United States of America v. Palivos

Filing 82

Amended Opinion and Order Signed by the Honorable Joan H. Lefkow on 10/4/2011:Mailed notice(mad, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,

vs.

PETER PALIVOS

)
)
)
)
)
)
)

08 CV 5589
(00 CR 1065)

AMENDED OPINION AND ORDER
Peter Palivos has filed a motion under 28 U.S.C. § 2255 attacking his judgment of
conviction of one count of conspiracy to obstruct justice entered in this court on November 2,
2005, case number 00 CR 1065-5. The judgment was affirmed on April 10, 2007. United
States v. Palivos, 486 F.3d 250 (7th Cir. 2007).1 The 2255 motion was timely filed on
September 30, 2008, and an amended motion was filed November 11, 2008 (“2255 motion”).
Palivos makes two due process claims against the government: (1), the government violated its
obligations to disclose exculpatory evidence, and (2), the government suborned perjured
testimony at trial. He makes numerous ineffective assistance of counsel claims against the
attorneys who represented him at trial. At a minimum, Palivos contends he is entitled to an
evidentiary hearing on his motion.
For the following reasons, Palivos’s § 2255 motion will be denied.
LEGAL STANDARDS
Relief under § 2255 “is reserved for extraordinary circumstances.” Hays v. United States,
397 F.3d 564, 566 (7th Cir. 2005) (citations and internal quotation marks omitted). A district
court must grant a § 2255 motion to vacate, set aside, or correct a sentence when the petitioner

1

The conviction of codefendant Louis Marin was reversed on appeal.

establishes “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. at 566–67 (citations and internal quotation marks
omitted). “The court should grant an evidentiary hearing on a § 2255 motion when the petitioner
alleges facts that, if proven, would entitle him to relief.” Koons v. United States, 639 F.3d 348,
355 (7th Cir. 2011), citing Hutchings, 618 F.3d at 699 (internal quotation marks and citation
omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if “the motion and
the files and records of the case conclusively show that the prisoner is entitled to no relief.”
28 U.S.C. § 2255(b); Cooper v. United States, 378 F.3d 638, 641–42 (7th Cir. 2004) (district
court did not abuse its discretion in denying petitioner an evidentiary hearing where petitioner did
not provide additional facts or assertions that would warrant a hearing).
On a § 2255 motion, the district court may not reconsider issues that were raised on direct
appeal absent changed circumstances. Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007)
(“A § 2255 motion is ‘neither a recapitulation of nor a substitute for a direct appeal.’” (quoting
McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996)). Claims that were not raised on
direct appeal are procedurally defaulted absent a showing of cause and prejudice or actual
innocence. Torzala v. United States, 545 F.3d 517, 522 (7th Cir. 2008) (citing Bousley v. United
States, 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)). An exception, however,
applies to ineffective assistance of counsel claims not raised on direct appeal; they are not subject
to the cause and prejudice rule. Massaro v. United States, 538 U.S. 500, 509, 123 S. Ct. 1690,
155 L. Ed. 2d 714 (2003).

2

I.

Claims of Brady or Giglio Violations

Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the
government must disclose evidence favorable to the accused where the evidence is material to
guilt or punishment. Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104
(1972), confirmed that the rule applies to impeaching evidence as well as evidence of the
elements of the crime. See id. at 154, 92 S. Ct. at 766 (“When the reliability of a given witness
may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility
falls within [Brady].”) (internal quotation marks and citation omitted).
The court assumes the reader’s familiarity with the facts of the case and does not repeat
them in this ruling.2 Moreover, the legal standards and Palivos’s arguments were thoroughly
addressed by this court in its ruling on Palivos’s motion to disqualify the Assistant United States
Attorneys who represented the United States during the prosecution. There the court examined
“whether Palivos has demonstrated at least a colorable evidentiary basis for the accusations

2

See 486 F.3d at 252:
Peter Palivos, an attorney, and Louis Marin, a loan broker, were indicted, along
with a number of other defendants, for their involvement in a shady 1996 real
estate deal. Both were convicted–Marin of assisting in the preparation and
presentation of a false tax return and Palivos of conspiracy to obstruct justice–
though he was acquitted of obstruction of justice. They appeal their convictions.
The deal involved a complex loan fraud scheme in which the seller of a problemplagued restaurant, the Waterfalls, in Antioch, Illinois, secretly fronted money to
the buyer to finance the sale. The seller, also a defendant in this case, was
JACPG, Inc., a private corporation with a small number of shareholders,
including Palivos and his brother George Palivos, also a defendant. The buyer
was Peter Bouzanis, who had no financial resources, only limited experience in
the restaurant business, was a felon, and had a lackluster credit history. Other
than that, he seemed perfect.

