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United States v. Villegas

United States District Court, Seventh Circuit

January 15, 2014

UNITED STATES OF AMERICA, Plaintiff-Respondent,
WOSVALDO VILLEGAS, Defendant-Petitioner.


VIRGINIA M. KENDALL, District Judge.

Petitioner Wosvaldo Villegas brings this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255. He is incarcerated at the United States Penitentiary in Leavenworth, Kansas. A jury convicted him of attempted robbery under the Hobbs Act, 18 U.S.C. § 1951, in November 2008, and this Court sentenced him to an eighty-seven month sentence. For the following reasons, Villegas's denied with one exception - that having to do with the length of his supervised release period.


On February 19, 2007, Jose Diaz Martin Garibay alerted federal law enforcement officials that Wosvaldo Villegas approached him looking for help to rob an armored car. The FBI began an undercover investigation of Villegas, which included introducing Villegas to an undercover agent to assist them in planning the crime. Villegas was subsequently recorded discussing details of the robbery-including the possibility that a gun or weapon would be used-during planning conversations and meetings. The planning process culminated on April 27, 2007 at 9:00 a.m., when Villegas met Garibay at a Walgreens parking lot across the street from the proposed robbery location, at which point he was arrested. A grand jury indicted Villegas on June 8, 2007, and his trial began on November 10, 2008. After a two-week trial, the jury found Villegas guilty of attempting to obstruct, delay, and affect commerce and the movement of United States currency in the custody, possession, and control of employees of Pendum Inc., by robbery, in violation of 18 U.S.C. §§ 1951-2 on November 20, 2008. See United States v. Villegas, 2009 WL 1657072, at *1 (N.D. Ill. June 11, 2009); United States v. Villegas, 655 F.3d 662, 665 (7th Cir. 2011) (reciting facts).

Villegas filed a motion to substitute his counsel for the sentencing phase of his trial on December 4, 2008, which the Court granted on December 9, 2008. (07-CR-00260, Dkt. Nos. 112, 115, 116.) He filed a motion for a judgment of acquittal or arrest of judgment or for a new trial on January 20, 2009. ( Id. at Dkt. No. 118.) The Court denied Villegas's motion and sentenced him on the same day, June 11, 2009. ( Id. at Dkt. Nos. 131, 132.); Villegas, 2009 WL 1657072, at *12. Court sentenced Villegas to 87 months in prison and to five years of supervised release. (07-CR-00260, Dkt. No. 148 at pp. 50-51.) Villegas's prison sentence was 21 months less than the 108 to 135 month advisory Guidelines range sentence sought by the Government. ( Id. at p. 31.) The Court determined a sentence significantly below the Guidelines range was warranted because Villegas's criminal history comprised minor offenses (e.g. stealing a flash light) and was notably devoid of acts of violence and the use of a gun. ( Id. at p. 50.) The Court noted that Villegas talked a big game about bringing a gun to the alleged robbery and that was due in part to his low level of mental functioning which both contributed to his decision to cross the line and to engage in the robbery. In finding that Villegas was "more bark than bite, " the Court varied below the proposed range and sentenced him to 87 months. ( Id. at pp. 50-51.)

Villegas's sentence also included five years of supervised release and a five-level gun enhancement. The five-year term of supervised release was recommended to the Court in the Probation Officer's report and not contradicted by the parties at any point. Neither objected when the Court twice asked if there was "anything else" to discuss at the end of Villegas's sentencing. ( Id. at pp. 51-52.) Whether the five-level gun enhancement should apply to Villegas was actively disputed during the sentencing hearing. (07-CR-00260 at Dkt. Nos. 132, 148.) The Government argued that the enhancement should apply because it was reasonably foreseeable that Garibay would have a gun on the day the robbery was to take place; Villegas's counsel countered that it was Garibay and the Government who pushed the use of a gun during the offense, so the enhancement should not apply. ( Id. at Dkt. No. 148, pp. 11-16.) This Court ultimately held the enhancement was appropriate because it was reasonably foreseeable to Villegas that a gun would be present: he was recorded discussing the need for a weapon to commit the robbery, and a weapon was, in fact, present the day of the robbery. ( Id. )

On appeal, Villegas argued, among other things, that he was convicted based on insufficient evidence and that the five-level gun enhancement was applied in error. Villegas, 655 F.3d at 668. On August 23, 2011, the Seventh Circuit Court of Appeals upheld his conviction, finding the Government presented sufficient evidence to convict Villegas, and affirmed this Court's application of the five-level gun enhancement. Id. at 669, 674-77. Villegas petitioned for a rehearing and a rehearing en banc, and both were denied on October 17, 2011. Id. at 662. On January 14, 2013, one year and 89 days later, Villegas provided the present petition for a writ of habeas corpus to the prison mailing system, and this Court received it on January 17, 2013. Villegas presents four claims in his petition:

1. The Court exceeded the statutory maximum supervised release and defense counsel was ineffective in failure to object or to preserve for appeal;
2. Trial counsel was factually ineffective for not objecting to the introduction of pictures or video of armored truck;
3. The addition of five levels for the firearm on the day the robbery was alleged to be taking place was misplaced;
4. Trial counsel was ineffective for failing to raise "several points" that would have been "probative to the jury during trial" and "altered the verdict."


