United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
A. Guzmán United States District Judge
reasons stated below, the Court denies Sarno's §
2255 motion  and declines to issue a certificate of
appealability. Civil case terminated.
Court assumes familiarity with the facts of the case.
Briefly, Michael Sarno was charged in 2009 along with several
others with: (1) conspiring to participate in the affairs of
a criminal enterprise, which engaged in numerous illegal
activities, including but not limited to armed robberies,
arson, and using threats, violence, and intimidation to
advance the interests of the enterprise, and (2) knowingly
conducting an illegal gambling business. (3d Superseding
Indictment, United States v. Sarno, 08 CR 115, Dkt.
# 310.) The criminal enterprise was alleged to have been
involved in the bombing of a competitor's video gambling
business as well as home and jewelry-store robberies, among
other things. After a trial, the jury convicted Sarno of both
counts, and the Court sentenced him to 300 months in prison.
United States v. Volpendesto, 746 F.3d 273, 278 (7th
Cir. 2014). Sarno's sentence and conviction were upheld
on appeal. Id.
current motion under 28 U.S.C. § 2255, Sarno alleges the
following grounds for relief:
due process violation based on the government's failure
to turn over exculpatory evidence regarding its investigation
of another suspect as the leader of the relevant robberies;
Ineffective assistance of counsel based on trial
counsel's failure to cross-examine witnesses regarding
Ineffective assistance of counsel in failing to investigate
and present evidence that rebutted the government's
claims regarding Sarno's leadership role in the
due process violation based on the government's failure
to turn over the exculpatory evidence relating the benefits
received by its cooperating witness, Mark Hay;
court erred in classifying him as a career offender under the
residual clause of U.S.S.G. § 4B1.2(a)(2), which is
worded identically to the residual clause of the Armed Career
Criminal Act (“ACCA), which was declared
unconstitutional in Johnson v. United States, 135
S.Ct. 2551 (2015).
Ineffective assistance of trial counsel for failing to obtain
the sealed portion of Hays' sentencing transcript in
which the agents discuss the extent of Hays' cooperation;
Ineffective assistance of trial counsel in failing to attempt
to rebut the government's factual claims that Sarno was
responsible for the robberies committed by his co-defendants.
2255 allows a defendant to move to vacate, set aside, or
correct a sentence that was imposed in violation of the
Constitution of the United States. See 28 U.S.C.
§ 2255(a). Relief under § 2255 is an extraordinary
remedy, because a § 2255 petitioner has already had
“an opportunity for full process.” Almonacid
v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Ineffective Assistance of Counsel
defendant asserting an ineffective assistance of counsel
claim must show that counsel's performance was
objectively deficient and this lack of competent
representation resulted in prejudice. See United States
v. Jones, 635 F.3d 909, 915 (7th Cir. 2011) (citing
Strickland v. Washington, 466 U.S. 668, 687-96
(1993)). To show prejudice, the defendant must demonstrate
there is a reasonable probability that but for counsel's
mistakes, the result of the proceedings would have been
different. See id. Regarding the
deficient-performance prong, great deference is given to
counsel's performance, and the defendant has a heavy
burden to overcome the strong presumption of effective
performance. See id. at 690; Coleman v. United
States, 318 F.3d 754, 758 (7th Cir. 2003) (citation
omitted). A defendant must establish specific acts or
admissions that fall below professional norms.
Strickland, 466 U.S. at 690. If one prong is not
satisfied, it is unnecessary to reach the merits of the
second prong. Id. at 697.
Failure to Cross-Examine John Scardina
contends that his trial lawyer was ineffective for failing to
cross-examine John Scardina, a government witness, about
inconsistent statements he made regarding who had threatened
Vincent Dublino for providing gambling devices on more
favorable terms that those offered by Sarno. Sarno contends
that when Scardina appeared before the grand jury, he
testified that Dublino had told him that Rudy Fratto had sent
people to threaten him, but at trial, Scardino testified that
it was Sarno who made threats against Dublino. Sarno faults
his trial counsel for failing to raise Scardina's
purportedly inconsistent statements during cross-examination,
particularly in light of the Court's
“invitation” to do so after the parties engaged
in a sidebar on the issue after all cross-examination had
initial matter, the government states in its response that
“Scardina's grand jury statement made clear that
Sarno had instructed Dublino to stay away from his stop
and that Fratto had sought street tax from
Dublino.” (Gov't's Resp., Dkt. # 9, at 27)
(emphasis in original). The government notes that the
“Chicago Outfit traditionally collects street tax,
namely, extortion payments or ‘protection money'
required as the cost of operating a legal or illegal
business.” (Id.) (citation omitted). Thus,
given that Scardina implicated both Sarno and Fratto as
potentially having made threats in his grand jury testimony,
there was no inherent inconsistency, and thus no need for
event, to the extent that counsel wanted to generally
discredit Scardina, and his fingering Sarno for the bombing
of Dublino's business, he did so in the following
exchange during Scardina's cross-examination at trial:
Q. Well, let me ask you about October 12th [,
2010]. Did you talk to this assistant United States attorney
and, again, with Special Agent Thomas Coleman about your
grand jury testimony [in a pretrial interview]?
. . ...