Name of Assigned Judge Harry Sitting Judge if Other or Magistrate Judge D. Leinenweber than Assigned Judge
For the reasons stated below, Francisco Javier Bermea-Boone's Petition under 28 U.S.C. § 2255 is denied.
O[ For further details see text below.] Docketing to mail notices.
In a jury trial that ended on June 7, 2005, Petitioner/Defendant Francisco Javier Bermea-Boone (hereinafter, the "Petitioner") was found guilty of conspiring to distribute and possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846, and attempting to possess with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841 in case No. 04-CR-672-2. He was sentenced to 204 months imprisonment on March 5, 2008. After the Seventh Circuit denied his appeal on May 15, 2009, Petitioner filed a petition for certiorari in the Supreme Court. This was denied on October 13, 2009. Petitioner then filed his timely petition for writ of habeas corpus under 28 U.S.C. § 2255 in this Court on October 12, 2010.
A federal prisoner may seek to vacate, set aside, or correct his sentence only if the prisoner establishes that: (a) the sentence was imposed in violation of the Constitution or laws of the United States; (b) the court was without jurisdiction to impose the sentence; (c) the sentence was in excess of the maximum authorized by law; or (d) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255.
Petitioner has set forth several grounds for habeas relief. The Court addresses each in turn.
Ineffective Assistance of Counsel
To establish an ineffective assistance of counsel claim, a petitioner must show that (a) performance of trial counsel fell below an objective standard of reasonableness, and (b) he was prejudiced in the sense that, but for the alleged errors, there is a reasonable probability that the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687--88, 694 (1984).
Petitioner first argues that his court-appointed counsel failed to investigate whether co-conspirator Juan Garcia lied to the grand jury regarding when Petitioner and co-conspirator Orlando Martinez-Navarro loaded the cocaine into the semi-truck in Texas. Petitioner also alleges that if his counsel had conducted a thorough investigation, he would have discovered that Garcia signed an affidavit in which he admitted that he lied about the date on which Petitioner and Martinez-Navarro allegedly loaded the cocaine onto the truck.
First, in regard to this alleged affidavit, no evidence exists that it exists. Petitioner also fails to articulate what investigative steps his counsel may have taken that would have led to the discovery of this affidavit and changed the outcome of his trial. See Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003) ("[A] petitioner alleging that counsel's ineffectiveness was centered on a supposed failure to investigate has the burden of providing the court sufficiently precise information, that is, 'a comprehensive showing as to what the investigation would have produced.'") (quoting United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir. 1990)). This is not a ground for habeas relief.
The charges against Martinez-Navarro were dismissed with prejudice on May 23, 2005, because Garcia changed his testimony in regard to him. Garcia told the grand jury that he saw Martinez-Navarro load the drugs onto the truck, and later recanted that testimony and said that he could only remember Martinez-Navarro arriving in a car with Petitioner at a Burger King in Monee, Illinois. Garcia, however, did not change his testimony as to Petitioner. Petitioner argues that his counsel should have moved to dismiss the charges against him for the same reasons that the government dropped the charges against Martinez-Navarro. He fails to articulate any reasons why such a motion by his counsel would have resulted in the outcome of his case being any different. Garcia was not called as a witness in Petitioner's trial, and the government immediately informed Petitioner's counsel about Garcia's changed testimony. Also, because the petit jury found Petitioner guilty, any perjury by Martinez-Navarro that may have ...