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Avitia v. United States

November 10, 2010

JORGE AVITIA, PETITIONER
v.
UNITED STATES OF AMERICA, RESPONDENT



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Petitioner Jorge Avitia ("Avitia") has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Avitia challenges the 72-month sentence he received after pleading guilty to four criminal counts in connection with drug trafficking. In his petition, Avitia alleges two principal grounds for reduction of his sentence to within the range of 46--57 months: (1) constitutionally ineffective assistance of counsel for failing to file a notice of appeal; and (2) constitutionally ineffective assistance of counsel at his plea and sentencing hearings. Avitia also seeks an evidentiary hearing. For the following reasons, Avitia's petition is denied.

BACKGROUND

On April 13, 2006, Avitia was arrested in connection with alleged drug-trafficking activity. Eight days later, on April 21, he was released on $100,000 bond. On September 7, 2006, Avitia and two other co-defendants were indicted on sixteen drug-related counts. Avitia was named in Counts 1, 8, 10, 11, 12, 13, and 16, but he only pled guilty to Counts 1, 8, 11, and 16. Count One charged conspiracy to possess with the intent to distribute more than 500 grams of cocaine, and more than 100 grams of heroin in violation in 21 U.S.C. § 846 and 18 U.S.C. § 2. Counts Eight and Eleven charged possession with the intent to distribute a controlled substance, namely, more than 500 grams of mixtures containing cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count Sixteen charged knowing and intentional distribution of a controlled substance, namely, approximately 113.7 grams of mixtures containing cocaine, in violation of 21 U.S.C. § 841(a)(1). Initially, Avitia appeared before Magistrate Judge Maria Valdez on September 13, 2006 and entered a plea of not guilty.

After retaining counsel, Avitia entered a guilty plea before this court on April 3, 2008. Avitia's counsel objected to the sentencing-guideline calculations in the pre-sentence report ("PSR"), which recommended enhancing Avitia's sentence for his role in the offense*fn1 and for possession of a firearm in connection with the offense.*fn2 Because Avitia's counsel and the government could not agree on the terms of a suitable plea bargain, Avitia entered a blind plea and allowed the court to determine the sentence. Avitia faced a mandatory minimum sentence of five years, a minimum four-year term of supervised release, and a guidelines imprisonment range of 87 to 108 months.*fn3 At the July 30, 2008 sentencing hearing, Avitia's attorney argued for a downward departure from the guidelines sentencing range on the basis of the factors listed in 18 U.S.C. § 3553. Pursuant to this request, the court sentenced Avitia to 72 months imprisonment on the four counts, to run concurrently. The court also imposed four years of supervised release; a fine of $2500; and a special assessment of $400. On August 4, 2008, judgment was entered, and the clock began to run on the one-year statute-of-limitations period for filing a motion challenging the sentence. See 28 U.S.C. § 2255(f). Avitia did not file a notice of appeal within ten days of entry of judgment, which means his § 2255 motion is the only possible basis for relief.*fn4 Avitia filed his § 2255 motion on August 3, 2009-one day before it would have been time-barred-and thus it is timely.

DISCUSSION

Relief under § 2255 "is reserved for extraordinary circumstances." United States v. Hays, 397 F.3d 564, 566 (7th Cir. 2005) (citations and internal quotation marks omitted). A district court must grant a § 2255 motion to vacate, set aside, or correct a sentence when the petitioner establishes "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Id. at 566--67 (citations and internal quotation marks omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); Cooper v. United States, 378 F.3d 638, 641--42 (7th Cir. 2004) (district court did not abuse its discretion in denying petitioner an evidentiary hearing where petitioner did not provide additional facts or assertions that would warrant a hearing).

I. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, the petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness," and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). The petitioner "bears a heavy burden in establishing an ineffective assistance of counsel claim," United States v. Trevino, 600 F.3d 333, 338 (7th Cir. 1995), particularly since the Strickland test "is highly deferential to counsel, presuming reasonable judgment and declining to second guess strategic choices." United States v. Williams, 106 F.3d 1362, 1367 (7th Cir. 1997) (internal quotation marks omitted).

To satisfy the first prong of the Strickland test, the petitioner must direct the court to specific acts or omissions of his counsel. Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000)(citing Trevino, 600 F.3d at 338). The court must then consider whether, in light of all of the circumstances, counsel's performance was outside the range of professionally competent assistance. Id. Counsel's performance must be evaluated while remembering that an attorney's trial strategies are a matter of professional judgment and often turn on facts not contained in the trial record. Id. To satisfy the second prong of the Strickland test, the plaintiff must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A court need not address both prongs of the Strickland test if one provides the answer; that is, if a court determines that the alleged deficiency did not prejudice the defendant, the court need not consider the first prong. United States v. Fudge, 325 F.3d 910, 924 (7th Cir. 2003) (citing Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001)).

A. Counsel's decision not to file notice of appeal

An attorney's failure to file a notice of appeal on behalf of a client does not constitute per se deficient performance under Strickland. See Roe v. Flores-Ortega, 528 U.S. 470, 477--78, 120 S.Ct. 1029, 145 L.Ed. 2d 985 (2000). Instead of a bright-line rule, in situations where an attorney does not file a notice of appeal, the court must first ask the antecedent question of "whether counsel in fact consulted with the defendant about an appeal."*fn5 Id. at 478. If counsel consults with a defendant who specifically directs counsel to file a notice of appeal, counsel performs in a "professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." Id.; see also Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994) ("[I]f the defendant... insists on appealing, the lawyer must file the notice of appeal and represent his client earnestly unless relieved by the court of appeals."). On the other hand, if counsel does not consult with the defendant, and the defendant never instructs counsel to file a notice of appeal, the question becomes "whether counsel's failure to consult with the defendant itself constitutes deficient performance." Roe, 528 U.S. at 478.

In cases where the defendant's wishes to file a notice of appeal are either unclear or not conveyed to counsel, Roe provides two separate tests for determining whether counsel's failure to file such notice of appeal violates the performance and prejudice prongs of Strickland. As to the performance prong, "counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." 528 U.S. at 480. This is a totality-of-the-circumstances test that requires courts to take into account "all the information counsel knew or should have known."*fn6 Id.

The prejudice prong of Roe's ineffective-assistance inquiry mirrors the prejudice standard articulated in Strickland, insofar as Roe also requires the defendant to show actual prejudice. To prove that counsel's failure to file a notice of appeal resulted in prejudice, the defendant "must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with [defendant] about an appeal, [defendant] would have timely appealed." Id. at 484. Like the performance prong, the prejudice prong is a totality-of-the-circumstances inquiry. This notwithstanding, "evidence that there were non-frivolous grounds for appeal or that the defendant in question promptly expressed a desire for appeal will often be highly relevant" to the issue of prejudice.*fn7 Id. at 485. The Court stressed, however, that "a defendant's inability to specify the points he would raise were his right to appeal reinstated will not foreclose the possibility that he can satisfy the prejudice requirement where there are other substantial reasons to believe he would have appealed." Id. at 486 (emphasis ...


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