United States of America v. Quiroz
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Thomas M. Durkin on 11/13/2019. Mailed notice.(gcy, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VICENTE QUIROZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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18 C 3121
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
Pro se petitioner Vicente Quiroz was charged and convicted in two separate
criminal cases before this Court: (1) case number 13 CR 21-2, a jury trial concerning
a marijuana transaction and conspiracy (the “marijuana case” and “marijuana trial”);
and (2) case number 13 CR 968, a bench trial concerning a methamphetamine
transaction and conspiracy (the “methamphetamine case” and “methamphetamine
trial”). R. 5 at 1. The Court sentenced Quiroz to 180 months’ imprisonment in each
case, to run concurrently. 13 CR 968, R. 161; 13 CR 21-2, R. 185. The Seventh Circuit
affirmed his convictions on appeal. United States v. Quiroz, 874 F.3d 562, 571 (7th
Cir. 2017). Quiroz then filed a timely petition for relief under 28 U.S.C. § 2255, raising
numerous issues regarding the underlying proceedings. R. 1. For the following
reasons, the Court denies Quiroz’s petition in its entirety.
BACKGROUND
I.
Underlying Facts and Trials
Background facts. Quiroz brokered large drug transactions. Quiroz, 574 F.3d
at 564. In 2011, Quiroz met drug buyer Benjamin Vance. Vance was arrested by the
Drug Enforcement Agency (“DEA”) for trafficking in cocaine in May 2012, and began
cooperating with the government thereafter. Id. at 565. Ultimately, Vance entered
into a plea agreement in which the government agreed to recommend a reduced
prison sentence in exchange for Vance’s honest testimony against Quiroz.
In a series of recorded phone calls from October 2012 through January 2013,
Quiroz and Vance arranged the purchase of almost 70 pounds of methamphetamine
and 1,200 pounds of marijuana. Id. at 565. First, Quiroz and Vance discussed the
October 10, 2012 delivery of nearly 22 pounds of methamphetamine to one of Vance’s
supposed associates, an undercover DEA agent, from a courier named Javier in
California. Id. Quiroz and Vance also discussed the October 22, 2012 delivery of
nearly 50 pounds of methamphetamine to Vance from a courier named Cesar near
Chicago. Id. Approximately 44 pounds of methamphetamine were delivered during
this second transaction. Id. Then, in early January 2013, Quiroz told Vance that
marijuana was available for delivery by a courier named Hector Barraza. Id. The
DEA arrested Barraza after he delivered nearly 1,200 pounds of marijuana to Vance
in Berwyn, Illinois. Id.
On March 27, 2013, DEA Agents Christopher O’Reilly and David Brazao
arrested Quiroz outside his mother’s house in Phoenix, Arizona. Id. After Agent
2
O’Reilly read Quiroz his Miranda rights, reciting partly from his Miranda card and
partly from his own memory, Quiroz responded, “I did nothing.” Id. Agents O’Reilly
and Brazao then explained their investigation to Quiroz and told him about the phone
recordings they acquired. Id. Quiroz made inculpatory statements, and the agents
then transported him to the Phoenix DEA office. Id. There, Quiroz told agents he
would not sign any Miranda waiver or other paperwork, but admitted that he had
arranged transactions involving roughly 70 pounds of methamphetamine, while at
the same time insisting that he never touched the drugs or made any money from the
transactions. Id. at 565-66. Quiroz also admitted to talking to Vance and setting up
the January 2013 marijuana transaction. Id.
Indictments. On February 7, 2013, Quiroz was indicted on three counts
related to the marijuana transaction. Barraza was named Quiroz’s co-defendant. The
government subsequently dismissed Count 3 of the indictment, leaving charges of:
(1) conspiracy to possess with intent to distribute 100 kilograms or more of marijuana;
and (2) possession with intent to distribute 100 kilograms or more of marijuana. 13
CR 21-2, R. 223 at 4. Meanwhile, Quiroz was charged in a second indictment in
December 2013 with: (1) conspiracy to knowingly and intentionally possess, with
intent to possess and to distribute, 50 grams or more of methamphetamine; and (2)
knowingly and intentionally distributing 50 grams or more of methamphetamine. 13
CR 968, R. 209. The marijuana case was initially assigned to the Honorable Judge
Elaine E. Bucklo, and the methamphetamine case to this Court. The marijuana case
was reassigned to this Court in August 2014.
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Quiroz’s lawyers. Over the course of the proceedings in the marijuana case,
Quiroz was appointed three lawyers: John T. Moran, Viviana Ramirez, and Steven
Shobat. R. 1 at 4. Mr. Moran moved to withdraw as counsel in July 2013—two and a
half months after his appointment—citing “fundamental disagreements” with Quiroz
over “case strategy, communications and other matters.” 13 CR 21-2, R. 40 at 1. Ms.
Ramirez was appointed thereafter, and remained Quiroz’s counsel until Quiroz’s oral
request for her removal was granted just over a month later, and Mr. Shobat was
appointed in her place. 13 CR 21-2, R. 43 and R. 55. Mr. Shobat was also appointed
to represent Quiroz in the methamphetamine case. 13 CR 968, R. 10. Mr. Shobat
twice moved to withdraw in each case, citing Quiroz’s failure to cooperate with him
and discuss the evidence in order to prepare for trial. 13 CR 21-2, R. 78 and R. 101;
13 CR 968, R. 18 and 42. Such motions ultimately were either withdrawn or denied,
however, because Quiroz represented to the Court and counsel that he would work
with Mr. Shobat going forward and that he desired Mr. Shobat to remain as his
counsel. 13 CR 21-2, R. 81 and R. 102; 13 CR 968, R. 46.
Pro se filings. Notwithstanding that he was represented by counsel, the Court
(and Judge Bucklo before it) allowed Quiroz to file numerous motions and other
documents on the Court’s docket pro se. By way of example, Quiroz filed documents
asserting: that his indictments were predicated on perjured testimony presented to
the grand jury and that the indictments should be dismissed because of “outrageous
government conduct” and vindictive prosecution; that he was entitled to a bill of
particulars; that he had not been provided with certain discovery; that he was coerced
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into committing criminal conduct; that he could not be charged with conspiracy; that
his alleged co-conspirators’ statements could not be admitted; that his post-arrest
statements were improperly obtained; and suggesting that his attorney and the
government were colluding. See generally dockets in 13 CR 21-2 and 13 CR 968. The
Court addressed each such motion.
