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United States v. Osorio

United States District Court, N.D. Indiana, Hammond Division

June 6, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
VINCENTE OSORIO, Defendant/Petitioner

          OPINION AND ORDER

          RUDY LOZANO, JUDGE

         This matter is before the Court on the Motion to Vacate under 28 U.S.C. § 2255 (DE #113), the Motion Requesting a Hearing and Appointment of Constitutional Counsel (DE #115), the Motion Requesting Discovery and to Submit Newly Discovered Evidence in Support of His Claims of Inadequate and Ineffective Assistance of Counseling with Request to Expand the Record (DE #116), and Motion to Expand the Record with Newly Discovered Evidence in Support of Claims of Inadequate and Ineffective Assistance of Counseling (DE #117) filed by defendant Vincente Osorio (“Osorio”) on March 11, 2016; and the Motion for Leave to Amend 28 U.S.C. § 2255 Motion, filed by Osorio on February 20, 2017 (#124). For the reasons set forth below, the motion to vacate under section 2255 (DE #113) is DENIED; the motion requesting a hearing and appointment of counsel (DE #115) is DENIED; the motion requesting discovery (DE #116) is DENIED; and the motion to expand the record (DE #117) is DENIED; and the motion to amend the Section 2255 motion (DE #124) is DENIED. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE. Further, this Court declines to issue Defendant a certificate of appealability. The Clerk is ORDERED to distribute a copy of this order to Vincente Osorio, #13699-027, Ashland FPC Federal Prison Camp, P.O. Box 6000, Ashland, KY 41105, or to such other more current address that may be on file for the defendant.

         BACKGROUND

         Vincente Osorio (“Osorio”) was charged with conspiring to possess with intent to distribute cocaine and attempting and aiding and abetting the attempt to possess with intent to distribute five kilograms or more of cocaine. 21 U.S.C. § 846, 18 U.S.C. § 2. Osorio proceeded to trial. On the second day of trial, Osorio pled guilty to both counts of the Indictment without a plea agreement. At his sentencing on April 29, 2015, Osorio's counsel requested the statutory minimum of 120 months imprisonment, and the Government agreed with this request. (DE #111 at 74, 77.) The Court sentenced Osorio to the statutory minimum of 120 months imprisonment. (Id. at 80.) Osorio did not file an appeal.

         On March 11, 2016, Osorio filed the instant motion under section 2255, as well as several other related motions, while proceeding pro se. (DE ##113, 115, 116, 117.) The Government filed an omnibus reply brief responding to all of Osorio's motions on May 13, 2016. Osorio filed an omnibus reply brief on June 9, 2016. On February 20, 2017, Osorio filed a motion for leave to amend his 2255 motion, indicating that he had retained counsel and requested that the Court consider an argument raised in his Section 2255 motion, but the Government had not addressed in its response brief. (DE #124.) Upon the Court's order, the Government responded to the motion for leave to amend the Section 2255 motion on February 8, 2018. Osorio filed a reply to his motion for leave to amend on March 1, 2018. The motions are now fully briefed and ripe for adjudication.

         DISCUSSION

         In assessing Osorio's pro se motions, the Court is mindful of the well-settled principle that, when interpreting a pro se petitioner's complaint or section 2255 motion, district courts have a “special responsibility” to construe such pleadings liberally. Donald v. Cook Cnty. Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996); see Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers”) (citation and internal quotation marks omitted). In other words:

The mandated liberal construction afforded to pro se pleadings “means that if the court can reasonably read the pleadings to state a valid claim on which the [petitioner] could prevail, it should do so despite the [petitioner's] failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”

Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas petition from state court conviction) (alterations in original; citation omitted). On the other hand, “a district court should not assume the role of advocate for the pro se litigant and may not rewrite a petition to include claims that were never presented.” Id. (citation and internal quotation marks omitted). The Court assesses Osorio's claims with these guidelines in mind.

         Section 2255 Motion

         Habeas corpus relief under 28 U.S.C. § 2255 is reserved for “extraordinary situations.” Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996) (citation omitted). In order to proceed on a habeas corpus motion pursuant to 28 U.S.C. § 2255, a federal prisoner must show that “the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack.” Id. (citation omitted). A section 2255 motion is neither a substitute for nor recapitulation of a direct appeal. See id.; Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds, Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).

