United States District Court, S.D. Indiana, Indianapolis Division
TREVOR J. SHEA, Movant,
UNITED STATES OF AMERICA
MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF
WILLIAM T. LAWRENCE, District Judge.
For the reasons explained in this Entry, the motion of Trevor J. Shea ("Mr. Shea") for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.
I. The § 2255 Motion
On September 13, 2011, Mr. Shea was charged in a three-count Information in the Southern District of Indiana. He was charged with sexually exploiting children/producing sexually explicit images of a minor, in violation of 18 U.S.C. §§ 2251(a) and 2251(e) in No. 1:11-cr-000169-WTL-KPF-1.
On September 14, 2011, Mr. Shea filed a petition to enter a plea of guilty. A plea agreement pursuant to Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure was filed the same day. Both filings were re-filed on September 27, 2011, as directed by the Magistrate Judge. On January 13, 2012, the Court conducted a hearing on Mr. Shea's petition to enter a plea of guilty. At the hearing, the Court confirmed that Mr. Shea understood the rights he relinquished if he pled guilty. The Court heard the factual basis for the plea and determined that the plea was voluntarily and knowingly made. The Court accepted Mr. Shea's plea of guilty and adjudged him guilty as charged.
A sentencing hearing was held on the same day. The Court sentenced Mr. Shea to a total term of 396 months, with 360 months per count, all concurrent, plus an additional 12 months on each count, for a total of 36 months, consecutive, to be served concurrently with the term imposed in No. 1:10-cr-0096-WTL-DKL-1, to be followed by a lifetime of supervised release. Judgment was entered on the docket on January 20, 2012.
Mr. Shea appealed his sentence, however, after the appeal was docketed, counsel moved to withdraw and moved to dismiss the appeal as frivolous with an Anders brief. United States v. Shea, 493 Fed.Appx. 792, 2012 WL 4373430, Nos. 12-1190 and 12-1191 (7th Cir. Sept. 26, 2012). The Seventh Circuit discussed Mr. Shea's pro se challenges to his sentence and held that the possible errors identified by Mr. Shea "had no effect on his guidelines range." Id. at p. 4. The Seventh Circuit added that his total offense level was, in fact, "probably understated" and that Mr. Shea's sentence of 33 years was "significantly below the guidelines sentence and entitled to a presumption of reasonableness." Id. The motion to withdraw was granted and the appeals were dismissed. Id.
On December 16, 2013, Mr. Shea filed his motion for relief pursuant to 28 U.S.C. § 2255. The United States has responded and Mr. Shea has replied.
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). In his § 2255 motion, Mr. Shea asserts that trial counsel was ineffective during sentencing and for filing an Ander's brief. The United States argues that Mr. Shea's § 2255 claims lack merit.
Ineffective Assistance Claims
All of Mr. Shea's claims of ineffective assistance of counsel relate to sentencing and direct appeal. He first argues that counsel was ineffective in a number of ways related to his sentence: 1) failing to object to the guidelines range applied; 2) failing to object when the district court imposed a consecutive sentence which extended beyond the statutory maximum; 3) failing to object to the misapplication of the section 3147 enhancement; 4) failing to object to the Probation Officer's recommendation that Mr. Shea should not receive a reduction in offense level for acceptance of responsibility; 5) failing to seek a downward variance based on a diminished capacity; 6) failing to object to sentencing enhancements that were demonstrably untrue; and 7) misadvising Mr. Shea about the victim impact statement and psychotherapist report.
The right to effective assistance of counsel is violated when the performance of counsel falls below an objective standard of reasonable professional conduct and prejudices the defense. Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). For Mr. Shea to establish that his "counsel's assistance was so defective as to require reversal" of his conviction, he must make two showings: (1) deficient performance that (2) prejudiced his defense. Strickland, 466 U.S. at 687. "To reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, our review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014) (internal quotation omitted). To establish prejudice, a petitioner 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." Id. (internal ...