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STACIE M. GARY v. UNITED STATES OF AMERICA

December 1, 2010

STACIE M. GARY, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER

REAGAN, District Judge:

A. Introduction and Background

Before the Court is Stacie Gary's March 2010 petition to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Analysis of the petition begins with an overview of the procedural history of the underlying criminal case, United States v. Gary (Case No. 08-cr-30169-MJR).

Via a six-count indictment (counts 1, 3, 4, 5 and 6 as to Gary) issued July 25, 2008, Gary was charged with one count of bankruptcy fraud (concealing assets) in violation of 18 U.S.C. § 152(1); two counts of bankruptcy fraud (false statements) in violation of 18 U.S.C. § 152(3); one count of bankruptcy fraud (false statements under oath) in violation of 18 U.S.C. § 152(2); and one count of mail fraud in violation of 18 U.S.C. § 1341.

On January 13, 2009, Gary pleaded guilty, with the benefit of a written plea agreement. On June 26, 2009, the undersigned Judge sentenced Gary to a total term of 21 months on each of Counts 1, 3, 4, 5 and 6, to be served concurrently, 3 years' supervised release, a $500.00 assessment and restitution in the amount of $44,642.20. Judgment was entered accordingly on July 8, 2009.

Gary appealed but then moved to withdraw the appeal. In March 2010, the United States Court of Appeals for the Seventh Circuit granted Gary's motion and dismissed the appeal.

In March 2010, Gary moved to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. The motion survived threshold review in July 2010. The Court set a briefing schedule. Since Gary did not file a reply, the motion became ripe with the filing of the Government's response on August 9, 2010. For the reasons stated below, the Court denies Gary's request for relief and dismisses her § 2255 petition.

An evidentiary hearing is not warranted. Gary asserts ineffective assistance claims. Such claims often require an evidentiary hearing, "because they frequently allege facts that the record does not fully disclose." Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008). But the issues raised here can be resolved on the existing record, which conclusively demonstrates that Gary is entitled to no relief. See Rule 8(a) of RULES GOVERNING SECTION 2255PROCEEDINGS; Almonacid v. U.S., 476 F.3d 518, 521 (7th Cir.),

cert. denied, 551 U.S. 1132 (2007); Gallo-Vasquez v. U.S., 402 F.3d 793, 797 (7th Cir. 2005); Galbraith v. U.S., 313 F.3d 1001, 1010 (7th Cir. 2002). Stated another way, Gary has not alleged facts that, if proven, would entitle her to relief. See Sandoval v. U.S., 574 F.3d 847, 850 (7th Cir. 2009).

B. Analysis of § 2255 Petition

## APPLICABLE LEGAL STANDARDS

28 U.S.C. § 2255 authorizes a federal prisoner to ask the court which sentenced her to vacate, set aside or correct her sentence, if "the sentence was imposed in violation of the Constitution or laws of the United States, ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law."

Relief under § 2255 is limited. Unlike a direct appeal, in which a defendant may complain of nearly any error, § 2255 proceedings may be used only to correct errors that vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude. See, e.g., Corcoran v. Sullivan, 112 F.3d 836, 837 (7th Cir. 1997)(§ 2255 relief is available only to correct "fundamental errors in the criminal process"). Section 2255 has been described as "the federal-prisoner substitute for habeas corpus." U.S. v. Boyd, 591 F.3d 953, 955 (7th Cir. 2010). Accord Washington v. Smith, 564 F.3d 1350, 1351 (7th Cir. 2009)(referring to a § 2255 petition as "the federal prisoner's equivalent to a § 2254 petition attacking a criminal judgment entered by a state court").

As the Seventh Circuit has declared, § 2255 relief "is appropriate only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). Accord Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)("relief under 28 U.S.C. § 2255 is reserved for extraordinary situations"). And § 2255 cannot be used as a substitute for a direct appeal or to re-litigate issues already raised on direct appeal. Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003). Accord Sandoval, 574 F.3d at 850 ("claims cannot be raised for the first time in a § 2255 motion if they could have been raised at trial or on direct appeal").

In the case at bar, Gary tenders three grounds for § 2255 relief, all three premised on ineffective assistance of counsel (Doc. 1, p. 4):

(1) her lawyer did not understand bankruptcy law;

(2) her lawyer rushed her through things and did not explain things to her properly; and

(3) her lawyer lied to her about her possible sentence and harassed her into pleading guilty when there was insufficient evidence against her.

The Sixth Amendment to the United States Constitution accords criminal defendants the right to effective assistance of counsel. Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009), cert. denied, 130 S. Ct. 1925 (March 22, 2010), citing Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). To prevail on a claim of ineffective assistance, a defendant must prove two things (a) that her attorney's performance was objectively unreasonable and (b) that she (the defendant/petitioner) suffered prejudice as a result of this constitutionally deficient performance. Wyatt, 574 F.3d at 457-58; United States v. Peleti, 576 F.3d 377, 383 (7th Cir. 2009); Strickland v. Washington, 466 U.S. 668, 687 (1984).

This first requirement of this dual test is referred to as "the performance prong" and the second as the "prejudice prong."As to the performance prong, a § 2255 petitioner must overcome a "strong presumption that [her] counsel's conduct falls within the wide range of reasonable professional assistance." Wyatt, 574 F.3d at 458, quoting Strickland, 466 U.S. at 687-88. She must establish the specific acts or omissions she claims constitute ineffective assistance, and the Court then assesses whether those acts/omissions are outside the scope of reasonable legal assistance. Id. See also United States v. Acox, 595

F.3d 729, 734 (7th Cir. 2010), citing Williams v. Lemmon, 557 F.3d 534 (7th Cir. 2009)(Deciding "whether counsel's services were beneath the constitutional floor requires consideration of what counsel did, as well as what he omitted.").

Evaluation of counsel's performance is highly deferential. The reviewing court presumes reasonable judgment by counsel and must not second-guess counsel's strategic choices or "tactical decisions." Valenzuela v. United States, 261 F.3d 694, 699 (7th Cir. 2003). Moreover, the court must "consider the reasonableness of counsel's conduct in the context of the case as a whole, viewed at the time of the conduct, ... [applying] a strong presumption that any decisions by counsel fall within a wide range of reasonable trial strategies." Id.

As to the prejudice prong, the defendant/petitioner must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Smith v. McKee, 598 F.3d 374, 385 (7th Cir. 2010). The inquiry focuses on whether the counsel's errors rendered the proceedings "fundamentally unfair or unreliable." ...


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