3

against [AUSA William R. Hogan, Jr.,] that he failed to turn over material evidence to Palivos.”
United States v. Palivos, No. 08 CV 5589, 2010 WL 3190714, at *2 (N.D. Ill. Aug. 12, 2010).
Finding no such basis, the court denied the motion to disqualify. The Brady analysis will not be
repeated here; rather, the court will examine whether Palivos’s reply brief, filed after that ruling,
adds any substance to his earlier presentation.
Principally, Palivos argues that at least he is entitled to an evidentiary hearing on his
claim. The essence of Palivos’s claim is that when cooperating witness Nicholas Black testified
before the grand jury (as well as at trial) that he fabricated backdated notes on November 14 or
15, 2000, the government knew the notes must have been created before November 7, 2000.
Palivos contends this is true because Black actually gave a 73-page file on the “Waterfalls”
transaction containing these notes to another individual involved in the transaction, Peter
Bouzanis, on November 7, 2000. Palivos states “on information on belief” that he believes
Bouzanis met with the government after November 7 and before he left the United States for
Greece on November 14, 2000 and “on information and belief” that during that meeting Bouzanis
gave Hogan a copy of the file. At the very latest, Palivos asserts that Hogan received the same
file from Bouzanis’s Greek lawyer in September 2003.
Palivos urges that the government need not have been persuaded that Bouzanis’s
information about the time line was true, but if the government had the information at all it was
obliged to turn it over because it was potentially exculpatory. Although this is a correct statement
of the rule, the court has already concluded that Palivos has no credible evidence that before Black
testified Hogan had in his possession a file (with or without the notes) obtained from Bouzanis.3
3

First, there is no corroboration of anything Bouzanis has to say. There is no
independent evidence that Bouzanis met with Black on November 7, 2000.
Moreover, Bouzanis’s Greek lawyer has not attested that he sent anything to
(continued...)

4

Nothing contained in the reply brief persuades this court otherwise. Even if Hogan, in addition to
Adam Charnes, Deputy Assistant Attorney General at Department of Justice headquarters in
Washington (see footnote 2, supra), received a package from Greece in September 2003 (and there
is no authentication of any of the proffered documents supporting that fact), Palivos cannot
demonstrate the contents of the package. If an evidentiary hearing were held, only Hogan could
testify about any such package because Bouzanis is a fugitive and Palivos has not indicated that he
could command the appearance of the Greek attorney in court. Even if the package included a
copy of the notes, it would not establish that Bouzanis had them before Black said he fabricated
them. Moreover, only Black and Bouzanis could testify about any meeting before Bouzanis left
the country, testimony that has not been proffered. Palivos has failed to offer the district court any
objective facts outside the trial record that would warrant an evidentiary hearing as to whether the
government failed to turn over exculpatory evidence. He has not demonstrated that this court

3

(...continued)

Hogan, much less that he sent a copy of Black’s file containing the disputed
notes. The purported proof of shipping is unauthenticated and opaque as to the
date of delivery or item(s) delivered. Indeed, the letter from Bouzanis’s lawyer
dated September 8, 2003, implied to be the cover letter for the package, is
addressed to Mr. Charnes. The lawyer’s letter merely contains a broad denial of
Bouzanis’s (not Palivos’s) guilt, a conclusion resting on no admissible
foundation. Palivos in reply is shocked that the government did not turn over
during trial a memorandum (Exh. 1 to Gov’t Response to Motion for Discovery)
reflecting a telephone conversation between Hogan and Bouzanis on September
26, 2003 (during trial), but he does not specify why a memorandum that does not
mention Palivos and merely professes the innocence of Bouzanis, who would not
become a witness at trial, was material to his defense. Without credible evidence
that Hogan had information that Black gave the notes to Bouzanis by November
7, the accusation of prosecutorial misconduct fails.
Palivos, 2010 WL 3190714, at *4.

