As an initial matter, I note that except for one subpart of
his deficient indictment argument, these claims do not appear to
have been raised on direct appeal. The appellate court decision
does not address these arguments and Mr. Graffia points to no
evidence that these issues were raised.* With the exception of
ineffective assistance of counsel claims, failure to raise an issue
on direct appeal bars a defendant from raising it later in a post-
conviction proceeding. Massaro v. United States, 123 S. Ct. 1690,
1693-94 (2003). Constitutional claims, however, may be raised for
the first time in a collateral attack if the petitioner can show
cause and prejudice from the failure to raise the issue on appeal.
Barker v. United States, 7 F.3d 629, 632 (7th Cir. 1993). Here,
Mr. Graffia alleges neither cause nor prejudice for procedural
default of his claims. While ineffective assistance of counsel may
excuse procedural default, id., Mr. Graffia here alleges only
ineffective assistance of trial counsel. He had different counsel
on appeal and does not complain about his performance. As a
result, all of Mr. Graffia’s claims (except ineffective assistance
of trial counsel) are procedurally defaulted. While technically

this means that I should not address the merits of these claims,

3. The only issue here that was addressed on direct appeal was
the issue of whether Mr. Graffia’s indictment was unconstitutional
because certain portions of it were stricken without resubmission
to the grand jury. Mr. Graffia has failed to show (or even allege)
any relevant change in circumstances between the appeal and now,
and thus he may not raise this argument here. Belford v. United
States, 975 F.2d 310, 313 (7th Cir. 1992).

4


Mickens, 122 S. Ct. at 1244. “Actual conflict,” however, means
“more than a ‘mere theoretical division of loyalties.’” Fuller, 312
F.3d at 291 (quoting Mickens, 122 S. Ct. at 1243). It exists when
an attorney “actively represents incompatible interests.” Id.
Here, Mr. Shobat was not actively representing incompatible
interests. The fact that he was a former Assistant United States
Attorney in no way demonstrates an actual conflict. Mr. Graffia
cannot show that Mr. Shobat’s former position creates a situation
rising above “a mere theoretical division of loyalties.” Thus, Mr.
Graffia may not rely on the conflict of interest exception under
Mickens,

Applying the general rule of Strickland, then, Mr. Graffia’s
claims of ineffective assistance fail. The only deficient
performance specifically alleged by Mr. Graffia was Mr. Shobat’s
failure to challenge the sufficiency of the indictment and seek
resubmission to the grand jury following the striking of various
counts. As demonstrated by the Seventh Circuit on direct appeal,
challenging the sufficiency of the indictment on this ground was a
losing argument. 120 F.3d at 710-11. Failure to raise a losing
argument does not constitute ineffective assistance of counsel.
Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996). The only other
allegation of ineffective assistance is the claim that Mr. Shobat
‘allow[ed] the prosecution to dictate the ebb and flow of the

entire proceeding ... accommodating their every dictate.” (Compl.


B.

Mr. Graffia next argues that his grand jury proceedings were
tainted. He cites to a page of the grand jury transcript in which
someone referred to as “the secretary” asks the government attorney
a question. Mr. Graffia argues that the presence and conduct of
“the secretary” during the grand jury proceedings impermissibly
tainted the proceedings. In this district, the secretary is an
officer of the grand jury, designated by the foreperson to complete
various tasks. The secretary of which Mr. Graffia complains was a
legally empaneled grand juror, and thus did not impermissibly taint
the proceedings.

Cc.

Mr. Graffia next argues that his indictment was
constitutionally defective. He claims that the indictment failed
to aver and prove jurisdiction of the district court and that it
failed to aver and prove an essential element of the offense
because it stated only that the alleged criminal acts took place in
Illinois, not in the territorial jurisdiction of the United States.
These claims are simply a rehashing of his frivolous jurisdictional
arguments above and will not be discussed here.

