United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE EDMOND E. CHANG UNITED STATES DISTRICT JUDGE
Orlando, a federal inmate proceeding pro se, has
filed a motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. R.1, Pet.'s
A jury found Orlando guilty of conspiring to commit extortion
by the wrongful use of threatened force, violence, or fear.
18 U.S.C. § 1951; Crim. R. 269 (Oct. 8,
2014). In April 2015, he was sentenced to 46
months in prison. Crim. R. 491 (April 20, 2015). His
conviction was affirmed by the Seventh Circuit, Crim. R. 625,
and this motion followed. Now, Orlando challenges his
sentence, arguing that he received ineffective assistance of
counsel and that the Court inaccurately refused to apply a
minor-role reduction to his Sentencing Guidelines
calculations. Pet.'s Br. at 4, 8-9. For the following
reasons, Orlando's motion is denied and no certificate of
appealability will issue.
the spring and fall of 2010, Frank Orlando conspired with
Mark Dziuban, George Brown, Vito Iozzo, and Robert McManus to
collect business debts owed to American Litho through
extortion, namely, by way of threatened force, violence, and
fear. United States v. Orlando, 819 F.3d 1016, 1019
(7th Cir. 2016). Mark Dziuban was the owner of American
Litho, an Illinois printing company. Dziuban had a business
relationship with Orlando (who was an ink salesman).
Id. Dziuban asked Orlando for help to collect the
debts after legal routes failed. Id. In turn,
Orlando recruited others to confront the debtors and extort
money from them. Id. at 1020. In various
combinations, Brown, Iozzo, and McManus traveled to Nevada,
New York, New Jersey, and Wisconsin to try to collect on the
debts. Id. at 1020-21. Although Orlando did not
attend the actual shakedowns, he recruited Brown into the
extortionate conspiracy, delivered an envelope of
travel-expense money to co-conspirators, and participated in
the cover-up of the crimes after law enforcement started
went to trial on the charge of conspiring to commit extortion
through the wrongful use of force, and the jury convicted
him. Crim. R. 269 (Oct. 8, 2014). In April 2015, he was
sentenced to a below-Guidelines sentence of 46 months in
prison. Crim. R. 491; see Sentencing Hearing Tr.,
Crim. R. 518 at 14-15.
direct appeal, Orlando argued that his sentence was
unreasonable and that this Court erred in denying him the
minor-role adjustment. Orlando, 819 F.3d at 1019. In
May 2016, the Seventh Circuit affirmed his sentence.
Id. This timely filed § 2255 motion followed.
28 U.S.C. § 2255, a prisoner in custody pursuant to a
federal sentence may move to vacate his sentence “upon
the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack ....” 28
U.S.C. § 2255. In other words, to obtain relief under
§ 2255, Orlando must show that the error asserted is
“jurisdictional, constitutional, or is a fundamental
defect which inherently results in a complete miscarriage of
justice.” Barnickel v. United States, 113 F.3d
704, 705 (7th Cir. 1997).
2255, however, “is not a substitute for a direct
appeal.” Id. at 706; see also Qualls v.
United States, 774 F.2d 850, 851 (7th Cir. 1985) (citing
United States v. Addonizio, 442 U.S. 178, 184
(1979)). Consequently, “[i]f any issue could have been
raised on direct appeal, the failure to take such appeal
precludes review pursuant to a section 2255 motion unless the
petitioner can show ‘cause' for the procedural
default and ‘actual prejudice' resulting from the
errors of which the petitioner complains.”
Qualls, 774 F.2d at 851 (quoting United States
v. Frady, 456 U.S. 152, 167 (1982)); see also
Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir.
1988). There is an exception, however, for
ineffective-assistance claims, which are not subject to the
“cause and prejudice” standard. See Massaro
v. United States, 538 U.S. 500, 503 (2003)
(“[T]here is no procedural default for failure to raise
an ineffective-assistance claim on direct appeal.”).
That is because bringing ineffective assistance claims on
direct appeal may create a risk that defendants feel
compelled to raise the issue “before there has been an
opportunity fully to develop” the factual claims.
Id. at 504. Here, many of Orlando's claims are
based on allegations that his counsel was ineffective, so the
Court proceeds under the Strickland standard where
Ineffective Assistance of Counsel
Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel. To win on his
ineffective-assistance-of-counsel claim, Orlando must meet
the familiar two element standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984). Under
Strickland, Orlando must show both that his trial
counsel's performance was deficient and that he was
prejudiced as a result. Id. at 687. On the
performance element, the question is whether
“counsel's representation fell below an objective
standard of reasonableness.” Id. at 688.
review of trial counsel's performance “must be
highly deferential” and “every effort [must] 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.” Id. at 689. The
Court must presume that “the challenged action might be
considered sound trial strategy.” Id.
(internal quotation marks and citation omitted). On the
prejudice element, Orlando must show 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.