Shurti “both before and during the trial” about whether Shurti would testify and that
Mondry advised him that “it would be in his best interest to testify at trial.” (Mondry.
Aff. ¢ 2). Mondry claims that Shurti decided not to testify. Shurti’s directly
contradicted claim does not assert sufficient grounds under Underwood to warrant
further investigation into the allegation that Mondry prevented him from testifying on
his own behalf.
IL. Failure to File a Notice of Appeal
To determine whether counsel was constitutionally ineffective for failing to file
a notice of appeal, the court must first determine whether Mondry did in fact consult
with the defendant about an appeal. Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).
If no consultation occurred, then the court must determine whether Mondry's failure
to consult with Shurti itself constituted deficient performance. Id. The term “consult”
has a specific meaning in this context. Id. In order for Mondry to have consulted with
Shurti, he must have advised Shurti about the “advantages and disadvantages of taking
an appeal” and he must have made “a reasonable effort to discover the defendant's
wishes.” Id. Mondry stated in his affidavit that he believed that he met with Shurti
“within 10 days after May 16, 2002.” (Mondry Aff. § 3). He stated that “it is [his]
usual practice to discuss the appellate process, including the advantages and

disadvantages of filing an appeal and whether the defendant wants to file an appeal,

4.


F.3d 333, 338 (7th Cir. 1995). To prevail on a claim of ineffective assistance of
counsel, a defendant must demonstrate that his counsel’s performance fell below an
objective standard of reasonableness, Strickland v. Washington, 466 U.S. 668, 688-90
(1984), and that the deficient performance so prejudiced the defendant’s defense that
the trial was unfair and the result was thus unreasonable. Id. at 691-94.
I. Right to Testify

Acriminal defendant has a constitutional right to testify in his own behalf. Rock
y. Arkansas, 483 U.S. 44, 50-51 (1987). However, a “barebones assertion” made by
a defendant that his lawyer forbade him to testify on his own behalf is insufficient to
require an evidentiary hearing or other action on the defendant’s claim. Underwood
yv. Clark, 939 F.2d 473, 476 (7th Cir. 1991). Some greater particularity and
substantiation is necessary to warrant “further investment of judicial resources.” Id.
at 475-76. Shurti has provided no evidence other than the statement in his petition to
this court that he requested to be allowed to testify. Shurti claims that when he asked
to testify on his own behalf, Mondry told him that “it was not such a good idea because
of his untrustworthy appearance.” (Pet. at 4). Thus, the allegation itself does not
indicate that Mondry forbade Shurti from testifying. It only shows that Mondry,
according to Shurti, strongly advised against it. In addition, both allegations are

directly contradicted by Mondry’s affidavit which states that he had discussions with

3.


with defendants that [he] represent[ed] after they have been sentenced.” Id. Shurti
wrote in his petition that he had never discussed the appellate process with Mondry,
but in the same paragraph stated that Mondry told him that there were no grounds for
an appeal. (Pet. at 6). This statement corroborates Mondry’s belief that he consulted
with Shurti.

Because both parties have established that a consultation occurred, the question
of deficient performance boils down to a factual determination of whether Shurti gave
express instructions to Mondry requesting him to file a notice of appeal. Ifa
consultation occurs, counsel’s representation is only ineffective if counsel fails “to
follow the defendant's express instructions with respect to an appeal." Id.

Shurti admits that he never expressly told Mondry that he wanted an appeal.
Shurti asserts that, despite his silence, Mondry “was aware of the fact that [Shurti] was
interested in an appeal.” (Pet. at 7). Absent further supporting evidence, such a
presumption made on Shurti’s part is an insufficient basis to conclude that Mondry
knew that Shurti desired him to file an appeal. It would not be logical for Mondry to
conclude that Shurti’s silence represented a desire that Mondry file an appeal,
particularly after Mondry told Shurti that there were no grounds for an appeal. We note
also that although Mondry indicates in his affidavit that Shurti told him at some point

that he wanted to obtain new counsel to handle an appeal, Mondry states that it is his

5.



