1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff/Respondent, 

vs. 

VINCENTE OSORIO, 

 Defendant/Petitioner 

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 NO. 2:14-CR-48 

(NO. 2:16-cv-90) 

OPINION AND ORDER

 This matter is before the Court on the Motion to Vacate under 

28 U.S.C. § 2255 (DE #113), the Motion Requesting a Hearing and 

Appointment of Constitutional Counsel (DE #115), the Motion 

Requesting Discovery and to Submit Newly Discovered Evidence in 

Support of His Claims of Inadequate and Ineffective Assistance of 

Counseling with Request to Expand the Record (DE #116), and Motion 

to Expand the Record with Newly Discovered Evidence in Support of 

Claims of Inadequate and Ineffective Assistance of Counseling (DE 

#117) filed by defendant Vincente Osorio (“Osorio”) on March 11, 

2016; and the Motion for Leave to Amend 28 U.S.C. § 2255 Motion, 
2 

filed by Osorio on February 20, 2017 (#124). For the reasons set 

forth below, the motion to vacate under section 2255 (DE #113) is 

DENIED; the motion requesting a hearing and appointment of counsel 

(DE #115) is DENIED; the motion requesting discovery (DE #116) is 

DENIED; and the motion to expand the record (DE #117) is DENIED; 

and the motion to amend the Section 2255 motion (DE #124) is

DENIED. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE. 

Further, this Court declines to issue Defendant a certificate of 

appealability. The Clerk is ORDERED to distribute a copy of this 

order to Vincente Osorio, #13699-027, Ashland FPC Federal Prison 

Camp, P.O. Box 6000, Ashland, KY 41105, or to such other more 

current address that may be on file for the defendant. 

BACKGROUND 

Vincente Osorio (“Osorio”) was charged with conspiring to 

possess with intent to distribute cocaine and attempting and aiding 

and abetting the attempt to possess with intent to distribute five 

kilograms or more of cocaine. 21 U.S.C. § 846, 18 U.S.C. § 2. 

Osorio proceeded to trial. On the second day of trial, Osorio 

pled guilty to both counts of the Indictment without a plea 

agreement. At his sentencing on April 29, 2015, Osorio’s counsel 

requested the statutory minimum of 120 months imprisonment, and 

the Government agreed with this request. (DE #111 at 74, 77.) 
3 

The Court sentenced Osorio to the statutory minimum of 120 months

imprisonment. (Id. at 80.) Osorio did not file an appeal. 

On March 11, 2016, Osorio filed the instant motion under 

section 2255, as well as several other related motions, while 

proceeding pro se. (DE ##113, 115, 116, 117.) The Government 

filed an omnibus reply brief responding to all of Osorio’s motions 

on May 13, 2016. Osorio filed an omnibus reply brief on June 9, 

2016. On February 20, 2017, Osorio filed a motion for leave to 

amend his 2255 motion, indicating that he had retained counsel and 

requested that the Court consider an argument raised in his Section 

2255 motion, but the Government had not addressed in its response 

brief. (DE #124.) Upon the Court’s order, the Government 

responded to the motion for leave to amend the Section 2255 motion 

on February 8, 2018. Osorio filed a reply to his motion for leave 

to amend on March 1, 2018. The motions are now fully briefed and 

ripe for adjudication. 

DISCUSSION 

In assessing Osorio’s pro se motions, the Court is mindful of 

the well-settled 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 Cnty. Sheriff's Dep't, 95 F.3d 548, 555 

(7th Cir. 1996); see Estelle v. Gamble, 429 U.S. 97, 106 (1976) 
4 

(“a pro se complaint, however inartfully pleaded, must be held to 

less stringent standards than formal pleadings drafted by 

lawyers”) (citation and internal quotation marks omitted). 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 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; 

citation omitted). 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. (citation and internal quotation marks omitted). 

The Court assesses Osorio’s claims with these guidelines in mind. 

Section 2255 Motion 

Habeas corpus relief under 28 U.S.C. § 2255 is reserved for 

“extraordinary situations.” Prewitt v. United States, 83 F.3d 

812, 816 (7th Cir. 1996) (citation omitted). In order to proceed 

on a habeas corpus motion pursuant to 28 U.S.C. § 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 
5 

otherwise subject to collateral attack.” Id. (citation omitted). 

A section 2255 motion is neither a substitute for nor 

recapitulation of a direct appeal. See id.; Belford v. United 

States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other 

grounds, Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994). 

As a 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 that were not raised on direct 

appeal, unless the section 2255 petitioner demonstrates 

cause for the procedural default as well as actual 

prejudice from the failure to appeal. 

Belford, 975 F.2d at 313 (citations omitted). 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) 

(citations omitted). 

Ineffective Assistance of Counsel 

Osorio’s claims are based on the alleged ineffective 

assistance of his former counsel. Claims of ineffective 

assistance of counsel are governed by the two-pronged test set 
6 

forth in Strickland v. Washington, 466 U.S. 668 (1984). See 

Hardamon v. United States, 319 F.3d 943, 948-49 (7th Cir. 2003). 

