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Garcia v. United States

United States District Court, N.D. Illinois, Eastern Division

March 22, 2017

VICENTE GARCIA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          CHARLES RONALD NORGLE, JUDGE.

         Before the Court is Petitioner Vicente Garcia's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. For the following reasons, the motion is denied.

         I. BACKGROUND

         This § 2255 petition comes after an "extensive criminal prosecution aris[ing] out of the operations of the Latin Kings street gang in Chicago from 2000-2008." United States v. Garcia, 754 F.3d 460, 465 (7th Cir. 2014). Vicente Garcia ("Petitioner") was one of fifteen high-ranking gang leaders indicted for violations of the Racketeer Influenced and Corrupt Organizations ("RICO") statute and a host of other crimes. Specifically, Petitioner was charged by superseding indictment with: (1) participating in a RICO conspiracy in violation of 18 U.S.C. § 1962(d); (2) conspiring to commit extortion in violation of 18 U.S.C. § 1951; (3) committing assault with a dangerous weapon in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3); (4) using and carrying a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c); (5) conspiring to distribute cocaine in violation of 21 U.S.C. § 846; and (6) possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). These charges were in connection with Petitioner's roles as a Supreme Regional Inca and Regional Inca of the Latin Kings in the Little Village neighborhood in Chicago. Supreme Regional Incas were immediately below the Coronas, the highest ranking officers nationwide. Supreme Regional Incas oversaw gang operations in regions within each of their designated geographic areas, implemented gang rules, ensured punishment for rules violations, and directed retaliation against rival gangs. Regional Incas also managed gang operations, but did so in a smaller territory than Supreme Regional Incas.

         On April 6, 2011, the jury returned a guilty verdict as to all counts. Prior to sentencing, the Probation Office's Presentence Investigation Report ("PSR") listed Petitioner's total offense level as 43, Petitioner's criminal history category as level III, and a guidelines range of life imprisonment. On November 12, 2012, Petitioner filed objections the PSR and his sentencing memorandum in support of a variance. On January 31, 2013, the Government filed its position paper, which urged the Court to impose a sixty-year sentence.

         On May 2, 2011, Petitioner's trial counsel moved to withdraw. Counsel was the fourth attorney of record and the third CJA Panel attorney appointed to represent Petitioner. On May 13, 2011, the Court denied counsel's motion. Thereafter, Petitioner retained a new attorney. On May 31, 2011, the new attorney filed his notice of appearance. On July 6, 2011, the Court permitted Petitioner's previous counsel to withdraw.

         On February 8, 2013, Petitioner appeared for sentencing. The Court sentenced Petitioner to 240 months in prison on Counts One, Two, Nine, Ten, and Fourteen; 60 months on Counts Eleven and Thirteen; and 360 months on Count Twelve. All of these terms were to run concurrently. Finally, the Court ordered Petitioner to serve 120 months in prison on Count Three, which was to run consecutively to the other counts.

         On February 20, 2013, Petitioner timely noticed his appeal before the Seventh Circuit challenging both his conviction and sentence. The court of appeals consolidated Petitioner's appeal with eight of his co-defendants.[1] Petitioner submitted his appellate brief on August 15, 2015. The appeal raised the following arguments: "(1) the "half-Pinkerton " instruction violated his rights; (2) his convictions for violent crimes in aid of racketeering ("VICAR") violated his Double Jeopardy rights; (3) his mandatory minimum sentence for use of a firearm violated the Supreme Court's rule in Alleyne; (4) his conviction on count 9 for a violent crime in aid of racketeering should be set aside for insufficient evidence; (5) the evidence on his extortion conviction was insufficient; (6) the court erred by refusing to grant a mistrial after the jury saw some of the defendants being escorted by U.S. marshals; (7) the court applied the wrong standard of proof at sentencing; and (8) the court improperly applied the sentencing guidelines." Garcia, 754 F.3d at 475. On June 13, 2014, the Seventh Circuit affirmed both the conviction and sentence. Thereafter, the Supreme Court of the United States denied Petitioner's writ of certiorari.

