Fernandez, Peter N. v. United States

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 27, 2006*
Decided September 28, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-4022
PETER N. FERNANDEZ, JR., Appeal from the United States District
Petitioner-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 03 C 8097
UNITED STATES OF AMERICA,
Respondent-Appellee. Ruben Castillo,
Judge.
ORDER
Peter N. Fernandez, Jr., who was sentenced to a total of 60 months in prison
on his convictions for mail fraud, theft from federally funded programs, and money
laundering, see United States v. Fernandez, 282 F.3d 500 (7th Cir. 2002), moved to
vacate his convictions under 28 U.S.C. § 2255, claiming that his trial and appellate
lawyers rendered constitutionally deficient representation. In his motion
Fernandez identified 18 purported shortcomings in the performance of counsel, each
of which he designated as a separate “ground.” The district court concluded that
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and
record. See Fed. R. App. P. 34(a)(2).
No. 05-4022 Page 2
each ground was either waived or without merit and summarily denied the motion.
Fernandez appealed, and although we agreed with the district court’s resolution of
11 of the 18 grounds, we vacated the judgment as to the remaining seven and
instructed the court on remand to elaborate on its reasons for denying those
grounds. See Fernandez v. United States, No. 04-1116, slip op., at 1-2 (7th Cir. May
28, 2004) (unpublished order). On remand the district court again denied
Fernandez’s § 2255 motion, this time in a memorandum order detailing the reasons
for its decision. In short, the district judge, after reviewing an affidavit from the
lawyer who represented Fernandez during Fernandez’s trial and taking into
account his own familiarity with the case as presiding judge, concluded that counsel
“acted reasonably and effectively” and “did an effective job of challenging the
evidence.” Fernandez, who is now out of prison but still on supervised release,
again appeals, and we affirm.
As we read his opening brief, Fernandez literally takes issue only with the
government’s failure on remand to file its opposition to his § 2255 motion within the
deadline set by the district court. That contention is without merit, however,
because the decision to accept the government’s late submission was a matter
within the discretion of the court. See Fed. R. Civ. P. 6(b)(2); Horton v. United
States, 244 F.3d 546, 549 n.2 (7th Cir. 2001).
Fernandez, though, alludes to the subject matter of two of the grounds that
we remanded—Grounds 2 and 8—and the government has construed his brief
liberally as challenging the district court’s resolution of those grounds. We do the
same, but all other grounds not discussed in Fernandez’s opening brief are waived.
See United States v. Kelley, 446 F.3d 688, 692 (7th Cir. 2006) (stating that
arguments raised for first time in reply brief are waived); United States v. Duran,
407 F.3d 828, 844 (7th Cir. 2005) (stating that arguments not raised in opening
brief are waived). Grounds 2 and 8 overlap, and between them Fernandez
essentially claims that trial counsel (he had three appointed lawyers in succession)
were deficient in purportedly failing to object to references in the indictment to
unnamed individuals, not succeeding in forcing disclosure of their identities, and
failing to call particular witnesses at trial. He also claims that his appellate
lawyers were deficient in refusing to argue on direct appeal that referring to
unnamed individuals in the indictment violated his constitutional right “of
confronting his accusers and complaining witnesses.”
When reviewing a district court’s decision to deny a § 2255 motion, we review
the court’s findings of fact for clear error and its rulings on issues of law de novo.
See Fuller v. United States, 398 F.3d 644, 647-48 (7th Cir. 2005). Fernandez bears
the burden of establishing that his attorneys’ performance was deficient and that
there is a reasonable probability that the deficient performance prejudiced his
defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Badelle v. Correll,
No. 05-4022 Page 3
452 F.3d 648, 661-62 (7th Cir. 2006) (discussing standard for ineffective-assistance
claims directed at trial counsel); Martin v. Evans, 384 F.3d 848, 851-52 (7th Cir.
2004) (discussing standard for ineffective-assistance claims directed at appellate
counsel).
We conclude that the district court properly denied Grounds 2 and 8. As
Fernandez himself concedes in his § 2255 motion, trial counsel did object to the
references in the indictment to unnamed individuals, and moved unsuccessfully for
an order compelling disclosure of their identities. Thus trial counsel could not have
been deficient on this front. And because Fernandez fails to explain why the
district court was wrong in concluding that he did not demonstrate entitlement to
disclosure, see Roviaro v. United States, 353 U.S. 53, 59-61 (1957); United States v.
Banks, 405 F.3d 559, 564 (7th Cir. 2005), or how the court’s ruling prejudiced him
at trial, neither could his appellate lawyers have been deficient in not arguing about
the indictment references on direct appeal, see Martin, 384 F.3d at 851-52(“[C]ounsel is not required to raise every non-frivolous issue on appeal.”) Moreover,
Fernandez has never explained what additional testimony would have been
provided by the witnesses he says trial counsel failed to call, so plainly he did not
demonstrate prejudice from their absence. See United States v. Farr, 297 F.3d 651,
658-59 (7th Cir. 2002) (explaining that petitioner who claims trial counsel was
deficient in failing to track down and interview witnesses must present sufficiently
precise information as to nature and probable effect of evidence that would have
been obtained had counsel undertaken desired investigation); see also United States
v. Woody, 55 F.3d 1257, 1272 (7th Cir. 1995) (“Without a detailed explanation of the
instances of his attorney’s errors as well as their effect on the result, we cannot
evaluate [defendant’s] Sixth Amendment claim.”); United States v. Rodriguez, 53
F.3d 1439, 1449 (7th Cir. 1995) (“[Appellant] has explained neither what [the
witness’s] responses to further cross-examination might have revealed nor how
those responses might have affected the result. Accordingly, his ineffective
assistance of counsel claim must fail.”).
The judgment of the district court is AFFIRMED.