To prevail on an ineffective assistance of counsel claim, Osorio 

must first show that his attorney’s conduct “fell below an 

objective standard of reasonableness” and was “outside the wide 

range of professionally competent assistance.” Barker v. United 

States, 7 F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466 

U.S. at 688, 690). The second Strickland prong requires Osorio 

to show prejudice. Strickland, 466 U.S. at 694. If one prong is 

not satisfied, it is unnecessary to reach the merits of the second 

prong. Id. at 697. 

Regarding the deficient-performance prong, the petitioner 

must establish specific acts or omissions that fell below 

professional norms. Id. at 690. Great deference is given to 

counsel's performance; the petitioner has a heavy burden to 

overcome the strong presumption of effective performance. See id.

at 690; Coleman v. United States, 318 F.3d 754, 758 (7th Cir. 

2003). Trial counsel “is entitled to a ‘strong presumption’ that 

his performance fell ‘within the wide range of reasonable 

professional assistance’ and will not be judged with the benefit 

of hindsight.’” Almonacid v. United States, 476 F.3d 518, 521 

(7th Cir. 2007) (quoting Strickland, 466 U.S. at 689). “Courts 

are admonished not to become ‘Monday morning quarterback[s]’ in 
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evaluating counsel’s performance.” Blake v. United States, 723 

F.3d 870, 879 (7th Cir. 2013) (quotation omitted). 

In the context of guilty pleas challenged on the grounds of 

ineffective assistance of counsel, the prejudice prong of 

Strickland analysis requires the defendant to establish “but for 

counsel's errors, he would not have pleaded guilty and would have 

insisted on going to trial.” St. Pierre v. Walls, 297 F.3d 617, 

628 (7th Cir. 2002) (quoting Hill v. Lockhart, 474 U.S. 52, 58-59 

(1985)). The petitioner must proffer “objective evidence that 

there is a reasonable probability that, but for counsel’s errors, 

he would not have pleaded guilty and would have insisted on going 

to trial.” Koons v. United States, 639 F.3d 348, 351 (7th Cir. 

2011) (citations omitted). Counsel’s deficient performance must 

have been “a decisive factor” in the petitioner’s decision to enter 

a guilty plea. Wyatt v. United States, 574 F.3d 455, 458 (7th Cir. 

2009) (citation omitted). 

Failure to File Pretrial Motions 

Osorio argues that his trial counsel was ineffective because 

counsel failed to file motions for pretrial discovery from the 

Government. Osorio refers to a list of pretrial motions from the 

“BOP Law Computer Criminal Defense Techniques” that he maintains 

should have been filed on his behalf. (DE #115 at 6-7.) These 

motions request that the Government provide discovery required 
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under Rule 16 of the Federal Rules of Criminal Procedure. However, 

on June 3, 2014, the Court issued an order in connection with 

Osorio’s arraignment containing provisions for pretrial 

discovery.1 (See DE #26); N.D. Ind. L. Cr. R. 16-1(b). Osorio 

does not proffer any evidence that the Government failed to comply 

with the Court’s order. Rather, the record reflects that the 

Government provided Osorio’s counsel with documents. (See DE #117 

at 4-41 (documents Bates labeled “US v Osorio,” indicating that 

they were produced by the Government in connection with Osorio’s 

criminal proceeding).) Thus, the filing of routine discovery 

motions would have been redundant. Moreover, “a petitioner 

alleging that counsel’s ineffectiveness was centered on a supposed 

failure to investigate has the burden of providing the court 

sufficiently precise information, that is, a comprehensive showing 

as to what the investigation would have produced.” Hardamon, 319 

F.3d at 951 (citation and internal quotation marks omitted). 

Osorio does not assert what evidence his trial counsel would have 

 

1 The order provided that the Government shall permit Osorio’s counsel to 

inspect or copy: (1) any written or recorded statements or confessions made by 

the Defendant, or copies thereof, within the possession, custody, or control of 

the Government; (2) any relevant results or reports of physical or mental 

examinations, and of scientific tests or experiments made in connection with 

the case, or copies thereof, within the possession, custody, or control of the 

Government; (3) any relevant recorded testimony of the Defendant before a grand 

jury; (4) books, papers, documents, data, photographs, tangible objects, 

buildings or places which are within the possession, custody, or control of the 

Government as provided in Rule 16(a)(1)(E); (5) the Federal Bureau of 

Investigation Identification Sheet indicating the Defendant's prior criminal 

record; and (6) any exculpatory or mitigating evidence. (DE #26 at 1-2.) 
9 

found if he had filed the discovery motions, or how such evidence 

would have caused him to not plead guilty, and instead, proceed to 

trial. 

