his affidavit. Rather, Gonzalez stated that he visited Vasquez-Ruiz “within the 10 day time
period in which to file the Notice of Appeal.” ‘The time for filing a notice of appeal does not
begin to run until the judgment is entered on the docket. See, e.g, United States v. Cantero, 995
F.2d 1407, 1408 n.1 (7th Cir, 1993); Fed. R. App. P. 4(b)(1)(A)(i). Due to clerical delays, the
judgment in Vasquez-Ruiz’s case was not entered on the docket until October 21, 2002. The
MCC attorney logs confirm that Gonzalez visited Vasquez-Ruiz on October 25, 2002, which
was, as Gonzalez stated in his affidavit, within the ten day period in which to file a notice of
appeal. Jn short, contrary to Vasquez-Ruiz’s claim that the attorney logs refute Gonzalez’s
statement, the logs actually corroborate Gonzalez’s statement.

The Court has carefully reviewed the affidavits that Vasquez-Ruiz submitted along with
his petition. The affidavits of his family members do not support a claim that Vasquev-Ruiz.
himself directed counscl to file a notice of appeal; Vasquez-Ruiz was in custody at the time these
conversations occurred and thus was not present when the family members spoke with counsel.
Tt was Vasquez-Ruiz’s decision, not counsel's, whether to appeal. In his own affidavit submitted
with his § 2255 motion, Vasquez-Ruiz docs not contend that he ditected either Lopez or
Gonzalez to file a notice of appeal, nor does deny that he later told Gonzalez that he did not wish
to appeal because of his assessment of the risk of a cross-appeal by the government. Moreover,
after receiving Lopez and Gonzalez’s affidavits submitted along with the government’s response,
Vasquez-Ruiz did not provide a further affidavit denying Gonzalez’s rendition of their October
meeting at the MCC or Gonzalez’s statement that Vasquez-Ruiz told him not to appeal. Rather,
Vasquev-Ruiz’s reply relies entirely on the purported inconsistency between the attorney log and

Gonzalez’s statements. See Reply, p.4. As the Court has explained, however, no such


According to Gonzalez, Vasquez-Ruiz “stated that he did not want to appeal due to the fact that
there was a chance that the government could file a counter appeal and the defendant may be
sentence|d] in excess of 168 months.” Jd. Gonzalez reported this to Lopez, along with the fact
that Vasquez-Ruiz “desired to continue to cooperate [with the government’s ongoing
investigation] rather than appeal and risk a higher sentence.” Jd. In his affidavit, Lopez
confirmed that Gonzalez had reported these facts to him. Lopez Affid. § 12. Vasquez-Ruiz was
interviewed by the government on October 25, 2002. Gonzalez Affid. ] 9. Gonzalez was
present; he stated that at no time during the interview (or at any other time) did Vasquez-Ruiz ask
that an appeal be filed. /d. 4919, 10. Lopez likewise stated that Vasque7-Ruiz had never directed
him to file a notice of appeal; he also stated that he had never committed to Vasquez-Ruiz’s
relatives to do so without Vasquez-Ruiz’s approval, which was never given. Lopez Affid. {| 14.

Prior to filing his reply to the government’s response, Vasquez-Ruiz obtained via the
Freedom of Information Act the excerpts of attorney visit logs from the MCC reflecting attorney
visits that he had received in September and October 2002. The material produced in response (o
the FOIA request, which Vasquez-Ruiz attached in its entirety to his reply, reflected two visits:
one by Lopez on September 10, 2002 and one by Gonzalez on October 25, 2002. Reply, Ex. FE.
Vasquez-Ruiz maintains that these records confirm that he was not visited “within ten (10) days
of his sentencing,” as he claims Gonzalez had represented, and he contends that Gonzalez’s
purportedly contrary statement was a lie. Reply, p. 4.

Vasquez-Ruiz’s belief that the attorney logs refute Gonzalez’s statement is mistaken. It is
true that the sentencing hearing was held on September 11, 2002, and that the logs do not reflect

any attorney visits within ten days after that date. But that is not what Gonzalez represented in


inconsistency exists.

An attorney who fails to follow a client’s direction to file a notice of appeal “acts ina
manner that is professionally unreasonable.” Roe v, Flores-Ortega, 528 U.S. 470, 477 (2000)
(citing Rodriquez v. United States, 395 U.S. 327 (1969) and Peguero v. United States, 526 U.S.
23, 28 (1999)). Indeed, “when counsel fails to file a requested appeal, a defendant is entitled to
[a new] appeal without showing that his appeal would likely have had merit.” Peguero, 526 U.S.
at 28. But “a defendant who explicitly tells his attorney not to file an appeal plainly cannot later
complain that, by following his instructions, his counsel performed deficiently.” /Tores-Ortega,
528 U.S. at 477 (citing Jones y, Barnes, 463 U.S. 745, 751 (1983)), Such is the case here.
Because Vasquez-Ruiz has failed properly to support a claim that he directed counsel to file a
notice of appeal, and has failed to dispute counsel’s assertion that they were specifically told not
to appeal, the Court denies his § 2255 motion, The Clerk is directed to enter judgment in favor

of respondent United States of America.

