United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr. United States District Judge.
September 25, 2013, Defendant Nicacio Jaimes-Moreno was
indicted on a charge that he knowingly transported a minor in
interstate commerce with the intent that the minor engage in
criminal sexual activity in violation of 18 U.S.C. §
2423(a). Shortly before the trial on that charge was
scheduled to begin, Defendant Jaimes-Moreno pled guilty to a
lesser charge of knowingly transporting an individual (not
necessarily a minor) for the purpose of engaging in criminal
sexual activity in violation of 18 U.S.C. § 2421(a). As
a result of the plea deal, Jaimes-Moreno's potential
sentence was capped at ten years, rather than at life, and he
was sentenced on March 30, 2015 to a ten-year term. He now
moves under 18 U.S.C. § 2255 to vacate the judgment
against him, alleging that he was denied effective assistance
of counsel. For the reasons outlined below, the
defendant's claims fail to satisfy the test for
ineffective assistance set forth in Strickland v.
Washington, 466 U.S. 688 (1984), and its progeny. The
defendant cannot show that his counsel's performance was
deficient, and even if he could, he was not prejudiced by the
representation he received. Accordingly, the motion is
Defendant's Offense Conduct
approximately 2006, the defendant lived in Mexico with his
girlfriend, and Victim A, the daughter of his girlfriend. PSR
at ¶ 11; GV at 1-2. While living there, the defendant began
to rape Victim A, who was a minor. PSR at ¶¶ 10-11;
GV at 2. In 2007, the defendant moved to the United States
illegally and arranged for Victim A to join him in Tulsa,
Oklahoma. PSR at ¶ 12; GV at 2-3. In about May 2010, the
defendant, Victim A, and Victim A's mother together moved
from Oklahoma to Indiana. PSR at ¶ 13; GV at 4. Next,
the defendant moved Victim A and her mother with him to
Illinois in August or September 2010, when Victim A was 15
years old. R. 90 at 2; PSR at ¶ 13. Throughout their
time in Oklahoma, Indiana, and Illinois, the defendant
continued to rape Victim A. R. 90 at 2; PSR at ¶ 13; GV
August 28, 2013, the defendant was named in a criminal
complaint charging him with knowingly transporting Victim A,
a minor, in interstate commerce from Indiana to Illinois,
with the intent that Victim A engage in sexual activity for
which the defendant could be charged with a criminal offense,
in violation of 18 U.S.C. § 2423(a). Cmplt., ECF No. 1.
On September 19, 2013, the grand jury returned a one-count
indictment charging the defendant with the same crime.
Indictment, ECF No. 8. This charge carried a mandatory
minimum term of imprisonment of ten years and a maximum term
of imprisonment for life. Trial was set for October 27, 2014.
ECF No. 47. As discussed further below, the defendant
ultimately waived his right to a jury trial and requested a
bench trial. ECF No. 59.
Motions to Substitute Counsel
the defendant's original counsel withdrew on November 14,
2013,  then, on or about December 11, 2013, the
Court appointed the defendant's counsel, Ralph Schindler,
who is the subject of the defendant's pending motion.
See ECF Nos. 25-27, 41. Three months later, on March
12, 2014, the defendant filed a pro se motion
seeking substitution of counsel on the basis that “an
irreconcilable conflict” had arisen between the
defendant and his counsel. ECF No. 31. During a March 26,
2014 hearing (ECF No. 42), the Court denied the
defendant's motion after learning that the
defendant's primary concern was that he wanted more
communication with his counsel. 3/26/2014 Tr. (ECF No. 120)
at 5-6. During the hearing, the defendant acknowledged that
he had an opportunity to talk about issues with counsel, that
counsel explained what counsel was doing, and that
counsel's explanations answered the defendant's
questions and concerns, but nevertheless maintained that he
wanted to switch counsel. Id. at 4. The Court noted
that counsel had “invested a substantial period of time
on [the defendant's case] already” and that the
general nature of the problem did not then warrant the
appointment of new counsel. Id. at 6. Accordingly,
the court denied the defendant's motion and directed both
the defendant and his counsel “to work harder at
working together productively, ” which the defendant
agreed to do. Id. at 6-7. The court specifically
advised the defendant that it would reconsider the need to
appoint different counsel if “Mr. Schindler and you
continue to go down the road and you continue to have
problems working together.” Id. at 6.
than three months before trial, on August 4, 2014, the
defendant again filed a pro se motion for substitute
counsel. ECF No. 52. Among other things, the defendant's
motion stated that “his attorney verbally promised the
[the defendant] [a] 3-4 years sentence” based on
counsel's apparent plea discussions with the government,
but that the defendant “did not agree with the
time.” Id. at 2. The defendant also cited his
concern about potentially facing new federal charges
involving guns, as well as the defendant's concern about
accepting a plea offer that could result in a 10-year
sentence. Id. The Court held a hearing on the
defendant's motion on August 21, 2014. ECF No. 59. During
this dialog, the defendant complained that Mr. Schindler had
told him that there was “nothing he could do” to
help the defendant, but when the Court pressed the defendant
to explain further, it became clear that the defendant's
principal problem as to Mr. Schindler was not what he had
done or failed to do to prepare for trial but rather his
(Schindler's) inability to negotiate a better deal with
the government. Id. at 7-9. With respect to the
defendant's concerns, the Court confirmed that the
government was entitled to its view of the case and that Mr.