Methamphetamine trial. Ultimately, the methamphetamine case proceeded
to trial first in January 2015. At the final pre-trial conference, Quiroz orally requested
a hearing on the issue of whether he had received a proper Miranda warning. Quiroz,
874 F.3d at 566. The Court held a suppression hearing. Agent O’Reilly was the only
government witness, and Quiroz, though present, neither testified nor otherwise
presented evidence. In the end, the Court credited O’Reilly’s testimony and
determined that Quiroz had been properly advised of his rights. Id. The Court found
that Quiroz’s statement “I did nothing” was a voluntary, knowing and intelligent
waiver of his rights, and admitted his post-arrest statements at trial.
Quiroz also filed a pro se motion in limine “to preclude the prosecution from
introducing any and all hearsay not substantiated by the Court.” 13 CR 968, R. 93 at
1. The Court denied the motion but preserved Quiroz’s ability to object at trial to any
hearsay offered. 13 CR 968, R. 204 at 109-110. Quiroz waived his right to a jury trial.
At the bench trial, no objections were made to the introduction of informant Vance’s
out-of-court statements, and alleged co-conspirators Javier and Cesar’s testimony
also was admitted. Quiroz, 874 F.3d at 566. At the conclusion of the case, the Court
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made extensive findings of fact in open court and convicted Quiroz on both charges.
13 CR 968, R. 105.
Marijuana trial. Quiroz’s jury trial in the marijuana case was held in July
2015. 13 CR 21-2, R. 133-37. Shortly before trial, Quiroz moved to suppress his postarrest statements for the same reasons he had in the methamphetamine case. The
government and the defense indicated that any hearing would involve the same
evidence the Court had heard at the suppression hearing in the marijuana case.
Accordingly, the Court denied Quiroz’s motion and admitted the statements. The
Court also admitted the out-of-court statements of informant Vance and alleged coconspirator (and co-defendant) Barraza. The jury returned a guilty verdict on both
charges. 13 CR 21-2, R. 137 and R. 271 at 6.
Post-trial motions. Quiroz filed post-trial motions through counsel for
judgment of acquittal or, alternatively, a new trial, in both cases. He argued that the
evidence presented could not support a conclusion beyond a reasonable doubt that
Quiroz knowingly conspired to possess with intent to distribute and that Quiroz did
distribute the marijuana or methamphetamine as charged. And he argued that a new
trial was warranted in the alternative for the same reasons, and because the Court
erred in denying the motion to suppress his post-arrest statements and admitting the
co-conspirator statements of Barraza (in the marijuana trial), and Javier and Cesar
(in the methamphetamine trial). 13 CR 968, R. 106; 13 CR 21-2, R. 141. Quiroz also
filed a pro se motion for a new trial in the methamphetamine case. 13 CR 968, R. 107.
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The Court denied the post-trial motions in the methamphetamine case, having
determined as to the motion for acquittal that “there was more than adequate
evidence to convict the defendant” based on “the statements of the defendant himself”
and the “reasonable conclusions that could be drawn from these statements.” 13 CR
968, R. 112 at 2. The Court also denied Quiroz’s motion for a new trial, because—as
it had already determined—Quiroz had been advised of his rights, waived them, and
made a voluntary statement thereafter, and because the evidence of a conspiracy
meant co-conspirator statements were proper under Federal Rule of Evidence
801(d)(2)(E). Id. at 3. Quiroz’s post-trial motions for acquittal and a new trial in the
marijuana case were denied for the same reasons. See generally 13 CR 21-2, R. at 223.
Quiroz filed numerous other motions and documents pro se following his
convictions in both cases—raising largely the same issues he did prior to trial— which
the Court denied. See, e.g., 13 CR 968, R. 119 (minute entry denying “motion for
evidentiary hearing and for reconstruction of the evidence to its original form”
because the motion objected to issues “dealt with in earlier orders,” including among
others alleged Brady violations, vindictive actions of the Government in seeking a
second indictment, manipulation of evidence, perjury by Vance and government
agents, and whether Quiroz’s statements to agents were voluntary).
Sentencing. The Court consolidated Quiroz’s cases for sentencing and
conducted a single hearing in September 2016. 13 CR 968, R. 161; 13 CR 21-2, R. 185.
Before sentencing Quiroz, the Court discussed and denied the multiple motions
Quiroz filed leading up to sentencing that the Court had not yet ruled upon. See 13
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CR 968, R. 216 at 52-53 (denying post-trial motions including regarding sufficiency
of the evidence, pre-indictment delay, perjured testimony of Vance and agents, and
vindictive prosecution and outrageous conduct by the government for reasons given
in previous written and oral opinions).
To determine Quiroz’s sentence, the Court first calculated Quiroz’s base offense
level. The Court grouped the methamphetamine and marijuana offenses together for
this purpose because the underlying conduct in the two cases was “part of the same
course of conduct” with Vance as “a common denominator,” and the offenses would
have been indicted together but for the fact that Barraza was not involved with the
methamphetamine. Id. at 7-8. The Court determined that the offense level was 38
given the quantities and purities of the drugs involved. There were no objections. Id.
Next, the Court calculated a criminal history category of V based on Quiroz’s
two separate conspiracy and trafficking convictions in 1996 for marijuana and cocaine
(6 points total), possession of drug paraphernalia (1 point), domestic assault (1 point),
and the fact that some of the offenses occurred while Quiroz was on probation (2
points). Id. at 19. Because Quiroz continued to contest his guilt despite overwhelming
evidence to the contrary, he did not receive acceptance points (and nor were any
requested). Id. at 11-12. But the Court also declined to add points for obstruction of
justice. Id. at 11. In addition, the Court considered Quiroz’s argument that his
criminal history was overstated given the age of his prior drug offenses, but noted
that even if Quiroz had no criminal history, his sentencing guideline range would still
be between 235 to 293 months’ imprisonment in the methamphetamine case due to
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his offense level. Id. at 66. The Court then sentenced Quiroz to 180 months’
imprisonment on each count in each case to run concurrently, and to 5 years of
supervised release. Id. at 67, 74-75.
II.
