Zahursky v. USA

Filing 2

OPINION AND ORDER: Court DENIES Motion to Vacate, Set Aside or Correct Sentence (2255) and the action is DISMISSED WITH PREJUDICE. Court finds that a certificate of appealability should not issue. Signed by Judge Rudy Lozano on 10/26/2012. cc: Zahursky (tc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ERIK D. ZAHURSKY,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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NO. 2:12-CV-85
(2:06-CR-109)

OPINION AND ORDER
This matter is before the Court on the Motion Under 28 U.S.C. §
2255 To Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody, filed by Petitioner on February 23, 2012.

For the reasons

set forth below, this motion is DENIED and the action is DISMISSED
WITH PREJUDICE.

Additionally, the Court finds that a certificate of

appealability should not issue.
The following filings are also before this Court: various letters
and/or supplements to the 2255 petition [DE #216, DE #218, DE #227],
a Motion to Resolve by the Granting of the Requested Relief [DE #228],
a request for a response by October 31, 2012 [DE #229], a Motion to
Resolve by Granting the Entitled Relief [DE #230], a Motion to Resolve
by the Granting of Entitled Relief by November 16, 2012 [DE #231],
a Motion for Resolve by the Granting of Entitled Relief Within 30 days
[DE #232]; Motion-Petition to Resolve Amiably Cause Number 2:12-CV-85
by the End of 2012 or So By the Granting of the Requested Relief [DE

#233]. Each of the requests contained in these letters and/or motions
are DENIED AS MOOT.

BACKGROUND
Defendant, Erik D. Zahursky (“Zahursky”), was charged with
attempting to persuade, induce, entice, or coerce “Shelly,” whom
defendant believed to be a female minor under the age of eighteen
(18), to engage in sexual activity, in violation of 18 U.S.C. §
2422(b).

A jury found him guilty on April 10, 2007.

On January 14,

2008, this Court sentenced Zahursky to 262 months of imprisonment and
20 years of supervised release.
Zahursky appealed.
Cir. 2009).

United States v. Zahursky, 580 F.3d 515 (7th

On appeal, Zahursky asserted that this Court erred in

denying a motion to suppress evidence obtained during a warrantless
search of his vehicle; this court erred in admitting evidence of other
bad acts pursuant to Federal Rule of Evidence 404(b), and this Court
erred in applying a two-level sentencing enhancement for unduly
influencing

a

minor

under

United

States

Sentencing

Guideline

(“U.S.S.G”) Section 2G1.3(b)(2)(B). Id. at 521. Zahursky’s first two
arguments were rejected, and his conviction was affirmed. Id. at 521526.

The Seventh Circuit Court of Appeals, however, agreed with

Zahursky that this Court misapplied U.S.S.G. section 2G1.3(b)(2)(B).
Id. at 526-528.

Because it was not clear to the Seventh Circuit that

this Court would have imposed the same sentence in the absence of the
-2-

error in calculating the guidelines, the case was remanded for
resentencing.

Id.

On April 29, 2011, this Court resentenced Zahursky.

The Court

considered numerous arguments and objections offered by Zahursky’s
counsel, including an argument that the Seventh Circuit’s opinion
remanding the case based on a misapplication of U.S.S.G. section
2G1.3(b)(2)(B) also prevented this Court from relying on U.S.S.G.
section 2G1.3(d) to enhance his sentence.

This Court found that the

argument was not raised on appeal, and was therefore waived.
#207 at 19].

[DE

Upon resentencing, this Court recalculated Zahursky’s

adjusted offense level as 34, and his criminal history category as 2,
resulting in a new guideline sentencing range of 168-210 months
imprisonment. [DE #207 at 26]. This Court, addressing Zahursky at the
sentencing hearing, noted prior to imposing the sentence, that “I
really struggled in not giving you an exact sentence that I gave
before, I’m not going to do that.

I’m going to give you a sentence

at the top of the guideline range as determined in this case.” [DE#
207 at 37].

This Court imposed a sentence at the high end of the

newly calculated guideline range:

210 months of imprisonment and a

20 year term of supervised release.
Zahursky appealed once again.
F.3d 456 (7th Cir. 2012).

