Viren v. United States of America

Filing 6

ORDER entered by Chief Judge Sara Darrow on March 10, 2021. Petitioner Shane A. Viren's 1 Petition for § 2255 Relief is DENIED. The Clerk is directed to enter judgment and close the case. (AK)

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E-FILED

Wednesday, 10 March, 2021 02:22:33 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
SHANE A. VIREN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:17-cv-04335-SLD

ORDER
Before the Court is Petitioner Shane A. Viren’s Petition for § 2255 Relief, ECF No. 1.
For the reasons that follow, the petition is DENIED.
BACKGROUND 1
Viren was charged by complaint with violating 18 U.S.C. §§ 2251(a) and (e). Compl.,
Cr. ECF No. 1. Later, the grand jury returned a four-count indictment against him, charging him
with three counts of sexual exploitation of a minor in violation of 18 U.S.C. §§ 2251(a) and (e)
and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B)
and (b)(2). Indictment 1–3, Cr. ECF No. 13. The Court appointed George Taseff to represent
Viren. Cr. July 18, 2013 Minute Entry. On Viren’s request, see Cr. July 22, 2013 Minute Entry,
the Court ordered an evaluation to determine his competency to stand trial and sanity at the time
of the alleged offenses, Order Psychiatric Psychological Examination 1, Cr. ECF No. 11. An
evaluation was completed at Metropolitan Correctional Center (“MCC”) Chicago (“the MCC
evaluation”). After reviewing the MCC evaluation, the Court found Viren competent to stand
trial. Cr. Dec. 5, 2013 Minute Entry.

1

References to Viren’s underlying criminal case, United States v. Viren, 4:13-cr-40057-SLD, take the form: Cr. ___.

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Viren pleaded guilty to all counts of the indictment without a plea agreement. Cr. Feb.
19, 2015 Minute Entry. 2 The sentencing hearing was held on May 7, 2015. Cr. May 7, 2015
Minute Entry. The Fourth Revised Presentence Investigation Report (“PSR”) states that police
received a complaint from an adult woman that Viren had raped her three years prior, taken nude
pictures of her, and used them to pressure her to have sex with him. PSR ¶ 8, Cr. ECF No. 33. 3
The woman reported that she had observed Viren in possession of a pornographic image of a girl
who was approximately sixteen years old and that Viren had a lot of naked pictures that he kept
on phones, computers, and memory cards. Id. Agents executed a search warrant at Viren’s
apartment the same day they received the complaint. Id. ¶ 9. They located over 800 images and
130 videos of child pornography on Viren’s devices, including approximately ten images of
bondage and two images of bestiality. Id. They also located three pictures of infant genitalia,
two of which depicted adult fingers touching the genitalia, which Viren later admitted to taking.
Id. ¶¶ 9–11. Two of the pictures depicted his girlfriend’s nieces and one depicted his daughter;
he admitted to touching these minors’ genitals. Id. ¶¶ 10–11. The PSR also states that the MCC
evaluation found Viren met the criteria of mild persistent depressive disorder and pedophilic
disorder (sexually attracted to females). Id. ¶ 79. It noted that, during interviews for the MCC

The parties initially negotiated a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Plea
Agreement, Cr. ECF No. 18. Under Rule 11(c)(1)(C), the parties may “agree that a specific sentence or sentencing
range is the appropriate disposition of the case,” which binds the court if it accepts the plea agreement. The parties
agreed that Viren’s term of imprisonment would be no longer than thirty years (360 months). Plea Agreement
¶ 19(c). On April 3, 2014, Viren entered a plea of guilty to all counts of the indictment, but the Court neither
accepted nor rejected the plea agreement. Cr. Apr. 3, 2014 Minute Entry. After a presentence investigation report
had been completed, see Cr. ECF No. 22, the Court rejected the plea agreement, Cr. Aug. 14, 2014 Minute Entry.
The Court explained that it “w[ould] not accept the 360-month cap” and gave Viren the opportunity to withdraw his
guilty plea. Aug. 14, 2014 Hr’g Tr. 2:19–22, Cr. ECF No. 47. Viren withdrew his guilty plea, Cr. Sept. 4, 2014
Minute Entry; Cr. Sept. 4, 2014 Text Order, and subsequently pleaded guilty without an agreement.
3
This version of the presentence investigation report was filed after the hearing and incorporates revisions made
based on objections that were resolved at the hearing which are not relevant to this motion.
2

