harmless error analysis after concluding that Meitus forfeited his Apprendi argument
since he did not raise it before the trial court. Mietus’s argument fails upon a close
reading of the Seventh Circuit’s opinion. Although the Seventh Circuit had decided that
the plain error analysis applied, the court also made clear that Mietus’s claims would
have similarly failed under the harmless error analysis. Id. at 875. Accordingly, Mietus
was not prejudiced by his counsel’s failure to make an Apprendi argument at his
sentencing. Because he did not raise this issue on direct appeal and has not shown
cause for the procedural default or actual prejudice from his failure to appeal, Mietus’s
ineffective assistance of counsel claim is barred.’

For the foregoing reasons, Mietus’s section 2255 petition is denied.

Ra Cra feeeran

Charles P. Kocoras
United States District Judge

Dated: _ May 2, 2002

! We note that Mietus presents a second reason why he received ineffective
assistance of counsel. However, Mietus raised this argument for the first time in his
reply brief and, as such, we do not consider it. Multi-Ad Services, Inc. v. N.L.R.B.,
255 F.3d 363, 369 (7th Cir. 2001); Wilson v. United States, 149 F. Supp.2d 1045, 1049
(N.D. Ind. 2001).

-4-


instructions to the jury did not. Id. at 875. Consequently, the Seventh Circuit continued
its analysis by determining whether the Apprendi violation constituted reversible error.
The court concluded that it did not under both the plain error analysis and the harmless
error analysis. Id. at 874-75. Because Mietus’s Apprendi argument was decided on
direct appeal, he cannot assert it via a collateral attack unless he has made a showing
of changed circumstances. Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992);
Johnson, 878 F. Supp. at 1137. Mietus has not made this showing. His argument that
United States v. Westmoreland, 240 F.3d 618 (7th Cir. 2000) constitutes such “changed
circumstances” is not persuasive. Accordingly, Mietus is barred from raising his
Apprendi argument in his section 2255 petition.

Second, Mietus contends that he received ineffective assistance of counsel in
violation of his Sixth Amendment rights because the lawyer who represented him at his
sentencing failed to argue the constitutional principle espoused in Apprendi. Although
Apprendi was decided after Meitus’s sentence hearing, he claims the constitutional
mandate of Apprendi was foreshadowed in Jones v. United States, 526 U.S. 227 (1999),
which had been decided before his sentencing hearing. Mietus’s ineffective assistance
of counsel argument falls within the third type of claim that a section 2255 petitioner
is barred from raising in his petition, Mietus did not raise this constitutional argument
on direct appeal.

Additionally, Mietus has not demonstrated actual prejudice resulting fromi his
failure to appeal this issue. Mietus argues that he suffered prejudice because the

Seventh Circuit decided to apply the less favorable plain error analysis rather than a


UZ Mine Oder
United States District Court, Northern District of Iinois

fapsigned Jud Sitting Judge if Oth
-Gapekerie’) Charles PKocoras | Sine ue one
CASW/ NUMBER 01 C9351 DATE 5/2/2002
V case US vs. Wieslaw Mietus (98 CR 386-1)
TITLE

of the motion being presented}

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

QFRCP4(m) (OGeneral Rule 21 OFRCP41(a)(1) OI FRCP41(a)(2).

denied. All other pending motions are moot.

qdl [For further detail see order attached to the original minute order-]

MOTION:

DOCKET ENTRY:

() oO Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) QO Answer brief to motion due____. Reply to answer brief due.

(4) 0 Ruling/Hearingon__setfor___at

(5) o Status hearing{held/continued to] [set for/re-set for}on______ set for at

(6) im} Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__——at__
(7) Qg Trial{set for/re-set for]on___at

(8) Q [Bench/Jury trial] [Hearing] held/continued to__at

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

(0) {Other docket entry) ENTER MEMORANDUM OPINION: Micetus’s section 2255 petition is

No notices required, advised in open court.

No notices required.
req umber of notices

Document.
Number

Notices mailed by judge’s staff.

Notified counsel by telephone. va

Y | Docketing to mail notices

vo | Mail AO 450 form.

kotin} dopusy iis

Copy to judgf/magistrate judge.

-~
courtroom
deputy’s
initials

date maildpotice

Dateltifne received in ;
central Clerk's Office maiing deputy iniials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
WIESLAW MIETUS, )
)
Plaintiff-Petitoner, )
) 01 C9351
vs. )
) 98 CR 386
UNITED STATES OF AMERICA, )
) ;
Defendant-Respondent. ) Ly, om
May whe Ws)
2?
MEMORANDUM OPINION <tyg

CHARLES P. KOCORAS, District Judge:

This matter comes before the court on Wieslaw Mietus’s (“Mietus”) motion to
vacate or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth
below, Mietus’s motion is denied.

On March 15, 1999, a jury convicted Mietus of conspiracy to distribute
marijuana, in violation of 21 U.S.C. § 846, and possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 151 months
imprisonment followed by five years of supervised release. Mietus appealed his
conviction, and the Seventh Circuit affirmed. United States v. Mietus, 237 F.3d 866
(7th Cir. 2001). Mietus filed the instant motion under section 2255 on December 6,
2001.

The legal framework for evaluating a section 2255 petition is well-established.

Relief under section 2255 is limited to “an error of law that is jurisdictional,


constitutional, or constitutes a ‘fundamental defect which inherently results in a
complete miscarriage ofjustice.”” Carreon v. United. States, 578 F.2d 176, 179 (7th Cir.
1978) (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). Before the court can
decide whether a section 2255 petitioner’s claim meets this standard, the court must first
determine whether the claim asserted is procedurally barred. Theodorou v. United

States, 887 F.2d 1336, 1339 (7th Cir. 1989). A section 2255 petitioner is barred from

raising three types of issues: (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 defaults as well as actual prejudice from the failure to appeal. Unger v.
United States, 8 F. Supp.2d 1151 (E.D. Wis. 1998); United States v. Johnson, 878 F.
Supp. 1135, 1153 (N.D. Ill. 1995).

Mietus’s collateral attack has two bases, both of which fall within the types of
issues that a section 2255 petitioner is barred from raising. First, Mietus argues that the
trial court imposed upon him a sentence exceeding the statutory maximum without
submitting certain elements of the offense to the jury, in violation of the constitutional
mandate of Apprendi v. New Jersey, 530 U.S. 466 (2000). He further argues that his
indictment also was deficient pursuant to Apprendi. Mietus presented his Apprendi
argument to the Seventh Circuit on his direct appeal of his conviction, and the Seventh

Circuit rejected it. Mietus, 237 F.3d at 874-76. The Seventh Circuit found that

Mietus’s indictment complied with Apprendi, Mietus, 237 F.3d at 874, but that the