5

sentenced him in violation of his due process rights under Brady/Giglio. Therefore, his claim
must be denied.4
II.

Claim of Subornation of Perjury

This claim accuses the government of suborning perjury from Small Business
Administration Special Agent Thomas Heinzer and from Nicholas Black. The first accusation
rests on the foundation of the above argument that the government failed to turn over exculpatory
documents. Palivos contends that the government had to know, from the Breggianos package
delivered in the summer of 2003, that Bouzanis had the fabricated notes before he left the country
on November 14, 2000; that the government also knew, from having served Bouzanis with a grand
jury subpoena on November 1, 2000, that Bouzanis was in the United States as late as that date;
and despite this knowledge, the prosecutor knowingly allowed Special Agent Heinzer to testify at
trial that Bouzanis was in Greece during October, 2000.
At trial, the whereabouts of Bouzanis during October, 2000 did not arise in the context of
whether Bouzanis met with Black on or about November 7, 2000. Thomas Breen, Palivos’s
counsel, asked Heinzer whether he instructed Black on October 20, 2000 not to speak with
Bouzanis. Tr. 1403. The prosecutor on redirect referred to that question and asked, “Do you know
where Peter Bouzanis was in October of 2000?” Heinzer responded that he did know, that he
4

Palivos also accuses a former Assistant United States Attorney, Eric J. Wilson, of asking
Bouzanis to give a false statement about Palivos in exchange for a sentence of probation,
attempting to take Bouzanis’s deposition in Greece but cancelling when Bouzanis refused to
testify falsely against Palivos; and ordering Bouzanis never to tell anyone that the notes could not
have been created on November 14 or 15, 2000. These accusations of extraordinarily unethical
conduct against Wilson are based on affidavits signed by Bouzanis dated February and May,
2005, respectively, well before the trial in this matter. See Dkt. No. 11-2, Exh. 2 ¶ 9, Exh. 14 ¶ ¶
6 & 7. The government supports its denial of the allegations against Wilson with the affidavit of
Special Agent Heinzer, who was present with Wilson and Bouzanis during the interview on
which Palivos relies. See Dkt. No. 54, at 28-31& Exh. I. Since the Bouzanis affidavits appear to
have been crafted on behalf of (some have said by) Palivos, the court must infer that the
documents were available before trial. In any event, since Bouzanis is not available to testify, an
evidentiary hearing on this issue would be useless.

6

“believed . . . he was in Europe.” Tr. 1414. On recross, Breen rejoined with the “fact” that
Bouzanis did not leave for Europe until November. Heinzer responded, “Do I know that for a
fact?” Breen: “Yeah. Weren’t you given that information?” Heinzer, “I don’t recall.” Tr. 1421.
Breen may have been alluding to a grand jury subpoena as “the fact.”5
During closing argument, neither the prosecution nor the defense alluded to Bouzanis’s
whereabouts during October and November 2000. The fact has little or no significance unless one
assumes the truth of Palivos’s assertion that Black and Bouzanis met on November 7. More
important, the whereabouts of Bouzanis was not material to the guilt of Palivos but, rather, a minor
opportunity to impeach the agent’s testimony on a collateral matter. See 18 U.S.C. § 1621 (it is
unlawful under oath to testify to “any material matter which [the witness] does not believe to be
true.”). The testimony was certainly not perjured and therefore not suborned. See id. at § 1622
(forbidding the procuring of another to commit perjury). The argument is meritless.
The second accusation is that the government suborned perjury from Nicholas Black in that
the government knew that his testimony about creating the notes on November 14 or 15 was false
yet allowed him to testify to it. According to Palivos, they knew because Breggianos sent the file
to Hogan and because Bouzanis said so in an affidavit. As with Agent Heinzer, the accusation
lacks any credible foundation.
Palivos also insists that the government knew that George Palivos was out of the country
during the period November 3 and 14, 2000 when Black said he and George met a number of
times. The issue was raised at trial and is not properly reexamined under § 2255. Since this

5

Breen may have learned that Bouzanis left for Greece during November from the May 31, 2001,
letter from AUSA Eric Wilson to headquarters relating to an effort to extradite Bouzanis. Wilson,
in addition to referring to a November 1, 2000 subpoena, also states that after this, “Mr.
Bouzanis immediately set to work planning his departure from the United States,” and that he
obtained a passport in Canada on November 9, and that on November 24 his professor received a
message indicating that he had gone to Greece. Dkt. No. 11-3, p. 18 of 31.

