UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

PATRICK R. OSZUSCIK, )

)

Petitioner )

)

vs. ) CAUSE NO. 3:13-CV-496 RM 

) (Arising out of 3:11-CR-119 RM) 

UNITED STATES OF AMERICA, )

)

Respondent )

OPINION and ORDER

On January 18, 2012, Patrick Oszuscik pleaded guilty to a charge of

distributing child pornography in violation of 18 U.S.C. § 2252(a)(2). He was

sentenced on May 24, 2012 to a 225-month term of imprisonment to be followed

by five years of supervised release. Mr. Oszuscik is now before the court asking

that his sentence be vacated pursuant to 28 U.S.C. § 2255. He also requests that

an evidentiary hearing be held and counsel be appointed to represent him.

Relief under § 2255 is reserved for extraordinary situations. Prewitt v.

United States, 83 F.3d 812, 816 (7th Cir. 1996). “Relief under § 2255 is available

only for errors of constitutional or jurisdictional magnitude, or where the error

represents a fundamental defect which inherently results in a complete

miscarriage of justice.” Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994),

overruled on other grounds, United States v. Ceballos, 302 F.3d 679 (7th Cir.

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2002). A court may deny a § 2255 motion without an evidentiary hearing if “the

motion and the files and records of the case conclusively show that the prisoner

is entitled to no relief.” 28 U.S.C. § 2255(b). Because the claims of the petition

together with the record of this action conclusively demonstrate that Mr. Oszuscik

isn’t entitled to the relief he seeks, the court decides this matter without holding

an evidentiary hearing.

Mr. Oszuscik waived his right to appeal his conviction and sentence and to

contest his conviction and sentence in a § 2255 proceeding. The amended plea

agreement, signed by Mr. Oszuscik, his attorney James Korpal, and Assistant

United States Attorney John Maciejczyk, contains the following language in

paragraph 9(e):

(e) I understand that the law gives a convicted person the right

to appeal the conviction and the sentence imposed; I also understand

that no one can predict the precise sentence that will be imposed,

and that the court has jurisdiction and authority to impose any

sentence within the statutory maximum set for my offense as set

forth in this plea agreement; with this understanding and in

consideration of the government’s entry into this plea agreement, I

expressly waive my right to appeal or to contest my conviction

and my sentence or the manner in which my conviction or my

sentence was determined or imposed to any court on any ground,

including any claim of ineffective assistance of counsel unless

the claimed ineffective assistance of counsel relates directly to

this waiver or its negotiation, including any appeal under Title

18, United States Code, Section 3742, or any post-conviction

proceeding, including but not limited to, a proceeding under

Title 28, United States Code, Section 2255.

Petn. to Enter a Plea of Guilty, at 4 (emphasis in original). Despite the waivers and

admissions in his plea agreement, Mr. Oszuscik now challenges his conviction and

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sentence based on his claims that his counsel provided ineffective assistance by

(1) failing to ensure the court abided by Federal Rule of Criminal Procedure

11(b)(1)(N), (2) failing to investigate, challenge, and suppress Mr. Oszuscik’s

recorded statement, and (3) failing to investigate and challenge the evidence

relating to a five-level sentence enhancement under U.S.S.G. § 2G2.2(b)(3)(B).

A plea agreement containing a waiver of the right to appeal and file a

petition under § 2255 can be collaterally attacked in a limited number of

circumstances, including challenges based upon contractual grounds such as

mutual mistake or breach, United States v. Cook, 406 F.3d 485, 487 (7th Cir.

2005); when a defendant claims the waiver was involuntary or counsel was

ineffective in negotiating the agreement, Mason v. United States, 211 F.3d 1065,

1069 (7th Cir. 2000); or when the sentence is in excess of the statutory maximum

sentence for the offense of conviction. United States v. Bownes, 405 F.3d 634, 637

(7th Cir. 2005).

At the change of plea hearing, Mr. Oszuscik was asked if he had read the

plea agreement, and he told the court he had. Plea Hrg. Tr., at 16. The court and

the attorneys then reviewed the various terms of the plea agreement with Mr.

