Theodorou v. U.S.

• Decision Date: 27 October 1989
• Docket Number: No. 86-2767,86-2767
• Citation: 887 F.2d 1336
• Parties: Andrew THEODOROU, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1336

887 F.2d 1336

Andrew THEODOROU, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 86-2767.

United States Court of Appeals Seventh Circuit.

Argued Nov. 2, 1988.

Decided Oct. 27, 1989.

Sam Adam, Chicago, Ill., for petitioner-appellant.

Patrick Foley, Office of the U.S. Atty., Chicago, Ill., for respondent-appellee.

Before BAUER, Chief Judge, WOOD, Jr., and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Andrew Theodorou appeals the district court's denial of his 28 U.S.C. Sec. 2255 petition. Theodorou alleges that he is entitled to habeas corpus relief because he was deprived his due process right to be sentenced on accurate information. We hold that Theodorou has failed to show good cause for not raising this matter in a direct appeal and we affirm.

I. FACTUAL BACKGROUND

Theodorou was one of twelve persons named in a thirteen-count drug smuggling indictment under Cause No. 80 CR 312. He was charged in eleven of the thirteen counts. Shortly thereafter, the same grand jury also indicted Theodorou under Cause No. 80 CR 370 with two counts involving distribution of cocaine.

Within a few months a jury trial commenced before Judge George N. Leighton under Cause No. 80 CR 312. Four days into the trial, Theodorou entered into plea negotiations with the government. A written plea agreement was executed. Theodorou pleaded guilty to four counts involving a conspiracy to import, possess and distribute 5200 pounds of marijuana; and failure to file his 1978 income tax return. The remaining seven counts were dismissed. In addition to stipulating to the amount of marijuana involved, the United States Attorney and Theodorou agreed that the minimum sentence to be imposed would be no less than seven years. However, there was no agreement as to the maximum sentence which could be imposed. Judge Leighton accepted the tendered plea.

The government submitted to the probation department its version of the offense for inclusion in the presentence report. The government's version was also provided to defense counsel two weeks prior to the sentencing hearing.

At the sentencing hearing, Judge Leighton asked defense counsel whether there were any corrections to be made to the presentence report. Defense counsel responded that the government's version of the offense (incorporated in the presentence report) contained misstatements and inaccuracies. The claimed inaccuracies described by defense counsel dealt with Theodorou's purported involvement with John Kachiroubas in an uncharged scheme to import cocaine. Kachiroubas was apparently involved in several other illegal endeavors and when he was caught he implicated Theodorou. Theodorou claimed Kachiroubas did so in order to achieve a better deal with the government. Defense counsel asserted that Kachiroubas' statement indicated that Theodorou was responsible for the importation of "tons and tons" of marijuana and cocaine. Theodorou maintained that Kachiroubas' statement was untrue. The court gave Theodorou an opportunity to file a supplement to the presentence report indicating the inaccuracies.

Defense counsel expressed his understanding and concern that the Parole Commission would rely only on the government's version of the offense and not the defendant's version in applying the parole guidelines.

Judge Leighton then sentenced Theodorou to two consecutive five-year terms and imposed fines totalling $25,000.00. In the meantime, the indictment in Cause No. 80 CR 370 was transferred to Judge Leighton. Eventually, Theodorou pleaded guilty to the unlawful use of the telephone to facilitate the distribution of cocaine. Judge Leighton sentenced Theodorou to serve two years of imprisonment consecutive to the sentence imposed in Cause No. 80 CR 312. Theodorou did not appeal either of the judgments of conviction entered on the separate pleas of guilty.

Theodorou's latest attempt to vacate and set aside his sentences is the subject of this appeal. ¹ In this second section 2255 petition, Theodorou claimed that his sentences were based upon false information in the presentence report concerning his purported involvement in cocaine smuggling. Specifically, Theodorou argued that the sentencing judge relied upon inaccurate information in the government's version of the smuggling offense as it was presented in the presentence report. Theodorou also claimed that the government argued for a greater sentence on the basis of this false information and that he was denied an opportunity to contest these allegations. Finally, Theodorou claimed that the Parole Commission relied on the same false information in denying him due process of law.

This second section 2255 petition was referred to a magistrate who recommended denial of his petition because Theodorou failed to show good cause why he did not raise the matter in a direct appeal. Theodorou filed objections and exceptions to the magistrate's report and recommendation. Notwithstanding the objections, Judge Leighton accepted and approved the magistrate's report and recommendation and denied the section 2255 petition.