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evaluation, he “engaged in much denial, minimization and projection of blame onto others for his
behaviors, particularly his sexual misconduct.” Id. ¶ 78.
Because Viren had a prior conviction for sexual assault (of a woman with cerebral palsy
who uses a wheelchair), id. ¶ 66, he was subject to a twenty-five-year mandatory minimum on
the sexual exploitation charges, id. ¶ 89; 18 U.S.C. § 2251(e). The Sentencing Guidelines range
for the sexual exploitation charges was fifty years or 600 months; it would have been life in
prison but was capped at the statutory maximum. Sentencing Hr’g Tr. 7:10–12; 7:20–24, Cr.
ECF No. 51; PSR ¶¶ 89, 91; see 18 U.S.C. § 2251(e). The Sentencing Guidelines range for the
child pornography charge was also the statutory maximum: twenty years or 240 months.
Sentencing Hr’g Tr. 7:12–14; PSR ¶¶ 90, 91; see 18 U.S.C. § 2252A(b)(2).
Viren submitted letters from his mother and his girlfriend, see Letters, Cr. ECF No. 30-1,
and a sentencing memorandum which made objections to the PSR, see Def.’s Commentary
Sentencing Factors, Cr. ECF No. 30, in advance of sentencing. He called his brother, Michael
Viren, to testify at the hearing. See Sentencing Hr’g Tr. 11:12–34:20. Michael testified that
Viren helped him perform maintenance around the apartment building he owned and helped him
work on cars. E.g., id. at 19:7–10, 25:18–22. He also testified that he “almost didn’t recognize”
Viren anymore because he looked so pale, thin, and old, id. at 23:11–24:7, and that he thought
Viren had “a sickness,” id. at 29:21, needed “professional help,” id. at 29:22, and that he hoped
Viren was ready to accept treatment, id. at 30:18–24. Counsel for Viren argued that the
mandatory minimum of twenty-five years was sufficient because “it [would be] tantamount to
life.” E.g., id. at 44:4. He noted that Viren was not in good health and was “ageing rapidly” and
would be serving his time in maximum security. Id. at 44:3–10, 46:15–22.

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The Court explained that it had given Viren’s case “great consideration.” Id. at 50:4–5.
It found “[t]he volume of th[e] images [found on Viren’s devices] . . . bothersome” and “[t]he
content . . . horrific.” Id. at 50:15–17. And it found “the fact that there were 130 videos . . .
incredibly concerning.” Id. at 50:17–18. It also highlighted that his offense “involved three
hands-on victims on separate occasions,” id. at 57:1–2, and that Viren had “violated. . . . one of
the most sacred relationships that humans can have” by exploiting his own daughter, id. at
52:21–24. Looking to Viren’s personal history and characteristics, the Court acknowledged his
mother, brother, and girlfriend’s comments that “there is goodness in [him].” Id. at 54:21–24.
But it found that the goodness in Viren was “completely overshadowed with this sickness inside
of [him].” Id. at 54:25–55:1. It noted the MCC evaluation’s diagnosis of pedophilia and found
“worrisome . . . that [he] made comments through [his] evaluation to minimize the damage that
was done[ and] to minimize [his] behavior.” Id. at 55:5–8. It explained that the fact that he had
done this before—sexually assaulting a vulnerable victim—was “driving in large part the
dramatic sentence in this case.” Id. at 55:11–56:7; id. at 56:12–15 (“You have a record here of
preying upon vulnerable victims and sexually assaulting them over and over again, that’s the
common theme in this offense.”). The Court noted that “with [Viren’s] . . . record, [his]
diagnosis, [it] ha[d] very, very minimal belief that [Viren] wo[uld]n’t re-offend.” Id. at 56:19–
21. The Court sentenced Viren to 600 months, or fifty years, of custody—600 months on the
exploitation counts and 240 months on the child pornography offense, to be run concurrently—
and twenty years of supervised release. Id. at 58:1–13; Judgment 1–3, Cr. ECF No. 34.
Viren appealed, Not. Appeal, Cr. ECF No. 37, and the Seventh Circuit affirmed his
sentence, United States v. Viren, 828 F.3d 535, 537 (7th Cir. 2016). 4 Viren then filed a motion
Neither argument made on appeal is relevant to this motion, but for completeness, the Court briefly describes them.
Viren argued first that the Court “abused its discretion by failing to explain why it rejected his initial written plea