Minute Ordet Form (06/97)

7

United States District Court, Northern District of Illinois

Name of Assigned Judge Charles P. Kocoras Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 03 C 1007 DATE 9/9/2003
CASE United States of America vs. Bilal Shurti (01 CR 402-1)
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
MOTION: of the motion being presented.]
IN:
DOCKET ENTRY:
Q) im Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) aq Answer brief to motion due. . Reply to answer brief due
(4) a) Ruling/Hearing on set for at
6 oO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) oO Trial[set for/re-set for] on __ at_
(8) a (Bench/Jury trial] [Hearing] held/continued to at
0 oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OLocal Rule 41.1 OFRCP41(a)(1) 1 FRCP41(a)(2).
do) == [Other docket entry) ENTER MEMORANDUM OPINION: We deny defendant’s habeas
petition.
(11) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. number of notices
Notices mailed by judge's staff.
Notified counsel by telephone. d
a | Docketing to mail notices. Sp
av | Mail AO 450 form. dockeylag deputy hitials
Copy to judge/magistrate judge.
i date mailed notice
courtroom
| deputy’s sep
initials a
wih" Date/tighejreceived in 7 ;
central Clerk’s Office ‘mailing deputy initials



usual practice to prepare and file a notice of appeal only when asked by his client or
ordered by the court. There is no evidence of such a filing. Therefore, Shurti has not
met his burden for establishing ineffective assistance of counsel and we deny the
petition.

CONCLUSION

Based on the foregoing analysis, we deny the habeas petition.

Re Be Phoaere+

Charles P. Kocoras
Chief Judge
United States District Court

739 2003
Dated: (SEP


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) 03 C 1007
)
BILAL SHURTI, ) D
) Oi nED
Defendant. ) SEP y 9 2003
MEMORANDUM OPINION

CHARLES P. KOCORAS, Chief District Judge:

This matter is before the court on Defendant Bilal Shurti’s pro se petition to
reduce or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth
below, we deny the petition.

BACKGROUND

On February 12, 2002, Defendant Bilal Shurti ("Shurti") was found guilty by a
jury on four counts of bank fraud. He was sentenced by this court to fifteen months
imprisonment and three years of supervised release. On February 11, 2003, Shurti filed
this Section 2255 petition alleging that his trial counsel, Steven M. Mondry

(“Mondry”), provided ineffective assistance of counsel. Shurti claims that Mondry


refused to allow him to testify on his own behalf at trial and that Mondry failed to file
a notice of appeal.
LEGAL STANDARD
Relief under 28 U.S.C. § 2255 is limited to situations where a conviction or
sentence is based on “an error of law that is jurisdictional, constitutional, or constitutes
a fundamental defect which inherently results in a complete miscarriage of justice.”
Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994) (quoting Borre v. United

States, 940 F.2d 215, 217 (7th Cir. 1991)). Ifthe Court finds that any of the above

errors occurred, then the prisoner’s conviction will be “vacated or set aside, and the
petitioner will be discharged, resentenced, or granted a new trial.” Dikeocha v. United
States, 2002 WL 31006136, *1 (N.D. Ill. 2002). When reviewing a section 2255
petition, the district court must review the record and draw all reasonable inferences
in favor of the government. Carnine v. United States, 974 F.2d 924, 928 (7th Cir.
1992); United States v. Boyd, 2002 WL 1949724, *1 (N.D. Ill. 2002). We note that
Shurti has filed his petition pro se and thus his petition is entitled to a liberal reading.
Blake v. United States, 841 F.2d 203, 205-06 (7th Cir. 1988).
DISCUSSION
Assistance of counsel is presumably effective and thus a party bears a “heavy

burden” in establishing ineffective assistance of counsel. United States v. Trevino, 60

-2-