         As a result:

[T]here are three types of issues that a section 2255 motion cannot raise: (1) issues that were raised on direct appeal, absent a showing of changed circumstances; (2) nonconstitutional issues that could have been but were not raised on direct appeal; and (3) constitutional issues that were not raised on direct appeal, unless the section 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal.

Belford, 975 F.2d at 313 (citations omitted). Additionally, aside from demonstrating “cause” and “prejudice” from the failure to raise constitutional errors on direct appeal, a section 2255 petitioner may alternatively pursue such errors after demonstrating “that the district court's refusal to consider the claims would lead to a fundamental miscarriage of justice.” McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996) (citations omitted).

         Ineffective Assistance of Counsel

         Osorio's claims are based on the alleged ineffective assistance of his former counsel. Claims of ineffective assistance of counsel are governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Hardamon v. United States, 319 F.3d 943, 948-49 (7th Cir. 2003). To prevail on an ineffective assistance of counsel claim, Osorio must first show that his attorney's conduct “fell below an objective standard of reasonableness” and was “outside the wide range of professionally competent assistance.” Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466 U.S. at 688, 690). The second Strickland prong requires Osorio to show prejudice. Strickland, 466 U.S. at 694. If one prong is not satisfied, it is unnecessary to reach the merits of the second prong. Id. at 697.

         Regarding the deficient-performance prong, the petitioner must establish specific acts or omissions that fell below professional norms. Id. at 690. Great deference is given to counsel's performance; the petitioner has a heavy burden to overcome the strong presumption of effective performance. See Id. at 690; Coleman v. United States, 318 F.3d 754, 758 (7th Cir. 2003). Trial counsel “is entitled to a ‘strong presumption' that his performance fell ‘within the wide range of reasonable professional assistance' and will not be judged with the benefit of hindsight.'” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (quoting Strickland, 466 U.S. at 689). “Courts are admonished not to become ‘Monday morning quarterback[s]' in evaluating counsel's performance.” Blake v. United States, 723 F.3d 870, 879 (7th Cir. 2013) (quotation omitted).

         In the context of guilty pleas challenged on the grounds of ineffective assistance of counsel, the prejudice prong of Strickland analysis requires the defendant to establish “but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” St. Pierre v. Walls, 297 F.3d 617, 628 (7th Cir. 2002) (quoting Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)). The petitioner must proffer “objective evidence that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011) (citations omitted). Counsel's deficient performance must have been “a decisive factor” in the petitioner's decision to enter a guilty plea. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 2009) (citation omitted).

         Failure to File Pretrial Motions

         Osorio argues that his trial counsel was ineffective because counsel failed to file motions for pretrial discovery from the Government. Osorio refers to a list of pretrial motions from the “BOP Law Computer Criminal Defense Techniques” that he maintains should have been filed on his behalf. (DE #115 at 6-7.) These motions request that the Government provide discovery required under Rule 16 of the Federal Rules of Criminal Procedure. However, on June 3, 2014, the Court issued an order in connection with Osorio's arraignment containing provisions for pretrial discovery.[1] (See DE #26); N.D. Ind. L. Cr. R. 16-1(b). Osorio does not proffer any evidence that the Government failed to comply with the Court's order. Rather, the record reflects that the Government provided Osorio's counsel with documents. (See DE #117 at 4-41 (documents Bates labeled “US v Osorio, ” indicating that they were produced by the Government in connection with Osorio's criminal proceeding).) Thus, the filing of routine discovery motions would have been redundant. Moreover, “a petitioner alleging that counsel's ineffectiveness was centered on a supposed failure to investigate has the burden of providing the court sufficiently precise information, that is, a comprehensive showing as to what the investigation would have produced.” Hardamon, 319 F.3d at 951 (citation and internal quotation marks omitted). Osorio does not assert what evidence his trial counsel would have found if he had filed the discovery motions, or how such evidence would have caused him to not plead guilty, and instead, proceed to trial.

         Aside from the discovery motions, Osorio asserts that his trial counsel failed to file a motion to proceed by indictment within 30 days of filing the complaint. The record demonstrates that the Complaint was filed on April 30, 2014 (DE #1), and that Osorio was indicted on May 22, 2014 (DE #19). Because Osorio was ...


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