United States v. Zahursky, 668

In this appeal, Zahursky argued that the

Seventh Circuit’s opinion remanding the case precluded not just the
enhancement imposed under U.S.S.G. section 2G1.3(b)(2)(B), but also

-3-

an enhancement under U.S.S.G. section 2G1.3(d).

Id. at 457.

The

Seventh Circuit affirmed this Court’s sentence, finding that this
Court was not obligated to consider this new argument on remand.

Id.

at 459.
Subsequently, Zahursky filed the instant section 2255 petition
as well as various supplements to that petition.
his immediate release and financial compensation.

Zahursky seeks both
Zahursky believes

that the Seventh Circuit’s opinion in United States v. Taylor, 640
F.3d 255 (7th Cir. 2011), mandates his release.
#113-2 at 4].

[DE #213 at 1; DE

He also believes that this Court misapplied 18 U.S.C.

section 3553(a)(1)(2)(6)(7).

[DE #213 at 1; DE #113-2 at 4].

Additionally, he claims that his counsel was ineffective:
by lack of communication & failure to communicate
effectively the numerous concerns of the
defendant regarding: definition-context, the
evidence, law-policy, & civil-constitutional
violations toward the defendant by the government
facilitating,
fabricating
&
inflaming
the
offense. In doing so, placing the Defendant in
harm’s way
& absolute poverty: homeless,
unemployable,
&
disabled
with
potential
irreversabilities unnecessarily.
[DE #213 at 2; DE #213-2 at 5].
On the whole, Zahursky’s many communications relative to his
section 2255 petition are consistent with the letters he has written
this Court throughout the pendency of his case: he believes that what
he did is not a crime, and that even if it is, the punishment is out
of proportion to the crime. He refers to his actions as necessary for
his personal enlightenment and believes that he has learned his lesson
-4-

and should therefore be released. [DE #213-2 at 8].

Zahursky also

indicates many times that he is in the process of attempting to
renounce his citizenship pursuant to 8 U.S.C. section 1481, and
repeatedly discusses his hope to lead a nomadic life of “tranquil
serenity” in central North America upon his release. [see e.g. DE
#213-2 at 2; DE #338 at 1].1

He also provided documents suggesting

that he has tried to disavow his social security number and that he
believes he is entitled to a refund of the contributions made on his
behalf. [DE #227 at 11, seeking a lump sum return of funds with
interest].
Although not discussed at all in his motion, Zahursky has
attached a letter from Attorney Kerry Connor (who represented Zahursky
following the Seventh Circuit’s remand) in which Attorney Conner
conveys to Zahursky that his conviction and sentence following remand
were affirmed by the Seventh Circuit.

Attorney Connor notes that

“[t]he Court concluded that because the issue regarding the pseudocounts was not raised in your first appeal, it was considered
forfeited in the re-sentencing.”

[DE #213-4 at 4-5].

underlined this portion of the letter. [Id.].

Zahursky has

The letter continues

by noting that the Seventh Circuit’s opinion “suggests that had the
pseudo-count issue been raised by your first appellate counsel, you

1

At one point, Zahursky appears to be seeking a certificate
of loss of nationality from this Court. [DE #228 at 1]. To the
extent he is seeking this relief from this Court, the requests is
outside the scope of this proceeding, and is accordingly DENIED.
-5-

would have at least gotten a remand on the issue” and that this lays
a foundation for a 2255 motion on that point.

[Id.].

The Government asserts that each of Zahursky’s claims are without
merit.

The

motion

has

been

fully

briefed,

and

is

ripe

for

adjudication.

DISCUSSION
Section 2255 Petition
Habeas corpus relief under 28 U.S.C. section 2255 is reserved for
“extraordinary situations.”
816 (7th Cir. 1996).