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asking the Court to appoint him an attorney for purposes of filing a motion under 28 U.S.C.
§ 2255, Mot. Request Counsel, Cr. ECF No. 57, which the Court granted, Cr. Apr. 20, 2017 Text
Order. On Viren’s behalf, counsel filed the instant Petition for § 2255 Relief, which raises one
claim: that defense counsel provided ineffective assistance of counsel by failing to obtain a
psychosexual evaluation and failing to present evidence of Viren’s psychosexual disorder as
mitigation evidence at sentencing. Pet. § 2255 Relief 3. He requests that the Court “order a
psychosexual evaluation to be conducted in anticipation of” an evidentiary hearing on his claim.
E.g., id. at 7.
DISCUSSION
I.

Request for Court-Funded Expert
Prior to filing the Petition for § 2255 Relief, but after counsel was appointed, Viren asked

the Court to authorize fees for an expert pursuant to 18 U.S.C. § 3006A(e). Mot. Expert Fees,
Cr. ECF No. 58. The Court denied the request. Cr. Aug. 10, 2017 Text Order. Viren filed a
motion to reconsider, Mot. Reconsider Denial, Cr. ECF No. 59, and the Court denied that motion
as well, Cr. Aug. 15, 2017 Text Order. It noted, however, that “[s]hould [Viren] adequately
explain, in detail, in his petition for relief under 28 U.S.C. § 2255, what reason he has to believe
that his previous counsel was ineffective for failing to retain an expert to evaluate him for sexual
psychopathy, the Court may consider a properly filed request at that time.” Id. (quotation marks
omitted).
The Court is not convinced Viren has made a properly filed request—indeed, he did not
even file a separate motion requesting authorization of fees for an expert in this case; he merely

agreement” and second that the Court erred when calculating his criminal history category under the Sentencing
Guidelines. Viren, 828 F.3d at 536. The Seventh Circuit rejected the first argument, id. at 538–39, and explained
that even though the Court did err in calculating the criminal history category, it did not affect Viren’s substantial
rights because it would not have changed his Sentencing Guidelines range, id. at 539–40.

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states that he “renews his request for a psychosexual evaluation to be ordered to support []his
claim that he has a psychosexual condition and that this evidence would have been mitigating
evidence at sentencing.” Pet. § 2255 Relief 5–6. He neither cites the statute and relevant case
law nor makes any legal argument as to why the Court is authorized to or should fund an expert
or order a psychosexual evaluation. In any case, the Court can glean Viren’s general argument
from his prior motions and his instant motion.
a. 18 U.S.C. § 3006A(e)(1) in § 2255 Proceedings
18 U.S.C. § 3006A(a)(2) allows a court to appoint counsel to a financially eligible person
seeking relief under 28 U.S.C. § 2255 when “the interests of justice so require.” “Representation
. . . shall include counsel and investigative, expert, and other services necessary for adequate
representation.” Id. § 3006A(a). Section 3006A(e)(1) provides that “[c]ounsel for a person who
is financially unable to obtain investigative, expert, or other services necessary for adequate
representation may request them.” 5 If the court finds that the services are necessary and that the
person is financially unable to obtain them, the court “shall authorize counsel to obtain the
services.” Id. At least one court has held that because § 3006A(e)(1) does not mention § 2255, it
does not provide statutory authorization for funding an expert in § 2255 proceedings. See United
States v. Turner, No. 3:08cr141-DPJ-LRA, 2016 WL 5887760, at *5 (S.D. Miss. Oct. 7, 2016)
(“Title 18 U.S.C. § 3006A(e) . . . applies to appointment of an expert in the trial and sentencing
of indigent defendants and makes no mention of § 2255. . . . Absent statutory authority for