         On January 19, 2016, Petitioner filed this § 2255 motion along with his memorandum of law. On May 9, 2016, Petitioner submitted what is styled as an affidavit of facts, but in reality, sets forth four new arguments in support of his petitioner. On June 16, 2016, the Government submitted its response to Petitioner's filings. Between June 27, 2016 and August 4, 2016- subsequent to the Government filing its response brief-Petitioner filed four more affidavits of fact and a letter to the Court. On, August 22, 2016, without leave of Court, Petitioner submitted a "Clarified Amended Motion to Vacate Conviction Under 18 U.S.C. § 2255." The Court denied the Clarified Amended Motion without prejudice, and Petitioner never refiled the motion.

         II. DISCUSSION

         A. Standard of Review

         Section 2255 allows a federal prisoner to vacate, set aside, or correct his sentence when his judicial process contained '"an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)); see also 28 U.S.C. § 2855. The Sixth Amendment guarantees criminal defendants "the right to effective assistance of counsel." Missouri v. Frye, 132 S.Ct. 1399, 1404 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). To prevail on an ineffective assistance of counsel claim a petitioner must show that: (1) "counsel's performance was deficient, " and that (2) "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. To establish deficient performance, "the petitioner must show 'that counsel's representation fell below an objective standard of reasonableness.'" Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011) (quoting Strickland, 466 U.S. at 688). Counsel has discretion to pursue a competent legal strategy; therefore, the Court's review of counsel's performance is "highly deferential" and the Court applies "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Yu Tian Li v. United States, 648 F.3d 524, 527-528 (7th Cir. 2011) (citing Strickland, 466 U.S. at 689).

         B. Petitioner's Arguments in Support of His Section 2255 Petition

         Petitioner raises nineteen vague, scarcely supported arguments in his memorandum of law. He couches the vast majority of the claims in terms of ineffective assistance of counsel in an attempt to circumvent § 2255's restrictions on collateral relief and procedural default. See Williams v. United States, 805 F.2d 1301, 1303 (7th Cir. 1986) (failure to raise constitutional challenges on direct appeal bars a petitioner from raising the same issues in a § 2255 proceeding absent a showing of good cause and actual prejudice resulting from the alleged constitutional violation). Petitioner also filed what is styled as an "Affidavit of Facts"; however, he essentially raises four new claims. The Court addresses Petitioner's arguments in turn. Because many of the arguments are threadbare, redundant, or Petitioner failed to raise them on direct appeal, the Court need not address all of Petitioner's arguments in substantial detail.

         1. Claim One

         Petitioner first argues that the Court lacked subject matter jurisdiction over his trial because the Government failed to establish standing by presenting the Court with a case or controversy. Federal district courts have original jurisdiction over all violations of federal law. 18 U.S.C. § 3231. The Government prosecuted Petitioner for numerous violations of the United States Code. Thus, the Court had proper jurisdiction, so Petitioner's argument fails.

         2. Claim Two

         Petitioner next argues that trial counsel was ineffective by failing to challenge the sufficiency of the indictment. He argues that the indictment is deficient because it does not provide the pattern of racketeering activity and does not give adequate notice of the predicate acts. Petitioner claims that, as a result, he could not adequately prepare a defense. He also states that Count Ten, which alleges a Hobbs Act violation, failed to allege an overt act and did not state the names of the extortion victims. Petitioner's argument is undeveloped, as it provides no factual support and no citation to legal authority outside of establishing a defendant's right to be apprised of the charges against him. Thus, Petitioner has waived this argument. See Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009) ("Perfunctory, undeveloped arguments without discussion or citation to pertinent legal authority are waived.") (citation omitted).