Post-Sentencing Proceedings
Appeal. Quiroz filed a consolidated appeal from his convictions in both cases
through separate (appointed) appellate counsel, arguing: (1) that his post-arrest
statements were improperly admitted because he did not knowingly, intelligently and
voluntarily waive his Miranda rights; and (2) that the Court abused its discretion in
admitting the out-of-court statements of Vance in both cases, and those of Quiroz’s
alleged co-conspirators, Cesar in the methamphetamine case, and Barraza in the
marijuana case. Quiroz, 874 F.3d at 567. The Seventh Circuit affirmed the judgment
on both of Quiroz’s convictions on October 26, 2017. Id. at 571. As to his post-arrest
statements, the court held that Quiroz understood his rights even though he did not
explicitly acknowledge that understanding, noting his apparent intelligence, that he
understood English, and that he was not timid in asserting his rights relating to trial
procedures and discovery obligations. Id. at 568-69. The court also noted that Quiroz
had consented to a protective sweep of his mother’s home prior to being questioned
by Agents O’Reilly and Brazao. Id. at 568. Further, the court found that Vance’s outof-court statements were properly admitted because they were not introduced for
their truth, but rather to put Quiroz’s “own words in context and to help the jury
make sense out of his reaction to what [Vance] said and did.” Id. at 569-70. The court
held that Cesar and Barraza’s statements were properly admitted under Rule
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801(d)(2)(E) because of independent evidence of a conspiracy. Id. at 571. And the court
concluded that “even without the recorded statements of Vance, Cesar, and Barraza,
the outcome would have been the same;” indeed, Vance’s testimony and the properly
admitted testimony that it was Quiroz’s voice on the telephone recordings “made the
government’s case against Quiroz overwhelming.” Id. Quiroz’s subsequent requests
for rehearing and rehearing en banc were denied.
Section 2255 petition. Quiroz then filed his pro se Section 2255 petition,
submitting with it a flood of documents in support, including: lengthy handwritten
briefs; copies of motions and other documents he filed before the Court during the
underlying proceedings or submitted to his counsel to file on his behalf; letters he
wrote to his counsel complaining about certain alleged failures; documents reflecting
information he claims to have received via a FOIA request but not from the
government during the underlying proceedings, and which he allege demonstrate his
innocence; filings he made to the State of Illinois Judicial Review Board and the
Attorney Registration and Disciplinary Commission (“ARDC”) regarding the Court;
and additional ARDC complaints about Mr. Shobat. Most of the documents also
contain handwritten argument by Quiroz, in many cases suggesting that his lawyers,
the prosecution, the witnesses and the Court shared the common goal of convicting
Quiroz on the charges despite his innocence. While at times difficult to discern,
Quiroz’s principal arguments appear to be that: (1) admitting his post-arrest
statements and the out-of-court statements of the confidential informant and his coconspirators constituted reversible and constitutional error; (2) there was vindictive
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prosecution and “outrageous government conduct;” (3) he is innocent and was
entrapped; (4) he was denied effective assistance of trial counsel; (5) his sentence was
illegal or improper; and (6) his counsel, the government, and the Court were biased
and prejudiced against him and colluded throughout the proceedings. R. 1; R. 6.
STANDARD
Section 2255 allows “a prisoner under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States. . . [to] move the
court which imposed the sentence to vacate, set aside or correct the sentence.” 28
U.S.C. § 2255(a). A criminal defendant is entitled to relief from his conviction and
sentence if “the court finds . . . that there has been a denial or infringement of the
constitutional rights of the prisoner as to render the judgement vulnerable to
collateral attack.” Id. § 2255(b). A court may deny a Section 2255 motion without an
evidentiary hearing if “the motion and the files and records of the case conclusively
show” that the defendant is not entitled to relief. Id. Section 2255 relief is reserved
for “extraordinary situations, such as an error of constitutional or jurisdictional
magnitude or where a fundamental defect has occurred which results in a complete
miscarriage of justice.” Blake v. United States, 733 F.3d 870, 878-79 (7th Cir. 2013).
ANALYSIS
I.
Procedural Defects
The Court construes Quiroz’s Section 2255 motion liberally because he is pro
se. Smith v. Dart, 803 F.3d 304, 311 (7th Cir. 2015). But the Court cannot overlook
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the fact that some of the issues he raises were already raised before and rejected by
the Seventh Circuit on appeal, and others were addressed by this Court during the
proceedings in the underlying cases but not raised on appeal. A Section 2255 motion
“is neither a recapitulation of nor a substitute for a direct appeal.” Varela v. United
States, 481 F.3d 932, 935 (7th Cir. 2007) (quoting Belford v. United States, 975 F.2d
310, 313 (7th Cir. 1992), overruled on other grounds). The Court first addresses those
claims raised before the Seventh Circuit on direct appeal before turning to the claims
raised during the underlying proceedings but not again until this motion.
A.
Claims raised and rejected on appeal
First, Quiroz argues that the Court improperly admitted his post-arrest
statements and the out-of-court statements of the confidential informant and coconspirators. But both arguments were made during the underlying criminal
proceedings and before the Seventh Circuit on appeal, and therefore may not be
reconsidered on a Section 2255 motion absent changed circumstances of fact or law.
Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995). Quiroz has failed to
present evidence of any changed circumstances that would give the Court reason to
revisit these determinations here. Accordingly, the Court denies Quiroz’s petition on
these issues.
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B.
Procedurally defaulted claims 1
Additionally, although Quiroz argues here and in the underlying proceedings
that the government engaged in vindictive prosecution and outrageous conduct—
including because it allegedly: “increased the charges” against him “in apperant [sic]
response to the defendant’s exercise of a procedural right,” R. 1 at 10; failed to produce
all requested discovery, id. at 20; and lied about the drug quantities seized, R. 6 at
48—he failed to raise any of these issues on appeal. Nor did he argue on appeal as he
does here and did during the underlying proceedings that government witnesses and
agents (including Agent O’Reilly) committed and/or suborned perjury, that the
government’s expert’s testimony was improperly admitted, or that there was
insufficient evidence to convict him of the conspiracy charges.
And this is problematic; generally, a claim that could have been raised on direct
appeal but wasn’t is defaulted when raised in a Section 2255 petition absent evidence
of actual innocence or cause and prejudice. 2 Delatorre v. United States, 847 F.3d 837,
843 (7th Cir. 2017) (citing Hale v. United States, 710 F.3d 711, 713-14 (7th Cir. 2013)).
The so-called actual innocence exception is based in equity and allows a
petitioner to proceed under Section 2255 if he can demonstrate: (1) a legitimate
constitutional claim; and (2) a credible and compelling claim of actual innocence.
The government does not argue procedural default. But a district court may consider
sua sponte whether a claim is procedurally defaulted unless the government has
affirmatively waived the issue. See Varela, 481 F.3d at 936 (affirming denial of
Section 2255 motion on procedural default grounds despite that default was not
raised by the government).
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Quiroz does not claim that his appellate counsel was ineffective, and thus his failure
to raise these claims on appeal cannot be excused on that basis.