Prewitt v. United States, 83 F.3d 812,

In order to proceed on a habeas corpus petition

pursuant to 28 U.S.C. section 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.
A

section

2255

motion

is

recapitulation of a direct appeal.

neither

a

substitute

for

nor

Id.; see also Belford v. United

States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds
by Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
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
-6-

As a

that were not raised on direct appeal, unless the
section 2555 petitioner demonstrates cause for
the procedural default as well as actual
prejudice from the failure to appeal.
Belford, 975 F.2d at 313.

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).
In assessing Zahursky’s motion, the Court is mindful of the wellsettled 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

County Sheriff's Dep’t., 95 F.3d 548, 555 (7th Cir. 1996); 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’”) (quoting Haines v. Kerner, 404
U.S. 519 (1972)); Brown v. Roe, 279 F.3d 742, 746 (9th Cir. 2002)
(“pro se habeas petitioners are to be afforded ‘the benefit of any
doubt’”) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.
1985)).

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
-7-

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)
(quoting Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

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.

Here, the Court

assessed Petitioner’s claims with those guidelines in mind.
The facts of this case can be summarized as follows:
Special Agent Ryan E. Moore (“SA Moore”), a member of the
Electronic Crime Squad of the United States Secret Service, created
a Yahoo profile for a fictitious fourteen (14) year-old girl.
profile name was “Sad Shelly200" and a photo was posted.

The

SA Moore

entered a chat room using the Sad Shelly200 profile and was approached
by

“Gracespace101",

a

profile

registered

to

Erik

D.

Zahursky.

Zahursky, who identified himself as Erik in the chats, spent nearly
three weeks communicating with Sad Shelly200 about sex, including
giving her instructions regarding sex and discussing his previous
sexual exploits with minors.

The details need not be repeated here.

Zahursky was also engaging in chats with someone using the screen
name “holly1989cuties,” and he attempted to arrange for the three of
them to engage in sex.

This did not work out, and he initiated

discussions with Sad Shelly200 about a possible threesome with one of
-8-

her friends, a fictitious friend named “Lindsey.”
Eventually, Zahursky made plans with Sad Shelly200 to meet for
the purpose of engaging in sex with Sad Shelly200 and her friend
Lindsey.

Zahursky was to meet Sad Shelly200 on June 21, 2006, at a

Starbucks in Valparaiso, Indiana at 6:00 p.m.

Zahursky indicated he

would be wearing sweats, a black or white cotton shirt, white tennis
shoes, tinted glasses, and a jean hat that reads “2000" and has little
aliens peeking out of the zeros.
gold Mercury Sable.
lubricant.

He indicated he would be driving a

He further indicated that he would bring

They had previously discussed the use of condoms to

prevent pregnancy.
Zahursky arrived at the Starbucks in Valparaiso driving the
Mercury Sable and wearing the clothing he had described.
apprehended by agents after he entered the Starbucks.

He was

Following his

arrest, a search of his vehicle revealed directions from his Illinois
home to the Starbucks in Valparaiso and a duffle bag containing
lubricant and condoms.

Zahursky’s computer was seized and was found

to contain evidence of chats with Sad Shelly200, holly1989cuties, and
someone utilizing the screen name Xanthery.
The evidence at trial established that, just as Zahursky had
bragged during his chats, he had in fact had sex with a minor
previously.

This individual, S.S., testified that she met Zahursky

on the internet and had sex with Zahursky on two occasions when she
was 14 or 15 years of age.

-9-

Zahursky testified at trial.

He claimed that he was annoyed by

minors in adult chat rooms and tried to use “reverse psychology” to
get them to leave the chat rooms.

He further alleged that he

suspected that Sad_Shelly200 was a cop and that he had an “urge of
curiosity” so he went to meet her to confirm this suspicion.

He

denied that he intended to have sex with Sad Shelly200.

Petitioner’s Claim That the Decision of United States v. Jeffrey
Taylor Renders his Conviction Unlawful
Zahursky asserts that the case of United States v. Taylor, 640
F.3d 255 (7th Cir. 2011), requires his immediate release.
theory

seems

to

be

that

he

is

less

culpable

than

Zahursky’s
Taylor,

who

masturbated on a webcam in view of a police agent who identified
herself as a 13-year-old girl. [DE #228 at 4, “The defendant never
exposed self to unknown entity.