Aside from the discovery motions, Osorio asserts that his 

trial counsel failed to file a motion to proceed by indictment 

within 30 days of filing the complaint. The record demonstrates 

that the Complaint was filed on April 30, 2014 (DE #1), and that 

Osorio was indicted on May 22, 2014 (DE #19). Because Osorio was 

indicted within the 30-day requirement, any motion as to this issue 

would have been frivolous. 

Osorio also contends that his trial counsel should have filed 

a motion for a speedy trial. The Speedy Trial Act (“Act”) requires 

criminal trials to commence within 70 days of the indictment or 

the defendant’s initial appearance, whichever is later. 18 U.S.C. 

§ 3161(c)(1). The Act recognizes that certain delays are 

justifiable and permits this time to be excluded from the 70-day 

clock. See 18 U.S.C. § 3161(h). Here, Osorio’s arraignment was 

on June 3, 2014 (DE #26), and his trial began on August 25, 2014 

(DE #62), a difference of 83 days. At the arraignment, the parties 

agreed and the Court ruled that the 28 days to be used to prepare 

and file pre-trial motions would be excluded when calculating the 

time period for a speedy trial. (DE #26; id. at 2.) Thus, there 

were 55 non-excludable days between Osorio’s arraignment and the 
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start of his trial. Because Osorio’s trial began before the speedy 

trial time limit, his counsel was not deficient for failing to 

file such motion. 

Osorio asserts that his trial counsel failed to file defensive 

pretrial motions challenging jurisdiction, extradition, and use of 

“sham-cocaine” to rob him in an entrapment scam. The merits of 

these and other arguments are addressed below. 

Failure to Raise Issue of Jurisdiction and/or Improper 

Extradition from Illinois 

Citing Adams v. United States, 319 U.S. 312 (1943), Osorio 

argues that he was not properly extradited from the State of 

Illinois to Indiana and that no jurisdiction was authorized. (DE 

#113, DE #122.) In Adams, the Supreme Court was asked to determine 

the narrow issue of whether there was jurisdiction for the trial 

of three soldiers accused of raping a civilian woman on a military 

base. Id. at 312. Because Osorio was not convicted of a maritime 

crime nor did he commit his offense on a military base, his 

reliance on Adams is misplaced. See Moose v. Krueger, No. 1:16-

CV-01403-JBM, 2016 WL 7391513, at *4 (C.D. Ill. Dec. 21, 2016) 

(collecting cases that distinguish the narrow holding in Adams); 

Taylor v. United States, Nos. 1:09–cv–24, 2009 WL 1874071 (E.D. 

Tenn. June 29, 2009) (“Adams has no applicability to the instant 

case involving an indictment for a federal offense which occurred 

in the State”). 
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Osorio asserts that state governors were required to submit 

extradition records in order to extradite him from Illinois for 

trial in Indiana.2 The Court disagrees. District courts have 

original jurisdiction over “all offenses against the laws of the 

United States.” 18 U.S.C. § 3231. The federal government retains 

the authority to create and punish federal criminal offenses as 

“necessary and proper” to the execution of Congress’s enumerated 

powers. See United States v. Comstock, 560 U.S. 126, 135–36 

(2010). As such, “a person in the United States is subject to the 

jurisdiction of both the federal government and the state 

government, where the individual is located. Likewise, an 

individual is subject to the criminal laws of both.” Moore v. 

Krueger, No. 3:16-CV-03295-JBM, 2017 WL 3185843, at *4 (C.D. Ill. 

July 26, 2017). “The consent of a state governor is not required 

to prosecute someone for a federal offense.” Id. 

The record reflects that Osorio voluntarily traveled from 

Illinois to Indiana with $125,000 for the purpose of purchasing 

cocaine, and was arrested for federal crimes within the Northern 

District of Indiana. (See DE #120 at 28-33, 38-41.) Thus, there 

was jurisdiction over Osorio when he was arrested. While Osorio 

 

2 In connection with this Section 2255 motion, Osorio’s family filed evidence 

of their letter to the Governor of Illinois requesting that he investigate why 

Osorio was prosecuted in Indiana without having been extradited. (DE #119.) 

The Governor of Illinois responded that the issue was “outside the jurisdiction 

of the Office of the Governor.” (DE #119-1.)
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claims he was tricked into traveling to Indiana, he proffers no 

evidence that he was taken there against his will. Therefore, his 

jurisdiction/extradition argument is meritless. 

Failure to Raise Entrapment Defense 

Osorio contends that his trial counsel was ineffective for 

failing to challenge the entrapment actions of the Government. 

Osorio maintains that he could not accept responsibility for the 

crimes because the Government’s informant introduced the sham 

cocaine. To prove entrapment, a defendant must show both “that 

the government induced him to perform the crime,” and “that he was 

not predisposed to engage in criminal conduct.” See United States 

v. Bek, 493 F.3d 790, 800 (7th Cir. 2007) (citing United States v. 

