02 C 7451

the question: "Just like in court today when you took the oath to tell the truth, the whole truth,
and nothing but the truth, you know you could be prosecuted for lying in court if you don't do
that in court, do you understand that?" Petitioner answered, "Yes." Petitioner acknowledges that
trial counsel did instruct him to take the stand to testify to what petitioner perceived as happening
the day of his search and arrest, which was certainly not a suggestion that petitioner should lie.

Petitioner also claims ineffective assistance of trial counsel because counsel did not
investigate the confidential informant. Petitioner claims that trial counsel did not inquire into
why the DEA initiated surveillance and what was the probable cause or reasonable suspicion
based upon. Trial counsel's lack of investigation was not ineffective because the identity of the
confidential informant is irrelevant. The search of the petitioner's cars and home was based on
petitioner's consent and the DEA did not need reasonable suspicion or probable cause to ask
petitioner for consent to search. U.S. v. Pedroza, 269 F.3d at 828-9.

Petitioner's last claim is ineffective assistance of appellate counsel on his direct appeal.
The conditional plea agreement entered into by petitioner and the government stated that the only
issues that appellate counsel could raise on appeal were the denial of petitioner's motion to
suppress evidence and the denial of the motion to dismiss; ineffective assistance of counsel; and
involuntariness of the plea agreement. Appellate counsel raised both the denial of petitioner's
motion to suppress evidence and the denial of the motion to dismiss on appeal to the Seventh

Circuit. There was no reason to raise the issue of involuntariness because petitioner never

claimed his plea was involuntary. Even in this petition, petitioner never claims the plea was



02 C 7451

plea agreement stated that the guideline would not apply. The court, notwithstanding trial
counsel's objections and the government's position, found the guideline applied.

Second, petitioner claims trial counsel was ineffective for failing to object to the
application of the USSG §3C1.1 “obstruction of justice" enhancement and to present any case
law or rebuttal evidence. In this regard, petitioner also argues that he was not prepared by trial
counsel prior to his testimony at his suppression hearing. The guideline allows an increase by two
levels if a defendant attempted to obstruct and impede the administration of justice during the
prosecution of the offense. See USSG §3C1.1. The district court adopted the magistrate judge's
findings that Pedroza gave "testimony that was inconsistent, evasive, and unreliable" at his
suppression hearing. See U.S. v. Pedroza, 269 F.3d at 825. This claim of ineffective assistance is
without merit because, again, trial counsel did object to the government's contention that
petitioner willfully intended to gave false statements both in his written objections to the PSR
and at the sentencing hearing. Trial counsel was not ineffective for failing to present any case law
because the court's determination with which petitioner takes issue was one of fact, not one of
law. Trial counsel also was not ineffective for failure to present rebuttal evidence, as petitioner
has not suggested what evidence could have been presented to rebut the court's conclusion that
during the suppression hearing petitioner willfully gave false statements. While it can be argued
that petitioner should have been prepared better for the suppression hearing by trial counsel,
petitioner did understand he was under oath. In his petition, petitioner claims that he was not

advised of the possible negative consequences of false testimony by trial counsel. Whether or not

he was advised of those consequences, petitioner was certainly aware of them, as in response to



02 C 7451
entered into involuntarily. Therefore, appellate counsel could only be ineffective if he failed to
raise the issue of trial counsel's ineffectiveness.

A conflict of interest can be grounds to find counsel's assistance ineffective. Cuyler v.
Sullivan, 446 U.S. 335, 348-9 (1980). Petitioner did not raise this issue with the Seventh Circuit
Court of Appeals nor was the court otherwise apprised of the possible conflict, therefore, this
court will presume prejudice only if petitioner can show that "an actual conflict adversely
affected his lawyer's performance." Spreitzer v, Peters, 114 F.3d 1435, 1450-1 (7th Cir. 1997),
citing Cuyler, 466 U.S. at 348-9. Because this court has found that trial counsel was not
ineffective, the petitioner can not demonstrate the prejudice necessary to prevail on either his
claim of ineffective assistance of appellate counsel or his claim that appellate counsel had a
conflict of interest.

