United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION & ORDER
B. Gottschall United States District Judge.
the court is the motion of Jorge Uriarte
(“Jorge”) to amend his 28 U.S.C. § 2255
motion to vacate, correct, or set aside his sentence. Jorge
wants to add an ineffective assistance of counsel claim
premised on the failure of his second appointed lawyer,
Michael E. Rediger (“Rediger”), to move in
November 2018 to continue his re-sentencing hearing.
See Mot. to Am. 1, ECF No. 28. The court grants the
motion for the following reasons.
orders entered on the companion criminal docket, No.
09-CR-332 (cited as “Cr. ECF No.”), have covered
the increasingly serpentine procedural history of this case
in detail. In 2016, the Seventh Circuit vacated the
convictions of three defendants-including Jorge and his
brother Hector Uriarte (“Hector”)-of the offense
charged in count eight and remanded the case with directions
to re-sentence. United States v. Cardena, 842 F.3d
959, 1002 (7th Cir. 2016). Counts 8 and 11 charged recidivist
offenses in violation of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(c).
remand, Jorge claimed that he learned for the first time
while preparing for re-sentencing that his trial counsel,
John M. Beal (“Beal”), did not inform him of a
pretrial plea offer. Due to the possible conflict and at
Jorge's request, this court appointed Rediger to
represent Jorge. On September 18, 2018, the court ruled that
Jorge's ineffective assistance of counsel claim based on
Beal's alleged conduct should be prosecuted in a
collateral proceeding after his resentencing. Order 7-11, Cr.
ECF No. 1784. The instant § 2255 motion initiated that
collateral proceeding. On November 16, 2018, the court
resentenced Jorge. He received the mandatory minimum sentence
then allowed by the ACCA (40 years).
then file the instant § 2255 petition alleging that Beal
was ineffective for failing to convey a pretrial plea offer
to Jorge. ECF No. 1. The court held evidentiary hearings on
March 14 and April 10, 2019. ECF Nos. 9, 14. The court has
not yet heard closing arguments, however, due to the
possibility, considered here, that Jorge will add a new
claim. Hector's resentencing took longer than
Jorge's. It occurred in May 2019 due to an interlocutory
appeal filed pro se by Hector. In August 2018, Hector filed a
pro se motion to vacate his sentence. Cr. ECF No. 1765. On
September 18, 2018, the court denied that motion, finding
that the law of the case doctrine barred his arguments. Cr.
ECF No. 1783 at 2-4. Hector appealed. Cr. ECF No. 1792 (Oct.
1, 2018). By agreement of the government and the parties, the
court continued Hector's resentencing until the Seventh
Circuit dismissed his interlocutory appeal. See Cr.
ECF Nos. 1811-14.
Hector's appeal was pending, but a little more than a
month after the court resentenced Jorge, Congress enacted the
First Step Act of 2018 (“First Step Act”), Pub.
L. No.115-391, 132 Stat. 5194 (Dec. 21, 2018). As stated in
this court's memorandum opinion entered prior to
Counts 8 and 11 of the indictment charged various defendants
with possessing a firearm in connection with separate
kidnappings, both violations of 18 U.S.C. § 924(c)(1).
Until [the First Step Act], subsection 924(c)(1)(C) mandated
a 25-year minimum sentence in the case of a second or
subsequent conviction under this subsection. 18 U.S.C. §
924(c) (2012). Effective December 21, 2018, § 403(a) of
the First Step Act changed the language triggering the
25-year minimum in § 924(c)(1). In the wake of the First
Step Act, a § 924(c) offense must “occur[ ] after
a prior [§ 924(c)(1)] conviction . . . has become
final.” First Step Act § 403(a). Section 403(b)
provides that “[t]his section, and the amendments made
by this section, shall apply to any offense that was
committed before the date of enactment of this Act, if a
sentence for the offense has not been imposed as of such date
Cr. ECF No. 1835 at 1 (footnote and some internal citations
omitted). Prior to Hector's resentencing, the court held
that § 403(a) applies to a case pending on remand for a
general resentencing, making Hector's mandatory minimum
sentence 20 rather than 40 years. Id. at 1-8. The
court resentenced Hector on May 10, 2019. After weighing the
statutory sentencing factors, see 18 U.S.C. 3553(a),
the court determined that a 20-year sentence was sufficient
but no greater than necessary for Hector. See
Sentencing Tr., ECF No. 1844. The government has appealed.
Cr. ECF No. 1845, docketed as No. 19-2092 (7th Cir.).
status hearing on Jorge's § 2255 motion was held on
May 29, 2019. The court raised concerns that a lawyer other
than Rediger should look into the possibility of bringing an
ineffective assistance claim in light of the outcome of
Hector's resentencing. See Tr., ECF No. 24. The
court appointed Anthony Hill (“Hill”) for that
purpose. ECF No. 22.
filed the instant motion to amend on Jorge's behalf. The
motion seeks to add an ineffective assistance claim under the
Sixth Amendment. Rediger should, according to the proposed
claim, have moved to continue Jorge's resentencing in
November 2018 because Congress was about to pass the First
Step Act. Mot. Leave to Am. ¶ 7, ECF No. 28. The motion
to amend adds that Jorge waives any potential conflict of
interest Rediger may have; Jorge wants Rediger to continue
representing him on his claim concerning Beal's conduct.
Id. ¶ 5.
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
‘allows every prisoner one full opportunity to seek
collateral review. Part of that opportunity-part of every
civil case-is an entitlement to add or drop issues while the
litigation proceeds.'” Vitrano v. United
States, 721 F.3d 802, 806 (7th Cir. 2013) (quoting
Johnson v. United States, 196 F.3d 802, 805 (7th
Cir. 1999)). Federal Rule of Civil Procedure 15(a)(2) applies
to motions to amend a § 2255 petition. Id. at
806. Under Rule 15(a)(2)'s generous standard, the court
need not grant leave to amend if it would be futile to do so
or where the party moving to amend exhibits bad faith, a
dilatory motive, or unreasonable delay. Id.
(quotation and citations omitted) (cautioning that a proposed
amendment to a § 2255 motion must be viewed in light of
AEDPA's limits on second or successive petitions);
Rodriguez v. United States, 286 F.3d 972, 980 (7th
Cir. 2002); Johnson v. United States, 196 F.3d 802,
805-06 (7th Cir. 1999).
government argues futility. It does not suggest that Jorge
unreasonably delayed and concedes that his motion for leave
to amend is timely. See Resp. 2, ECF No. 30. The
government submits that Jorge's ineffective assistance
claim is destined to fail under the familiar two-pronged
Strickland v. Washington, 466 U.S. 668 (1984), test.
See Id. at 2-11. Also, if the court grants the
motion, the government says that ...