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Mario Nunez v. United States of America

May 10, 2013

MARIO NUNEZ, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Mario Nunez's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Nunez's Section 2255 motion and declines to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).*fn1

BACKGROUND

On January 6, 2011, a grand jury returned a seven-count second superseding indictment charging Nunez with: (1) conspiring to possess with intent to distribute and to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846 (Count 1); (2) distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (Count 2); (3) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (Count 6); and (4) using a telephone to commit a narcotics trafficking crime in violation of 21 U.S.C. § 843(b) (Counts 3, 4, 5, and 7.) On January 26, 2011, a jury convicted Nunez on all counts, and found, as to Count 1, that the conspiracy involved a measurable amount, but less than 500 grams of cocaine. On April 11, 2011, the Court sentenced Nunez to serve 85 months in prison on Counts 1, 2, and 6, and 48 months in prison on Counts 3, 4, 5, and 7 to run concurrently. The Court entered its judgment and commitment order on April 19, 2011 and Nunez timely filed a notice of appeal on that same day.

On appeal, Nunez challenged his conviction on Count 1, and by implication, the attendant phone counts charged in Counts 4 and 5 of the second superseding indictment. Specifically, Nunez raised two issues on appeal: (1) whether there was sufficient evidence to support the jury's verdict that he was in a conspiracy with his cocaine supplier rather than part of a buyer-seller relationship; and (2) whether the Court abused its discretion in denying his motion for a new trial brought pursuant to Federal Rule of Criminal Procedure 33. See United States v. Nunez, 673 F.3d 661 (7th Cir. 2012). On March 9, 2012, the Seventh Circuit affirmed Nunez's conviction. Nunez did not file a petition for writ of certiorari with the United States Supreme Court.

LEGAL STANDARD

"[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007); see also Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Under Section 2255, relief "is available only when the 'sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack." Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). A Section 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal the same claims a second time. See Bousley, 523 U.S. at 621 (relief under 2255 "will not be allowed to do service for an appeal"); Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (Section 2255 motion is "neither a recapitulation of nor a substitute for a direct appeal.") (citation omitted).

If a Section 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, see Turner v. United States, 693 F.3d 756, 758 (7th Cir. 2012), or that enforcing the procedural default would lead to a "fundamental miscarriage of justice." United States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012). The Supreme Court defines cause sufficient to excuse procedural default as "some objective factor external to the defense" which prevents a petitioner from pursuing his constitutional claim. See Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010). Prejudice means actual prejudice infecting the "entire trial with error of constitutional dimensions." Murray, 477 U.S. at 494 (citation omitted); Promotor, 628 F.3d at 887. A fundamental miscarriage of justice occurs when a petitioner establishes that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496; see also Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Because claims of ineffective assistance of counsel often involve evidence outside of the trial record, such claims may be brought for the first time in a Section 2255 motion. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); United States v. Waltower, 643 F.3d 572, 579 (7th Cir. 2011).

ANALYSIS

Construing Nunez's pro se Section 2255 motion liberally, see Ray v. Clements, 700 F.3d 993, 1003 (7th Cir. 2012), he brings the following claims: (1) his sentence should be vacated or set aside due to certain mitigating factors, including that he is the father of four young children and has not been able to interact with his children since his incarceration; and (2) the Court erred when it found that he was responsible for distribution of over 500 grams of cocaine at sentencing because the jury found that he was responsible for less than 500 grams of cocaine during the conspiracy as charged in Count 1.

I. Procedural Default

Nunez has procedurally defaulted his Section 2255 claims because he did not raise them on direct appeal to the Seventh Circuit. In fact, in his Section 2255 motion, Nunez admits that he did not raise these claims on appeal. Moreover, Nunez has failed to argue, let alone establish, that his procedural default is excepted, namely, that there is cause for the procedural default and actual prejudice from the failure to appeal or that enforcing the procedural default would lead to a "fundamental miscarriage of justice." See Turner, 693 F.3d at 758; Fleming, 676 F.3d at 625. Nevertheless, construing Nunez's Section 2255 claims liberally, see Ray, 700 F.3d at 1003, the Court examines his claims in the context of whether his trial and appellate counsel were constitutionally ineffective for failing to pursue these defaulted claims.

II. Merits Determination

A. Mitigating ...


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