Garcia v. United States of America

Filing 7

ORDER DISMISSING CASE. Garcia's motion for judgment on the pleadings [D. 3, 6] is DENIED; and Garcia's § 2255 motion to vacate or set aside his conviction [D. 1] is DENIED. Signed by Chief Judge Rudolph T Randa on 01/12/2009. (cc: all counsel; via US Mail to Armando Garcia)(Koll, J)

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

U N IT E D STATES OF AMERICA, P l a in tif f , C a s e No. 08-C-761 06-CR-292 -vsA R M A N D O GARCIA, Movant.

D E C IS IO N AND ORDER

T h is matter comes before the Court on Armando Garcia's ("Garcia") motion to vacate o r set aside his sentence under 28 U.S.C. § 2255. This is not Garcia's first attempt to bring a § 2255 motion. However, Garcia's previous attempt (Case No. 07-C-775) was not a proper § 2255 motion because it was brought after he was convicted but before he was sentenced. S e e United States of America v. Garcia, Case No. 07-C-775 (E.D. Wis.), D. 2 at 1-2 ("Relief u n d e r § 2255 is only available to a prisoner `in custody under sentence of a court established b y Act of Congress claiming to be released in violation of the Constitution or laws of the U n ite d States'"). Therefore, the instant motion does not run afoul of the rules against second o r successive collateral attacks. See § 2255(h). G a rc ia was convicted of possession with intent to distribute 500 grams or more of c o c a in e . He was sentenced to 97 months imprisonment. Before trial, Garcia moved to su p p ress evidence seized during the execution of a search warrant at his girlfriend's

ap artm en t for lack of probable cause. Judge Goodstein granted the motion, but the Court u ltim a te ly held that the warrant was supported by probable cause, and even if it was not, the e v id e n c e was saved by the "good faith" exception to the exclusionary rule. Garcia appealed a n d the Seventh Circuit affirmed. See United States v. Garcia, 528 F.3d 481 (7th Cir. 2008). T h e relief sought pursuant to § 2255 "is an extraordinary remedy because it asks the d is tric t court essentially to reopen the criminal process to a person who already has had an o p p o rtu n ity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). R e lie f under § 2255 is limited to "an error of law that is jurisdictional, constitutional, or c o n stitu te s a `fundamental defect which inherently results in a complete miscarriage of ju s tic e .'" Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991). T h e first part of Garcia's motion reads like an attempt to relitigate his suppression m o tio n , but he is barred from doing so by the law of the case doctrine. See White v. United S ta te s, 371 F.3d 900, 902 (7th Cir. 2004) ("the doctrine of the law of the case . . . forbid[s] a prisoner to relitigate in a collateral proceeding an issue that was decided on his direct a p p e al" ). The remainder of Garcia's claims fall under the rubric of ineffective assistance, w h ic h are generally allowed in the context of a § 2255 motion even if they were not raised o n direct appeal. See Fountain v. United States, 211 F.3d 429, 433-34 (7th Cir. 2000). G a rc ia must demonstrate that his counsel's performance fell below an objective s ta n d a rd of reasonableness, and that the deficient performance so prejudiced his defense that it deprived him of a fair trial. See Fountain at 434 (citing Strickland v. Washington, 466 U.S. 6 6 8 , 688-94 (1984)). It is not the Court's task to act as a "Monday morning quarterback" or

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to "call the plays as [the Court] think[s] they should have been called." Id. (quoting Harris v . Reed, 894 F.2d 871, 877 (7th Cir. 1990) and United States v. Trevino, 60 F.3d 333, 338 (7 th Cir. 1995)). Accordingly, there is a "strong presumption that counsel's conduct falls w ith in the wide range of reasonable professional assistance." Id. (quoting Trevino at 338). In addition, Garcia must satisfy the prejudice prong by demonstrating "a reasonable p ro b a b ility that, but for counsel's unprofessional errors, the result of the proceedings would h a v e been different." Id. (quoting United States v. Starnes, 14 F.3d 1207, 1209-10 (7th Cir. 1 9 9 4 )). G a rc ia argues that his counsel was ineffective because he (1) failed to contest the v e ra c ity of the affidavit for probable cause, (2) failed to continue filing dispositive pretrial m o tio n s with respect to disclosure of the confidential informant, (3) failed to present " sig n if ic a n t" evidence favorable to the defendant, and (4) failed to raise significant issues on a p p e al regarding discrepancies in cross examination. Without even considering deficient p e rf o rm a n c e, Garcia's motion must fail on the prejudice inquiry. The cumulative evidence p re se n te d at trial "overwhelmingly tie[d] Garcia to the apartment" where drugs, cash, and d rug paraphernalia were found. See Garcia, 528 F.3d at 485. Therefore, Garcia cannot d e m o n s tra te a reasonable probability that the outcome of the trial would have been different b u t for his counsel's performance. Moreover, any complaints about counsel's performance w ith respect to the suppression motion are without merit. Garcia's counsel did an admirable jo b , convincing Judge Goodstein that the evidence should be suppressed.

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N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: 1. 2. G a r c ia ' s motion for judgment on the pleadings [D. 3, 6] is DENIED; and G a r c ia ' s § 2255 motion to vacate or set aside his conviction [D. 1] is DENIED

D a te d at Milwaukee, Wisconsin, this 12th day of January, 2009. S O ORDERED,

s / Rudolph T. Randa HON. RUDOLPH T. RANDA Chief Judge

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