Humberto Martin v. United States , 103 F.3d 133 ( 1996 )

103 F.3d 133

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Humberto MARTIN, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 95-2033.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 14, 1996.
Decided Dec. 04, 1996.

Before COFFEY, EASTERBROOK and MANION, Circuit Judges.

Order

1

This is Humberto Martin's third visit to this court. Four years ago, we affirmed his conviction for cocaine offenses. 964 F.2d 714 (7th Cir.1992). Two years ago, Martin filed in the district court a document that he styled a request for production of documents under the Jencks Act, 18 U.S.C. § 3500. The district court denied this and we affirmed in an unpublished order, remarking that the disposition of this irregular request was without prejudice to whatever relief might be available under 28 U.S.C. § 2255. Taking the hint, Martin filed such a petition, which the district court denied on the ground that the contentions have been forfeited by their omission from the direct appeal, are not cognizable under § 2255, or both.

2

With the aid of appointed counsel, Martin now presents three principal arguments (more properly, groups of arguments, but we needn't try to distinguish more finely). His double jeopardy argument has been authoritatively resolved against him. United States v. Ursery, 116 S. Ct. 2135 (1996). His argument based on the Jencks Act is not properly presented. Both Martin and his appointed lawyer appear to believe that the Jencks Act is based on the Constitution, but it is not. United States v. Augenblick, 393 U.S. 348 (1969); Jones v. DeRobertis, 766 F.2d 270 (7th Cir.1985). Martin also invokes Brady v. Maryland, 373 U.S. 83 (1963), but this record does not offer any reason to believe that the interview notes in question contain exculpatory evidence. Current counsel's critique of the way trial counsel phrased his requests for evidence is unavailing; it is not possible to show ineffective assistance without prejudice, Strickland v. Washington, 466 U.S. 668 (1984), and the lack of any support for the underlying claim makes that showing impossible.

3

What remain are a variety of objections to the calculation of the sentence. We held in Scott v. United States, 997 F.2d 340 (7th Cir.1993), that arguments based on the Sentencing Guidelines must be raised on direct appeal or not at all. (The exception for a fundamental miscarriage of justice is not activated by this case.) Martin tries to avoid Scott by arguing that his lawyer's failure to pursue sentencing issues on appeal was ineffective assistance of counsel. Yet in Durrive v. United States, 4 F.3d 548 (7th Cir.1993), we held that, to satisfy the "prejudice" component of Strickland, a person who complains about his sentence must demonstrate that counsel's deficient performance led to a "significant" increase in the sentence.

4

Although we recognized in Durrive that any extra time in prison is significant from the defendant's perspective, we adopted a rule of proportionality: the sort of increase produced by a few levels' difference in sentencing calculations cannot be raised indirectly on collateral attack by complaining about counsel's work. A few levels is exactly what Martin wants us to examine. Actually, his complaint is about a single criminal-history level (equivalent to two offense levels). Such an argument is barred by Scott when presented directly, and by Durrive when presented as an attack on counsel's performance. Martin asks us to disregard Durrive because the prosecutor did not cite it, but a court is not restricted to the cases the parties discuss. Elder v. Holloway, 510 U.S. 510 (1994).

5

AFFIRMED.