More comprehensively, 18 U.S.C. § 3006A(e)(1) provides that counsel “may request [funding for experts or other
services] in an ex parte application” and that “[u]pon finding, after appropriate inquiry in an ex parte proceeding,
that the services are necessary and that the person is financially unable to obtain them, the court . . . . shall authorize
counsel to obtain the services.” Viren filed his request on the public docket with notice to the United States, so the
Court finds it unnecessary to dispose of this motion ex parte. Moreover, though the statute suggests a “proceeding”
to determine necessity and financial eligibility, id., a district court need not conduct a hearing “when the outcome is
readily apparent,” United States v. Winbush, 580 F.3d 503, 510 (7th Cir. 2009). The Court finds a hearing
unnecessary in this case.
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appointment of an expert in this context, the Court finds the request unwarranted and denies it.”).
Other courts, however, have relied on § 3006A(e)(1) to authorize funds for experts, investigators,
or other services in habeas proceedings. See Foy v. United States, 285 F.R.D. 407, 410–11 (N.D.
Ia. 2012) (authorizing funds for an expert to evaluate the petitioner in a § 2255 proceeding,
though noting that a request for payment of fees above a certain amount must be approved by the
Chief Judge of the Eighth Circuit Court of Appeals); Gonzalez v. United States, No. 3:17-cv603-M-BN, 2017 WL 1231689, at *2–3 (N.D. Tex. Apr. 4, 2017) (authorizing funds for a
translator under § 3006A(e)(1) for an indigent § 2255 petitioner). Others have considered
requests for fees for experts or other services by habeas petitioners under § 3006A(e) but denied
them on the merits. See United States v. Stallings, 380 F. Supp. 3d 458, 459–60 (M.D. Pa. 2019)
(denying a § 2255 movant’s request for funds under 18 U.S.C. § 3006A(e)(1) but noting that the
court could authorize funds if the movant had a plausible defense); Starks v. Meisner, No. 14-cv844-jdp, 2016 WL 1259434, at *2 (W.D. Wis. Mar. 30, 2016) (noting, in a § 2254 case, that “if
[the court] determine[s] that expert services are necessary to [the petitioner’s] habeas case, [the
court] may authorize an attorney to secure expert services” under § 3006A(e)(1), though
ultimately denying the motion for lack of necessity); United States v. Slagg, No. 3:09-cr-69-1,
2012 WL 12985838, at *1–2 (D.N.D. May 25, 2012) (applying § 3006A(e)(1) to a § 2255
petitioner’s request for a handwriting expert but denying the request on the merits because the
requested expert would not help resolve the “salient question in th[e] case”). And others have
suggested that habeas petitioners with counsel appointed under § 3006A may be granted funds
for experts or other services but questioned whether the same applies to pro se habeas petitioners.
See Edwards v. Miller, No. 14cv0429 JAH(KSC), 2016 WL 3092088, at *22 (S.D. Cal. June 2,
2016) (explaining that because the petitioner was “proceeding pro se and the [c]ourt ha[d] not

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determined that the interests of justice require[d] appointment of counsel . . . he [wa]s likely
ineligible to receive f[u]nding for investigative services under § 3006A(e)(1)); Covarrubias v.
Gower, No. C-13-4611 EMC (pr), 2014 WL 342548, at *1–2 (N.D. Cal. Jan. 28, 2014)
(indicating that because the court did not determine that the interests of justice required
appointment of counsel, the petitioner “would appear to be textually ineligible to request funding
for other services (such as private investigators) that ‘counsel’ may request under § 3006A(e)(1)”
and declining to decide whether Ninth Circuit case law providing that a self-represented criminal
defendant could be reimbursed for costs under § 3006A applied to pro se indigent habeas
petitioners too).
This Court concludes that because § 3006A(a) indicates that “[r]epresentation . . . shall
include counsel and investigative, expert, and other services necessary for adequate
representation” and because § 3006A(e)(1) does not limit the Court to authorizing funds only in
direct criminal proceedings, a § 2255 petitioner with counsel appointed under § 3006A(a)(2),
like Viren, may receive funds for an expert. But this is not the end of the analysis: Viren must
demonstrate why the Court should authorize funding for an expert in this case.
b. Necessity of Expert Services
Funding for an expert may only be authorized if “necessary for adequate representation.”
18 U.S.C. § 3006A(e)(1). “An expert’s services are typically necessary if a reasonable attorney
would engage such services for a client having the independent financial means to pay for them.”
United States v. Winbush, 580 F.3d 503, 509 (7th Cir. 2009) (quotation marks omitted).
Applying this standard too literally, however, “may require the government to finance a fishing
expedition.” Id. (quotation marks omitted). “Consequently, a district court should satisfy itself
that the defendant has a plausible defense before granting a request for expert assistance.” Id.

