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Shegonee v. United States

United States District Court, E.D. Wisconsin

July 31, 2018

PAUL D. SHEGONEE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         Petitioner Paul D. Shegonee was found guilty by a jury on March 17, 2015 of one count of possessing a firearm as a felon and one count of stealing guns from a federally licensed gun store. (No. 14-CR-55-1, Docket #20 and #70). The trial was held by the late district judge Rudolph T. Randa. The case was reassigned to this branch of the Court on December 30, 2015, prior to sentencing. On February 9, 2016, this Court entered its judgment against Petitioner, imposing consecutive one-hundred month terms of imprisonment on the two counts of conviction. (No. 14-CR-55-1, Docket #108). Petitioner did not appeal.

         On January 12, 2018, Petitioner filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. (Docket #1). He asserts two grounds for relief. First, he alleges that his trial counsel was ineffective for failing to file an appeal or motion to vacate his sentence. Id. at 3-10. Second, he contends that the Court erred in imposing consecutive, rather than concurrent, terms of imprisonment. Id. at 11-13.

         On June 14, 2018, the Court ordered that Attorney Alexander Flynn (“Flynn”), who was Petitioner's counsel at the time of sentencing, file an affidavit detailing his discussions with Petitioner about his appellate rights and his decision not to appeal. (Docket #3). On June 27, 2018, Flynn filed an affidavit in compliance with the Court's order. (Docket #4).

         Petitioner's motion is now before the Court for screening:

If it plainly appears from the motion, any attached exhibits, and the record of the prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States Attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         Rule 4(b), Rules Governing § 2255 Proceedings.

         The Court will address each of Petitioner's grounds for relief in turn. For the reasons explained below, Petitioner's motion must be dismissed.

         2. ANALYSIS

         2.1 Ineffective Assistance of Counsel

         Generally, the Court begins the screening process by examining the timeliness of the motion and whether the claims therein are procedurally defaulted. However, as to Petitioner's ineffective assistance claim, the Court need not address those matters because the claim is plainly meritless.

         Under the familiar test announced in Strickland v. Washington for a Sixth Amendment ineffective assistance claim, a petitioner must show that his “counsel's representation ‘fell below an objective standard of reasonableness' and that he was prejudiced as a result.” Lee v. United States, 137 S.Ct. 1958, 1964 (2017) (quoting Strickland v. Washington, 466 U.S. 668, 688, 692 (1984)). In the first step, the court asks “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. The assessment of prejudice centers on whether there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

         An attorney's decision not to file an appeal is appropriate if he has consulted adequately with his client about the decision. Roe v. Flores-Ortega,528 U.S. 470, 478 (2000). “And of course, a defendant who instructs his attorney not to appeal cannot claim deficient performance when the attorney complies with his wishes.” Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015) (citing Flores-Ortega, 528 U.S. at 477). On the other hand, if an attorney has been instructed to appeal and inadvertently fails to do so, he “has ...


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