(Section 2255 Mot., 4/18/01 Letter to Dryg from Graham.) Graham’s allegedly damning statement
during the sentencing hearing was: “Mr. Volpe was and always has been Mr. Dryg’s primary
attorney. If [the Court has] any questions regarding the actual facts, I know he knows the record .
. . better than I do, so I may have him step up tp address some of those issues.” (Sent. Tr. at 31.)
And the statement Dryg seizes upon from the plea hearing was Graham’s agreement that “there [was]
no viable way to defeat the government in this case.” (Plea Tr. at 9.) None of this “evidence”
reveals that Graham had any conflict of interest, let alone one that adversely affected his
representation of Dryg. Absent evidence that Graham actually represented conflicting interests, this
ineffective assistance claim fails.

Next, Dryg claims that his lawyers were ineffective because they convinced him to plead
guilty “based on inaccurate information.” Dryg does not, however, explain what information his
lawyers gave him, how it was inaccurate or how it influenced his decision to plead guilty. Because
Dryg has submitted no evidence on either element of the Strickland test with respect to this claim,
it must be dismissed.

Finally, Dryg claims that attorney Volpe rendered ineffective assistance at sentencing because
his father was ill. Dryg does not, however, explain how Volpe’s performance fell short. Absent
such evidence, this claim also fails.

That leaves us with the thirteen constitutional claims (Nos. 1-9, 14-15, 18, 31) that Dryg
could have raised on appeal, but did not. We may reach the merits of these claims only if Dryg can
show cause for and prejudice from failing to raise them or that our refusal to consider them would
“dead to a fundamental miscarriage ofjustice.” Belford, 975 F.2d at 313; McCleese, 75 F.3d at 1177.

Only one arguable cause appears in Dryg’s amended motion: his claim that his lawyers failed to

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inaccurate information,” and No. 17, the claim that attorney Volpe was ineffective at sentencing
because his father was ill) depend, at least arguably, on evidence outside of the record. Accordingly,
we can reach the merits of these claims even though Dryg did not raise them on appeal. Alcantar,
83 F.3d at 191.

To succeed on an ineffective assistance claim, Dryg must show that his lawyer’s performance
“fell below an objective standard of reasonableness” and that it prejudiced him in the proceeding.
Strickland v. Washington, 466 U.S. 668, 688, 692. Prejudice, in this context, means a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. In a conflict of interest case, prejudice will be presumed if: (1) “the trial
judge knew or should have known that a potential conflict of interest existed and did not adequately
address the issue with the defendant” or (2) the trial judge was not on notice of a potential conflict,
but defense counsel’s active representation of conflicting interests adversely affected his
performance. United States v. Wallace, 276 F.3d 360, 366-67 (7" Cir. 2002). Dryg does not allege
that the Court knew or should have known about Graham’s alleged conflict. Thus, to satisfy the
prejudice element of the Strickland test, Dryg must show that Graham actively represented
conflicting interests and that the conflict negatively impacted his representation of Dryg.

To support his conflict of interest claim, Dryg offers a letter sent to him by Graham in April
2001 and two statements made by Graham during the proceeding. The letter, which responds to
Dryg’s request for his case file, states:

I would remind you that your attorney on your case was Santo Volpe and all materials

should be released through his office. As you know, I was hired by his office to aid

in the sentencing portion of your case.

[have and will continue to attempt to contact Mr. Volpe and ask him to ship your file
to your wife at your home in Los Gatos, California.

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preserve any issues for appellate review. But Dryg does not identify any issues that he believes his
counsel waived and the record reveals none. On the contrary, the record shows that Dryg’s lawyers
argued vigorously against the government’s view of Dryg’s conduct and the upward departures it
sought both in memoranda submitted to the Court and during the sentencing hearing. (See Def.’s
Resp. Gov’t Mot. Downward Departure; Sent. Tr. at 30-48, 54.) In short, his lawyers’ alleged failure
to preserve issues for review, the only “cause” for failing to appeal that Dryg offers, does not excuse
Dryg’s procedural default.

Dryg’s last chance to have these claims reviewed is by showing that our failure to do so
would lead to a fundamental miscarriage of justice. In this context, that phrase means that the
“constitutional violation has probably resulted in the conviction of one who is actually innocent.”
Oliver v. United States, 961 F.2d 1339, 1342 n.2 (7" Cir. 1992). Because Dryg does not contend that
he is actually innocent of the crime to which he pled guilty, this avenue of review is closed to him

as well.

Conclusion
For the reasons set forth above, Dryg’s amended section 2255 motion to vacate or set aside
his conviction and sentence is denied and this case is dismissed.