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Moreover, in a § 2255 proceeding, a petitioner must show good cause for discovery. See Rule
6(a), Rules Governing § 2255 Proceedings; see Foy, 285 F.R.D. at 408–09, 410–11 (considering
whether there was good cause to order a psychological evaluation under Rule 6(a) in a § 2255
proceeding in addition to applying § 3006A(e)(1)’s necessity requirement); cf. Miller, 2016 WL
3092088, at *22 (considering, assuming that a pro se habeas petitioner could receive funding for
a private investigator under § 3006A(e)(1), whether the petitioner had shown good cause to
permit discovery under Rule 6(a)). In this context, good cause exists “where specific allegations
before the court show reason to believe that the petitioner may, if the facts are fully developed,
be able to demonstrate that he is . . . entitled to relief.” Bracy v. Gramley, 520 U.S. 899, 908–09
(1997) (quotation marks omitted) (alteration in original). Speculation does not constitute good
cause. Jones v. United States, 231 F. App’x 485, 488 (7th Cir. 2007).
The only argument Viren makes as to why a psychologist is necessary to adequate
representation is that “it will be difficult for [him] to prove prejudice under the second prong of
Strickland if an expert is not appointed to produce the type of opinion that should have been
presented as mitigation evidence at sentencing.” Mot. Expert Fees ¶ 7; Pet. § 2255 Relief 6
(“Viren acknowledges that, without a psychosexual evaluation in hand, it is difficult to prove that
the outcome of the sentencing hearing would have been different had such a psychosexual
evaluation been obtained and presented to the court in mitigation at sentencing. Viren again
renews his request for such an evaluation . . . .”). This argument is quite circular: Viren wants
the Court to authorize funds for an expert so that he can prove that counsel should have obtained
an expert. And if Viren’s reasoning were sufficient to show necessity, any financially eligible
§ 2255 petitioner could assert that counsel was ineffective for failing to obtain an expert and then
obtain funds for an expert because, of course, it is difficult to prove that there is a reasonable

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probability that expert testimony would have changed the result of the proceeding without
knowing what the expert would say. See United States v. Traeger, 289 F.3d 461, 472 (7th Cir.
2002) (“A defendant’s speculation about what evidence might have been found is insufficient to
demonstrate prejudice—he must show what the evidence would have been and how it would
have produced a different result.”); United States v. Anderson, 61 F.3d 1290, 1298–99 (7th Cir.
1995) (“Neither the record nor Mr. Anderson suggests how his purported rebuttal witnesses
would have testified or how they could have changed the result in this case. Accordingly, we
cannot conclude that Mr. Anderson’s trial counsel rendered ineffective assistance by failing to
call these unnamed witnesses.”). This cannot be the standard.
Viren makes no specific allegations explaining why he thinks a psychosexual evaluation
would be favorable to him or what he thinks it will prove. In his reply—in response to the
United States’ argument that he did not explain what information a psychosexual evaluation
could have produced that would have changed the sentence imposed, Resp. 13–14, ECF No. 3—
Viren states: “[a] psychosexual evaluation performed by a licensed psychologist specializing in
this area of practice would shed light not on [his] history of sexual offending . . . but on why he
has offended in the first place.” Reply ¶ 6, ECF No. 4. He then lists some possibilities:
“[p]erhaps [he] was victimized himself in the past; perhaps he has an organic brain injury;
perhaps he is mildly mentally retarded; perhaps he has some other psychological condition that
was not diagnosed in [the] competency evaluation . . . that has made him more likely to commit
sex offenses.” Id. But this is mere speculation about what the report could say, which is
insufficient to show that the expert is necessary or that there is good cause to allow the
evaluation. See Stallings, 380 F. Supp. 3d at 459–460 (denying a request for funds in a § 2255
proceeding wherein the petitioner argued that counsel was ineffective for failing to use an expert

