Joseph A. Carbello, Petitioner-appellant, v. United States of America, Respondent-appellee, 1 F.3d 1244 (7th Cir. 1993)

ORDER

In 1983, a grand jury returned a four-count indictment against Joseph A. Carbello. The first three counts involved various drug offenses, while the fourth involved a weapons charge. Following a bench trial, Judge John Grady convicted Carbello on all four counts. We affirmed these convictions on appeal. United States v. Carbello, No. 84-2130 (7th Cir. Mar. 14, 1985) (unpublished). Carbello brought a motion for relief from his sentence pursuant to 28 U.S.C. § 2255 on a number of grounds relating to the truth and sufficiency of the affidavit used to establish probable cause for the search that discovered the drugs and weapons. This motion was denied, and we affirmed. Carbello v. United States, No. 86-2920, 826 F.2d 1068, 1987 U.S.App.LEXIS 10910 (7th Cir. July 23, 1987) (unpublished). Carbello then filed another motion under Sec. 2255. In this most recent motion, Carbello claimed that two of the drug counts were multiplicitous, and therefore he was sentenced illegally. He also claimed that he was denied effective assistance of counsel by his attorney's failure to challenge on direct appeal the allegedly multiplicitous counts. The district court denied relief, and Carbello appeals.

Before we can address the merits of Carbello's claims, we must consider the government's argument that Carbello has procedurally defaulted on the issue of the allegedly multiplicitous counts.¹  According to the government, Carbello's failure to raise these issues either at trial or on direct appeal constitutes a procedural default barring consideration of them in a collateral proceeding under Sec. 2255. We agree. United States v. Frady, 456 U.S. 152, 167-68 (1982) (failure to raise objection at trial); United States v. Griffin, 765 F.2d 677, 680 (7th Cir. 1985) (failure to raise multiplicity claim on direct appeal); Norris v. United States, 687 F.2d 899, 903-04 (7th Cir. 1982) (failure to raise issue on direct appeal). Unless Carbello can show cause for his failure to raise these issues previously, and resulting prejudice, we will not consider his claims.

Carbello asserts that he received ineffective assistance of counsel, which can serve as cause for failing to raise these claims earlier. Specifically, he claims that his attorney should have challenged the multiplicitous counts, either at trial or on direct appeal. The government contends that Carbello waived this particular allegation of ineffectiveness by failing to raise it on direct appeal. It is unclear from the record if his attorney on direct appeal was the same attorney who represented him at trial. If he was, Carbello cannot be faulted for his attorney's failure to argue his own ineffectiveness on appeal. United States v. Taglia, 922 F.2d 413, 418 (7th Cir. 1991). We therefore proceed to consider whether Carbello has shown cause through his attorney's alleged ineffectiveness.

To succeed in this regard, Carbello must first show that his attorney's failure to raise the multiplicity claim constituted representation that "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687 (1984). Although to determine this we must probe the merits of his attorney's decision not to raise a multiplicity claim, we indulge a strong presumption in favor of counsel's effectiveness. Id. at 689-90.

Carbello claims that he received unauthorized sentences because he was charged and sentenced for both simple possession of marijuana (21 U.S.C. § 844(a) (1)) and possession of marijuana with intent to distribute (21 U.S.C. § 841(a) (1)). Beyond this assertion, he offers no legal argument that the counts were multiplicitous. In any event, we note that the two counts were based on different substances. The charge of simple possession of marijuana related to a quantity of about 20 grams of marijuana. The charge of possession of marijuana with intent to distribute related to approximately 150 grams of a separate substance identified as "marijuana preparation," which is chemically the same as marijuana but in a different form. Because different facts were needed to establish violations of the two counts, the counts were not multiplicitous. Griffin, 765 F.2d at 682. In light of the preceding discussion, it is clear that Carbello has not overcome the strong presumption that his attorney rendered effective assistance.²  Because we find no attorney error, we conclude that Carbello has failed to demonstrate cause for failing to raise these issues earlier. As a result, we need delve no further into the merits of Carbello's multiplicity claim.³ 

For the foregoing reasons, the judgment of the district court denying Carbello's Sec. 2255 motion is AFFIRMED.