Haddad, 462 F.3d 783, 790 (7th Cir. 2006)). The inducement must 

be “extraordinary,” “the sort of promise that would blind the 

ordinary person to his legal duties.” Haddad, 462 F.3d at 790 

(citation omitted). When “a person takes advantage of a simple, 

ordinary opportunity to commit a crime,” he is not entrapped. Id. 

The Seventh Circuit explained: 

We hold that inducement means more than mere government 

solicitation of the crime; the fact that government 

agents initiated contact with the defendant, suggested 

the crime, or furnished the ordinary opportunity to 

commit it is insufficient to show inducement. Instead, 

inducement means government solicitation of the crime 

plus some other government conduct that creates a risk 

that a person who would not commit the crime if left to 

his own devices will do so in response to the 

government’s efforts. The “other conduct” may be 
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repeated attempts at persuasion, fraudulent 

representations, threats, coercive tactics, harassment, 

promises of reward beyond that inherent in the customary 

execution of the crime, pleas based on need, sympathy, 

or friendship, or any other conduct by government agents 

that creates a risk that a person who otherwise would 

not commit the crime if left alone will do so in response 

to the government’s efforts. 

United States v. Mayfield, 771 F.3d 417, 434-35 (7th Cir. 2014). 

Here, Osorio does not point to any “other conduct” by government 

agents that created a risk that a person who otherwise would not 

commit the crime if left alone would do so in response to the 

Government’s efforts. Because an entrapment defense had no chance 

of success under these circumstances, Osorio’s counsel was not 

ineffective for failing to assert it. 

Failure to Challenge Warrantless Seizure of $125,000 

Osorio assets that his trial counsel should have challenged 

the warrantless seizure of $125,000 and his vehicle. The record 

reflects that Osorio gave $125,000 to undercover officers in 

exchange for what he believed to be ten kilograms of cocaine, and 

that Osorio agreed to the forfeiture of the $125,000 and the 

vehicle as part of his change of plea. (DE #120 at 44-45.) 

Section 2255 claims based on the forfeiture of property “are not 

cognizable under [Section] 2255, which, by its plain language, is 

limited to issues of custody and liberty.” Duncan v. United 

States, No. 09-CV-0900-MJR, 2010 WL 3038717, at *10 (S.D. Ill. 

Aug. 3, 2010) (citing Virsnieks v. Smith, 521 F.3d 707, 721 (7th 
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Cir. 2008) (refusing to address merits of habeas petitioner’s 

ineffective assistance of counsel claim relating to his fine, 

recognizing that “permitting habeas petitioners who proceed under 

section 2255 to bring non-cognizable claims could result in 

incongruent access to federal habeas review”)). Section 2255 does 

not authorize a federal court to grant habeas corpus relief from 

monetary penalties in the form of forfeiture of property. Id. 

(citing United States v. Ramsey, 106 F.3d 404, 1997 WL 14152, at 

*1 (7th Cir. 1997) (unpublished opinion)). Moreover, Osorio does 

not proffer any evidence that, but for his trial counsel’s failure 

to challenge the allegedly warrantless seizures of the funds and 

vehicle errors, he would not have pleaded guilty and would have 

insisted on going to trial. For these reasons, this claim is 

unavailing. 

Failure to Challenge Credibility of Government’s Confidential 

Informants 

Osorio argues that his counsel should have challenged the 

credibility of the Government’s confidential informants. See Fed. 

R. Evid. 608. The Government notes that Osorio’s counsel had no 

opportunity to challenge any of the confidential informants prior 

to trial. (DE #121 at 19.) To do so, Osorio would have had to 

proceed through the adversarial process of the trial. Because 

Osorio chose to plead guilty on the second day of trial, his 

counsel did not have an opportunity to challenge the credibility 
15 

of any informants the Government may have called at trial. (See

DE #120 at 24-25 (acknowledging Osorio’s right to a trial and to 

have witnesses cross-examined in his defense, and agreeing to waive 

these rights by pleading guilty).) “Moreover, a counsel's failure 

to challenge a witness's credibility, in and of itself, does not 

satisfy the prejudice prong in Strickland.” Beard v. United 

States, No. 12-CR-30144-DRH, 2016 WL 6071775, at *4 (S.D. Ill. 

Oct. 17, 2016), reconsideration denied, No. 12-CR-30144-DRH, 2018 

WL 2064896 (S.D. Ill. May 3, 2018) (citing Spreitzer v. Peters,

114 F.3d 1435, 1455 (7th Cir. 1997) (noting that counsel's failure 

to challenge a witness's credibility, without more, is 

insufficient to establish the requisite prejudice)). Osorio does 

not proffer any evidence that, but for his counsel’s failure to 

challenge the credibility of the Government’s confidential 

informants, he would not have pleaded guilty and would have 

insisted on going to trial. As such, this claim fails. 

Innocence as to Conspiracy with Government Agents or 

Informants 

Osorio maintains that he cannot be found guilty of conspiring 

with Government agents or confidential informants. While this is 

true, Osorio was charged with conspiring with his co-defendant 

Manuel Gomez de Dios, as well as other unindicted co-defendants. 