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to challenge causation in a heroin distribution resulting in death case because it was “based on
pure speculation regarding what a counter-expert might opine”). Viren provides nothing that
would suggest that an expert report would uncover any of these reasons. He did not submit an
affidavit attesting, for instance, that he has been victimized, that medical professionals
throughout his life have suggested that he has any of these conditions, or that he suffers from
symptoms of these conditions. Moreover, the record belies at least a few of these potential
reasons: Viren denied any history of physical or sexual abuse in the MCC evaluation, and the
intellectual functioning testing performed in that evaluation reflected no significant deficits. And
it is not clear how a psychologist would diagnose an organic brain injury.
The Court is not persuaded that Viren has met his burden to show that an expert is
necessary to representation. The request for funds for an expert under § 3006A(e)(1) is therefore
DENIED.
II.

Petition for Relief Under 28 U.S.C. § 2255
a. Legal Standard
A prisoner in federal custody may move the court that imposed his sentence to vacate, set

aside, or correct it. 28 U.S.C. § 2255(a). “[R]elief under § 2255 is an extraordinary remedy
because it asks the district court essentially to reopen the criminal process to a person who
already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521
(7th Cir. 2007). Accordingly, such relief “is available only when the ‘sentence was imposed in
violation of the Constitution or laws of the United States,’ the court lacked jurisdiction, the
sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral
attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C.
§ 2255(a)).

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b. Analysis
Viren raises one claim: that counsel was ineffective for failing to obtain a psychosexual
evaluation and to present evidence of his psychosexual disorder as mitigation evidence at
sentencing. Pet. § 2255 Relief 3. The United States argues that Viren’s claim is meritless. E.g.,
Resp. 1.
The Sixth Amendment guarantees criminal defendants the right to the effective assistance
of counsel. U.S. Const. amend. VI. Claims of ineffective assistance of counsel are generally
subject to the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). This
test requires a petitioner to show that his counsel’s performance “fell below an objective standard
of reasonableness” and that he suffered prejudice as a result. Id. at 688, 692. The court applies
“a strong presumption that decisions by counsel fall within a wide range of reasonable trial
strategies.” United States v. Shukri, 207 F.3d 412, 418 (7th Cir. 2000) (quotation marks
omitted). The petitioner “must rebut this presumption by proving that his attorney’s
representation was unreasonable under prevailing professional norms and that the challenged
action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). To
demonstrate prejudice, the petitioner “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
The Supreme Court recognized a “narrow exception to Strickland[],” Florida v. Nixon,
543 U.S. 175, 190 (2004), in United States v. Cronic, 466 U.S. 648, 658 (1984). In Cronic, the
Court held that “[t]here are . . . circumstances that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjustified.” Id. In these cases, prejudice is
presumed. See id. at 661. The Cronic Court recognized three circumstances in which prejudice

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can be presumed: first, when a defendant is “complete[ly] deni[ed] . . . counsel . . . . at a critical
stage of . . . trial”; second, when “counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing”; and third, when “the likelihood that any lawyer, even a fully
competent one, could provide effective assistance is so small that a presumption of prejudice is
appropriate without inquiry into the actual conduct of the trial.” Id. at 659–60.
i. Cronic
Viren argues that the Court should apply Cronic to his case. Pet. § 2255 Relief 5–7. He
argues that his counsel failed to subject the prosecution’s case to adversarial testing because
counsel did not adduce “professional evidence” of Viren’s psychosexual condition or
“professional evidence to mitigate” the United States’ contention that Viren was one of the most
serious child pornography offenders the Court had sentenced. Id. at 6–7.
This is clearly a nonstarter. “When [the Supreme Court] spoke in Cronic of the
possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, [it]
indicated that the attorney’s failure must be complete.” Bell v. Cone, 535 U.S. 685, 696–97
(2002). Here, Viren acknowledges that his counsel did put on mitigation evidence. See Pet.
§ 2255 Relief 6 (noting that “trial counsel presented two letters from Viren’s mother and
girlfriend and the testimony of Viren’s brother, Michael”). Though Viren fails to acknowledge
it, counsel also objected to the PSR and zealously advocated for imposition of the mandatory
minimum and against a higher sentence. Moreover, though he faults counsel for providing no
professional evidence to support Michael’s testimony that Viren had “a sickness,” Sentencing
Hr’g Tr. 29:21, the Court had the MCC evaluation which diagnosed Viren with pedophilia, so
there was professional evidence that he had a psychosexual condition available at sentencing.
Because Viren is only challenging counsel’s failure to contest the United States’ case in specific