Mr. Graffia also claims that his indictment was defective
because it failed to properly identify a plaintiff. Mr. Graffia
argues that the term “United States” can refer to several different

things, namely the politically sovereign nation, the geographic


the Seventh Circuit has noted that the rules regarding procedural
default have become “Byzantine in their complexity,” and that trial
judges may discuss claims that are potentially defaulted if it
seems likely to save time in the long run. Howard v. O’Sullivan,
185 F.3d 721, 724 (7th Cir. 1999). I therefore turn to the merits
of Mr. Graffia’s claims.

A.

Mr. Graffia first argues that the federal criminal code
applies only within the territorial jurisdiction of the United
States, meaning only Washington D.C. and the territories and
possessions of the United States, and thus does not apply to the
conduct for which he was convicted because it occurred within
Illinois. The Seventh Circuit has repeatedly refused to endorse
this argument, calling it “frivolous and requir[ing] no further
discussion.” United States v. Banks-Giombetti, 245 F.3d 949, 953
(7th Cir. 2001) (refusing to discuss argument that federal
government had no authority to prosecute bank robbery not committed
on federal land) (citing, among others, United States v. Jones, 983
F.2d 1425, 1428 & n.6 (7th Cir. 1993) (calling “plainly frivolous”
the argument that defendant was a citizen of the sovereignty of
Texas and thus not subject to the jurisdiction of the United States
on federal bond-jumping charges)). As the Seventh Circuit does not

indulge in discussion of this argument, neither will I.


relevant changed circumstances to justify review of the issue here.
D.

Mr. Graffia’s final argument is that he received ineffective
assistance of counsel at trial. As noted above, this claim is not
procedurally barred. Thus, unlike the merits of Mr. Graffia’s
other claims, which I addressed in the alternative in the event my
ruling on procedural default is incorrect, the merits of Mr.
Graffia’s ineffective assistance claims must be addressed here.
Mr. Graffia contends that his appointed attorney, Steven Shobat
was laboring under a conflict of interest while representing Mr.
Graffia because Mr. Shobat was a former Assistant United States
Attorney. Ineffective assistance claims are generally governed by
the familiar two-part test set out in Strickland v. Washington, 466
U.S. 668 (1984). To prevail on an ineffective assistance of
counsel claim, a petitioner must demonstrate that his attorney’s
performance was deficient and that he was prejudiced by this
deficient performance. United States v. Fuller, 312 F.3d 287, 291
(7th Cir. 2002).

One exception to the Strickland test arises where, as here, a
petitioner claims ineffective assistance of counsel based on a
conflict of interest. In that case, the petitioner must establish
“that an actual conflict of interest adversely affected his
attorney’s performance.” Id. (citing Mickens v. Taylor, 122 S. Ct.

1237, 1245 (2002)). No showing of Strickland prejudice is needed.



Minute Ofer Form (06/97)
.

. , United States District Court, Northern District of Illinois
Name of Assigned Judge Elaine E. Bucklo Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 5701 DATE 5/20/2003
CASE Graffia vs. United States
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:

(l 0 Filed motion of [ use listing in “Motion” box above.}

(2) Qa Brief in support of motion due

(@) Oo Answer brief to motion due___. Reply to answer brief due

4 a Ruling/Hearingon___—s set for at

(5) Oo Status hearing[held/continued to] [set for/re-set for]on set for sat

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on___—s set for at.
(7) Oo Trial{set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto_— sat.

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

OOFRCP4(m) COlLocal Rule 41.1 COFRCP4I(a)(1) CO FRCP41(a)(2).

cee [Other docket entry] Mr. Graffia’s complaint for declaratory and injunctive relief ( treated here as
a petition to vacate, set aside, or correct his sentence) is denied. Any pending motion in this case is
terminated as moot. Enter Memorandum Opinion and Order.

