United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
JOAN HUMPHREY LEFKOW, District Judge.
John Orozco has moved under 28 U.S.C. § 2255 for an order vacating, setting aside, or correcting his sentence. He argues that he was denied the effective assistance of trial and appellate counsel in violation of the Sixth Amendment. For the reasons stated below, Orozco's § 2255 motion (dkt. 1) is denied, as is his motion to amend (dkt. 16).
On December 5, 2002, Orozco, a felon, was arrested on a warrant for being in possession of a firearm. A one-count indictment was returned on January 15, 2003 charging violation of 18 U.S.C. § 922(g)(1). (Dkt. 11.) Orozco was arraigned on January 27 and released under conditions pending trial. (Dkt. 16.)
Early on, the case was set for trial beginning October 1, 2003. (Dkt. 24.) On September 3, 2003, however, the government informed the court that it would file a superseding indictment, so the court struck the trial date. (Dkt. 26.) On September 10, 2003, a superseding indictment was returned that added a second count charging a conspiracy among Orozco, Juan Corral, Jose Oliva, Jose Martinez and others to possess and distribute cocaine and marijuana beginning "not later than in or about 2000 and continuing until in or about December 2002, " in violation of 21 U.S.C. § 846. (Dkt. 27.) Count Two specified that, as part of the conspiracy, Orozco supplied narcotics to members of the Aurora Latin Kings Street Gang ("the Gang") and used his affiliation with the Gang to distribute narcotics in Aurora to help fund the Gang. Id.
On October 14, 2003 Orozco filed a motion to suppress evidence seized during a search of his home. (Dkt. 33.) The motion was taken under advisement on December 10, 2003 and denied on February 25, 2004. (Dkt. 47.) Orozco moved to reconsider and asked for an evidentiary hearing. (Dkts. 50, 51.) The court granted an evidentiary hearing, which was held on May 7, 2004. The motion to suppress was denied on May 20, 2004 and trial was rescheduled to August 30, 2004. (Dkt. 60.)
On August 12, 2004, the government and Orozco jointly moved to continue the trial, asserting that several sentencing issues were pending before the United States Supreme Court that would likely affect Orozco. (Dkt. 61.) The motion was granted and the trial date was stricken. (Dkt. 62.) On February 9, 2005, trial was set for August 22, 2005. (Dkt. 67.) On August 16, 2005, the trial was reset by agreement to begin on October 31, 2005. (Dkt. 70.) On October 26, 2005, the trial was reset to begin on February 13, 2006. (Dkt. 72.) On February 1, 2006, the parties made a joint oral motion to continue the trial. Trial was reset to begin on June 12, 2006. (Dkt. 74.) On June 5, 2006, the government gave notice under 21 U.S.C. § 851(a)(1) of its intention to rely on a December 6, 1991 felony conviction for unlawful delivery of a controlled substance to seek an enhanced sentence under 18 U.S.C. § 841(b)(1). (Dkt. 77.) On June 7, 2006, the government moved to continue the trial by one week due to the unavailability of an essential witness and illness of a prosecutor assigned to the case. (Dkt. 87.) On June 16, 2006, the trial was reset to begin on September 8, 2006. (Dkt. 88.) The case proceeded to trial on September 8, 2006. (Dkt. 33.) With each continuance the delay was excluded under a specific provision of the Speedy Trial Act, 18 U.S.C. § 3161 et seq.
According to evidence presented at trial,  Orozco was the "cacique, " or second-in-command, of the Gang. He asked Jose Hernandez to sell cocaine and give profits back to the gang two or three times. He also sold 20 to 30 pounds of marijuana to Hernandez five or six times during the late 1990s and cocaine to Hernandez 10 to 12 times from 2000 to 2002. Orozco also sold cocaine to Juan Corral in 2000 and sold marijuana and cocaine to Jose Oliva in 2002. On December 5, 2002, law enforcement agents executed a search warrant and searched Orozco's residence. They seized a loaded gun, a holster, ammunition, and two digital scales having trace amounts of cocaine.
On September 19, 2006, the jury returned a verdict of guilty on both counts. (Dkt. 104.) With regard to Count Two, the jury found drug amounts in excess of five kilograms of cocaine and less than 50 kilograms of marijuana. ( Id. ) On December 1, 2006, he was sentenced to 120 months of imprisonment on Count One and a concurrent 360 months of imprisonment on Count Two. (Dkt. 121.) The judgment was affirmed on appeal. United States v. Orozco, 576 F.3d 745 (7th Cir. 2009). Certiorari was denied. Orozco v. United States, 559 U.S. 916, 130 S.Ct. 1313, 175 L.Ed.2d 1095 (2010). Orozco is now serving his sentence. Orozco's § 2255 motion was timely filed on December 1, 2010. See 28 U.S.C. § 2255(f)(1).
Relief under § 2255 "is reserved for extraordinary situations." Hays v. United States, 397 F.3d 564, 566 (7th Cir. 2005) (quoting Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996)). A district court must grant a § 2255 motion when the petitioner establishes "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Hays, 397 F.3d at 566-67 (quoting Prewitt, 83 F.3d at 816). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
In order to establish constitutionally ineffective assistance of counsel, the petitioner must show (1) "that counsel's representation fell below an objective standard of reasonableness" and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the performance prong of the Strickland test, the petitioner must direct the court to specific acts or omissions of his counsel. See United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995). The court must then consider whether, in light of all the circumstances, counsel's performance was outside the range of professionally competent assistance. Id. There is a strong presumption that counsel's performance was effective, id., and the court must not let hindsight interfere with its review of counsel's decisions. See Harris v. Reed, 894 F.2d 871, 877 (7th Cir. 1990) (citing Strickland, 466 U.S. at 697). Under the prejudice prong, to establish the reasonable probability that the outcome would have been different, the petitioner must show "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A court need not address both prongs of the Strickland test if one provides the answer; that is, if a court determines that the alleged deficiency did not prejudice the defendant, the court need not consider the first prong. See United States v. Fudge, 325 F.3d 910, 924 (7th Cir. 2003) (citing Matheney v. Anderson, 253 F.3d 1025, 1042 (7th Cir. 2001)).
I. Ineffective Assistance of Counsel
Orozco makes five claims contending that trial counsel or appellate counsel were ineffective under the Strickland test.
A. Whether Trial counsel was ineffective for failing to move to dismiss based on violations of the Speedy Trial Act ("STA").
The STA requires that an indictment be returned within 30 days after the date the defendant is arrested. 18 U.S.C. § 3161(b). Orozco contends that trial counsel was ineffective because he failed to move to dismiss once the indictment was returned more than thirty days after his arrest. Likewise, he faults appellate counsel for failing to raise the issue on appeal. The government responds that the STA was not violated because the ...