Oszuscik – including the possible maximum penalties, the applicability and

operation of the Sentencing Guidelines, the essential elements of the crime of

distributing child pornography, and the consequences of waiving his right to

appeal or file for any collateral review of his conviction and sentence – and he

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stated that he understood those terms. Plea Hrg. Tr., at 11-18. Mr. Oszuscik also

testified that his plea was knowing and voluntary, Plea Hrg. Tr., at 16, that he told

his attorney needed to know to represent him in this case, Plea Hrg. Tr., at 6, that

he had discussed the terms of the plea agreement with his counsel before the

change of plea hearing, Plea Hrg. Tr., at 16, that he was satisfied with the

representation his counsel had provided. Plea Hrg. Tr., at 6, and that he

understood he was giving up his right to appeal or otherwise challenge his

sentence, Plea Hrg. Tr., at 17.1

A plea of guilty is valid so long as it is entered into knowingly and

voluntarily. North Carolina v. Alford, 400 U.S. 25, 31 (1970). Mr. Oszuscik’s sworn

statements at his change of plea hearing are presumed to be truthful when

 The transcript of the change of plea hearing shows the following exchange: 1

THE COURT: [L]et’s take a look at that written plea agreement, and, in particular, I’d like

to draw your attention to page 4, subparagraph 9(e), and, in the middle of

that paragraph, there’s a sentence that begins in bolded type. It reads, “I

expressly waive my right to appeal or contest my conviction and my

sentence or the manner in which my conviction or my sentence was

determined or imposed to any court, on any ground, including any claim of

ineffective assistance of counsel,” and then it goes on. What I want to point

out to you is – remember, earlier, when I said, if you went to trial and if you

were convicted at trial, you could appeal your conviction with the assistance

of counsel? Do you remember that?

MR. OSZUSCIK: Yeah.

THE COURT: All right. What I want to point out to you is what I just read and what’s

contained in your plea agreement right here, you’re giving up that right to

appeal, so you’re waiving that, so, as this says, you will not be able to

appeal or to contest your conviction and your sentence or the manner in

which your conviction or your sentence was determined or imposed to any

court, on any ground. Do you understand that?

MR. OSZUSCIK: Yes.

THE COURT: All right. Well, that’s very important that you know you’re waiving that.

Plea Hrg. Tr., at 17-18. Thus, Mr. Oszuscik is mistaken in his belief that the court didn’t advise

him and explain to him his agreement to waive his right to appeal.

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determining whether his plea was knowing and voluntary. Bridgeman v. United

States, 229 F.3d 589, 592 (7th Cir. 2000). The record supports a finding that Mr.

Oszuscik’s guilty plea was “a voluntary and intelligent choice among the alternate

courses of actions open to him.” Berkey v. United States, 318 F.3d 768, 773 (7th

Cir. 2003) (quoting North Carolina v. Alford, 400 U.S. at 31). The plea agreement

clearly and unambiguously sets forth the wavier of his right to appeal and file a

§ 2255 petition, the court explained the waiver to Mr. Oszuscik during the plea

colloquy, and Mr. Oszuscik acknowledged that he understood. Because Mr.

Oszuscik’s plea was informed and voluntary, the waiver of his right to appeal or

file a § 2255 petition “must be enforced.” Nunez v. United States, 546 F.3d 450,

453 (7th Cir. 2008).

To the extent Mr. Oszuscik’s ineffective assistance of counsel claims could

be construed as relating directly to the negotiation of the plea agreement, see

Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999), he can’t succeed on

his petition. “To prevail on his ineffective assistance claim, [Mr. Oszuscik] must

demonstrate that his counsel’s performance fell below an objective standard of

reasonableness, and that ‘the [alleged] deficient performance prejudiced the

defense.’ In order to satisfy the prejudice prong, [Mr. Oszuscik] must establish

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

the result of the proceeding would have been different.’” Taylor v. Bradley, 448

F.3d 942, 948 (7th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. 668,

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687-688, 694 (1984)). “Prejudice in the context of a guilty plea requires a showing

that but for counsel’s deficient performance, [Mr. Oszuscik] would not have

pleaded guilty.” Galbraith v. United States, 313 F.3d 1001, 1008 (7th Cir. 2002).