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

No notices required, advised in open court. Docuntent

2us Number

No notices required,
univer of noises

o | Notices mailed by judge’s staff. MAY 2 1 2003

Notified counsel by telephone.

date docketed

Docketing to mail notices,

Y_ | Mail AO 450 form. WW

Copy to judge/magistrate judge.

deputy initials

s/2072003

ate mailed notice
courtroom

MPI deputy’s
initials

02
C3
MPs

Date/time recgiyed ii,
coptrabClerkis Offic

ning deputy initials



In fact, the complete denial of the writ of habeas corpus to
challenge federal convictions would not violate the Constitution.
United States v. Anselmi, 207 F.2d 312, 314 (3d Cir. 1953)
{(*[U}nder the common law in force when the Constitution was
adopted, habeas corpus was not available to persons convicted of
crime to test the legality of their conviction ... faJnd until
{1867}, this was the rule in the federal courts.”). Thus, while
unfortunate and regrettable, the substantial delay in addressing
Mr. Graffia’s petition does not violate any constitutional right to
habeas corpus review.‘
IIt.

All of Mr. Graffia’s claims except ineffective assistance of
counsel were procedurally defaulted. Even if they were not,
however, they are without merit. Mr. Graffia’s ineffective
assistance of counsel claim, though not defaulted, is likewise
unavailing. Mr. Graffia’s complaint for declaratory and injunctive
celief (treated here as a petition to vacate, set aside, or correct

his sentence) is therefore DENIED.

loin Z Bash
Elaine E. Bucklo
United States District Judge

Dated: May 20, 2003

4 Further, it is unclear what relief could be granted even if

the delay were a violation of some constitutional right.

ii


at 27). A review of the trial transcript reveals this accusation
to be patently false. While Mr. Graffia alleges that Mr. Shobat
raised only one objection during trial, the trial transcript
indicates that numerous objections were made by Mr. Shobat.
Further, Mr. Shobat cross-examined many of the government’s
witnesses at length, and presented other witnesses in Mr. Graffia’s
defense. Mr. Graffia’s claim regarding Mr. Shobat’s general trial
performance is simply not true.
Il.

Mr. Graffia argues that the four year delay in ruling on his
petition denied him the constitutionally guaranteed right of habeas
corpus. The only reference in the constitution to the writ of
habeas corpus is found in Article I, section 9, which states: “The
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.” U.S. Const. art. I, § 9, cl. 2. Even if this clause
represented a restriction on judicial, as opposed to legislative,
power, the right to habeas review enshrined in the clause does not
include the right to have judgments rendered by courts of competent
jurisdiction reexamined in collateral proceedings. See Lindh v.
Murphy, 96 F.3d 856, 867 (7th Cir. 1996), rev’d on other grounds,
521 U.S. 320 (1997) (noting that the writ known in 1789 was the
pre-trial contest to the executive's power to hold a person

captive, the device to prevent arbitrary detention without trial)

10


territory over which United States sovereignty extends, or the
collective name of the states that constitute the nation. Me.
Graffia argues that because the indictment failed to clarify which
meaning was intended when naming the United States as plaintiff,
the indictment was constitutionally deficient. Although, in
contrast to my disposition of Mr. Graffia’s jurisdictional
arguments, I am unable to find Seventh Circuit precedent explicitly
calling this argument frivolous, I do not hesitate to do so myself.
In defining offenses against its authority and punishing such
offenses, the United States is acting as a politically sovereign
entity. See United States v. Wheeler, 435 U.S. 313, 320 (1978

(“{The federal government] has the power, inherent in any
sovereign, independently to determine what shall be an offense
against its authority and to punish such offenses.”). To argue
that a criminal indictment that fails to expressly indicate that
the term “United States” refers to the sovereign entity (as opposed
to the geographic territory or the collection of states) is so
ambiguous or vague as to be constitutionally deficient is simply
absurd.

Mr. Graffia’s final argument with respect to his indictment is
that the striking of various allegations from the indictment
without resubmission to the grand jury violates the Fifth
Amendment. As noted above, this argument was presented to the

Seventh Circuit on direct appeal and Mr. Graffia presents no


237 (1968)). As it is unlikely that convictions have no collateral

consequences, it is the government’s duty to plead and prove that

petitioner’s conviction does not. Id.‘ The government has failed

to even address the issue here, and thus has failed to meet its

burden. I turn, then, to the merits of Mr. Graffia’s petition.’
I.

