the defendant had the 'counsel' of which the Sixth Amendment speaks." Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009) (citing Strickland at 690-96).

Prejudice requires a showing that is a reasonable probability that, but for his lawyer's mistakes, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. A reasonable probability means "a probability sufficient to undermine confidence in the outcome." Id.; see also United States v. Wilson, 237 F.3d 827, 832 (7th Cir.2001) (noting that a "reasonable probability" is not more than 50%). "[W]here an ineffective assistance claim may be resolved based on lack of sufficient prejudice, 'that course should be followed.'" United States v. Birk, 453 F.3d 893, 898-899 (7th Cir.2006) (quoting Strickland, 466 U.S. at 697).

ANALYSIS

1)Collins' Pretrial Preparation

Petitioner presents many conclusory statements but little evidence to back his assertion that that Collins failed to properly review discovery materials and interview certain witnesses. Petitioner asserts first that Collins failed to review more than 200,000 pages of documents produced by the government around February 2004. The sole basis for Petitioner's assertion is a letter dated February 6, 2004, from Collins to Harry Drandell, who served as Petitioner's attorney in a contemporaneous criminal case in California for charges stemming from the same underlying fraud. In that letter, Collins wrote Drandell about extending the trial date for the California trial, and noted:

[W]e still have the discovery issues to resolve. I have enclosed a copy of a letter that have personally received from [the government] along with twelve pages of indexes. I have not personally reviewed the materials in the room in the U.S. Attorney's Office; however, Ghilarducci has, as stated in the letter.

Mem. Ex. A. Petitioner understands this letter to mean that Collins never reviewed these documents. Petitioner argues that Collins' alleged failure to review these discovery documents prevented Collins from understanding the strength of the government's evidence against Petitioner, and therefore preventing Collins from encouraging Petitioner to plead guilty.

Collins' affidavit, attached to the government's response to Petitioner's habeas petition, does not explain his review of the discovery materials. However, in a second letter to Drandell dated February 11, 2004, Collins indicated that he had a least some familiarity ...


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