Schindler's duty as the defendant's counsel was to
“assist you in defending against whatever charges the
government brings at a trial if the government is unwilling
to offer you a deal that is acceptable to you short of a
trial. And from all that I can see in this case, . . . Mr.
Schindler is doing exactly that. The court then cataloged for
the defendant the types of actions that Mr. Schindler was
making on his behalf:
You're entitled to competent counsel, and everything I
can see of Mr. Schindler's representation in that matter
suggests that he is performing his duties competently, and
that's an understatement because the record in this case
reflects that he is very actively doing things necessary to
defend against the charges that have been brought against
you. He has secured the services of investigators, he has
secured or is seeking to secure the services of expert
witnesses, he has interviewed and secured or has a motion
pending that we'll address today to ensure that a number
of witnesses for your defense are brought in from other
locations at the government's expense. He has filed
numerous motions to preserve your rights as guaranteed by the
Federal Rules of Criminal Procedure. In short, Mr.
Schindler's efforts in this case have been substantial,
they have been appropriate in the view of the Court in terms
of the kinds of activity that would be necessary to defend
this case, and they are substantially in excess of the kinds
of efforts that the court normally sees made in defending
8/21/2014 Tr. (ECF No. 117) at 6-7. The court denied the
motion in the absence of any indication that the
communication problems between the defendant and Mr.
Schindler were preventing Mr. Schindler from preparing for
trial or getting necessary information from the defendant.
Id. at 10.
the same hearing, the defendant confirmed that, as indicated
by the motion filed by his attorney (ECF No. 56), he was
seeking a bench trial. 8/21/2014 Tr. (ECF No. 117) at 14-15.
In the ensuing colloquy to ensure that the defendant's
waiver of his right to a jury trial was knowing and
voluntary, the defendant noted that he was taking
“three different psychiatric medications” at the
time, which were being prescribed for him at the MCC.
Id. at 17-18. In response to the court's
questions, the defendant confirmed that the medications
helped him to relax and to think more clearly and that there
was no reason he could not go forward with an important
decision like waiving his right to a jury trial. Id.
at 19. After a full colloquy, the court accepted the
defendant's jury trial waiver and entered an order
setting the case for a bench trial. ECF No. 59.
pretrial conference was scheduled on October 22, 2014. At the
very outset of the conference, the defendant personally
requested an opportunity to engage in further plea
discussions with the government. 10/22/14 Tr. (ECF No. 114)
at 2. Mr. Schindler explained that the mandatory minimum
sentence of 10 years carried by the indictment had been the
sticking point in negotiations and the government indicated
that it had offered to issue a superseding information
charging a crime that carried a 10-year maximum sentence and
eliminated the mandatory minimum. The court accommodated the
defendant's request and delayed the start of the
conference to give the parties an opportunity to confer
further. Within about half an hour, the parties advised the
Court that the discussion had been fruitful and that it was
likely that the defendant would enter a plea of guilty to a
superseding information charging a less serious crime than
following day, October 23, 2014, the defendant pled guilty
pursuant to a written plea declaration to a one-count
superseding information, which charged him with knowingly
transporting Victim A in interstate commerce from Indiana to
Illinois, with the intent that Victim A engage in sexual
activity for which the defendant could be charged with a
criminal offense, in violation of 18 U.S.C. § 2421.
Superseding Information (“SSI”), ECF No. 87. The
defendant acknowledged in his plea declaration that, at the
time he moved Victim A to Illinois, she was under the age of
16 and he intended to continue his sexual conduct with her in
a manner that constituted criminal sexual assault,
see 720 ILCS 5/11-1.20; criminal sexual abuse,
see 720 ILCS 5/11-1.50; and aggravated criminal
sexual abuse, see 720 ILCS 5/11-1.60. Plea Dec., ECF
No. 90 at 2. But, because under § 2421, the age of the
person transported is not an element of the offense, that
charge carries lesser penalties than does § 2423; the
defendant's conviction on the § 2421 charged reduced
the maximum term of imprisonment the defendant faced from
life to ten years and eliminated the mandatory minimum term
defendant stated in his plea declaration that he had
“read the charge against him contained in the
superseding information, and that charge has been fully
explained to him by his attorney.” Id. at 1.
The defendant also stated in his declaration that he fully
understood the nature and elements of the crime with which he
was charged and understood that it carries a maximum sentence
of 10 years imprisonment. Id. at 1-2. As to role of
the Sentencing Guidelines, the defendant acknowledged that he
“[understood] that in imposing sentence the Court will
be guided by the United States Sentencing Guidelines, ”
and “that the Sentencing Guidelines are advisory, not
mandatory, but that the Court must consider the Guidelines in
determining a reasonable sentence.” Id. at 3.
