United States District Court, N.D. Illinois, Eastern Division
JOHN F. GRADY, District Judge.
Modesto Ozuna was convicted of possession with intent to distribute more than five grams of cocaine and was sentenced to a term of 25 years. His conviction and sentence were affirmed on appeal in United States v. Ozuna , 561 F.3d 728 (7th Cir. 2009).
Mr. Ozuna has filed a petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255, alleging eight separate violations of his constitutional rights. We will discuss each of his allegations in turn, but first a brief statement of the facts.
Agents of the federal Drug Enforcement Administration received word in July 2003 that two drug dealers in the Chicago area were about to receive a drug shipment from Texas carried in a tractor-trailer registered to "Ozuna's Express." On July 28, agents pulled over a tractor-trailer bearing the name "Ozuna's Express" driven by Modesto Ozuna. According to the agents, Ozuna consented to a search of the trailer, which revealed 200 kilograms of cocaine concealed in a load of limes.
Ozuna was arrested and, according to the agents, signed a written confession admitting that he knowingly transported the cocaine for delivery in Illinois. He also expressed a desire to cooperate, and, because of that, he was released to return to Texas on the understanding that he would stay in touch with the agents. However, shortly after his return to Texas, he fell out of touch with the agents and was not seen or heard from until August 2004 when he was arrested.
During pretrial proceedings, at trial and in his present petition, Ozuna denies almost everything. He denies that he knew that the cocaine was in his trailer, denies that he admitted knowing it was there, denies that he consented to a search of the trailer and denies that he signed a confession.
THE SECTION 2255 CLAIMS
Ozuna's first six claims assert Sixth Amendment ineffectiveness on the part of Ozuna's trial and appellate counsel.
1. Failure to Move Dismiss the Indictment for Violation of the Speedy Trial Act
A large percentage of the extensive briefing on this petition is argument as to whether the Speedy Trial Act was violated, whether counsel was ineffective in failing to file a motion to dismiss the allegations and whether Ozuna was prejudiced by the omission to make the motion. Ozuna argues that this court erroneously excluded time for plea negotiations without making necessary findings as to why the interests of the public were better served by efforts to avoid a trial than by proceeding to trial. The government counters that case law at the time did not require such findings and that the exclusions were proper. It seems to us that the government has the better of the argument, but, whether there were violations or not, the basic issue here is whether defense counsel was constitutionally ineffective in failing to file a motion to dismiss. As the Supreme Court stated in Strickland v. Washington , 466 U.S. 668, 689 (1984)(citations omitted):
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
Furthermore, in order to obtain relief for a Sixth Amendment violation, a convicted defendant must prove not only that counsel's performance fell below an objective standard of reasonableness, but also that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
In this case, the exclusions of time were all by agreement, and a number of lengthy exclusions were at the specific request of defense counsel for time to prepare and brief motions or to prepare for hearings on motions. Ozuna changed counsel three times. The court appointed his initial counsel and then, at his request, a substitute appointed counsel, and finally, Ozuna retained private counsel. Each of these substitutions involved time for new counsel to become familiar with what had gone before. The government spells this out in detail. (Gov't's Resp. at 12-26.) Given that so much of the time before trial was devoted to efforts by defense counsel to work out an acceptable plea bargain with the government, it would have made no sense for counsel to derail those efforts by filing a motion to dismiss based on the fact that time had been excluded for that purpose. What effective assistance required was whatever continuances were necessary to negotiate a beneficial plea for the defendant.
Aside from the obvious fact that the omission to file a motion to dismiss was not ineffective assistance, it is equally obvious that there was no prejudice from the failure to file, since the motion would certainly have been denied on the basis that so much of the excluded time was at the defendant's requests. Moreover, even assuming the court had granted the motion, the dismissal would have been without prejudice, allowing the government to obtain an immediate reindictment. It is unthinkable that this court would have dismissed the indictment with prejudice, given that the case involved the knowing transportation of 200 kilograms of cocaine and the defendant's lengthy fugitive status prior to his second arrest. (Considering the amount of the cocaine involved, it is unlikely that a dismissal with prejudice would have been sustained on an appeal by the government.)
We conclude that the petitioner's claim of ineffectiveness for failure to file a motion to dismiss for violation of the ...