November 14, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 C 3067 - Ruben
Castillo, Chief Judge.
Bauer, Easterbrook, and Sykes, Circuit Judges.
found Daniel Sullivan and his brother John guilty of two
counts of committing wire fraud in connection with a
home-remodeling scheme they operated for several years. The
district judge sentenced both brothers to 168 months'
imprisonment, and on direct appeal we affirmed their
sentences. See United States v. Sullivan, 765 F.3d
712 (7th Cir. 2014). They then filed separate pro se
collateral challenges under 28 U.S.C. § 2255, each
contending that their attorneys were constitutionally
ineffective. The district judge denied both § 2255
motions without holding an evidentiary hearing. The present
appeal concerns the denial of Daniel's motion.
granted Daniel a certificate of appealability on his claims
that his attorneys rendered constitutionally ineffective
assistance by failing to (1) raise an objection under
Batson v. Kentucky, 476 U.S. 79 (1986), to the
exclusion of potential jurors based on race; and (2) hire an
expert witness to testify about the amount of loss
attributable to Daniel for purposes of the Guidelines. We
opinion from the Sullivans' direct appeal details the
case's background. The brothers operated various
companies that offered remodeling services in Chicago.
Through subcontractors they performed legitimate work for
clients who paid in cash, but they padded their profits by
duping dozens of elderly, unsophisticated homeowners into
refinancing their homes to pay substantial sums for work they
never intended to finish. At one point the Circuit Court of
Cook County permanently enjoined both John and a company the
brothers co-owned from engaging in the home-repair business
in the city of Chicago; the brothers, however, circumvented
the injunction by creating a new company and installing an
employee as its nominal president. They also falsified
contracts to hide their fraudulent activity.
September 2010 a grand jury charged the Sullivans with wire
fraud, and a year later they were tried together in front of
Judge Blanche Manning. The jury heard testimony from
victimized homeowners, the brothers' employees, a
subcontractor they used for some projects, and various
bankers and investigators. The jury found the defendants
guilty of two counts of wire fraud each.
Judge Manning retired, the case was transferred to Judge
Ruben Castillo, who found both brothers responsible for
causing about $750, 000 in losses to their victims and
sentenced them to 168 months' imprisonment each.
Sullivans each appealed, arguing that the district judge
erred in calculating the amount of loss for purposes of the
Guidelines and in imposing various upward adjustments based
on the judge's findings that the scheme involved
vulnerable victims (U.S.S.G. § 3A1.1(b)(1)), the
violation of a prior judicial injunction (id. §
2B1.1(b)(9)(C)), sophisticated means (id. §
2B1.1(b)(10)(C)), and mass marketing (id. §
2B1.1(b)(2)(A)). John also challenged an adjustment he
received for being an organizer or leader of the scheme
(U.S.S.G. § 3B1.1(a)). We rejected all these contentions
and affirmed both brothers' sentences.
and Daniel then filed pro se motions for collateral relief
under 28 U.S.C. § 2255, and for the first time their
cases diverged. Daniel argued that his attorney rendered
constitutionally ineffective assistance by failing to (1)
object to the exclusion of jurors on a potentially
discriminatory basis, (2) hire an expert witness to testify
about the loss amount.
Castillo summarily dismissed Daniel's motion in a
one-paragraph order that reads in its entirety as follows:
After a careful review of this recently filed petition under
28 U.S.C. § 2255, in light of the trial record and
appeal in this case, this Court easily concludes that
Petitioner has not established any non-waived constitutional
error in these proceedings. For these reasons, this petition
is denied with prejudice. Petitioner has not established the