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ways, it is not appropriate to presume prejudice under Cronic. See Bell, 535 U.S. at 697
(“[R]espondent’s argument is not that his counsel failed to oppose the prosecution throughout the
sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For
purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is
not of degree but of kind.”); id. at 697–98 (“The aspects of counsel’s performance challenged by
respondent—the failure to adduce mitigating evidence and the waiver of closing argument—are
plainly of the same ilk as other specific attorney errors we have held subject to Strickland’s
performance and prejudice components.”); Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007)
(“[C]ourts have rarely applied Cronic, emphasizing that only non-representation, not poor
representation, triggers a presumption of prejudice.” (citing cases)); United States v. Holman,
314 F.3d 837, 839 n.1 (7th Cir. 2002) (“Cronic only applies if counsel fails to contest any
portion of the prosecution’s case; if counsel mounts a partial defense, Strickland is the more
appropriate test.”); cf. Miller, 481 F.3d at 473 (presuming prejudice under Cronic where during
sentencing, counsel merely moved for a new trial and explained he would not participate in the
proceedings and offered no mitigating evidence, did not object to the presentence investigation
report, and did not “even lobby for a sentence lower than the one urged by the State”).
Strickland is the appropriate standard to apply in this case.
ii. Strickland
1. Deficient Performance
Viren argues that counsel’s performance was deficient because he “failed to obtain a
psychosexual evaluation and present the evidence contained within that evaluation as mitigation
evidence at sentencing.” Pet. § 2255 Relief 5. He cites to Patrasso v. Nelson, 121 F.3d 297,
303–04 (7th Cir. 1997), for support. Pet. § 2255 Relief 5. In that case, the Seventh Circuit noted

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the general principle that “[c]ounsel must make a significant effort, based on reasonable
investigation and logical argument, to mitigate his client’s punishment.” Patrasso, 121 F.3d at
303–04 (quoting Eddmonds v. Peters, 93 F.3d 1307, 1319 (7th Cir. 1996)). Viren argues that
counsel did not do so because he failed to obtain a psychosexual evaluation, which he “believes .
. . would show that he suffered from a psychosexual condition that could explain or mitigate his
actions.” Pet. § 2255 Relief 5.
But Viren’s counsel did conduct an investigation and make a significant effort to mitigate
his punishment. He called Viren’s brother to testify and submitted letters from Viren’s mother
and girlfriend. He also submitted a sentencing memorandum which made objections to the PSR
and argued strenuously for the Court to impose the mandatory minimum because it would be
tantamount to a life sentence. True, he did not argue that Viren’s psychosexual condition was
mitigating or seek out a psychosexual evaluation to obtain evidence beyond the pedophilia
diagnosis. But “counsel’s strategic choices generally do not support a claim of ineffective
assistance.” Patrasso, 121 F.3d at 304. “Such choices include whether to submit mitigation
evidence and what type of evidence to submit.” Id. And at least a few courts have found that the
decision whether to obtain a psychosexual evaluation for sentencing is “entirely within counsel’s
exercise of reasonable professional judgment.” Griffis v. United States, No. CV 115-176, 2017
WL 1709316, at *8 (S.D. Ga. Feb. 16, 2017) (citing Meyer v. United States, Crim No. 4:07-cr01181-TLW & C/A No. 4:13-cv-00213-TLW, 2015 WL 178118, at *4 (D.S.C. Jan. 14, 2015),
and Watters v. United States, No. 11-cv-1181, 2011 WL 3563168, at *3 (C.D. Ill. Aug. 15,
2011)). This Court agrees.
Viren has done nothing to rebut the presumption that the decision not to seek a
psychosexual evaluation was a reasonable strategic decision. Counsel already knew from the