7

court has already addressed at length in its ruling on Palivos’s post trial motion for judgment of
acquittal, Case No. 00 CR 1065, Dkt. No. 187 at 5–7, it will only reiterate that the parties
stipulated that George Palivos was out of the country during November 3–14; Black was
confronted with the inconsistency between his time line of the meetings (which did not include
exact dates) and the stipulation; and Black conceded that if George was out of the country during
that period he did not meet with him then. Nonetheless, he stuck to his testimony that he did meet
with him. The jury chose to believe Black. See United States v. Palivos, 486 F.3d 250, 254 (7th
Cir. 2007) (“Palivos has not shown that Black's testimony is, in fact, false. Black has always
maintained that he testified truthfully at trial.”).
IV.

Claims of Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, the petitioner must show (1)
that counsel’s representation fell below an objective standard of reasonableness, and (2) that there
is a reasonable probability that, but for counsel’s unprofessional errors, the results of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner “bears a heavy burden in making out a winning
claim based on ineffective assistance of counsel,” United States v. Trevino, 60 F.3d 333, 338 (7th
Cir. 1995), particularly since the Strickland test “is highly deferential to counsel, presuming
reasonable judgment and declining to second guess strategic choices.” United States v. Williams,
106 F.3d 1362, 1367 (7th Cir. 1997) (internal quotation marks and citation omitted).
To satisfy the first prong of the Strickland test, the petitioner must direct the court to
specific acts or omissions of his counsel. Fountain v. United States, 211 F.3d 429, 434 (7th Cir.
2000) (citing Trevino, 60 F.3d at 338). The court must then consider whether, in light of all of the
circumstances, counsel’s performance was outside the range of professionally competent

8

assistance. Id. (citing Trevino, 60 F.3d at 338). Counsel’s performance must be evaluated while
remembering that an attorney’s trial strategies are a matter of professional judgment and often
turn on facts not contained in the trial record. Id.
To satisfy the second prong of the Strickland test, the plaintiff must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings
would have been different. Id. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. A court need not address both prongs
of the Strickland test if one provides the answer; that is, if a court determines that the alleged
deficiency did not prejudice the defendant, the court need not consider the first prong. United
States v. Fudge, 325 F.3d 910, 924 (7th Cir. 2003) (citing Matheney v. Anderson, 253 F.3d 1025,
1042 (7th Cir. 2001)). Where issues have already been or could have been raised at trial, then
addressed in post-trial motions and on appeal, recasting them as claims of ineffective assistance
will normally be futile. See Bilzerian v. United States, No. 95 Civ. 1215 & 88 Cr. 962, 1996 WL
524340, at *11 (S.D.N.Y. Sept. 13, 1996); Grubb v. United States, 859 F. Supp. 227, 228 (S.D.
W. Va. 1994) aff’d as modified, 65 F.3d 167 (Table) (4th Cir. 1995) (claimed error in sentencing
calculation that had been rejected on direct appeal could not be reconsidered under the guise of
collateral attack).
Palivos make many charges of ineffective assistance of his trial counsel, Thomas Breen
and Todd Pugh. First he argues that counsel were ineffective for failing to call witnesses that
would have impeached Nicholas Black. He asserts that Breen’s investigator had statements from
twenty-four witnesses, some of which Breen apparently did not even read (Palivos discovered
reviewing counsel’s file that some of the envelopes were unopened). Although Palivos had