Mr. Oszuscik hasn’t alleged he wouldn’t have pleaded guilty had counsel

acted differently, United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005), 

and he hasn’t established any deficient performance by his attorney in the

negotiation of the waiver provision of his plea agreement. Nor has Mr. Oszuscik

demonstrated prejudice: he hasn’t identified evidence that would have created a

reasonable probability of a different outcome, he hasn’t outlined facts that could

show a reasonable probability that the results in his case would have been

different but for counsel’s error, and he hasn’t outlined facts that could establish

that the proceedings were fundamentally unfair or the result unreliable, so his

waiver of the right to file a § 2255 petition must be upheld.2

Even if Mr. Oszuscik hadn’t waived his right to file a § 2255 petition, he couldn’t prevail 2

on his claim of ineffective assistance of counsel. First, because the discussions at the change of

plea hearing complied with the requirements of Federal Rule of Criminal Procedure 11, counsel

didn’t provide ineffective assistance at the change of plea hearing. Next, Mr. Oszuscik has

presented no affidavit from his trial counsel or any other evidence to support his assertion that

counsel didn’t listen to or investigate the recorded interview made by police during their execution

of a search warrant at Mr. Oszuscik’s home and so hasn’t established that counsel provided

ineffective assistance with respect to that recording. See Hardamon v. United States, 319 F.3d 943,

951 (7th Cir. 2003) (“[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.’”); Galbraith v. United States, 313 F.3d 1001, 1008-1009 (7th Cir. 2002) (“Galbraith

presents no scintilla of evidence of the alleged omission of his lawyer. And lest it sound like a

formidable task (to prove his lawyer’s nonfeasance), we note that the sort of evidence usually

employed in such cases begins with sworn affidavits attesting to the petitioner’s allegations.”);

Chaudhry v. United States, No. 2:12-CV-469 & 2:09-CR-218, 2013 WL 2285959, at *5 (N.D. Ind.

May 22, 2013) (“It has long been established that mere conclusory allegations are insufficient to

raise a constitutional issue in a habeas case.”). Lastly, Mr. Oszuscik’s claim that counsel was

ineffective by failing to investigate and challenge the five-level sentencing enhancement imposed

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While a sentence greater than the statutory maximum sentence for a

defendant’s crime can be challenged even if the defendant executed a blanket

waiver of his appeal rights, United States v. Bownes, 405 F.3d 634, 637 (7th Cir.

2005), Mr. Oszuscik’s 225-month sentence is less than the 240-month statutory

maximum sentence he faced for violation of 18 U.S.C. § 2252(a)(2).

Based on the foregoing, Mr. Oszuscik isn’t entitled to the relief he seeks. The

court SUMMARILY DISMISSES his petition filed pursuant to 28 U.S.C. § 2255

[docket # 53]. 

SO ORDERED.

ENTERED: June 11, 2013 

 /s/ Robert L. Miller, Jr. 

Judge, United States District Court

under U.S.S.G. § 2G2.2(b)(3)(B) is without merit. The transcript of Mr. Oszuscik’s sentencing

hearing confirms that his counsel did, in fact, challenge imposition of a five-level increase in Mr.

Oszuscik’s offense level. See Sent. Hrg. Tr., at 5-6. The record also shows that the court considered

the arguments of counsel and concluded that “[t]he simple possession of a file-sharing program

might not warrant this enhancement, as indicated by the Eleventh Circuit’s decision in Vadnais,

. . . but this use of the program does, as indicated, persuasively, by the Griffin case from the

Eighth Circuit, 2007, so I overrule the objection to Paragraph 30 of the presentence report.” Sent.

Hrg. Tr., at 9. That Mr. Oszuscik’s counsel didn’t prevail in his argument against that five-level

increase doesn’t establish that counsel provided ineffective assistance. See United States v.

Recendiz, 557 F.3d 511, 531 (7th Cir. 2009) (“‘effective’ does not mean successful or without

flaw.”); Risner v. United States, Nos. 3:11-CV-106 & 3:08-CR-49, 2012 WL 839208, at *4 (N.D. Ind.

Mar. 8, 2012) (“Mr. Risner’s attorney made at least two cognizable arguments against the

obstruction of justice enhancement; that the court did not accept those arguments does not mean

that Mr. Risner was denied the effective assistance of counsel.”).

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