When Osorio entered his guilty plea, he admitted that he entered 

into an agreement with Manuel Gomez de Dios and co-conspirator 
16 

“Pedro” to obtain five kilos of cocaine. (DE #120 at 28-32, 38-

41.) Nothing in the record indicates that either Gomez de Dios 

or Pedro were Government agents or informants. Because there is 

no indication that Osorio’s conviction is based on agreements with 

a Government agent or confidential informant, this argument is 

without merit. 

Innocence as to Conspiracy and Attempt to Distribute Cocaine 

Osorio also asserts that he cannot have been found guilty of 

the charges because he never purchased or sold any actual drugs, 

but rather, sham cocaine. This argument is meritless. Osorio was 

not charged with purchasing or selling cocaine; rather, he was 

charged and pled guilty to conspiring to possess with intent to 

distribute cocaine, and an attempt and aiding and abetting the 

attempt to possess with intent to distribute cocaine. (See DE 

#120 at 25-26.) There is “no requirement that any real cocaine 

actually exist to establish this offense a violation of conspiracy 

to possess cocaine with intent to distribute in violation of [21 

U.S.C.] § 846.” United States v. Flournoy, No. 12 CR 50044, 2013 

WL 12216552, at *3 (N.D. Ill. Dec. 16, 2013), aff'd, 842 F.3d 524 

(7th Cir. 2016) (citing Pattern Criminal Jury Instructions of the 

Seventh Circuit, 508(A)–510 (2012 ed.)). The same is true with 

respect to the attempt charge. See id. (citing United States v. 

Cote, 504 F.3d 682, 687 (7th Cir. 2007) (“[F]actual impossibility 
17 

or mistake of fact is not a defense to an attempt charge.”), United 

States v. Cotts, 14 F.3d 300, 307 (7th Cir. 1994) (“Futile attempts 

because of factual impossibility are attempts still the same.”)). 

Thus, the fact that Osorio could not have actually purchased or 

sold any cocaine is irrelevant to his convictions. 

Involuntary Plea 

Osorio argues that he “was duped into pleading,” presumably 

because his trial counsel was ineffective for the reasons addressed 

above.3 (DE #113 at 7, 9.) The Court notes that Osorio’s guilty 

plea was entered in open court after full compliance with the 

requirements of Rule 11 of the Federal Rules of Criminal Procedure. 

“[V]oluntary responses made by a defendant under oath before an 

examining judge [are] binding.” United States v. Ellison, 835 

F.2d 687, 693 (7th Cir. 1987). In open court, Osorio acknowledged 

having received a copy of the indictment, having discussed the 

charges with his attorney, and being guilty of the offenses to 

which he was pleading guilty. (DE #120 at 9-10, 37, 43, 45-46.) 

He repeatedly denied that anyone had made any promise or assurance 

to him in an effort to induce him to enter a plea of guilty. (Id. 

at 4, 9.) He also denied that anyone threatened or attempted to 

force him to plead guilty. (Id. at 4, 10.) The Court found that 

 

3 Osorio also maintains that he was “duped into a plea-agreement.” (DE #113 at 

6.) The record reflects that Osorio did not enter into a written plea 

agreement, but rather, plead guilty in open court.
18 

Osorio was “fully competent and capable of entering an informed 

plea and that his plea of guilty to the charges contained in Count 

One and Two of the indictment is a knowing and voluntary plea 

supported by an independent basis in fact containing each of the 

essential elements of the offense.” (Id. at 46.) Osorio’s guilty 

plea was entered voluntarily, knowingly, and intelligently, and 

therefore, was valid. See Richmond v. United States, No. 

114CV01436TWPDKL, 2017 WL 2418306, at *2 (S.D. Ind. June 5, 2017) 

(rejecting contention that plea was involuntary where plea in open 

court complied with Rule 11). His argument otherwise is 

meritless. 

Motion for Leave to Amend Section 2255 Motion 

Osorio, through counsel, moves for leave to amend his Section 

2255 motion under Federal Rules of Civil Procedure Rule 15(a)(2), 

which allows a party to amend its pleading with the court’s leave. 

While Rule 15(a)(2) provides that courts “should freely give leave 

when justice so requires,” Fed. R. Civ. P. 15(a)(2), the decision 

to grant or deny a motion to amend is discretionary, and “a court 

may deny the amendment due to undue delay, bad faith, dilatory 

motive, prejudice or futility.” Rodriguez v. United States, 286 

F.3d 972, 980 (7th Cir. 2002) (citation omitted, emphasis added). 

