The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner Luis N. Vazquez's Petition to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Section 2255"). For the reasons stated herein, the Petition is denied without an evidentiary hearing.
On September 29, 2009, a grand jury returned a 21-count superseding indictment charging Petitioner Luis Vazquez, (the "Petitioner") and six other individuals on various counts based on their involvement in a drug conspiracy that involved shipping large quantities of cocaine from Mexico to Chicago. The grand jury indicted Petitioner of 11 counts, including inter alia, conspiracy to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846, distributing 45 kilograms of cocaine in violation of 21 U.S.C. § 841, possession marijuana with intent to distribute in violation of 21 U.S.C. § 841, and engaging in a money laundering conspiracy in violation of 18 U.S.C. § 1956(h).
Prior to trial, Petitioner elected to represent himself after the District Court addressed the issue at length at a hearing. During that hearing, the Court informed Petitioner of the charges against him and the mandatory and minimum sentences and warned Petitioner of the dangers of proceeding pro se. Notwithstanding the District Court's discouragement, Petitioner indicated he wished to represent himself. As a result, the District Court determined Petitioner had made a knowing and voluntary decision.
On October 31, 2005, Petitioner, with the assistance of standby counsel, proceeded to trial pro se, pleading not guilty. The evidence presented at trial showed, among other things, that Petitioner directed the distribution of thousands of kilograms of cocaine from Mexico to Chicago. On November 9, 2005, the jury found Petitioner guilty on all counts. On March 26, 2006, the District Court sentenced Petitioner to a term of 300 months imprisonment.
On February 23, 2009, Petitioner appealed (represented by appointed counsel). He argued that: (1) the Government's use of a witness's description of court-authorized wiretaps violated his due process rights; (2) a witness's voice identification was unreliable and unduly suggestive; and (3) Petitioner's waiver of court appointed counsel was invalid. See United States v. Vazquez, No. 06-2109, 2009 WL 1874274 at *1 (7th Cir. July 1, 2009). The Seventh Circuit affirmed Petitioner's conviction, finding all of Petitioner's arguments meritless.
Petitioner then filed for a Writ of Certiorari. On November 2, 2009, the United States Supreme Court denied Petitioner's writ.
On November 9, 2010, Petitioner filed the instant habeas Petition to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Petitioner presents four claims to the Court which he alleges support his petition. First, Petitioner argues he is innocent of the money-laundering count based on the Supreme Court's holding in United States v. Santos, 553 U.S. 507 (2008), that 18 U.S.C. § 1956 covers only the profits, not mere proceeds, of illegal activity. Second, Petitioner argues that an offer to pay a narcotic debt with property does not amount to a violation under 18 U.S.C. § 1956(a). Third, Petitioner argues that the jury's guilty verdict on the money laundering count was contrary to the weight of the evidence presented at trial. Finally, Petitioner argues that in light of the recent amendment to U.S.S.G. § 4A1.1, the Court should reduce his sentence. The Court will address each argument in turn.
Under Section 2255 a prisoner may petition the court which imposed the sentence to vacate, set aside, or correct the sentence on the basis that the sentence imposed is in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose the sentence, or that the sentence was in excess of the maximum authorized by law. See Oliver v. United States, 961 F.2d 1339, 1341 (7th Cir. 1992). To receive relief under Section 2255, a prisoner must show a "fundamental defect which inherently results in a complete miscarriage of justice," United States v. Addonizio, 442 U.S. 178, 185 (1979), or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962).
Section 2255 motions are subject to various bars, including that of a procedural default. A Section 2255 proceeding is "neither a recapitulation of nor a substitute for a direct appeal." McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). Thus, there are three claims that a Section 2255 motion cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) non-constitutional issues that could have been, but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992) (emphasis in original) overruled on other grounds by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
A. United States v. Santos and "Proceeds" ...