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MCC evaluation that Viren met the criteria for pedophilia, so there was no need to obtain further
professional evidence merely to determine whether he had a psychosexual condition. And as the
United States points out, “Viren’s counsel may have exhibited learned sentencing strategy by not
obtaining and entering such an evaluation into evidence.” Resp. 14–15. During the MCC
evaluation, Viren minimized and denied his behavior and blamed others. See PSR ¶ 78. The
Court found this “worrisome.” Sentencing Hr’g Tr. 55:6. A second evaluation that
demonstrated minimization and blaming others—or one that suggested Viren had a high risk to
recidivate based on his hands-on offenses or minimization—would not be helpful mitigation
evidence; instead, it would likely be aggravating. Cf. Watters, 2011 WL 3563168, at *3 (“If the
psychological evaluation had resulted in a diagnosis of a dangerous mental disorder such as
pedophilia or in an opinion that Petitioner was at a high risk of re-offending, then such evidence
could have been used against her at sentencing.”).
The Court will not find counsel ineffective for failing to obtain a psychosexual evaluation
where there was already a pedophilia diagnosis in the record, Viren previously deflected blame
during a psychological evaluation, and counsel did make a significant effort to mitigate Viren’s
sentence. See Clemons v. McAdory, 58 F. App’x 657, 661–62 (7th Cir. 2003) (disagreeing with
the district court that sentencing counsel was ineffective for failing to investigate and put on
testimony from the petitioner’s mother and brother because “although [the petitioner] argues that
trial counsel did not investigate mitigating evidence for sentencing, the record indicates
otherwise” as “trial counsel argued that Clemons had a difficult upbringing, only nonviolent
crimes were in his criminal history, he wanted to get his high school diploma, he had been
working odd jobs, and . . . he ultimately could be a useful citizen”); Williams v. United States,
No. 09 C 3329, 2010 WL 3307070, at *6 (N.D. Ill. Aug. 19, 2010) (noting that an attorney’s

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efforts to mitigate the petitioner’s sentence—which included filing factual objections to the
presentence investigation report, collecting nineteen character letters, and bringing to the court’s
attention the petitioner’s post-conviction rehabilitative efforts, lack of a criminal record, work
history, and non-recidivist character—“all reflect that [counsel] acted well within the wide range
of reasonable professional assistance”).
2. Prejudice
Even assuming Viren could prove that counsel’s decision not to seek a psychosexual
evaluation constituted deficient performance, he still must show that there is “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. As he acknowledges, without any information
about what the psychosexual evaluation would have uncovered, “it is difficult to prove that the
outcome of the sentencing hearing would have been different.” Pet. § 2255 Relief 6. “A
defendant’s speculation about what evidence might have been found is insufficient to
demonstrate prejudice—he must show what the evidence would have been and how it would
have produced a different result.” Traeger, 289 F.3d at 472; see Anderson, 61 F.3d at 1298–99.
And, as the Court explained above, see supra Section I(b), Viren is merely speculating about
what a psychosexual evaluation would have stated. Absent any indication of what a
psychosexual evaluation would uncover, the Court cannot find that Viren has met his burden to
establish prejudice.
III.

Hearing
The court must hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and

the . . . record[] . . . conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.
§ 2255(b). This means that “a district court must grant an evidentiary hearing when the

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petitioner alleges facts that, if proven, would entitle him to relief.” Kafo v. United States, 467
F.3d 1063, 1067 (7th Cir. 2006) (quotation marks omitted). No hearing is required, however, “if
the petitioner makes allegations that are vague, conclusory, or palpably incredible, rather than
detailed and specific.” Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (quotation
marks omitted).
No hearing is necessary in this case. Viren has not alleged facts that, if proven, would
demonstrate that counsel performed deficiently by failing to obtain a psychosexual evaluation or
that such an evaluation would have produced mitigating evidence such that there is a reasonable
probability he would have been sentenced to less time.
IV.

Certificate of Appealability
When a district court enters a final order adverse to an applicant, it must issue or deny a

certificate of appealability. Rule 11(a), Rules Governing § 2255 Proceedings. A court can grant
a certificate of appealability “only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Viren has not made such a showing. The
Court, therefore, declines to issue a certificate of appealability.
CONCLUSION
Accordingly, Petitioner Shane A. Viren’s Petition for § 2255 Relief, ECF No. 1, is
DENIED. The Clerk is directed to enter judgment and close the case.
Entered this 10th day of March, 2021.
s/ Sara Darrow
SARA DARROW
CHIEF UNITED STATES DISTRICT JUDGE

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