The defendant never met unknown

entity - unknown entity did not exist....”].
Taylor, like Zahursky, was charged with a violation of 18 U.S.C.
section 2422(b).

The charge against Taylor was predicated upon

sexually explicit chats, his attempts to have a person he believed to
be a minor masturbate, and his masturbation via a webcam. Id. at 257.
It was not alleged that Taylor made arrangements to meet anyone or
that he traveled to meet anyone.

Taylor was convicted, and that

conviction was overturned because the Court of Appeals determined that
the phrase “sexual activity” in 18 U.S.C. section 2422 was not defined
and there was ambiguity as to whether masturbation counted as “sexual
-10-

activity” within the meaning of the statute.

Id. at 259-60.

The

conviction was set aside based on the rule of lenity, which requires
that, “when there are two equally plausible interpretations of a
criminal statute, the defendant is entitled to the benefit of the more
lenient one.”

Id.

Zahursky was not charged with masturbating on a webcam, and thus
the holding that doing so is not sexual activity within the meaning
of 18 U.S.C. 2422(b) has no bearing on his case.

Zahursky is charged

with attempting to persuade, induce, entice, or coerce “Shelly,” whom
defendant believed to be a female minor under the age of eighteen
(18), to engage in sexual activity.

For this offense, there need not

be any actual sexual activity at all; and, the evidence at trial was
more than sufficient to support a finding that the crime he attempted
to commit involved acts which would be defined as sexual activity
within the meaning of the statute.

All that is required is that he

intend to complete the crime and take a substantial step toward its
completion.

Braxton v. United States, 500 U.S. 344, 349 (1991).

The

Seventh Circuit has held that a “relatively concrete conversations
about making a ‘date’” and checking on the partner’s birth control
practices

were

sufficient

substantial

steps.

Zawada, 552 F.3d 521, 535 (7th Cir. 2008).

United

States

v.

Zahursky did so much more

than that: he made concrete plans for a meeting, including details
about what he would wear, what he would drive, and what he would bring
with him (condoms and lubricant), and he followed through with those

-11-

plans by arriving at the meet location dressed as indicated, driving
the car he said he would be driving, and with condoms and lubricant
in the car.

Taylor simply does not apply to the facts of Zahursky’s

case.

3553(a) Factors
Zahursky
3553(a).

believes

this

Court

misapplied

18

U.S.C.

section

His motion includes the following notations in reference to

this claim:
-A sentence imposed should be sufficient,
but not greater than necessary to comply...
-A just punishment for the offense.
(of
kind & Degree)
-To avoid sentence disparities.
- No victim.
- The law should take precedent over policy
(Booker).
-To provide educational/vocational, medical,
“other” (financial assistance) correctional
treatment to assist the defendant to re-enter
society in the most effective manner.
The defendant is a first time offender (if
that - “attempt” the statute was not violated by
any of it’s elements)...having no criminal
history or conditioning & living in a sheltered
environment. The first sentence of 262 months
imprisonment & 20 years court supervision
(category II Level 34) is a death sentence
costing the government over $500,000... The
second sentence of 210 months imprisonment & 20
years court supervision is not any better... The
mandatory minimum of 60 months imprisonment & 3
to 5 years court supervision is too extreme for
this particular individual circumstance yet has
been paid in full(then some) of 72 months
imprisonment (End of June 21, 2012)(Hoping for
relief by May 1, 2012 or so).

-12-

[DE #213-2 at 4-5].2
Zahursky’s first direct appeal did not raise the issue of whether
his sentence violated 18 U.S.C. section 3553(a).
have been raised on direct appeal, and it was not.

This issue could
Furthermore, he

has not alleged any reason that it was not raised on direct appeal,
and he has not alleged actual prejudice from the failure to appeal
this issue. Even if this issue had been appealed, the Seventh Circuit
is quite deferential in reviewing the findings of district court’s
under 18 U.S.C. section 3553(a).