I. Timeliness of Villegas's Habeas Petition

As a threshold issue, the Government argues that Villegas's petition is untimely because it was filed more than one year after the Seventh Circuit affirmed his conviction on August 23, 2011, in violation of the one-year statute of limitations in 28 U.S.C. § 2255(f). However, Villegas correctly counters that the clock started running on the statute of limitations 90 days after the Seventh Circuit denied his request for rehearing, making his petition timely because it was placed in the prison mailing system on January 14, 2013. Under 28 U.S.C. § 2255(f), the one-year limit to file a habeas corpus petition "shall run [from] the date on which the judgment of conviction becomes final." A conviction becomes final when the 90-day time period for petitioning the United States Supreme Court for a writ of certiorari expires. Clay v. United States, 537 U.S. 522, 527 (2003). Supreme Court Rule 13(3) states that the 90-day time limit to petition for a writ of certiorari starts running either when the appellate court renders a decision or, if a rehearing with that appellate court is sought, on the date the rehearing is denied.

Villegas's petition to the Seventh Circuit for rehearing and rehearing en banc was denied on October 17, 2011. The 90-day period he had to file a petition for a writ of certiorari from the United States Supreme Court ended on January 15, 2012. One year from January 15, 2012 is January 15, 2013. Villegas's habeas petition entered the prison mailing system on January 14, 2013 and is therefore timely. Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir. 1999) (statute of limitations runs for pro se habeas corpus petitions when the prisoner provides the petition to the proper prison authorities).

II. Ineffective Assistance of Counsel

Villegas argues that his counsel was constitutionally ineffective for failing to adequately present certain pieces of evidence and object to others during and after his trial, resulting in his conviction. The Government argues that Villegas's ineffective assistance of counsel claims attempt to relitigate the insufficient evidence arguments he made on direct appeal. This Court and the Seventh Circuit Court of Appeals have indeed already analyzed Villegas's insufficient evidence arguments and found that the Government did put before the jury sufficient evidence to obtain a guilty verdict. Villegas, 2009 WL 1657072; Villegas, 655 F.3d 662.

To prevail on a claim of ineffective assistance of counsel, Villegas must establish that he was prejudiced as a result of his counsel's alleged deficiencies under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007) (citing Strickland, 466 U.S. at 694). The burden of proof on a defendant asserting an ineffective assistance of counsel claim is a heavy one. See Harris v. Reed, 894 F.2d 871, 874 (7th Cir. 1990). "The benchmark for judging any claim to ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Under Strickland, the moving party must prove that: (1) his attorney's performance fell below an objective standard of reasonableness; and (2) the attorney's deficient performance prejudiced the defendant such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." McDowell, 497 F.3d at 761.

In applying the Strickland test, the Court's examination of an ineffectiveness of counsel claim is "highly deferential" to counsel, presumes reasonable judgment, and declines to "second guess strategic choices." Valenzuela v. United States, 261 F.3d 694, 698 (7th Cir. 2001) (citing Strickland, 466 U.S. at 689); see also Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000) ("[The Court] must resist a natural temptation to become a Monday morning quarterback."). If the Court finds either the performance prong or the prejudice prong of the Strickland test to be lacking, then there is no need to consider the other prong and the petition fails as a matter of law. See United States v. Slaughter, 900 F.2d 1119, 1124 (7th Cir. 1990). "A defendant's failure to satisfy either prong is fatal to his claim, " Ebbole v. United States, 8 F.3d 530, 533 (7th Cir. 1993), and if "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed." Strickland, 466 U.S. at 697.

Villegas alleges over twenty errors[1] committed by his trial counsel that can be categorized into seven groups.

A. Previously Decided Arguments are Barred by the Law of the Case

A collateral attack under § 2255 is the proper place to raise ineffective assistance of counsel claims. Massaro v. United States, 538 U.S. 500, 504 (2003). But such a collateral attack cannot be used to obtain a second opinion on an argument presented and decided earlier. E.g., United States v. Flores, 2014 WL 28642, *3, ___ F.3d ___ (7th Cir. Jan. 3, 2014) (if a petitioner raises an ineffective assistance of counsel claim on direct appeal, he cannot raise it again in his § 2255 habeas petition); White v. United States, 371 F.3d 900, 902 (7th Cir. 2004) ("Invoking the doctrine of the law of the case, the courts, including our court, forbid a prisoner to relitigate in a collateral proceeding an issue that was decided on his direct appeal.").

Villegas directly appealed the jury's verdict to this Court and the Seventh Circuit, asking for either a judgment of acquittal, or else for a new trial. In the context of those motions, Villegas argued to this Court, among other things, that: (1) the five-level gun enhancement was improper; (2) the Government did not prove beyond a reasonable doubt that he was not entrapped into committing the crime; (3) there was no evidence that he took a substantial step towards committing the robbery; and (4) that his trial counsel was ineffective for failing to call the confidential informant to testify. Villegas, 2009 WL 1657072. Villegas only appealed this Court's rulings on the sufficiency of the evidence and the five-level gun enhancement; both were affirmed. Villegas, 655 F.3d 662. Nevertheless, all four of these previously considered and rejected arguments also form the basis of four out of five of his substantive ineffective assistance of counsel claims. Because these arguments have already been substantively ruled upon, the Court declines to give Villegas ...

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