The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge
Peter Palivos has filed a motion under 28 U.S.C. § 2255 attacking his judgment of conviction of one count of conspiracy to obstruct justice entered in this court on November 2, 2005, case number 00 CR 1065-5. The judgment was affirmed on April 10, 2007. United States v. Palivos, 486 F.3d 250 (7th Cir. 2007).*fn1 The 2255 motion was timely filed on September 30, 2008, and an amended motion was filed November 11, 2008 ("2255 motion"). Palivos makes two due process claims against the government: (1), the government violated its obligations to disclose exculpatory evidence, and (2), the government suborned perjured testimony at trial. He makes numerous ineffective assistance of counsel claims against the attorneys who represented him at trial. At a minimum, Palivos contends he is entitled to an evidentiary hearing on his motion.
For the following reasons, Palivos's § 2255 motion will be denied.
Relief under § 2255 "is reserved for extraordinary circumstances." Hays v. United States, 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). "The court should grant an evidentiary hearing on a § 2255 motion when the petitioner alleges facts that, if proven, would entitle him to relief." Koons v. United States, 639 F.3d 348, 355 (7th Cir. 2011), citing Hutchings, 618 F.3d at 699 (internal quotation marks and citation 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 show 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).
On a § 2255 motion, the district court may not reconsider issues that were raised on direct appeal absent changed circumstances. Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) ("A § 2255 motion is 'neither a recapitulation of nor a substitute for a direct appeal.'" (quoting McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996)). Claims that were not raised on direct appeal are procedurally defaulted absent a showing of cause and prejudice or actual innocence. Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008) (citing Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)). An exception, however, applies to ineffective assistance of counsel claims not raised on direct appeal; they are not subject to the cause and prejudice rule. Massaro v. United States, 538 U.S. 500, 509, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003).
I. Claims of Brady or Giglio Violations
Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the government must disclose evidence favorable to the accused where the evidence is material to guilt or punishment. Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), confirmed that the rule applies to impeaching evidence as well as evidence of the elements of the crime. See id. at 154, 92 S. Ct. at 766 ("When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [Brady].") (internal quotation marks and citation omitted).
The court assumes the reader's familiarity with the facts of the case and does not repeat them in this ruling.*fn2 Moreover, the legal standards and Palivos's arguments were thoroughly addressed by this court in its ruling on Palivos's motion to disqualify the Assistant United States Attorneys who represented the United States during the prosecution. There the court examined "whether Palivos has demonstrated at least a colorable evidentiary basis for the accusations against [AUSA William R. Hogan, Jr.,] that he failed to turn over material evidence to Palivos." United States v. Palivos, No. 08 CV 5589, 2010 WL 3190714, at *2 (N.D. Ill. Aug. 12, 2010). Finding no such basis, the court denied the motion to disqualify. The Brady analysis will not be repeated here; rather, the court will examine whether Palivos's reply brief, filed after that ruling, adds any substance to his earlier presentation.
Principally, Palivos argues that at least he is entitled to an evidentiary hearing on his claim. The essence of Palivos's claim is that when cooperating witness Nicholas Black testified before the grand jury (as well as at trial) that he fabricated backdated notes on November 14 or 15, 2000, the government knew the notes must have been created before November 7, 2000. Palivos contends this is true because Black actually gave a 73-page file on the "Waterfalls" transaction containing these notes to another individual involved in the transaction, Peter Bouzanis, on November 7, 2000. Palivos states "on information on belief" that he believes Bouzanis met with the government after November 7 and before he left the United States for Greece on November 14, 2000 and "on information and belief" that during that meeting Bouzanis gave Hogan a copy of the file. At the very latest, Palivos asserts that Hogan received the same file from Bouzanis's Greek lawyer in September 2003.
Palivos urges that the government need not have been persuaded that Bouzanis's information about the time line was true, but if the government had the information at all it was obliged to turn it over because it was potentially exculpatory. Although this is a correct statement of the rule, the court has already concluded that Palivos has no credible evidence that before Black testified Hogan had in his possession a file (with or without the notes) obtained from Bouzanis.*fn3
Nothing contained in the reply brief persuades this court otherwise. Even if Hogan, in addition to Adam Charnes, Deputy Assistant Attorney General at Department of Justice headquarters in Washington (see footnote 2, supra), received a package from Greece in September 2003 (and there is no authentication of any of the proffered documents supporting that fact), Palivos cannot demonstrate the contents of the package. If an evidentiary hearing were held, only Hogan could testify about any such package because Bouzanis is a fugitive and Palivos has not indicated that he could command the appearance of the Greek attorney in court. Even if the package included a copy of the notes, it would not establish that Bouzanis had them before Black said he fabricated them. Moreover, only Black and Bouzanis could testify about any meeting before Bouzanis left the country, testimony that has not been proffered. Palivos has failed to offer the district court any objective facts outside the trial record that would ...