Osorio’s motion seeks to argue that his trial counsel was 

ineffective in failing to adequately consult with Osorio regarding 
19 

the filing of a notice of appeal. The Government agrees that the 

roots of this amended argument can be found in Osorio’s original 

Section 2255 motion. See Fed. R. Civ. P. 15(c)(1)(B) (“An 

amendment to a pleading relates back to the date of the original 

pleading when . . . the amendment asserts a claim or defense that 

arose out of the conduct, transaction, or occurrence set out—or 

attempted to be set out—in the original pleading.”). The 

Government maintains that the amended argument has no substantive 

merit, and thus, the motion to amend should be denied due to 

futility. As such, the Court considers the merits of this 

argument. 

Counsel is obligated to consult with his client regarding 

“the advantages and disadvantages of taking an appeal” and make a 

“reasonable effort to discover the defendant’s wishes.” Roe v. 

Flores-Ortega, 528 U.S. 470, 478 (2000). If a defendant requests 

that his counsel file a notice of appeal on his behalf, it is per 

se ineffective assistance of counsel for him to fail to do so. 

Dowell v. United States, 694 F.3d 898, 901 (7th Cir. 2012). In 

the absence of direction from the defendant to file an appeal, a 

court must determine whether his counsel's failure to file a notice 

of appeal violates the performance and prejudice prongs of 

Strickland. As to the performance prong, “counsel has a 

constitutionally imposed duty to consult with the defendant about 
20 

an appeal when there is reason to think either (1) that a rational 

defendant would want to appeal (for example, because there are 

nonfrivolous grounds for appeal), or (2) that this particular 

defendant reasonably demonstrated to counsel that he was 

interested in appealing.” Flores-Ortega, 528 U.S. at 480. This 

is a totality-of-the-circumstances test that requires courts to 

take into account “all the information counsel knew or should have 

known.” Id. (citation omitted). A “highly relevant” factor in 

this inquiry includes whether the case involved a trial or a guilty 

plea, because “a guilty plea reduces the scope of potentially 

appealable issues and because such a plea may indicate that the 

defendant seeks an end to judicial proceedings.” Id.; see Rowe 

v. United States, 74 F. Appx. 650, 653 (7th Cir. 2003) (finding 

“counsel reasonably could have concluded that Rowe's intervening 

guilty pleas reflected a change-of-heart regarding an appeal”).

If the performance prong is satisfied by a failure to consult 

as required, a court must consider the matter of prejudice. For 

the claim to be meritorious, “[a] defendant must demonstrate that 

there is a reasonable probability that, but for counsel's deficient 

failure to consult with him about an appeal, he would have timely 

appealed.” Bednarski v. United States, 481 F.3d 530, 536-37 (7th 

Cir. 2007) (quoting Flores-Ortega, 528 U.S. at 484). This 

determination “will turn on the facts of a particular case”, but 
21 

“evidence that there were nonfrivolous grounds for an appeal or 

that the defendant in question promptly expressed a desire to 

appeal will often be highly relevant.” Flores-Ortega, 528 U.S. 

at 485. “A defendant's inability to demonstrate potential merit 

‘will not foreclose the possibility that he can satisfy the 

prejudice requirement where there are other substantial reasons to 

believe that he would have appealed.’” Bednarski, 481 F.3d at 537 

(emphasis in original) (quoting Flores-Ortega, 528 U.S. at 486). 

Here, the Government asserts that the Court adequately 

advised Osorio of his right to appeal at his sentencing hearing: 

THE COURT: . . . I now advise you you may have a right 

to appeal your conviction and sentence in this case. 

And if you wish to file an appeal and are not able to 

pay the costs of such an appeal, you may apply for leave 

to appeal in forma pauperis, which means that you may be 

able to pursue an appeal at no cost to you. 

Mr. Meczyk, of course, as your retained attorney, he has 

the authority to do that. If you do not have the funds, 

then you can apply for leave to appeal in forma pauperis. 

. . . I suggest very strongly to you that you talk to 

Mr. Meczyk probably today or tomorrow with regards to 

whether or not you want to appeal. There's a very small 

window; and Mr. Meczyk's a good attorney, but if you go 

beyond that time you will have lost all your rights to 

an appeal. So make sure you let him know right away. 

THE DEFENDANT: Okay. That's fine. Thank you. 

(DE #111 at 86-88.) The Government cites Flores-Ortega to suggest 

that the Court notified Osorio of his rights and obligations to 

appeal even if he had no consultation with counsel, and therefore, 
22 

Osorio’s counsel was effective. See 528 U.S. at 479-80 (rejecting 

a bright-line rule that counsel must always consult with the 

defendant regarding an appeal, noting that where “a sentencing 

court's instructions to a defendant about his appeal rights in a 

particular case are so clear and informative as to substitute for 

counsel's duty to consult . . . [i]n some cases, counsel might 

then reasonably decide that he need not repeat that information.”). 

However, the Court's statement to Osorio “did not advise [him] 

about the pros and cons of appealing, and was thus not sufficiently 

informative to substitute for the consultation that [trial 

counsel] had a duty to provide.” Burnett v. United States, 472 

F. App'x 409, 414 (7th Cir. 2012) (citing Flores-Ortega, 528 U.S. 

at 482). 