ENTER:

UNITED STATES DISTRICT JUDGE

DATED: 27 2076 2


Mile Order For (69/92)

; 55 Go United States District Court, Northern District of Illinois
Ni f Assigned Jud; Sitting J: if Other
ior Magistrate Judge Paul E, Plunkett than Assigned Judge
CASE NUMBER 01C 5921 DATE 2/20/2002
CASE EDWARD DRYG vs. UNITED STATES OF AMERICA
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

qa) o Filed motion of [ use listing in “Motion” box above.]

(2) oD Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer briefdue___

(4) a Ruling/Hearingon____——sset ffor_ at

(5) o Status hearing[held/continued to] [set for/re-set for]on___setfor___—at__.
(6) a Pretrial conference[held/continued to] [set for/re-set for]on__——setfor__—at_
(7) Oo Trial[set for/re-set for}on___at

(8) oO [Bench/Jury trial] [Hearing] held/continued to___at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (General Rule21 CIFRCP41(a)(1) OI) FRCP4i(a)(2).

ao = [Other docket entry] | ENTER MEMORANDUM OPINION AND ORDER: Dryg’s amended
section 2255 motion to vacate or set aside his conviction and sentence is denied and this case is dismissed.

(i) @f [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

number of notices

FEB 2.1, 2008

dale dacketed

Notices mailed by judge’s staff,

Notified counsel by telephone.

| Docketing to mail notices.

v | Mail AO 450 form.

docketing deputy initials

Copy to judge/magistrate judge.

courtroom
TBK deputy's
initials

\Date/time reseived in
central Clerk’s Office

mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION D i e KETED

FEB 2 1 2002
EDWARD DRYG, )
)
Petitioner, )
)

v. ) No. 01 C 5921 (99 CR 763)
) Paul E. Plunkett, Senior Judge

UNITED STATES OF AMERICA, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER
On September 12, 2000, Edward Dryg pleaded guilty to violating 18 U.S.C. § 2423(b), which
prohibits traveling in interstate commerce for the purpose of engaging in a sex act with a person
under the age of eighteen. Dryg did not appeal his conviction or sentence. He has now filed an
amended motion pursuant to 28 U.S.C. § 2255 (“section 2255”) to have his conviction and sentence

set aside. For the reasons set forth below, the motion is denied and this case is dismissed.

Discussion
Dryg is entitled to relief under section 2255 if he can “demonstrate that there are flaws in
[his] conviction or sentence which are jurisdictional in nature, constitutional in magnitude, or result

in a complete miscarriage of justice.” Boyer v. United States, 55 F.3d 296, 298 (7th Cir. 1995).

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Section 2255 is not a substitute for an appeal. Belford v. United States, 975 F.2d 310, 313 (7th Cir.

1992), overruled in part on other grounds, Castellanos v. United States, 26 F.3d 717, 719 (7th Cir.

1994). Consequently, Dryg cannot raise on this motion any nonconstitutional issues that he did not
raise on appeal. Id. Morever, with one exception, Dryg may not raise any constitutional issues he
did not raise on appeal unless he can show: 1) cause for failing to appeal them and “actual
prejudice” from his failure to do so; or 2) “that the district court’s refusal to consider the claims
would lead to a fundamental miscarriage of justice.” 1d.; McCleese v. United States, 75 F.3d 1174,
1177 (7th Cir. 1996). The exception is certain ineffective assistance of counsel claims. If an
ineffective assistance claim cannot be proven through the trial record alone, it can be raised for the

first time in a section 2255 motion. United States v. Alcantar, 83 F.3d 185, 191 (7" Cir. 1996).

Dryg’s amended motion raises thirty-three claims. Seventeen of them (Nos. 10-12, 19-30,
32-33), are nonconstitutional claims that he did not raise on appeal. They are, therefore, barred from
consideration under section 2255. Belford, 975 F.2d at 313.

Of the remaining sixteen claims (Nos. 1-9, 13-18, 3 1), six charge ineffective assistance of
counsel (Nos. 13-18). Three of those (No. 14, the claim that “[d]efense attorney did not go beyond
discovery,” No. 15, the claim that attorney Falconer “failed to preserve Yahoo! Email account and
adhere to defendant’s wish to disclose Ohio offense,” and No. 18, the claim that “[nJot one objection
[was] raised by defense attorney to validate issues for appeal”) are based on alleged omissions that
would be apparent from the record. Because these claims are not dependent on outside evidence,
they must meet the cause and prejudice standard to be considered on this motion.

The other three ineffective assistance claims (No. 13, the claim that attorney James Graham

had a conflict of interest, No. 16, the claim that Dryg’s attorneys “convinced [him] to plea based on

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