VU PAA)

MATTHEW F. KENNELLY
United States District Judg
Date: January 12, 2004



Mune ater bon (UOT

Co \o United States District Court, Northern District of Illinois

Name of Assigned Judge A 5 Sitting Judge if Oth
eae Magistrate Judge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 03 C 6569 DATE 1/12/2004
CASE Vasquez-Ruiz vs. USA
TITLE

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

of the mation heing presented]

MOTION;

DOCKET ENTRY:

(1) im] Filed motion of | use listing in “Motion” box above.]

(2) iva) Brief in support of motion due

qd) o Answer brief to motion due__ . Reply to answer briefdue

(4) n Ruling/ilearingon | __eset for at

(5) u 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 set for cat.
va) Qo ‘Trialfset for/re-set for} on at |

(8) Q {Bencl/Jury trial] [Hearing] held/continued toatl

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

CRRCP4(m) Cl Local Rule 41.1 COFRCP41(a)(1) OO FRCP41(a)(2).

| [Other docket entry] For the reasons set forth on the attached Memorandum Opinion and Order,
the Court denies §2255 motion. Judgement is entered in favor of respondent United States of America.

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

No notices required, advised mn open court. Document
Number

No notices required
suns of nutices

Notices mailed by judge's statt JAN 2G 2004

Nolitied counsel by telephone,

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| Docketing to mail notices

Mail AQ 480 form.

Copy to judgermagistrate judge Epes 7 9'A

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

qurser

FELIX VASQUEZ-RUIZ,
yn2.0 0

Movant,
Case No, 03 C 6569

vs.

UNITED STATES OF AMERICA,

wereeerveervervry

Respondent.

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Felix Vasquez-Ruiz, a medical doctor, was convicted by a jury of multiple counts of mail
fraud and health care fraud. In September 2002, he was sentenced to 168 months in prison. He
did not file a notice of appeal. Vasquez-Ruiz has now filed a pro se motion pursuant to 28
U.S.C, § 2255 in which he asserts that his atlorney was responsible for filing a timely notice of
appeal but failed to do so. As a result, Vasquez-Ruiz contends, he received ineffective assistance
of counsel. For the reasons sct forth below, the Court denies Vasquez-Ruiz’s motion.

Vasquez-Ruiz was represented by attorney Joseph Lopez at sentencing. With his motion,
Vasquez-Ruiz submitted an affidavit in which he stated that prior to sentencing, Lopez advised
him that he was likely to receive a sentence of 60 months or less. Vasquez-Ruiz Affid. ¥ 2.
Immediately after the sentencing, according to Vasquez-Ruiz, Lopez promised to come see him
at the Metropolitan Correctional Center, but he never did so. Id. §§ 4-5. Vasquez-Ruiz assumed
based on conversations with family members that a notice of appeal had been filed. Ja. 4] 5.

After hearing nothing for several months, Vasquez-Ruiz wrote to Lopez and asked if'a notice of


appeal had been filed. Jd. | 7; Motion, Ex. 4. Lopez wrote back and said no notice of appeal had
been filed “since you did not want to appeal because the government planned to cross-appeal
your sentence.” Vasquez-Ruiz Affid. § 8; Motion, Ex. 6. In his affidavit, Vasquez-Ruiz stated
that Lopez had never discussed his appeal rights with him, Vasquez-Ruiz Affid. 19. Vasquez-
Ruiz also submitted affidavits from several family members who stated that after the sentencing,
Lopez assured them that he would file a notice of appeal (in context, it appears that these
conversations occurred in or outside the courttoom, immediately after the sentencing hearing).
See Affids. of Joseph Krabel, Marcela Krabel, Betty Moone, and Emperatriz Barnett.

In its response to Vasquez-Ruiz’s motion, the government submitted affidavits from
Lopez and his associate, Carlos Gonzalez. Both stated that Gonzalez was originally retained to
represent Vasquez-Ruiz at sentencing and brought Lopez in as lead counsel, J.opez Affid. § 2;
Gonralez Affid. § 2, Lopez stated that he discussed with Vasquez-Ruiz prior to sentencing the
fact that the presentence report had recommended a Sentencing Guideline calculation yielding a
sentence range of 324 to 405 months and told Vasquez-Ruiz. that it was likely he would receive a
sentence in excess of ten years. Lopez Affid. | 3. Lopez stated that he did not recall ever telling
Vasquez-Ruiz that he would receive a sentence of 60 months. /d. 4 8.

Following the sentencing heating, Lopez said, he directed Gonzalez to go to the MCC to
speak with Vasquez-Ruiz. about filing a notice of appeal. Jd. 12. Gonzalez stated that he
visited Vasquez-Ruiz “within the 10 day time period in which to file the Notice of Appeal” and
discussed with him the possibility of an appeal as well as the possibility that the government
would cross-appeal to challenge rulings by the Court that had the effect of reducing Vasquez-

Ruiz’s sentence from the much higher sentence the government had sought. Gonzalez Affid. 8.