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Bustamante v. United States

May 21, 2009


The opinion of the court was delivered by: James F. Holderman, Chief Judge


For the reasons set forth below, petitioner Miguel Bustamante's "Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" under 28 U.S.C. § 2255 [1] is denied.


On November 20, 2002, a criminal indictment was returned against Miguel Bustamante, charging Bustamante with conspiracy to possess with intent to distribute and to distribute cocaine, in violation of 21 U.S.C. §§ 841(a), 846 ("Count One"); possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) ("Count Thirteen"); being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) ("Count Fourteen"); and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) ("Count Fifteen"). United States v. Corral, 02 CR 719 (N.D. Ill.). On April 29, 2003, Bustamante filed a motion to suppress the drugs and firearm seized from his vehicle, which evidence formed the basis for Counts Thirteen, Fourteen, and Fifteen. This court denied the motion to suppress and the subsequent motion to reconsider its ruling. On May 15, 2003, Bustamante entered a conditional blind guilty plea to Counts Thirteen, Fourteen, and Fifteen (and the government dismissed Count One), reserving the right to appeal the court's denial of the motion to suppress. On September 8, 2003, the court sentenced Bustamante to a term of 123 months of imprisonment, with four years of supervised release, a $1000 fine, and a $300 special assessment. On appeal, Bustamante argued that the court should have granted the motion to suppress the evidence because FBI agents obtained his consent to search the vehicle after he invoked his right to counsel. The Seventh Circuit rejected Bustamante's argument and affirmed the court's denial of the motion to suppress. United States v. Bustamante, 493 F.3d 879, 893 (7th Cir. 2007). On June 18, 2008, Bustamante timely filed a section 2255 motion, within one year from the expiration of the time period for petitioning the Supreme Court of the United States for certiorari.


Under section 2255, "[a] prisoner in custody under sentence of a [federal] court . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a) (2006). If the court finds that the sentence was imposed in violation of the Constitution or laws of the United States, the court shall vacate and set aside the judgment, and either discharge the petitioner, resentence the petitioner, grant a new trial, or correct the sentence. 28 U.S.C. § 2255(b).

In this case, Bustamante argues that he was deprived of his constitutional right to effective assistance of counsel. Although this argument was not raised on direct appeal, "an ineffective assistance of counsel claim may be raised for the first time in a § 2255 proceeding." Torzala v. United States, 545 F.3d 517, 524 (7th Cir. 2008) (citing Massaro v. United States, 538 U.S. 500, 509 (2003)).

To prevail on a claim of ineffective assistance of counsel, a defendant must show that: (1) the attorney's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the results of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 695 (1984). "Strickland's 'reasonable probability' language does not require a petitioner to meet a preponderance of the evidence threshold, but it does require a petitioner to show 'a probability sufficient to undermine confidence in the outcome.'" Porter v. Gramley, 122 F.3d 351, 353 (7th Cir. 1997) (quoting Strickland, 466 U.S. at 694)). If a defendant is unable to satisfy either prong of the Strickland test, then the court does not need to address the matter further. Strickland, 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.").

In analyzing the issues presented by Bustamante, it must be borne in mind that the Seventh Circuit has long held that the "[f]ailure to raise a losing argument, whether at trial or on appeal, does not constitute ineffective assistance of counsel." Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996); see also Rodriguez v. United States, 286 F.3d 972, 985 (7th Cir. 2002).


In support of his ineffective assistance of counsel claim, Bustamante presents nine issues regarding his trial and two issues regarding his appeal. The court will address the trial and appellate issues separately in the analysis that follows.

1. Trial Issues

A. Failure to Review Discovery

Bustamante first alleges that his trial counsel was constitutionally ineffective for failing to review discovery. Specifically, Bustamante claims that counsel did not review Bustamante's case file and government documents related to the indictment, and that counsel did not investigate in order to find evidence in Bustamante's favor. When a party alleges ineffective assistance of counsel through a failure to investigate, the party has the burden of making a "'comprehensive showing as to what the investigation would have produced.'" Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003) (quoting United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir. 1990)). Similarly, Bustamante must identify specific evidence overlooked by counsel in failing to review Bustamante's case file. Unsupported assertions that counsel did not review discovery or investigate are ...

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