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United States v. Uriarte

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

October 17, 2019



          Joan B. Gottschall United States District Judge.

         Before 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.


         Prior 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).

         After 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).

         Rediger 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.

         While 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 Hector's resentencing:

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 of enactment.

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.).

         A 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.


         Hill 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.

         “The 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).

         The 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 ...

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