The defendant further acknowledged that “the sentencing
judge is neither a party to nor bound by this Plea
Declaration and may impose a sentence up to the maximum
penalties” [of 10 years]. Id. at 7. The
defendant's declaration more specifically addressed the
calculation of the applicable sentencing range under the
Based on the facts now known, the anticipated offense level
is 25, which, when combined with the anticipated criminal
history category of V, results in an anticipated Sentencing
Guidelines range of 100 to 125 months imprisonment. Defendant
and his attorney acknowledge that the above Guidelines
calculations are preliminary in nature, and are non-binding
predictions upon which neither is entitled to rely. Defendant
understands that further review of the facts or applicable
legal principles may result in the conclusions that different
or additional Guidelines provisions apply in this case.
Defendant understands that the Court ultimately determines
the facts and law relevant to sentencing, and that the
Court's determinations govern the final Guideline
Id. at 6.
defendant further acknowledged that: (1) “no threats,
promises, or representations have been made, nor agreements
reached, other than those set forth in this Plea Declaration,
to cause defendant to plead guilty;” (2) “he has
read this Plea Declaration and carefully reviewed each
provision with his attorney;” and (3) “that he
understands and voluntarily accepts each and every term and
condition of this Plea Declaration.” Id. at
outset of the defendant's change of plea hearing, the
defendant acknowledged that his responses to the court would
be under oath and that he was required to tell the truth.
Plea Tr., ECF No. 115 at 4-5. The defendant affirmed that he
had adequate opportunity to discuss the superseding charge
with counsel and that he had no further questions that he
needed to discuss with his attorney about the superseding
information. Id. In response to the Court's
questions, the defendant indicated that he does not
communicate in English, has little schooling, and limited
ability to read and write Spanish, but also confirmed that he
had nonetheless gone over documents with his attorney and a
translator and that the defendant was satisfied that he was
given full information about those documents. Id. at
under oath at the October 23, 2014 change of plea hearing,
the defendant advised the Court as follows concerning his
competency to enter a plea:
Court: Are you presently taking any medications?
Court: What medications?
Defendant: Three types of medications; psychiatric drugs and
also for high blood pressure.
Court: All right. Do any of those drugs affect your ability
to understand what's going on?
Court: In fact, do those drugs help you to better understand
and think clearly?
Court: Now, you said some of those drugs are psychiatric
drugs. Are you presently being treated for any psychiatric or
Court: What is the general nature of that problem?
Defendant: The psychiatrists have not diagnosed me yet. We
are in the evaluation process.
Court: Is that a process that's begun while you have been
* * * * *
Court: Is there any reason, Mr. Moreno, that you do not feel
that you are able mentally because of these psychiatric
problems to make very important decisions that are going to
affect your life?
* * * * *
Court: And you feel fully capable this morning of making
Id. at 9-10. The Court asked the defendant's
counsel whether, “based on [his] extensive interactions
with the [the defendant], ” counsel had “any
reason to question his competence to waive indictment and
enter a plea of guilty, ” to which counsel replied,
“None, your honor. I believe he is more lucid today
than he has ever been in his life.” Id. at 11.
The government likewise indicated that it had no reason to
question the defendant's competence to waive indictment
and to enter a plea of guilty. Id. The court thus
found the defendant to be “competent to waive
indictment and to enter a plea to the charge contained in the
change of plea hearing, the defendant confirmed his signature
on the plea declaration and confirmed, in response to the
Court's questions, that he had a full and adequate
opportunity to review the plea declaration and to discuss it
with his attorney and had no further questions. Id.
at 22-23. The defendant further represented that the
information set forth in the plea declaration was truthful
and accurate. Id. at 23. In making his decision, the
defendant acknowledged that no one forced him in any way to
plead guilty and that he signed the declaration because he
thought it was the best thing to do in view of his
circumstances. Id. The defendant affirmed that no
one promised him anything in order to convince him to plead
guilty to the charge in the information and, specifically,
that no one promised the defendant anything about his
eventual sentence in his case. Id. at 23-24.
defendant further told the court that he had spoken with his
attorney about the Sentencing Guidelines, including an
explanation that, based on the facts of the case and based on
the defendant's criminal history category, the Guidelines
would produce a recommended sentence. Id. at 24-25.
The defendant acknowledged his understanding that the
guideline range is only a recommendation that that is not
binding on the Court. Id. at 25. The defendant
further indicated to the Court his understanding of his
potential sentence, as follows:
Court: All right. So do you understand that no one - [not]
Schindler, not the government, not even me at this point-can
tell you what your sentence in this case is going to be yet?
Do you understand that?
Court: Your sentence could be anywhere from a very short
sentence up to the 10-year maximum that the law allows on the
charge that you wish to ...