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Seifer v. United States

United States District Court, E.D. Wisconsin

September 20, 2017



          J. P. Stadtmueller, U.S. District Judge.

         1. INTRODUCTION

         On June 19, 2014, Petitioner Christopher A. Seifer (“Seifer”) was convicted by a jury of four counts of mail fraud and one count of theft of government property. On September 19, 2014, Seifer was sentenced to fifteen months imprisonment to be followed by three years of supervised release. (Docket #1 at 2). After his direct appeal concluded, Seifer filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on November 1, 2016. See generally Id. Respondent opposed the motion on May 3, 2017. (Docket #24). Seifer offered a reply on May 15, 2017. (Docket #27). For the reasons explained below, Seifer's motion must be denied.

         2. BACKGROUND

         In its opinion on Seifer's direct appeal, the Seventh Circuit succinctly described the basic facts of his case:

Seifer worked for the Bureau of Prisons at the Federal Correctional Institution in Oxford, Wisconsin. He injured his back on the job, and the Department of Labor's Office of Workers' Compensation Programs [(“OWCP”)] determined that he had a permanent work-related disability. This designation entitled him to reimbursement for travel expenses incurred for medical treatments. To obtain reimbursement Seifer completed and submitted a form OWCP-957. A private administrator, Xerox, processed these forms and issued Seifer reimbursement checks for trips to health clubs and gyms, where he reportedly was using heated pools to rehabilitate his back.
From March 2006 to October 2012, Seifer submitted more than 1, 300 reimbursement claims for travel to facilities with pools. Most of these claims were false. At the Prairie Athletic Club, for example, his reimbursement forms show 858 visits between March 2006 and August 2009, yet his key card was swiped only 17 times. At another club, Adventure 212, Seifer was not a member from February through April 2011, but during those months he purportedly had traveled to the club and used the pool 37 times. Overall, Seifer netted more than $80, 000 from his fraudulent travel claims.

United States v. Seifer, 800 F.3d 328, 329 (7th Cir. 2015).

         Seifer's instant motion offers two different theories as to why his trial counsel, Louis Sirkin (“Sirkin”), provided him ineffective legal assistance. First, Seifer contends that Sirkin failed to conduct a reasonable investigation into his defense. (Docket #1 at 6). Specifically, Seifer argues that Sirkin should have interviewed his wife, Cynthia Seifer (“Cynthia”), his stepson, Kevin Kern (“Kern”), and his neighbor, Dominic Ferraro (“Ferraro”), because each could have provided at least some corroboration of Seifer's testimony about making the therapy trips. (Docket #1-2 at 1-3; Docket #2 at 6-7). Second, Seifer maintains that Sirkin should have called each of these witnesses at trial to provide that testimony to the jury. (Docket #1 at 7). Seifer also alleges that Sirkin should have offered evidence of his automobile mileage during the relevant period as another potential source of corroboration. (Docket #1-2 at 3-4).[1]

         3. LEGAL STANDARD

         The Court of Appeal's Blake opinion neatly summarizes the standards applicable to Seifer's motion:

A party asserting ineffective assistance of counsel bears the burden of establishing two elements: (1) that his trial counsel's performance fell below objective standards for reasonably effective representation, and (2) that counsel's deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 . . . (1984)[.]
To satisfy the first element of the Strickland test, appellant must direct the Court to specific acts or omissions by his counsel. In that context, the Court considers whether in light of all the circumstances counsel's performance was outside the wide range of professionally competent assistance. The Court's assessment of counsel's performance is “highly deferential[, ] . . . indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” [Id. at 689.]
. . .
To satisfy the second Strickland element, appellant must show that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different, such that the proceedings were fundamentally unfair or unreliable. A reasonable probability is defined as one that is sufficient to undermine confidence in an outcome.

Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013) (citations and quotations ...

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