United States District Court, N.D. Illinois, Eastern Division
[Copyrighted Material Omitted]
For United States of America, Plaintiff: Patrick C. Pope, United States Attorney's Office (NDIL), Chicago, IL.
Mariano Morales, Defendant, Pro se, Coleman, FL.
MEMORANDUM OPINION AND ORDER
Rubé n Castillo, Chief United States District Judge.
Presently before the Court is Petitioner Mariano Morales's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, Petitioner's motion is denied, and this case is dismissed with prejudice.
The relevant facts relating to Petitioner's criminal conviction are set forth in a published opinion by the Seventh Circuit Court of Appeals, see United States v. Morales ( Morales II ), 655 F.3d 608 (7th Cir. 2011), and are repeated here only as they pertain to Petitioner's current § 2255 petition.
Petitioner was one of sixteen individuals indicted by a federal grand jury on various racketeering-related charges in 2006. Petitioner and his codefendants were members of the Aurora Deuces, the Aurora, Illinois chapter of the Insane Deuce Nation street gang. Petitioner had a leadership position within the gang--he held the third highest rank--and helped craft the gang's laws, including the standing order to kill members of a rival gang on sight. Petitioner was indicted on charges of racketeering conspiracy, conspiracy to commit murder, and conspiracy to distribute narcotics, in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (" RICO" ). In an
effort not to overwhelm the jury, and due to the logistical challenge of trying so many defendants in a single courtroom, this Court severed the case into two trials. Petitioner was grouped with the " less major players" and tried before Judge Leinenweber. On December 10, 2008, after a three-month trial, a jury acquitted Petitioner of conspiracy to commit murder and found him guilty of racketeering conspiracy and narcotics conspiracy. Petitioner received two concurrent sentences of life imprisonment on July 7, 2009. On that same day, he filed his notice of appeal, challenging both his conviction and his sentence. The Seventh Circuit affirmed both. Morales II, 655 F.3d at 647. The Seventh Circuit held, as relevant to Petitioner, that (1) the district court's failure to state its reasons on the record for granting the government's motion for an anonymous jury empanelment was harmless error; (2) the district court did not abuse its discretion in declining to further sever the proceedings; (3) the district court did not abuse its discretion when it denied the defendants' motion for a hearing based on alleged juror misconduct; and (4) the admission of a statement about Petitioner's criminal history was not prejudicial. Petitioner now raises this timely collateral attack to his sentence.
Section 2255 allows an incarcerated prisoner to request his sentence be vacated on " the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. " [R]elief under 28 U.S.C. § 2255 is limited to an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal quotation marks omitted)).
A section 2255 proceeding is not a substitute for direct appeal. Theodorou v. United States, 887 F.2d 1336, 1339 (7th Cir. 1989). " [A] failure to raise constitutional challenges to a conviction on direct appeal bars a petitioner from raising the same issue in a section 2255 proceeding--absent a showing of good cause for and prejudice from the failure to appeal." Id. To show good cause for a failure to raise an issue on appeal, the petitioner must demonstrate that an external objective factor impeded his ability to appeal. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Ineffective assistance of counsel may constitute good cause if counsel's incompetence rises to the level of constitutionally ineffective under the standard established in Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See id. at 488-92.
Petitioner suggests four grounds on which this Court should vacate his sentence. He ...