See United States v. Freeman, 691

F.3d 893, 902 (7th Cir. 2012)(“A sentence is reasonable if the
district

court

gives

meaningful

consideration

to

the

factors

enumerated in 18 U.S.C. § 3553(a), including the advisory sentencing
guidelines, and arrives at a sentence that is objectively reasonable
in light of the statutory factors and the individual circumstances of
the case. ... We review the substantive reasonableness of a sentence
deferentially, for abuse of discretion, and presume that a withinguidelines sentence is reasonable.” (Internal citations and quotations
omitted)).

2

In his reply, Zahursky treats his argument based on United
States v. Booker, 543 U.S. 220 (2005), as separate from his
argument that section 3553(a) was not applied appropriately.
Booker held that the United States Sentencing Guidelines are
advisory only, thus returning a substantial degree of sentencing
discretion to judges. His reference to Booker and his reference
to 18 U.S.C. section 3553(a) both appear to be based on his
belief that his sentence (which fell within the guideline range)
was simply too great for the offense, and this Court will treat
these as one argument.
-13-

Although the Seventh Circuit did remand this case due to an error
in the calculation of the guidelines, they indicated that if this
Court had made clear that it would have imposed the same sentence even
in the absence of the error, a remand could have been avoided.

There

is no hint that the Court of Appeals for the Seventh Circuit believed
that the original sentence this Court imposed was anything less than
reasonable.

Following Zahursky’s resentencing, the case was again

appealed and this Court’s sentence was affirmed.

Again, there is

nothing that indicates that the Court of Appeals found the sentence
imposed unreasonable. While Zahursky may disagree with how this Court
weighed the various section 3553(a) factors, he has not pointed to any
error of law, constitutional or otherwise.

Zahursky’s Claim That His Counsel Was Ineffective.
Zahursky claims that his counsel was ineffective:
by lack of communication & Failure to communicate
effectively the numerous concerns of the
defendant regarding: definition-context, the
evidence, law-policy, & civil-constitutional
violations toward the defendant by the government
facilitating,
fabricating
&
inflaming
the
offense. In doing so, placing the Defendant in
& absolute poverty: homeless,
harm’s way
unemployable,
&
disabled
with
potential
irreversabilities unnecessarily.
[DE #213 at 2; DE #213-2 at 5].
With regards to the “definition-context” issue, Zahursky argues
that there was no “persuasion, inducement, enticement, coercion,
sexual activity, minor, prostitution, harm, abuse, exploitation,
-14-

“crime of violence,” “attempt”, or even a crime (violation against
person or person’s property).” [DE #213-2 at 6].

He seems to believe

that he was convicted based on policy rather than the statute itself,
and that the statute should take precedence over policy. [DE #213-2
at 6].
With regards to his counsel’s alleged failure to effectively
communicate

his

concerns

to

the

Court,

Zahursky

notes

that

he

expressed his concerns in writing but this Court “sealed them & shoved
them aside.” [DE #230 at 3].

He also complains that counsel acted

upon his behalf without consulting with him or getting his approval.
[DE #230 at 3].
With regards to evidence issues, Zahursky believes the evidence
is “insufficiently trustworthy.” [DE #213-2 at 6]. He criticized the
training of the agent, whom he refers to as “overzealous.” [DE #213-2
at 6]. He claims that the search of his vehicle was unwarranted. [DE
#213-2 at 7]. He claims that there was not probable cause for his
arrest.

[DE #213-2 at 7]. He complains that large portions of his

videotaped statement were not played for the jury. [DE #213-2 at 7].
He complains that S.S.’s statements were unverifiable hearsay and that
reliance on these statements to enhance his sentence violates due
process.

[DE #213-2 at 7; DE #213-4 at 3].

He claims that his

actions were inappropriate but not criminal, that they were a “means
for personal enlightenment,” that his questions have been sufficiently
answered and that further incarceration would cause more harm than

-15-

benefit.

[DE #213-2 at 8].

Elsewhere, he claims that the evidence

was insufficiently trustworthy because of its sources: namely, the
internet which he dubs a “fictitious environment” and the defendant
whom apparently can not be taken at his word because he was engaged
in a personal social experiment for enlightenment.

