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United States v. Orlando

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

November 30, 2017

UNITED STATES OF AMERICA Plaintiff-Respondent,
FRANK ORLANDO, Defendant-Petitioner.



         Frank 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.[1] R.1, Pet.'s Mot.[2] 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).[3] 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.

         I. Background

         Between 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 investigating. Id.

         Orlando 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.

         In his 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.

         II. Legal Standard

         A. Section 2255

         Under 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).

         Section 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 appropriate.

         B. Ineffective Assistance of Counsel

         The 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.

         Judicial 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.

         III. ...

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