2
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Schlup v. Delo, 513 U.S. 298 (1995). But even assuming an underlying constitutional
claim, “tenable actual-innocence pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383,
386 (2013). The exception is available “only when a petition ‘presents evidence of
innocence so strong that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of nonharmless constitutional
error.” Id. at 385, 401 (quoting Schlup, 513 U.S. at 316). A claim “must have the
support of ‘reliable evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence.’” Arnold v. Dittmann,
901 F.3d 830, 836 (7th Cir. 2018) (quoting Schlup, 513 U.S. at 324). And that evidence
must make it “more likely than not that no reasonable juror would have convicted
[the petitioner].” Id. Accordingly, to demonstrate actual innocence under Schlup and
Arnold, Quiroz must produce “reliable evidence” that the government’s charges are
baseless and that his innocence is apparent in something concrete beyond his own
claims of such. Id. But as both this Court and the Seventh Circuit have already noted,
the evidence of Quiroz’s guilt is overwhelming. And Quiroz has yet to produce any
reliable evidence to the contrary (including to dispute critical evidence such as that
it was his voice on the calls). In fact, aside from his bald assertions of innocence, and
now-familiar claims that witnesses committed perjury and that he would not have
engaged in some of the conduct absent pressure from the confidential informant,
Quiroz offers nothing at all. He cannot overcome procedural default on this basis.
Nor has Quiroz demonstrated cause and prejudice. To excuse a procedural
default on that basis, Quiroz must demonstrate: (1) good cause for failure to raise the
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defaulted claim before collateral review; and (2) actual prejudice because of the
violations alleged. Delatorre, 847 F.3d at 843 (citing Theodorou v. United States, 887
F.2d 1336, 1340 (7th Cir. 1989)). Quiroz makes no argument that he was previously
unaware of any of the facts giving rise to these claims, and fails to make any other
argument of good cause. And that makes sense; indeed, the Court repeatedly rejected
Quiroz’s numerous pro se motions founded upon the same arguments he once again
places before the Court through this motion. Notwithstanding his pro se status,
Quiroz must present some new argument in support of his claims, or some argument
to demonstrate cause and prejudice. Anderson v. Hardman, 241 F.3d 544, 545 (7th
Cir. 2001). Having failed to do so, except as discussed infra, the Court rejects each of
the claims raised during the underlying proceedings but not on direct appeal as
defaulted.
II.
Ineffective Assistance Claims
Quiroz frames many of his claims as arising from ineffective assistance of trial
counsel. A “failure to raise an ineffective-assistance-of-counsel claim on direct appeal
does not bar the claim from being brought in a later, appropriate proceeding under §
2255.” Massaro v. United States, 538 U.S. 500, 504 (2003). And this is true “whether
or not the petitioner could have raised the claim on direct appeal.” Id. at 509.
Accordingly, that Quiroz did not raise his ineffective assistance claims before the
Seventh Circuit does not by itself doom them. The Court considers their merits below.
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A.
Summary of claims and Strickland standard
Quiroz complains that his principal lawyer, Mr. Shobat, was ineffective
because he: (1) was personally responsible for the reassignment of the marijuana case
to this Court, R. 1 at 9; (2) did not request a bill of particulars, R. 1 at 8; R. 6 at 26;
(3) did not request a speedy trial (and nor did his previous lawyers), R. 1 at 8, 19; R.
6 at 34; (4) prevented Quiroz from sharing his version of what happened during the
suppression hearing, R. 1 at 11; R. 6 at 27-28; (5) failed to strike a potential juror who
was an employee of the court and struck another who could have produced a mistrial,
R. 1 at 18; (6) failed to ask for a jury instruction regarding the buyer-seller
relationship and failed to object to jury instructions “pick[ed] by the Judge,” R. 1 at
27; R. 6 at 47; (7) refused to assert an entrapment defense, R. 6 at 15; (8) did not call
Quiroz’s co-defendant, Hector Barraza, as a witness, R. 1 at 28-29; and (9) did not
challenge his sentencing enhancement or other errors at sentencing, R. 1 at 8. 3
The test for ineffective assistance is exacting. To succeed on such a claim,
Quiroz must show that his lawyer’s representation: (1) “fell below an objective
standard of reasonableness” (performance prong); and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different” (prejudice prong). Strickland v. Washington, 466 U.S. 668,
Quiroz complains generally that his lawyers were not loyal and never did what he
requested, and that all three were “irresponsible, deficient, incompetent, [and]
willfully and intentionally deter[red] the best outcome” for him. Id. at 10, 17, 35, 42.
To the extent that by these generalized statements Quiroz complains about
something other than what is set forth in this list, the Court denies his claim for lack
of specificity.
3
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688, 694 (1984). If a petitioner cannot establish one of the Strickland prongs, the
Court need not consider the other. Groves v. United States, 755 F.3d 588, 591 (7th
Cir. 2014). The Strickland analysis begins with “a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Further, a defendant “must ‘overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy.’ ” Frentz v. Brown, 876 F.3d 285, 293 (7th Cir. 2017) (quoting Strickland,
466 U.S. at 689). In all cases, a petitioner’s unsubstantiated and conclusory
statements are insufficient to satisfy his burden under Strickland. United States v.
Turcotte, 405 F.3d 515, 537 (7th Cir. 2005), abrogated on other grounds by United
States v. Novak, 841 F.3d 515, 537 (7th Cir. 2016).
B.
Analysis of claims
(1) Reassignment of the marijuana case. Quiroz argues that Mr. Shobat
acted against Quiroz’s best interests when he transferred the marijuana case from
Judge Bucklo to this Court on his “own account” because Judge Bucklo had
“approve[d] pro se pretrial motions along with a bill of particulars,” giving him the
“opportunity for the upper hand.” R. 1 at 8-9; R. 6 at 17. This claim fails out of the
gate. First, while true that Judge Bucklo allowed Quiroz to file pro se motions, this
Court did too. Second, the record is clear that Judge Bucklo never approved a bill of
particulars. See 13 CR 21-2, R. 238 at 4 (status hearing immediately prior to
reassignment at which Judge Bucklo indicated she would “need briefing on the bill of
particulars”). And it was Judge Bucklo, not Mr. Shobat, who proposed that Quiroz’s
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case be reassigned. 13 CR 21-2, R. 230 at 4-5; see also DeWindt Corp. v. Scottsdale
Ins. Co., 110 F. Supp. 2d 700, 701-02 (N.D. Ill. 2000) (“All judges of this court share
jurisdiction over cases properly before the Northern District of Illinois, and
assignment matters are a matter of court rules.”). Accordingly, there can be no
ineffective assistance on this basis.