[DE #227 at 5].

Zahursky also claims that he did not receive an appropriate
psychiatric evaluation. [DE #213-4 at 3; DE #216 at 5; DE #227 at 5].
He claims that he has lived in a sheltered environment, that he is
anti-social and has “quirks” and has had an unstable work history from
1990-1997.

[DE #216 at 5].3

Because counsel is presumed effective, a defendant bears a heavy
burden in proving that his attorney rendered ineffective assistance.
United States

v. Guerrero, 938 F.2d 725, 727 (7th Cir. 1991). “Only

if the petitioner comes forward with ‘specific acts or omissions of
his counsel that constitute ineffective assistance’ will [the Court]
then consider ‘whether these acts or omissions were made outside the
wide range of professionally competent assistance.’” Hutchings v.
Unites States, 618 F.3d 693, 697 (7th Cir. 2010) (citing Berkey v.
United States, 318 F.3d 768 (7th Cir. 2003). A claim for ineffective

3

The record established that Zahursky did receive a
competency examination, and that following that exam (which
reported that he was indeed competent) Zahursky through counsel
waived a competency hearing and withdrew his motion that the
Court make a competency finding. [See DE #33, DE #37]. A
psychologist with the BOP also provided an addendum concluding
that Zahursky did not appear to be suffering a several mental
disease or defect at the time of the alleged crime.
-16-

assistance of counsel can only prevail if the defendant satisfies the
test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Under this test, the defendant must show: (1) that the attorney’s
representation fell well below an objective standard of reasonableness
(performance prong) and (2) that there exists a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different (prejudice prong). A reasonable
probability is a probability sufficient to undermine confidence in the
outcome of the case. Strickland, 466 U.S. at 694.
Zahursky does not discusses his counsel by name when he sets
forth his ineffective assistance of counsel argument.

He had one

attorney at trial and sentencing, a different attorney for his first
appeal, and a third attorney for the remand and second appeal.

This

Court is left guessing which counsel he believes was ineffective. His
filings convey a disdain for each and every one of his attorneys, and
so this Court presumes that he believed they were each ineffective in
some way.
Some of the issues included in Zahursky’s 2255 petition have
already been raised in his direct appeal; namely, his claim that the
search of his vehicle was unwarranted and his challenges to the
admissibility of SS’s testimony under Rule 404(b).
v. Zahursky, 580 F.3d 515 (7th Cir. 2009).

See United States

This Court will not now

address issues already decided by the Seventh Circuit in Zahursky’s
direct appeal.

See Belford, 975 F.2d at 313.

-17-

With regards to arguments not raised on appeal, Zahursky’s motion
and the many supplemental filings do not even attempt to demonstrate
the required “cause” and “prejudice” that might explain his failure
to raise these issues on direct appeal.

The Court recognizes that

claims for ineffective assistance of counsel are often not appropriate
for resolution on a defendant’s direct appeal and, therefore, are
often properly before courts on section 2255 motions.
United States, 1 F.3d 631, 635 (7th Cir. 1993).

See Bond v.

However, because

Petitioner’s claims for ineffective assistance of counsel at trial or
at his first sentencing do not rely on evidence outside the record,
Petitioner

could

have

pursued

these

claims

on

direct

appeal

-

especially because Zahursky was represented by different appointed
counsel on appeal than he was at sentencing (thus eliminating any
conflict created by the possible need for an appellate lawyer to argue
that his/her assistance at trial or sentencing was ineffective).
Zahursky does not explain his failure to pursue these ineffective
assistance of counsel claims in his direct appeal.
claims are procedurally barred.
Even

if

procedurally

Zahursky’s
barred,

McCleese, 75 F.3d at 1177.

ineffective

they

As such, his

would

assistance

fail

because

claims

were

not

Zahursky

has

not

demonstrated ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984), as described earlier in this opinion
and order.

A court can resolve an ineffective assistance claim by

deciding either Strickland prong against the defendant; the court need

-18-

not

consider

the

performance

prong

before

the

prejudice

prong.

Zahursky cannot criticize his counsel for failing to pursue arguments
that lack merit.