Osorio does not allege that he directed his trial counsel to 

appeal and counsel refused, or that his wishes were disregarded. 

Nor does he assert that his trial counsel failed to consult with 

him at all about filing an appeal. He contends that his counsel 

failed to adequately consult with him because he failed to inform 

him of the advantages of appealing or ask if he wanted to appeal. 

Osorio submits an affidavit stating that he met with his trial 

counsel immediately after his sentencing hearing, who told him 

“not to file an appeal because I would get more time added to my 

sentence. [Counsel] did not ask me whether or not I wanted to 
23 

appeal, nor did he discuss possible advantages of filing an appeal. 

I was simply told not to appeal.” (DE #124-2, ¶¶4-5.) Osorio 

attests that if counsel had asked him if he wanted to appeal, or 

had he been adequately advised, he would have asked counsel to 

file an appeal. (Id., ¶6.) 

The Government contends that trial counsel adequately 

consulted with Osorio about the possible effects of an appeal. 

While Osorio argues that his counsel failed to inform him of the 

advantages of appealing, the Government maintains that there were 

none. At his sentencing hearing, Osorio, through his counsel, 

agreed with the statutory mandatory minimum of 120 months for his 

crimes, and received that sentence. (DE #111 at 72, 80.) The 

Government maintains that Osorio could not have received a lesser 

sentence without a showing that he was eligible for a reduction 

under the statutory safety valve provisions or a motion showing 

that he had provided substantial assistance to the government in 

an investigation or prosecution. Osorio does not argue that 

either of these situations apply here.4 Thus, the lowest sentence 

available to Osorio was 120 months imprisonment. (See id. at 73-

74 (addressing the Court’s inability to go below the mandatory 

minimum in this case).) Because he was sentenced to the statutory 

 

4 The Government notes that Osorio preserved three objections in the Presentence 

Investigation Report, and contends that they would have not have reduced 

Osorio’s sentence. Osorio does not dispute this, or raise any other basis for 

Osorio receiving a reduced sentence.
24 

mandatory minimum, the only viable outcome of an appeal would be 

that Osorio would receive the same amount or more time in prison. 

See Bednarski, 481 F.3d at 536 (concluding that a rational 

defendant would not want to appeal his sentence where petitioner 

was sentenced “to the bottom of the advisory Guideline imprisonment 

range for his crimes”).

In response, Osorio does not proffer any non-frivolous 

grounds for appeal, or any other substantial reason to believe 

that he would have appealed.5 Osorio argues that he does not need 

to identify meritorious grounds for appeal to prove prejudice, 

i.e., that but for trial counsel’s deficient performance, he would 

have appealed. Citing his affidavit, Osorio claims that he 

reasonably demonstrated to counsel that he was interested in 

appealing. But his affidavit merely states that he would have 

asked his counsel to file an appeal if his counsel had asked him 

if he wanted to appeal, or if Osorio had been adequately advised. 

(DE #124-2, ¶6.) Nothing in his affidavit indicates that Osorio 

“reasonably demonstrated to counsel that he was interested in 

appealing.” Flores-Ortega, 528 U.S. at 480 (emphasis added); see 

United States v. Florian, No. 86 CR 850, 2016 WL 4611422, at *4 

 

5 The Court notes that Osorio’s unconditional plea of guilty constituted “a 

waiver of non-jurisdictional defects occurring prior to the plea.” United 

States v. Adams, 746 F.3d 734, 739 (7th Cir. 2014) (citation omitted). The 

Court has found Osorio’s jurisdictional and plea issues be meritless for the 

reasons above, and Osorio does not raise any issues regarding his sentencing. 
25 

(N.D. Ill. Sept. 6, 2016) (denying § 2255 petition where petitioner 

provided “no evidence that indicates that she reasonably 

demonstrated to her trial counsel that she was interested in 

appealing”); Reid v. United States, No. 14-C-1065, 2014 WL 6682449, 

at *2 (E.D. Wis. Nov. 25, 2014) (finding no deficient performance 

where he identified no non-frivolous grounds for appeal of his 

revocation sentence, and made no claim that he ever expressed an 

interest in appealing). Osorio’s affidavit falls short of 

establishing that but for his trial counsel's (alleged) 

ineffective performance, he would have appealed. See Bednarski,

481 U.S. at 537 (finding no prejudice where defendant proffered no 

non-frivolous grounds for appeal and, aside from expressing a 

desire for a lighter sentence, presented no other reason to 

conclude that he would have filed a timely appeal but for his 

attorney's alleged failure to consult with him); Florian, 2016 WL 

4611422, at *5 (finding no prejudice where petitioner had not 

alleged any non-frivolous grounds for an appeal or provided 

evidence of “other substantial reasons” that would lead the court 

to believe that she would have appealed). Because this argument 

is lacks merit, an amendment to Osorio’s Section 2255 motion would 

be futile. See Vitrano v. United States, 721 F.3d 802, 809 (7th 

Cir. 2013) (holding district court’s denial of leave to amend § 
26 

2255 motion was “justified based on the futility of the proposed 

amendment”). 