9

access to the file, he does not explain how any of these statements would have caused a jury to
reach a different result.6 This argument is thus rejected.
Palivos argues that counsel failed to discredit Black’s testimony about finding old pads
and pens for writing the fabricated notes. He proffers that Black’s secretary would have testified
that Black did not have an old valise under his desk and that Black, in any event, always used up
his pens and pads of paper entirely. He also faults counsel for failing to get Black’s 2000
calendar during discovery, which he suggests would have demonstrated that the meetings
between Black and Palivos did not occur. He proffers several individuals who worked at
Palivos’s law firm or within the building where the firm was located who could have testified that
Black was not seen at Palivos’s law office from November 3 to 13, 2000. He contends that
counsel failed to call witnesses who would have testified that George Palivos was in Europe
during the November 3–15 period at times Black said he was present at the Palivos Law Firm.
He believes counsel did not investigate others who should have had copies of the Waterfalls file
before November 14, 2000. In particular, he identified his first attorney, Peter Limperis, who,
Palivos contends, had copies of the notes on October 23, 2000. According to Palivos, “[t]his
evidence would have destroyed the government’s case.” He also faults counsel for failing to call
witnesses who would testify that Palivos was elsewhere than meeting with Black on November
15.
In preparation for its response, the government interviewed Breen and Pugh concerning
their representation of Palivos. Breen has attested to the accuracy of Special Agent Heinzer’s
Interview Memorandum reflecting the attorneys’ statements. Dkt. No. 54-8, p. 1 of 7. He
6

In any event, Breen’s affidavit states that he read all of the witness interview summaries
provided by Palivos or his investigator and that if he left envelopes unopened it was because he
had already received and read a faxed copy of the same materials. Dkt. No. 54-8, p. 2 of 7.
Palivos is not competent to testify to the contrary.

10

explains his reasons for not calling the many witnesses that Palivos proffered to him to
corroborate his own denials. Although considerable detail is contained in the statement, in short,
Breen came to believe that Palivos had “kinked up” the putative witnesses such that they would
not stand up under cross-examination. Id. at p. 2 of 7. With respect to Limperis, Breen
interviewed him about the contents of the file at the time he had it during October 2000 and,
although Limperis initially indicated that the notes were in the file, he declined when Breen asked
him if he would testify to this fact at trial. In fact, Limperis admitted to counsel that he had not
even reviewed the file. For this and for other reasons Breen concluded his story “did not make
sense.”7 Palivos has no statement from Limperis disputing Breen’s statement.
Palivos launches numerous other attacks on counsel. He argues that they were ineffective
for not calling any witness in Palivos’s defense to establish that Black had misled others in the
deal and that if any misconduct occurred, it was at Black’s direction and without Palivos’s
knowledge. Palivos also faults counsel for failing to call witnesses to establish that Black had
previously committed similar fraud by backdating handwritten notes, naming a number of
instances where witnesses had accused or witnessed Black fabricating documents and that Black
had failed for six unidentified years to file his tax return and gave false information on a loan
application. He faults counsel for failure to present evidence that Palivos was not a shareholder

7

Breen stated, inter alia,
“[I] became familiar with Palivos’ distinct writing style, and could tell that
witnesses’ statements were being prepared by Palivos. [I believe] Limperis’s
affidavit was also prepared by Palivos, as well as the overview ‘script’ that Peter
Bouzanis provided to government investigators in London, England.” . . . “[I]
suspected the story was false because the notes were never of issue before the
government received them on November 15, 2000. The notes should not have
been important to Limperis when he claimed to have seen them; there was no
reason for Limperis to recall them specifically years later.”

Dkt. No. 54-8, p. 3 of 7.

11

of JACPG and had no motive to hide the details of the transaction. He also claims that counsel’s
refusal to submit a theory-of-defense jury instruction was ineffective assistance.
Counsel’s performance must be evaluated while remembering that an attorney’s trial
strategies are a matter of professional judgment and often turn on facts not contained in the trial
record. Given the totality of the facts and circumstances in this case–and this court is unable to
set aside its own observations of Palivos during his persistent post-trial motions, sentencing
hearing, and period of supervision–this court is not persuaded that an evidentiary hearing would
doing anything more than give Palivos yet one more opportunity to rehash his own denials of the
evidence and attempt to rationalize events so as to leave himself out of them. To the contrary,
Breen’s and Pugh’s decisions whether to call the identified witnesses were certainly within the
range of sound professional judgment. See Lema v. United States, 987 F.2d 48, 54 (1st Cir. 1993)
(“The decision whether to call a particular witness is almost always strategic, requiring a
balancing of the benefits and risks of the anticipated testimony.”). Breen thoroughly crossexamined Black on the material issues surrounding when and whether Black fabricated notes.
Had he called the minor witnesses Palivos proposes, it might well have done more harm than
good. Had he called certain of the witnesses Palivos proposes, one might reasonably question the
soundness of his judgment.
For example, Black’s secretary’s testimony about Black’s old valise and his habits of
using pens and paper and the building witnesses would have, at best, cast minor doubt on Black’s
testimony as to how he came across old paper and pens. None of the witnesses claims to have
been present during the incriminating conversations nor to have witnessed Black do or say
something inconsistent with his testimony about those conversations. That a number of witnesses
did not see Palivos at the Palivos Law Firm or the building where it was located does not