(2) Bill of particulars. Quiroz next contends that he was improperly denied
a bill of particulars and that his counsel’s failure to request one—despite Quiroz’s
repeated requests and that the Court entertained Quiroz’s own such (pro se) motion—
constituted ineffective assistance. R. 6 at 35. According to Quiroz, a bill of particulars
was mandated because the indictments contained references to unknown coconspirators and failed to set forth the nature of the evidence demonstrating his
participation in the alleged conspiracy. Id. at 30. And he argues that the government
did not state, as he contends it must, whether the agreement was express or implied,
or the date, time and place at which Quiroz met any of the alleged co-conspirators.
Id.
“[A] motion for a bill of particulars lies within the discretion of the trial court.”
United States v. Kendall, 665 F.2d 126, 134 (7th Cir. 1981). In determining whether
a bill of particulars is necessary, courts consider “whether the indictment sets forth
the elements of the offense charged and sufficiently apprises the defendant of the
charges to enable him to prepare for trial.” United States v. Roya, 574 F.2d 386, 391
(7th Cir. 1978). A bill of particulars is not necessary where the government provided
a “satisfactory form” of retrieval for necessary information. United States v. Canino,
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949 F.2d 928, 949 (7th Cir. 1991). The Court previously held in the underlying
proceedings that Quiroz could not demonstrate the necessity of a bill of particulars to
his case. 13 CR 968, R. 83. His Section 2255 motion presents no evidence to contradict
the Court’s ruling and nor does Quiroz present evidence of prejudice because of it.
Lacking evidence that he was entitled to a bill of particulars, there can be no
ineffective assistance for failure to request one. This claim fails.
(3) Speedy trial. Quiroz also argues that Mr. Shobat’s failure to request a
speedy trial on his behalf despite repeated requests by Quiroz is evidence not only
that Mr. Shobat was ineffective, but also that he worked to “intentionally deter the
best outcome” for him. R. 1 at 8-9; R. 6 at 42.
At the outset, the Court notes that it is unclear whether Quiroz claims that his
right to a speedy trial under the Speedy Trial Act and/or Sixth Amendment was
violated, or whether he argues only that his counsel was ineffective in pursuing his
right to a speedy trial. 4 To the extent he alleges the former, the issue is defaulted.
And to the extent that he argues the latter, he cannot demonstrate that Mr. Shobat’s
performance was unreasonable under Strickland. Indeed, the lengths and causes of
To assess whether a delay between the initiation of his criminal proceedings and
the beginning of his trials violated Quiroz’s Sixth Amendment right to a speedy trial,
courts consider the factors set forth in Barker v. Wingo, 407 U.S. 514 (1972). That is:
(1) the length of the delay; (2) the cause of the delay; (3) the defendant’s assertion of
his right to a speedy trial; and (4) the presence or absence of prejudice resulting from
the delay. 407 U.S. at 530-33. In turn, the Speedy Trial Act provides that, “[i]n any
case in which a plea of not guilty is entered, the trial of a defendant charged . . . shall
commence within seventy days from the filing date . . . of the . . . indictment, or from
the date the defendant has appeared before a judicial officer of the court in which
such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1).
4
19
the delays in Quiroz’s cases largely benefitted him. The record indicates that before
July 2014 (in the methamphetamine case) and April 2015 (in the marijuana case),
Quiroz’s counsel was unclear whether Quiroz would go to trial. See, e.g., 13 CR 21-2,
R. 241 at 2 (November 22, 2013 status hearing at which Mr. Shobat told Judge Bucklo
that he and Quiroz needed some time to discuss “what, if anything, we’re going to be
doing with this particular case”); see also 13 CR 21-2, R. 227 at 2 (March 6, 2014
status hearing before Judge Bucklo at which counsel for the government indicated
that “Mr. Shobat and I were trying to . . . globally resolve the cases prior to indictment
[of the methamphetamine case]”); 13 CR 21-2, R. 244 at 4 (May 28, 2014 status
hearing at which Mr. Shobat told Judge Bucklo that he would be able to report at the
next status hearing whether “we’d like either to go to trial or a change of plea”). And
Quiroz’s cases were tried within a year of his lawyer confirming that he would. See
13 CR 968, R. 195 at 4-5, 7 (July 2, 2014 status hearing at which Mr. Shobat agreed
that the methamphetamine case should be set for trial); 13 CR 968, R. 98 (reflecting
that the methamphetamine trial commenced on January 20, 2015); 13 CR 21-2, R.
112 (April 6, 2015 status hearing setting marijuana case for July 21, 2015 jury trial);
13 CR 21-2, R. 133 (reflecting that the marijuana trial commenced on July 21, 2015).
Although multiple delays occurred in the interim in the methamphetamine case, such
delays resulted from motions on both sides and were without objection, and in some
cases stemmed from Quiroz’s lack of cooperation with his counsel. See, e.g., 13 CR
968, R. 197 (August 22, 2014 status hearing at which the Court granted the
government’s motions to reset the methamphetamine trial to September 2014 (by
20
agreement) to obtain additional discovery, and to exclude time under the Speedy Trial
Act (without objection)); 13 CR 968, R. 193 at 19 (April 3, 2014 status hearing at
which the Court granted the government’s motion to exclude time under the Speedy
Trial Act without objection by Quiroz to allow Quiroz and Mr. Shobat to explore
whether they could continue to work together in spite of Quiroz’s lack of cooperation
up until that point); 13 CR 968, R. 199 (September 19, 2014 status hearing at which
the Court denied Mr. Shobat’s motion to withdraw but acknowledged the delay
arising from Quiroz’s lack of cooperation, reset the methamphetamine trial to
November 17, 2014 to allow additional time for Mr. Shobat to prepare, and granted
the government’s motion to exclude time under the Speedy Trial Act without objection
by Quiroz). Further delay occurred when counsel sought time to explore the
possibility of asserting an entrapment defense. 13 CR 968, R. 201 at 31-34 (October
30, 2014 status hearing at which the Court reset the methamphetamine trial to
January 20, 2015 due to possible entrapment defense, and granted the government’s
motion to exclude time under the Speedy Trial Act without objection by Quiroz). And
the marijuana case was delayed so the methamphetamine case could be tried first.
13 CR 21-2, R. 217 at 10-11. As such, it was professionally reasonable to permit or
seek such delays. See United States v. Walsh, 2016 WL 561908, at *4-5 (N.D. Ill. Feb.
12, 2016) (counsel was not ineffective for failing to defend client’s right to speedy trial
under Speedy Trial Act and/or Sixth Amendment when client benefited from the
extensions). Quiroz’s speedy trial claim also fails.
21
(4) Suppression hearing and admission of post-arrest statements.