Mr. Graffia states four reasons why he believes his conviction
was unconstitutional. His arguments are a bit difficult to
understand at times, but I will do my best to properly characterize
them throughout this opinion. Mr. Graffia first argues that the
federal criminal code does not apply to the conduct for which he
was convicted. Second, he argues that his grand jury proceedings
were tainted. Third, he argues that his indictment was
constitutionally deficient. Fourth, he argues that he received

ineffective assistance of counsel.

1 Although Puchner and Carafas were cases dealing with

section 2254 motions for relief from state court judgments, I see
no reason why their logic does not apply to section 2255 motions as
well.

2 Mr. Graffia has also filed a motion in the nature of coram
nobis to vacate the judgment. A writ of coram nobis affords the
same general relief as a writ of habeas corpus. Howard v. United
States, 962 F.2d 651, 653 (7th Cir. 1992). Habeas relief is
available to those in government custody, while coram nobis relief
is available after release. Id. While Mr. Graffia was no longer
in custody when he filed his motion for coram nobis relief, he had
a section 2255 motion pending that was neither outside the
jurisdiction of this court nor moot. As the relief available under
the two procedures is of the same general kind, I will treat Mr.
Graffia’s coram nobis motion as part of his section 2255 petition.

3


vacate, set aside, or correct his sentence under 28 U.S.C. § 2255,
the District Court of the District of Columbia entered an order in
August 1998 transferring the case here pursuant to Rule 4(a) of the
Rules Governing Section 2255 Proceedings (“The original motion
shall be presented promptly to the judge of the district court who
presided at the movant's trial and sentenced him.”). At this
point, Mr. Graffia’s complaint slipped through the proverbial
cracks. It was not until four years later, in August 2002, that
the Clerk’s office in the District of Columbia entered the transfer
order to this district, where it was reassigned to me.

In the meantime, Mr. Graffia was released from prison, having
served his sentence. Although neither party raises the issue, I
note that Mr. Graffia’s release from prison does not deprive me of
jurisdiction over his section 2255 motion. See Gates v. United
States, 515 F.2d 73, 76 n.1 (7th Cir. 1975) (“Although [petitioner]
has now been released from custody, this court retains jurisdiction
to grant relief, if appropriate. The petition under § 2255
survives his release because it was filed while he was in
custody.”). Nor does his release make his motion moot. A section
2255 motion is not moot if “sufficient collateral consequences of
the conviction persist to give the petitioner ‘a substantial stake
in the judgment of conviction which survives the satisfaction of
the sentences imposed on him.’” Puchner v. Kruziki, 111 F.3d 541,

$43 (7th Cir. 1997) (quoting Carafas v. La Vallee, 391 U.S. 234,


IN THE UNITED STATES DISTRICT COURT DOCKETER
FOR THE NORTHERN DISTRICT OF ILLINOIS "
EASTERN DIVISION MAY 21 2003
PAUL W. GRAFFIA,
Plaintiff,
Vv.
No. 02 C 5701
UNITED STATES,

Defendant.

MEMORANDUM OPINION AND ORDER
In 1996, Paul Graffia was convicted in this district of
federal offenses relating to various fraudulent schemes, and was
sentenced to sixty-four months imprisonment. His conviction and
sentence were affirmed by the Seventh Circuit. United States v.
Graffia, 120 F.3d 706 (7th Cir. 1997). In connection with his
conviction, various forfeiture proceedings were initiated against
his property. In March of 1998, during the pendency of the
forfeiture proceedings, Mr. Graffia (acting pro se) filed in the
District Court of the District of Columbia a “Complaint for
Declaratory and Injunctive Relief.” In that complaint, Mr. Graffia
expressly sought only
A Declaration by this honorable Court as to the following
question:
Can the validity of a forfeiture proceeding be maintained
which is based upon a criminal conviction of a state
Citizen in a federal district court wherein said
conviction was obtained in violation of the Constitution

of the United States of America?

(Compl. at 27.) Treating Mr. Graffia’s complaint as a motion to

16