         Assuming arguendo that waiver did not apply, Petitioner's claim still fails. As the Government correctly identifies, "[n]either overt acts, nor specific predicate acts that the defendant agreed personally to commit, need be alleged or proved for a section 1962(d) offense." United States v. Glecier, 923 F.2d 496, 500 (7th Cir. 1991) (internal citations omitted). As to the Hobbs Act violation, the indictment indeed states that the defendants received payments from an organization that was illegally selling fraudulent immigration documents. Petitioner is wrong in stating that the Government must identify individual names of the victims. See United States v. Roya, 574 F.2d 386, 391 (7th Cir. 1978) (rejecting the argument that the failure to state the names and addresses of individuals warrants dismissal of an indictment because "[t]he test is whether the indictment sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges to enable him to prepare for trial.") (internal citations omitted). Thus, the indictment in this case passes muster.

         3. Claim Three

         Petitioner believes that trial counsel was ineffective for failing to sever Counts 12 and 13 for crack cocaine distribution. He asserts that the sales of cocaine were too temporally disconnected to be charged together. First, Petitioner provides nothing more than the bald assertions that the drug sales were not part of the same series of acts or transactions, the counts should have been severed, and he suffered grave injustice and prejudice. Petitioner fails to set forth any factual support or legal authority justifying his position. For that reason, his argument fails. See Ramos, 588 F.3d at 1146 (citation omitted) ("Perfunctory, undeveloped arguments without discussion or citation to pertinent legal authority are waived."); see also United States v. Velasquez, 772 F.2d 1348, 1352 (7th Cir. 1985) ("In practice, severe prejudice is required for an order of severance and the trial judge's refusal to sever is rarely reversed.").

         Second, the Government is correct that the indictment may properly charge a defendant in separate counts where those charges are of the same or similar character. Velasquez, 772 F.2d at 1352 (citing Fed. R. Crim. P. 8(a)). Both counts charged Petitioner with selling crack cocaine. For this additional reason, trial counsel was not ineffective for not moving to sever the counts.

         4. Claim Four

         Petitioner argues that trial counsel was ineffective for withdrawing a motion to suppress firearms and, in the alternative, for failing to object to the admissibility of the firearms. First, the Government is correct that no basis for suppression existed. The firearms were found at a storage facility in response to an employee of that facility calling the police. That employee alerted the police because he observed the firearms and ammunition in a unit considered to be vacant, yet the locker suspiciously had a lock on it. Trial counsel's decision to withdraw the motion to suppress was reasonable in light of the parties' briefing on the issue. Petitioner could not show a reasonable expectation of privacy because (1) the guns were originally seized by a property manager; and (2) the guns were located in a locker not rented by Petitioner. See Rakas v. Illinois, 439 U.S. 128, 134 (1978) ("A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.") (citation omitted); see generally United States v. Jones, 565 U.S. 400 (2012) (discussing reasonable expectation of privacy).

         Additionally, Petitioner is wrong in his assertion that trial counsel failed to object to the admissibility of the firearms. See Gov't Resp. at 14 (citing Tr. at 1549-51)[2] (discussing trial counsel's objection to the admissibility of evidence obtained from the storage locker and the Court's consideration of the matter pursuant to Federal Rules of Evidence 401, 402, and 403). Even Petitioner's new, retained trial counsel raised the issue on motion for a new trial or judgment of acquittal. See Id. (citing R. 909, Mot. for New Trial or Judgment of Acquittal at 2). Thus, Petitioner's lawyers carried out a reasonable trial strategy by withdrawing a meritless suppression motion. Additionally, because trial counsel indeed challenged the admissibility of the firearms, Petitioner's contention that the firearms were inadmissible fails because he could have raised the matter on direct appeal before the Seventh Circuit, but he did not. White v. United States, 371 F.3d 900, 902 (7th Cir. 2004) (prisoners are forbidden from relitigating in a collateral proceeding an issue that was decided on direct appeal).

         5. ...


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