United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
that he was sentenced improperly to a ten-year sentence for
drug distribution, petitioner Orlando Rosales seeks post
conviction relief under 28 U.S.C. § 2255. He believes
that the court made two errors in his case: it denied him his
constitutional right to the effective assistance of counsel
and it used “predicate sentences” improperly in
finding that he was a career offender.
review of petitioner's motion shows that, contrary to his
assertions, his counsel gave him a vigorous and effective
representation and he was not sentenced improperly.
Accordingly, his motion for post conviction relief will be
denied, together with his motion for appointment of counsel
to assist him with a motion for post conviction relief.
Having the assistance of counsel would not benefit petitioner
because he has no viable claim for relief.
November 2014, the government filed a one-count information
against petitioner, charging him with conspiracy to possess
with intent to distribute 500 grams or more of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 845.
Counsel was appointed to represent petitioner, who later
waived indictment and entered a plea of guilty to the
information under a written plea agreement.
probation office prepared a presentence report, determining
that petitioner had a base offense level of 26 because he had
been responsible for the distribution of at least 2.87
kilograms of cocaine. The base offense level was increased by
two, because petitioner had maintained a premises for the
purposes of distributing a controlled substance, and
increased again by three levels because he had played a
managerial or supervisory role in the offense. The offense
level of 31 was then increased to 34 because petitioner was a
career offender, as defined in U.S.S.G. § 4B1.1(a). He
was at least 18 years old and had at least two prior felony
drug distribution convictions in a Wisconsin state court: (1)
possession with intent to distribute less than 200 grams; (2)
possession with intent to deliver more than 2, 500 to 10, 000
grams of THC; and (3) possession with intent to distribute
more than one but not more than five grams of cocaine. His
sentence was reduced by three levels, to recognize the clear
demonstration of his acceptance of responsibility, giving him
a final offense level of 31. U.S.S.G. § 3E1.1(a) and
(b). His criminal category was VI and his advisory guideline
range was 188 to 235 months..
sentencing hearing, petitioner's counsel called members
of petitioner's family to speak on his behalf, pointed
out the difficulties that petitioner had had in finding
legitimate sources of income and argued that he should not be
considered a career offender because some of the crimes
charged against him were old, the crimes were of a minor
nature and they were primarily the result of petitioner's
addictions. He also noted that petitioner was facing the
possibility of another sentence in state court.
Petitioner's counsel acknowledged that petitioner's
criminal history score gave him a base offense level of VI
and that he was a career offender, but argued persuasively
for a five-level downward departure in recognition of
petitioner's cooperation with the government. Petitioner
was given the full amount of his requested reduction and
sentenced to a term of 120 months, 68 months below the low
end of his guideline sentence.
appealed his sentence to the Court of Appeals for the Seventh
Circuit, which affirmed his sentence on May 28, 2015. He
filed this timely motion for post conviction relief on
December 8, 2016.
believes that he is entitled to post conviction relief for
two reasons: (1) his counsel failed to provide him an
adequate defense; and (2) the sentencing court should not
have used his state court drug convictions as a basis for
enhancing his criminal history score. The government adds
that petitioner may have as a third ground, that he is
actually innocent of being a career offender, but petitioner
has not pursued this argument.
Alleged Ineffectiveness of Counsel
petitioner had a full review of his case on appeal, he is
entitled to a post conviction review of his claim of
ineffectiveness of counsel because that claim implicates a
constitutional right. Although post conviction review is not
intended to be a substitute for a direct appeal, an
ineffective-assistance-of-counsel claim may be brought in a
collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.
Massaro v. United States, 538 U.S. 500, 504 (2003).
Blake v. United States, 723 F.3d 870, 878-79 (7th
petitioner's prior appeal does not prevent him from
proceeding on his claim,, he faces a high hurdle for
obtaining relief. He must show not only that his trial
counsel's performance fell below the objective standard
for reasonably effective representation, but that the
ineffectiveness prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); Blake,
723 F.3d at 879. Moreover, the standard of review for
effective representation is a “highly
deferential” one. When a court assesses counsel's
representation, it presumes that it is effective.
Strickland, 466 U.S. at 689.
allegations fall far short of showing that his counsel's
representation was ineffective under
Strickland's objective standard of
reasonableness. His only complaint is that his appointed
counsel did not obtain greater relief for him from his
sentence in light of his substantial assistance. However, the
record shows that counsel argued vigorously on behalf of his
client, made arrangements for his family members to testify
in his behalf and developed an argument designed to show that
the guideline applicable to petitioner had been adopted by
the Sentencing Commission without empirical research or a
thorough study. Counsel urged the court to consider
petitioner's family, his long history of addiction and
his difficulty in finding employment. He then argued
successfully for a below-guideline sentence of 120 months,
which was considerably below his guideline sentence of 188 to
235 months. When petitioner appealed his sentence, the court
of appeals rejected his argument that he should have received
a larger reduction in this sentence, noting that the
sentencing court had addressed petitioner's individual
circumstances in ...