II. ANALYSIS

On appeal, Theodorou claims that he has an absolute and unfettered right to pursue relief under 28 U.S.C. Sec. 2255, even though he did not take a direct appeal from either conviction. ² Alternatively, Theodorou contends that if his right to attack his sentence is not absolute and if he must establish "cause and prejudice" for his failure to appeal, that he has done so. We address each issue separately.

A. QUALIFIED RIGHT TO PURSUE SECTION 2255 RELIEF

Theodorou bases his claim of an absolute right to raise the matter of inaccurate sentencing information in a section 2255 proceeding on the fact that the issue deals with his constitutional right to due process. He asserts that this right exists notwithstanding his failure to take a direct appeal on that issue--particularly because his convictions were based on guilty pleas.

There is no question that the due process clause gives convicted defendants the right to be sentenced on the basis of accurate information. See Blake v. United States, 841 F.2d 203, 206 (7th Cir.1988); United States v. Rone, 743 F.2d 1169, 1171 (7th Cir.1984); United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1972). If a convicted defendant can show that the information before the sentencing court was false and that the court relied upon false information in imposing the sentence, the sentence will be vacated. Rone, 743 F.2d at 1171; United States v. Harris, 558 F.2d 366 (7th Cir.1977).

We have made it clear, however, that a district court cannot reach the merits of an appealable issue in a section 2255 proceeding unless that issue has been raised in a procedurally appropriate manner. Williams v. United States, 805 F.2d 1301 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1978, 95 L.Ed.2d 818 (1987); Johnson v. United States, 805 F.2d 1284 (7th Cir.1986). As we have reiterated, a petition under section 2255 "will not be allowed to do service for an appeal." Johnson v. United States, 838 F.2d 201, 202 (7th Cir.1988) (citations omitted). ³ These cases have clearly confirmed our position in Norris v. United States, 687 F.2d 899 (7th Cir.1982), that a failure to raise constitutional challenges to a conviction on direct appeal bars a petitioner from raising the same issue in a section 2255 proceeding--absent a showing of good cause for and prejudice from the failure to appeal. 687 F.2d at 903-04; see also United States v. Kovic, 830 F.2d 680, 684 (7th Cir.1987). The "cause and prejudice" standard is applicable when a prisoner attacks his sentence by raising constitutional issues for the first time in a section 2255 proceeding. Bontkowski v. United States, 850 F.2d 306, 312-13 (7th Cir.1988); Norris, 687 F.2d at 901; Johnson, 838 F.2d at 202. Absent a showing of cause for the procedural default and actual prejudice resulting from the errors petitioner alleges, the failure to raise an issue which could have been raised on direct appeal precludes section 2255 review. Williams, 805 F.2d at 1306-07; Qualls v. United States, 774 F.2d 850, 851 (7th Cir.1985).

It is of no consequence that the entries of Theodorou's judgments of conviction were the result of pleas of guilty rather than verdicts of guilty. ⁴ In Williams, we extended the application of the "cause and prejudice" standard to petitioners like Theodorou who are sentenced after entering a plea of guilty and subsequently attack their sentences by raising new issues for the first time in a section 2255 proceeding. 805 F.2d at 1305-06; see also Bontkowski, 850 F.2d at 313.

To summarize, we hold that, absent a showing of cause and prejudice, a defendant is barred from raising any constitutional challenge in a section 2255 proceeding which could have been raised in a direct appeal. Thus, the district court correctly found that it was precluded from considering the merits of Theodorou's section 2255 petition unless Theodorou established "cause and prejudice" for failing to raise those issues in a direct appeal.

B. CAUSE AND PREJUDICE STANDARD

Both aspects, cause and prejudice, must be satisfied to enable a defendant to avoid the waiver caused by the failure to raise issues in a direct appeal. United States v. Griffin, 765 F.2d 677, 682 (7th Cir.1985). That is, a section 2255 petitioner must show both (1) good cause for his failure to pursue an issue on direct appeal, and (2) actual prejudice stemming from the alleged constitutional violation.

To establish good cause, Theodorou explains his procedural default as follows. At the time of his sentencing, Rule 32 of the Federal Rules of Criminal Procedure did not exist in its present form ⁵ and therefore, he had no reasonable basis of knowing that the government's version of the offenses incorporated in the presentence report would be relied upon by the Parole Commission. Theodorou claims that the false information delayed his parole...