PAUL, JOHN E. v. USA

Filing 4

ORDER that petitioner has until 2/25/09 to file an affidavit in response to this order. The government has until 3/18/09 to submit an affidavit from petitioner's attorney in the criminal matter in reply to petitioner's submission. Signed by Chief Judge Barbara B Crabb on 2/3/09. (elc)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, ORDER Plaintiff, 0 8 - cv -7 0 7 - b b c 0 7 - cr -7 9 - b b c v. JO H N E. PAUL, D efendan t. --------------------------------------------D efen d a n t John E. Paul has moved for vacation of his sentence under 28 U.S.C. § 2255 , contending that he was denied the effective assistance of counsel during his criminal p ro ceed in gs. He alleges that his counsel (1) failed to advise the court that defendant did not have a prior conviction for fleeing an officer; (2) failed to object to the government's argum ent that defendant's criminal history did not over-represent the likelihood that d efen dan t would continue to commit crimes; (3) failed to object to the court's statement that defendant had been on probation at the time he committed the offense for which he w as being sentenced; and (4) failed to include in the appeal from defendant's sentence a ch allen ge to the sentencing court's determination that defendant was not entitled to a

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dow nw ard departure because his criminal history over-represented the likelihood that he w ou ld re-offend. To succeed on a claim of constitutionally ineffective assistance of counsel, a defendant m u st show both that his counsel's representation of him fell below an objective standard of reasonableness and that there is a reasonable probability that but for the unprofessional erro rs, the outcome of the proceeding would have been different. Strickland v. Washington, 4 6 6 U.S. 668 (1984). If defendant is correct that he advised his attorney that he had not been convicted of fleeing an officer and had been discharged from probation before he co m m itted the crimes for which he was charged in this case and if his attorney did not investigate the allegedly inaccurate information in the presentence report, his failure to do so would be objectively unreasonable representation. It would also be a failure that would have affected the outcome of the proceeding. It seems certain that defendant would have had a lower sentence had his criminal history not included the fleeing from an officer con viction and had he not committed these crimes while on probation. It is troubling however that defendant never said anything in court about the inclusion in the presentence report of the fleeing from an officer conviction and the increase in his criminal history score resulting from committing crimes while on probation. He had am ple opportunity to do so. The fact that he did not makes me somewhat dubious about the accuracy of his allegations. Therefore, before setting this matter for an evidentiary

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hearing, I will require defendant to submit an affidavit in which he sets forth exactly what he told his counsel about the fleeing from an officer conviction and the date on which his pro bation expired, when he told his counsel these things and where he was when he did so an d whether anyone else was present. If defendant files such an affidavit, I will then give the government an opportunity to obtain from defendant's counsel an affidavit of his own in response. If counsel agrees that defendan t told him about the prior conviction and the expiration of the probation sentence an d counsel investigated those matters and found that the presentence report was correct, I will probably deny defendant's motion. In that circumstance, counsel would have had no obligation to object to the criminal history score as over-representing defendant's criminal h isto ry (and good reason not to dwell on the issue) and no obligation to raise the issue on a p p e a l. Arguing the issue would have made no difference to my determination that

defendan t's criminal history score was an accurate representation of his likelihood to commit further crimes and arguing it on appeal would have been futile. It would be extraordinary for the court of appeals to overrule a sentencing court's decision not to vary downward because of the defendant's criminal history. If defendant's counsel denies that defendant said anything to him about the previous conviction and probation, then the affidavits would be in conflict. In that case, it may be necessary to hold an evidentiary hearing to determine the truth of defendant's averments.

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OR DER IT IS ORDERED that defendant John E. Paul may have until February 25, 2009, in w hich to file an affidavit in conformance with this order. If defendant files such an affidavit, the government may have until March 18, 2009, to submit an affidavit from defendant's cou nsel addressing what, if anything, defendant told him and what steps he took to verify any information he received. E n tered this 3d day of February, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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