Zahursky has not established that any of his

arguments are meritorious, and he has made no effort whatsoever to
demonstrate

a

“reasonable

probability

that,

but

for

counsel’s

unprofessional errors, the result of the proceeding would have been
different.”

Strickland, 466 U.S. at 694.

evidence

this

in

case

was

overwhelming

In other words, the
and

Zahursky

has

not

demonstrated how anything that he believes his counsel (and this
includes his trial counsel, appellate counsel, and counsel following
remand) should have done would have resulted in an acquittal or a
lesser sentence.
Before closing, the Court will address briefly the letter from
Attorney
petition.

Connor

referenced

earlier,

and

attached

to

Zahursky’s

In this letter, Attorney Connor outlined for Zahursky a

possible issue to be raised in a 2255 petition based on a guideline
enhancement for a pseudo-count.

Attorney Connor is referencing an

enhancement applied under U.S.S.G. section 2G1.3(d) and based on
Zahursky’s chats with holly1989cuties.

Zahursky has underlined

portions of Attorney Connor’s letter but his motion and the many
supplements makes no mention of his chats with holly1989cuties and do
not specifically challenge this Court’s application of the enhancement
under U.S.S.G. section 2G1.3(d).

His motion and supplements also do

not argue that either his trial counsel or appellate counsel were

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ineffective for failing to raise this argument.

While pro se

litigants are entitled to liberal construction of their pleadings, it
is also true that this Court can not rewrite Zahursky's petition for
See Barnett v. Hargett, 174 F.3d 1128 , 1133 (10th Cir. 1999).

him.

While the Seventh Circuit’s opinion may have hinted at a possible
issue to be raised in a 2255 petition, Zahursky has not raised this
issue; no reasonable reading of his motion can import such an
argument.
raising

And, even if this Court could construe his petition as

this

issue,

he

has

not

demonstrated

that

it

is

not

procedurally barred, that his counsel was ineffective in not raising
the argument (as opposed to it being a reasonable strategic decision),
or that he was prejudiced by counsel’s failure.4

A Certificate of Appealability is not Warranted.
Considering the record in this case and pursuant to Federal Rule
of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
section 2255 proceedings, and 28 U.S.C. section 2253(c), the Court
DENIES a certificate of appealability.

The Court determines that

Zahursky has failed to show: (1) that reasonable jurists would find
this court's “assessment of the constitutional claims debatable or

4

This Court was hesitant to reduce Zahursky’s sentence at
all following the Seventh Circuit’s remand. [DE #207 at 37]. It
is highly unlikely that this Court would have reduced Zahursky’s
sentence any further even if the guideline calculation did not
include a two level increase under U.S.S.G. section 2G1.3(d).

-20-

wrong” or (2) that reasonable jurists would find “it debatable whether
the petition states a valid claim of the denial of a constitutional
right”

and

“debatable

whether

[this

court]

was

correct

in

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

its
In

the event that Zahursky files a notice of appeal, he must pay the $455
appellate filing fee or obtain leave from the Court of Appeals to
proceed in forma pauperis (“IFP”).

CONCLUSION
For the reasons set forth above, this motion is DENIED and the
action is DISMISSED WITH PREJUDICE.

Additionally, the Court finds

that a certificate of appealability should not issue.
The requests contained in various letters and/or supplements to
the 2255 petition [DE #216, DE #218, DE #227], a Motion to Resolve by
the Granting of the Requested Relief [DE #228], a request for a
response by October 31, 2012 [DE #229], a Motion to Resolve by
Granting the Entitled Relief [DE #230], a Motion to Resolve by the
Granting of Entitled Relief by November 16, 2012 [DE #231], a Motion
for Resolve by the Granting of Entitled Relief Within 30 days [DE
#232], and a Motion-Petition to Resolve Amiably Cause Number 2:12-CV85 by the End of 2012 or so by the Granting of the Requested Relief
[DE #233] are

DENIED AS MOOT.

DATED: October 26, 2012

/s/ RUDY LOZANO, Judge
United States District Court
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