Quiroz argues that his counsel was ineffective for failing to move to suppress his postarrest statements, suppressing Quiroz’s “version of the events” during the
suppression hearing on the same issue, and, together with the Court and the
government, knowingly allowing Agent O’Reilly to commit perjury during that
hearing. R. 1 at 11; R. 6 at 28. But there can be no prejudice resulting from Mr.
Shobat’s failure to move to suppress, because Quiroz himself moved to suppress his
post-arrest statements and this Court held a suppression hearing on that very issue.
See 13 CR 968, R. 204 at 25-104. Nor can there be any prejudice resulting from
Quiroz’s failure to testify at the hearing. Indeed, although initially Mr. Shobat
understood that Quiroz would testify, after a break the Court granted so that Quiroz
could prepare, Mr. Shobat informed the Court that Quiroz had changed his mind (to
which Quiroz—though present—made no objection). Id. at 75, 81. And there is no
evidence to support that Quiroz’s “version of the events”—apparently founded on his
contention that he would not have engaged in certain of the transactions but for the
urging of the government informant—would have changed the outcome of the hearing
in any case. The issues are unrelated. Nor is there any evidence that Agent O’Reilly
committed perjury, let alone that the Court, the government and Mr. Shobat knew
about it at that time. Accordingly, and because Quiroz took no action to share any of
these concerns with the Court during the hearing despite that he was present and
has shown himself to be more than capable of asserting his rights, he cannot satisfy
either Strickland prong.
22
(5) Jury selection. Quiroz also claims that Mr. Shobat was ineffective during
jury selection in the marijuana case. First, Quiroz claims that his counsel failed to
strike jury members who were “employees of the district court” and “introduce[d]” by
the government. R. 1 at 18. But the only juror whose employment was governmentrelated was the juror who worked for the DuPage Office of Education—not the federal
government, and certainly not the court. Accordingly, any concerns of bias or
unfairness on that basis are unfounded.
Second, Quiroz asserts that his counsel erred by using a peremptory challenge
to strike a newspaper reporter as a potential juror who Quiroz believes could have
produced a mistrial. Id. But Quiroz fails to explain how he knows this, instead merely
asserting in conclusory fashion that the jury was not selected “in accordance with the
law and constitutional requirements.” R. 1 at 129.
Failing to provide evidence to substantiate either allegation, Quiroz has offered
no reason to doubt Mr. Shobat’s jury selection strategy. Turcotte, 405 F.3d at 537 (a
petitioner’s unsubstantiated and conclusory statements are insufficient to satisfy his
burden under Strickland). Quiroz’s jury selection claims fail.
(6) Jury instructions. Quiroz next argues that his counsel was ineffective in
the marijuana case both for not proposing a buyer-seller jury instruction and for
“allowing the Court to dictate what jury instructions the Court wanted the prosecutor
to produce.” R. 1 at 27. Again, both arguments fail. First, Mr. Shobat was not
ineffective for failing to submit a buyer-seller jury instruction, because his case didn’t
warrant one. Such an instruction is designed “to ensure that the jury understands
23
that an agreement to purchase the contraband, without any other agreement to
achieve another criminal objective, is not a conspiracy.” United States v. Turner, 93
F.3d 276, 285 (7th Cir. 1996), cert denied, 519 U.S. 1034 (1996). As such, “a defendant
is entitled to have a buyer-seller instruction only if the theory is supported by the
evidence.” Id.; see also Seventh Circuit Pattern Jury Instruction § 5.10(A), Committee
Comment (2012 ed.) (providing that the buyer-seller instruction should be given if “a
jury reasonably could find that there was only a buyer-seller relationship rather than
a conspiracy”). Here, as explained in the Court’s post-trial rulings and as the Seventh
Circuit agreed, there was significant evidence of a conspiracy between Quiroz and the
couriers in both cases. See 13 CR 21-2, R. 223 at 12 (concluding that “[t]he evidence
at trial was to the contrary” in response to Quiroz’s contention that there was no
evidence of conspiracy, and that “[t]here’s no question that the defendant was in
charge of the deal, or at least a jury could reasonably conclude that he was”); see also
13 CR 968, R. 112 at 2-3 (finding “more than adequate evidence to convict the
defendant,” including the “numerous tape recordings” that made clear that Quiroz
“conspired
with
suppliers
and
couriers
to
deliver
large
amounts
of
methamphetamine” as part of an “ongoing conspiracy where there was evidence of
fronting of the methamphetamine, credits for the methamphetamine, and getting
more methamphetamine in the future”); Quiroz, 874 F.3d at 570-71 (holding that
contrary to Quiroz’s argument that the Court clearly erred when it found a conspiracy
between Quiroz and the couriers sufficient to admit their out-of-court statements,
24
“[t]he record indicates otherwise”). Accordingly, Quiroz cannot meet his Strickland
burden as to either performance or prejudice on this basis.
Quiroz also suggests that it was improper for the Court to ask the government
to submit the preliminary instructions from the Seventh Circuit pattern jury
instructions, and for Mr. Shobat to fail to object to that directive. R. 1 at 27 (quoting
13 CR 21-2, R. 217 at 54-55 (the Court at the final pretrial conference stating “I’d like
the government to submit” pattern instructions 10.01 through 10.12, which concern
among other things the functions of the court and jury, the nature of direct versus
circumstantial evidence, and the rules regarding juror-notetaking)). Quiroz has not
even attempted to explain how the inclusion of those instructions caused him
prejudice. And nor could he: the propriety of the preliminary instructions is wellsettled. Accordingly, his counsel was not ineffective on this basis, either.
(7) Entrapment defense. Quiroz also argues that his counsel in both trials
never listened to or did what Quiroz asked, complaining specifically about his failure
to assert an entrapment defense. But the decision not to pursue an entrapment
defense was not objectively unreasonable. “Entrapment is a defense to criminal
liability when the defendant was not predisposed to commit the charged crime before
the intervention of the government’s agents and the government’s conduct induced
him to commit it.” United States v. Mayfield, 771 F.3d 417, 420 (7th Cir. 2014). It
“consists of two temporally distinct elements: government inducement and lack of
predisposition.” Ward v. United States, 858 F.3d 1072, 1075 (7th Cir. 2017). “Where
the government has not ‘induced’ the crime within the meaning of the entrapment
25
doctrine, . . . the defense is ‘unavailable without the need for a more complex inquiry
into the evidence of predisposition.’ ” Id. at 1075-76 (quoting Mayfield, 771 F.3d at
432).
As the Court stated at sentencing, it would have been “foolish” to present such
a defense to the jury, “because there was a lot of [unfavorable] evidence . . . the
[factfinder] never heard that they would have heard had [Quiroz] raised such a
defense.” 13 CR 21-2, R. 226 at 47. And the evidence showed that Quiroz was a “ready,
willing, and able partner” in the drug transactions in any case. Id. at 54. As such, Mr.