For the reasons set forth above, Osorio’s Section 2255 motion 

and his motion to amend the Section 2255 motion are denied. 

Other Related Motions 

Osorio filed several motions related to his Section 2255 

motion while he was proceeding pro se. Osorio moves to request 

discovery and to expand the record to include newly discovered 

evidence. (DE ##115, 116, 117.) These motions also argue that 

his trial counsel was ineffective for the reasons addressed above. 

Rule 6(a) of the Rules Governing Section 2255 Proceedings in the 

United States District Courts (“Rules Governing Section 2255 

Proceedings”) provides that “[a] judge may, for good cause, 

authorize a party to conduct discovery under the Federal Rules of 

Criminal Procedure or Civil Procedure.” Rule 6(b) of the Rules 

Governing Section 2255 Proceedings states that the “party 

requesting discovery must provide reasons for the request.” Good 

cause exists “where specific allegations before the court show 

reason to believe that the petitioner may, if the facts are fully 

developed, be able to demonstrate that he is . . . entitled to 

relief.” Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quotation 

marks omitted). “Good cause, however, cannot exist where the 

facts alleged do not provide a basis for relief.” Hubanks v. 
27 

Frank, 392 F.3d 926, 933 (7th Cir. 2004) (citation omitted). 

Moreover, a petitioner's “hope” or “speculation” that there is 

evidence hidden in the record which might support his claim “does 

not constitute good cause.” Jones v. United States, 231 Fed. 

Appx. 485, 488 (7th Cir. 2007). Here, Osorio’s motions do not 

explain why the additional discovery is necessary for his Section 

2255 motion. As for newly discovered evidence, Osorio attaches 

several documents that are Bates labeled “US v Osorio,” indicating 

that they were produced in connection with Osorio’s criminal 

proceeding. (See DE #117 at 4-41.) The Government notes that it 

provided these documents to Osorio’s counsel in the weeks following 

Osorio’s arraignment in 2015. (DE #121 at 26.) Osorio does not 

explain how these documents support his Section 2255 claims such 

that the record should be expanded. Therefore, these motions are 

denied. 

Finally, Osorio moves for a hearing pursuant to Rule 8(a) of 

the Rules Governing Section 2255 Proceedings. (DE #115.) Not 

every Section 2255 petition warrants a hearing. Boulb v. United 

States, 818 F.3d 334, 339 (7th Cir. 2016). An evidentiary hearing 

is not required if the record before the court conclusively shows 

that the petitioner is entitled to no relief. Id. (citing 28 

U.S.C. 2255(b); see also Kafo v. United States, 467 F.3d 1063, 

1067 (7th Cir. 2006) (to justify a hearing, “the petition must be 
28 

accompanied by a detailed and specific affidavit which shows that 

the petitioner had actual proof of the allegations going beyond 

mere unsupported assertions”). The record before this Court 

conclusively reveals that Osorio is not entitled to relief, so no 

hearing is needed. Moreover, Osorio is now represented by 

counsel, so his request for appointment of counsel is moot. 

Therefore, Osorio’s motion for a hearing and appointment of counsel 

(DE #115) is denied. 

Certificate of Appealability 

Pursuant to Rule 11 of the Rules Governing Section 2255 

Proceedings, “the district court must issue or deny a certificate 

of appealability when it enters a final order adverse to the 

applicant.” A certificate of appealability may issue only if the 

applicant “has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a 

showing, a defendant must show that “reasonable jurists could 

debate whether (or, for that matter, agree that) the [motion] 

should have been resolved in a different manner or that the issues 

presented were adequate to deserve encouragement to proceed 

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal 

quotation marks and citation omitted). For the reasons set forth 

above, Osorio has not stated any grounds for relief under Section 

2255. The Court finds no basis for a determination that reasonable 
29 

jurists would find this decision debatable or incorrect or that 

the issues deserve encouragement to proceed further. Therefore, 

a certificate of appealability will not be issued. 

CONCLUSION 

For the reasons set forth above, Defendant’s motion to vacate 

under section 2255 (DE #113) is DENIED; the motion requesting a 

hearing and appointment of counsel (DE #115) is DENIED; the motion 

requesting discovery (DE #116) is DENIED; and the motion to expand 

the record (DE #117) is DENIED; and the motion to amend the Section 

2255 motion (DE #124) is DENIED. The Clerk is ORDERED to DISMISS

this case WITH PREJUDICE. Further, this Court declines to issue 

Defendant a certificate of appealability. The Clerk is ORDERED

to distribute a copy of this order to Vincente Osorio, #13699-027, 

Ashland FPC Federal Prison Camp, P.O. Box 6000, Ashland, KY 41105, 

or to such other more current address that may be on file for the 

defendant. 

DATED: June 6, 2018 /s/ RUDY LOZANO, Judge 

 United States District Court