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Sullivan v. United States

United States Court of Appeals, Seventh Circuit

December 8, 2017

Daniel Sullivan, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued November 14, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 3067 - Ruben Castillo, Chief Judge.

          Before Bauer, Easterbrook, and Sykes, Circuit Judges.

          Per CURIAM.

         A jury 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.

         We 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 affirm.

         I. BACKGROUND

         Our 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.

         In 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.

         After 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.

         The 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.

         John 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.

         Judge 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. ยง 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 ...

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