Shobat’s decision not to raise entrapment “was a sound exercise of defense strategy.”
Id. at 47. Quiroz offers no compelling reason to revisit the Court’s conclusions here.
Further, while Quiroz did initially urge Mr. Shobat to assert the entrapment defense
(and Mr. Shobat took time to consider it), Quiroz also was present and did not object
when Mr. Shobat confirmed that his client agreed that after careful consideration, he
would not raise the defense. 13 CR 968, R. 203 at 2. Accordingly, Mr. Shobat’s
representation was not ineffective on this basis.
(8) Failure to call Barraza as a witness. Quiroz also argues that his
counsel was ineffective for failing to call his co-defendant Hector Barraza as a witness
in the marijuana trial. R. 1 at 28-29. Quiroz argues that Barraza was not “truthful”
when he signed the guilty plea because he was “looking at the months in jail.” Id. at
28. Quiroz also seems to suggest that Barraza’s inability to identify him would
corroborate his story that they did not know one another and thus that there could
be no conspiracy. See id. at 29 (quoting defense counsel as stating “It’s my expectation
26
that [Barraza] would probably say that he never actually met my client and, if he
were sitting here in this courtroom wouldn’t necessarily be able to pick him out.”).
And Quiroz also suggests that Barraza could testify to unrecorded calls
demonstrating his innocence. See id. (“The Appellant would have had Barraza testify,
there are many unrecorded call [sic] . . . many . . . episodes prearrange [sic] to fit and
incriminate the Appellant.”).
Generally, an attorney’s decision not to call a witness is a matter of strategy
that is not subject to review. See United States v. Best, 426 F.3d 937, 945 (7th Cir.
2005). And strategy was behind Mr. Shobat’s choices here. Indeed, Mr. Shobat
indicated at the final pretrial conference that he did not intend to call Barraza to
testify because even if he were to say that he had not met Quiroz in person, such
testimony would not be inconsistent with a conspiracy that included Quiroz and
Barraza. 13 CR 21-2, R. 217 at 73-74 (defense counsel stating “as the Court is aware,
one can have a conspiracy with someone and not even know who they are”); see United
States v. Missick, 875 F.2d 1294, 1297 (7th Cir. 1989) (“It is well established that a
conspirator need not know all of the members or details of a conspiracy to be held
responsible as a co-conspirator.”). Further, Quiroz’s suggestion that Barraza may
have been untruthful when he plead guilty and that he could testify to additional
phone calls demonstrating Quiroz’s innocence is self-serving and unsupported, and
cannot sustain Quiroz’s claim. See United States v. Ashimi, 932 F.2d 643, 650 (7th
Cir. 1991) (A “defendant cannot simply state that the testimony would have been
favorable; self-serving speculation will not sustain an ineffective assistance claim.”).
27
And the evidence against Quiroz is overwhelming. See Quiroz, 874 F.3d at 571
(Quiroz’s post-arrest statements, the testimony that it was Quiroz’s voice on the
recordings and Vance’s testimony “made the government’s case against Quiroz
overwhelming,” and that “[e]ven without the recorded statements of Vance, Cesar,
and Barraza, the outcome would have been the same”). Accordingly, because Mr.
Shobat’s decision not to call Barraza was a matter of sound strategy and because
Quiroz cannot establish that Barraza’s testimony would have produced a different
result, neither Strickland prong is satisfied. See Patel v. United States, 19 F.3d 1231,
1237 (7th Cir. 1994) (a petitioner claiming his counsel failed to call a witness must
“prove that [the] witness’s testimony would have produced a different result”). His
claim fails.
(9) Sentencing and drug calculation. Quiroz makes several arguments
concerning his sentencing. Specifically, he argues: (1) that his sentencing was unfair
because the consolidation of the cases occurred over his objection and the Court
sentenced him “by the most shameful,” “illegal,” and “procedurally incorrect” manner;
(2) that his counsel was ineffective for failing to challenge the sentencing
enhancement he received based on a drug type not mentioned in the indictment; and
(3) that the calculation of the quantity of the methamphetamine seized was
predicated upon false testimony. R. 1 at 8, 14; R. 6 at 2, 16, 46.
Generally, a claim of error in the application of the Sentencing Guidelines is
not cognizable in a Section 2255 motion. See Allen v. United States, 175 F.3d 560, 563
(7th Cir. 1999) (“It is well settled that, absent a fundamental miscarriage of justice,
28
‘arguments based on the Sentencing Guidelines must be raised on direct appeal or
not at all.’” (quoting Martin v. United States, 109 F.3d 1177, 1178 (7th Cir. 1996) (per
curiam))). And the Seventh Circuit is “reluctant to allow prisoners to circumvent the
rule against raising Sentencing Guideline arguments in collateral proceedings by
recasting their Guidelines arguments as claims of ineffective assistance of counsel.”
Allen, 175 F.3d at 563. Indeed, only “Sentencing Guidelines errors of constitutional
proportion” resulting from ineffective assistance may be considered. Id.
Quiroz’s claims fail even if framed as ineffective assistance and setting aside
that standard. First, there was nothing illegal or unfair about Quiroz’s sentences. To
the contrary, not only were his 180-month sentences well below the guideline range
of 360 months to life imprisonment, but also the Court permitted them to run
concurrently. 13 CR 968, R. 216 at 19, 74-75. Further, Quiroz cannot credibly contend
that the consolidation of his cases for sentencing purposes was prejudicial. Indeed, in
treating the methamphetamine and marijuana charges together for Sentencing
Guidelines calculation purposes, Quiroz was able to avoid an additional criminal
history point that otherwise would have been applied because the cases had been
indicted and tried separately. Id. at 38.
Quiroz’s argument that his counsel was ineffective for failing to challenge a
sentencing enhancement based on a drug type not mentioned in the indictment is
unfounded. No enhancements were applied at sentencing. Instead, the Court
carefully walked the lawyers and Quiroz through the offense level and criminal
history category calculations, making clear that the calculations were based upon the
29
charged conduct concerning methamphetamine and marijuana only. See generally id.
Further, to the extent Quiroz meant by this argument to contend that Mr. Shobat
failed to dispute the Court’s inclusion of Quiroz’s prior marijuana and cocaine offenses
in calculating Quiroz’s criminal history level, that too fails. Mr. Shobat argued
extensively that Quiroz’s criminal history was overstated, including because of the
age of the prior convictions, and the Court took those arguments into account. Id. at
50, 63-64. And no prejudice resulted from the Court’s criminal history calculation.