12

demonstrate that he was not there. Neither does the absence of a notation in Black’s calendar
lend any force to the non-occurrence of a clandestine meeting. As for George Palivos’s absence
from the United States during November, 2000, the government stipulated that he was absent.
That counsel chose not to call an alibi witness to rebut Black’s testimony that he had dinner with
Palivos on November 15, an event that was not material to the crime, is well within the zone of
reasonable judgment. The lack of testimony from all of these witnesses who could readily be
pegged as under Palivos’s influence would not undermine a reasonably discerning observer’s
confidence in the verdict.
The related argument that it was ineffective assistance not to call a witness to impeach
Black’s statement that he never before done a 100 percent financing deal is hardly an omission
justifying a conclusion of ineffective assistance. Breen’s counsel disputed that Palivos was a
shareholder of JACPG (although no one has suggested who else might have been the P in the
acronym). Taken individually or together, these arguments are wholly unpersuasive.8
Palivos also takes issue with his counsel’s ability to cross-examine. He argues that
counsel failed to discredit Black with the timing of his decision to cooperate with the government,
as well as that of Black’s law partner, Dean Kalamantianos, who was not charged. An argument
that counsel did not do enough or ask the questions that in hindsight might have been better will
rarely carry the day (Palivos has cited no such case) and certainly not where the record reflects
fifty pages of Breen’s first cross examination of Black, nine pages of which are devoted to the
progression of and reasons for Black’s decision, as he put it, “to tell the truth for my family’s
sake,” Tr. 1903, after having previously lied to agents about the transaction. Tr. 1900–1909. Mr.
8

The argument that counsel should have submitted a theory-of-defense instruction consists of
three sentences and does not even suggest what instruction might have been given.
“[R]emind[ing] the jury that the government could not produce any physical evidence
corroborating its story of the old pens, pads and valise” is not an instruction.

13

Pugh thoroughly cross-examined Kalamantianos about his close relationship with Black, his
motivation to support Black, the meetings he had with the agents, and his decision to cooperate.
Tr. 2014–2041, 2078–2087. The jury knew that Kalamantianos was not charged with a crime.
There is no basis here for a claim of ineffective assistance. See United States v. Jackson, 546F.3d
801, 814 (7th Cir. 2008) (deciding what questions to ask on cross examination is a matter of
strategy) (citations omitted). Nor has Palivos given the court any reason to conclude that had
counsel followed Palivos’s post hoc advice the result would have been different.
Black’s prior failure to file tax returns or making a false statement on a loan application
might have been inquired into on cross-examination if, within the discretion of the court, it was
considered probative of the witness’ character for truthfulness or untruthfulness. Id. Where Black
admitted his untruthfulness in that he fabricated the notes and admitted his purpose to cover his
dishonesty in the transaction, the evidence was not impeaching of Black’s testimony and
therefore not proper cross-examination.
Palivos’s conviction rested on Black’s credibility. Black was thoroughly cross-examined
by very able counsel. Unfortunately for Palivos, the jury believed Black. Palivos’s persistent,
repeated regurgitation of versions of the same arguments through a succession of attorneys has
been and remains futile.9

9

To the extent this opinion fails to address any issue in Palivos’s lengthy list of misconduct, errors
and omissions by the government or his own counsel, the court has considered it and denies it as
without merit.

14

CONCLUSION AND ORDER
For the foregoing reasons, Palivos’s motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 is denied. The request for an evidentiary hearing is denied.

Dated: October 4, 2011
Enter: ___________________________________
JOAN HUMPHREY LEFKOW
United States District Judge

15