ORDERED: Juan Pedroza's motion to vacate, set aside, or correct his sentence [1] is

denied.
boca LINDBERG 4%
Senior U.S. District Judge
APR 21 2003 , s
DATED:



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Ni f Assigned Judy ; ing Judge
or Magistrate Sudge George W. Lindberg “than hated Judge
CASE NUMBER 02 C 7451 DATE 4/21/2003
CASE Juan Pedroza 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:

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

(2) im} Brief in support of motion due

(3) a Answer brief to motion due___. Reply to answer brief due__.

(4) a Ruling/Hearingon__—_ssetfor_—_at

(5) Q Status hearing[held/continued to] [set for/re-set for]on__—ssetfor___—_aat

(6) QO Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_——— at.

(7) oOo Trial[set for/re-set for}on___—_at

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__at

(9). oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) Local Rule 41.1 CIFRCP41(a)(1) OFRCP41(a)(2).

qo) =f [Other docket entry] Juan Pedroza’s motion to vacate, set aside, or correct his sentence (1) is

denied. Enter memorandum opinion and order.

ail) @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

APR 22 2003"

Notices mailed by judge’s staff.

Notified counsel by telephone.

a | Docketing to mail notices.

Mall AO 459 form tunod Loyisia’s'n
Copy to judge/magistrate judge. veri
+} UM 227 Mark
courtroom GO:L KY 22 Udd bu
SLB deputy’ 7
central Clerk's Office



DOCKETED

IN THE UNITED STATES DISTRICT COURT APR 9 2, 2003
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JUAN PEDROZA,
Petitioner, No. 02 C 7451
vs. Judge Lindberg

UNITED STATES OF AMERICA,

were

Respondent.
MEMORANDUM OPINION AND ORDER

Petitioner, Juan Pedroza, has filed a petition pursuant to 28 U.S.C. §2255, requesting that
this court vacate, set aside, or correct his sentence. Petitioner claims ineffective assistance of his
trial counsel, Richard Mottweiler, for failure to correct errors at sentencing and failure to
investigate the involvement of an informant. Petitioner further claims ineffective assistance of his
appellate counsel, Timothy Joyce, for failure to raise issues regarding the ineffectiveness of
Motweiler. Petitioner further contends that Joyce was acting under a conflict of interest because
Joyce was hired by Motweiler. Petitioner does not challenge the validity of his plea agreement
and is not asking to withdraw his guilty plea. For the reasons stated below, petitioner's motion is
denied.

Following the denial of motions to suppress evidence and to dismiss the indictment based
on alleged violations of the Speedy Trial Act, petitioner entered a conditional guilty plea in this
court to one count of conspiracy to possess cocaine with intent to distribute. See 2000 WL
286890. The United States Court of Appeals for the Seventh Circuit affirmed this court's findings
that there was sufficient evidence that petitioner's consent to search his home and car was

voluntary; that there was sufficient evidence that petitioner freely consented to Drug



02 C7451

Enforcement Agency (DEA) agents entry into and search of his house; and that a period of 51
days constituted a reasonable time for this court to consider and dispose of four complex pretrial
motions. See U.S. v. Pedroza, 269 F.3d 821 (7th Cir. 2001).

In order to prevail on his ineffective assistance of counsel claim, petitioner must show
that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984).
This requires showing that counsel made errors so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth Amendment. Id Additionally, petitioner must
show that the deficient performance prejudiced his defense. Id. The prejudice prong requires that
the petitioner show that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceedings would have been different. Id. at 694. "A reasonable
probability is a probability sufficient to undermine confidence in the outcome." Id. A court
deciding an ineffective assistance claim need not address both components of the inquiry if
petitioner makes an insufficient showing on one. Id. at 697.

First, petitioner claims that trial counsel was ineffective because he did not object to the
application of United States Sentencing Guideline § 2D1.1 (b)(1). This guideline allows the
district court to increase the offense level by two levels because a “dangerous weapon (including
a firearm) was possessed." USSG § 2D1.1 (b)(1). This claim is premised upon an erroneous
version of the facts. Trial counsel not only objected to the portion of the Pre-Sentence Report
(PSR), advocating the increase in his written objections to the PSR, but trial counsel also orally

objected to the increase at the sentencing hearing. Trial counsel also informed the court that the