Indeed, even if Quiroz had no criminal history at all, the guideline range would have
been above the 180 months’ imprisonment ordered by the Court. See id. at 66 (“If he
had zero criminal history points, he’d be at 235 to 293” months’ imprisonment).
Finally, Quiroz spends considerable energy arguing that the drug calculations
were false, claiming that the “prosecutor and agent . . . intentionally . . . coach [sic]
the witness” to enhance the quantity of the methamphetamine seized on October 22,
2012 by 20 or 30 pounds. R. 1 at 14, 16; R. 6 at 2. In support, Quiroz submits two DEA
forms he claims to have received via a FOIA request, and which were neither
disclosed to the grand jury, nor produced during the underlying proceedings. R. 1 at
41, 42 and R. 6 at 2, 6. The forms, dated October 4 and 22, 2012, indicate that the
DEA was “expecting a shipment of 20-30 pounds of methamphetamine (meth) to
arrive in the Joliet, IL area” on October 4 or 5, and an additional shipment of 20
pounds “in the O’Hare airport area” on October 22, in both cases through Quiroz. Id.
Quiroz seems to suggest that the government added the two amounts together to
charge him with an October 22 delivery of 50 pounds. But at trial, the Court examined
30
the methamphetamine that the government represented was seized following the
October 2010 transactions at issue. 13 CR 968, R. 206 at 69 and R. 207 at 7-8. And
Quiroz stipulated that if called, “a chemist with the Chicago Drug Enforcement
Administration would testify that . . . the net weight of Government Exhibit 10/22/12
Narcotics was 20.06 kilograms” and that the purity was such that “the actual amount
of methamphetamine in Government Exhibit 10/22/12 Narcotics was 20.03
kilograms” (approximately 44 pounds). 13 CR 968, R. 207 at 54-55. Further, a chemist
testified that 9,789 grams (approximately 21.6 pounds) of actual methamphetamine
was seized following the October 10, 2012 delivery. 13 CR 968, R. 206 at 222. These
numbers were not pulled from the air.
Moreover, even if Quiroz’s assertions were true, Quiroz could not demonstrate
prejudice, because his offense level would not change despite the lesser amount. See
USSG
§
2D1.1(c)(1)
(indicating
that
offense
level
38
applies
to
actual
methamphetamine in the amount of 4.5 kilograms or more, thus including both the
nearly 30 kilograms of actual methamphetamine (or approximately 66 pounds) for
which Quiroz was convicted, and the approximately 16 kilograms (or 33 pounds) he
apparently claims was the amount actually seized). Accordingly, the Court sees no
reason to revisit the sentence imposed in Quiroz’s cases, which was well within the
Court’s discretion and below guidelines, and cannot find ineffective assistance of
counsel on this basis.
31
C.
Collusion, Bias, Prejudice and Impropriety
Quiroz complains broadly of collusion, bias and prejudice against him by and
between the Court, the government and his counsel beyond what is discussed above.
None of these claims were raised on direct appeal, but they would fail even if not
waived or if considered as part of his ineffective assistance claims.
Among other things, Quiroz argues that the Court showed a “lack of
impartiality and turned a blind eye to the truth” when it came to the suppression
hearing and Quiroz’s post-arrest statements because Quiroz is “homeless and not a
gentle flower.” R. 1 at 11. Quiroz accuses the Court of “fabricat[ing] and us[ing] a new
rule of its own to find the Post Arrest Statement credible.” Id. But Quiroz does not
identify or further explain the “new rule” alleged to have been used, and nor does he
otherwise offer evidence of any impropriety on this basis.
Quiroz also claims that the Court knew that Agent O’Reilly and his coconspirators lied during their testimony to the grand jury and at trial. Id. at 11, 13,
14. But again, Quiroz fails to provide any evidence to support the accusation.
Quiroz likewise points to the fact that the record demonstrates some level of
cooperation between his counsel and the government, quoting from early status
conferences in the marijuana case during which his lawyer at the time spoke
collectively about the government and defense. See, e.g., id. at 6-7 (quoting a May
2013 transcript of a hearing before Judge Bucklo in which Mr. Moran stated “WE’ve
already spoken before the Court,” and “WE’re going to get more discovery in the
Quiroz matter.” (emphasis in Quiroz’s filing)). But not only is it common for lawyers
32
on opposite sides to meet to discuss and reach agreement on various matters before
a court hearing, it is expected and encouraged. There was no impropriety here. Nor
was it improper for Judge Bucklo to ask the parties if they wanted to set the matter
for trial, as Quiroz seems to suggest. Id. at 6 (quoting Judge Bucklo as stating during
a status conference “You people would know if you want me to set a trial or what you
want me to do.”).
The Seventh Circuit has repeatedly warned that “perfunctory and undeveloped
arguments, and arguments that are unsupported by pertinent authority, are waived
(even where those arguments raise constitutional issues).” United States v. Holm, 326
F.3d 872, 877 (7th Cir. 2003) (citing United States v. Berkowitz, 927 F.2d 1376, 1384
(7th Cir. 1991); Fed R. App. P. 28(a)(4); United States v. Brown, 899 F.2d 677, 679 n.1
(7th Cir. 1990)). Quiroz has failed to set forth a coherent argument, facts or legal
precedent in support of these and other vague assertions of impropriety, collusion and
bias. Accordingly, habeas relief is not available to him on these grounds either.
III.
Certificate of Appealability
Lastly, the Court declines to issue a certificate of appealability under Rule 11
of the Rules Governing Section 2255 Proceedings for the United States District
Courts. Under 28 U.S.C. § 2253(c)(2), a petitioner is entitled to one if he can make a
substantial showing of the denial of a constitutional right. Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). A petitioner must demonstrate that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
33
encouragement to proceed further.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). As shown, Quiroz has not made a substantial showing that reasonable jurists
could debate whether his motion should have been resolved in a different manner.
Therefore, the Court declines to certify any issues for appeal under 28 U.S.C. §
2253(c)(2).
CONCLUSION
Quiroz’s Section 2255 petition continues the theme that persisted throughout
the underlying proceedings in both of his cases; that is, placing blame for his
predicament on everyone but himself. Those claims that the Court can decipher are
procedurally defaulted, were raised and rejected on appeal, and/or lack merit. For
these reasons and because his convictions were supported by overwhelming evidence,
Quiroz’s petition for relief under Section 2255, R. 1, is denied, and the Court declines
to issue a certificate of appealability.
ENTERED:
_______________________
Honorable Thomas M. Durkin
United States District Judge
Dated: November 13, 2019
34
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