SHIELDS, DIAUNTE v. USA

Filing 35

ORDER granting 31 Amended Motion to Vacate Sentence per 28 U.S.C. 2255 by DIAUNTE SHIELDS. Resentencing set for 5/4/2017 at 1:00 PM, with the Presentence Report due 3/31/2017 and Objections due 4/14/2017. Signed by District Judge William M. Conley on 2/28/2017. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DIAUNTE SHIELDS,
Petitioner,

OPINION AND ORDER

v.

11-cv-327-wmc
07-cr-7-wmc

UNITED STATES OF AMERICA,
Respondent.

Petitioner Diaunte Shields’ Motion to Vacate is again before the court on remand
from the Court of Appeals for the Seventh Circuit under 28 U.S.C. § 2255. Shields v.
United States, No. 14-2042 (June 29, 2016). (Dkts. #23, 24.) For the reasons that
briefly follow, the court will grant Shields’ motion and set this matter for resentencing.
RELEVANT BACKGROUND
On May 11, 2007, Shields pleaded guilty to one count drug-trafficking in United
States v. Shields, 07-cr-7-jcs (W.D. Wis.). Due to the quantity of crack cocaine involved
and his prior felony convictions for manufacture of crack cocaine, Shields was sentenced on
July 25, 2007, to 290 months, which was near the middle of the applicable advisory
guideline range.
On April 22, 2014, this court denied Shields’ § 2255 motion. (Dkt. #5.) In doing
so, the court rejected Shield’s argument that his trial attorney was ineffective in failing to
raise the defense from Kimbrough v. United States, 552 U.S. 85 (2007), which held that
district courts had the discretion to consider whether the disparate sentencing ratio (100:1)

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between crack and powder-cocaine offenses warranted a lower sentence. The court first
concluded that the decision not to raise the Kimbrough defense was not the type of
objectively deficient performance that would warrant relief. (Id. at 11-12.) In reaching
this conclusion, the court relied on an affidavit from Shields’ trial attorney who he stated
that he decided not to raise the argument at sentencing because he thought such an
argument may adversely affect Shield’s sentence. Even assuming that his attorney was
ineffective, the court further reasoned that Shields failed to make the requisite showing
that the mistake would have changed his sentence.
The court noted in particular that Shields’ criminal record, and “not necessarily the
quantity or type of the cocaine involved,” had the greatest impact on his sentence. (Id. at
13.) In fact, the record indicated “that it was defendant’s career-offender status that drove
his sentence, not the guideline range for crack cocaine.” (Id.) In denying relief under
§ 2255, however, the court granted Shields a certificate of appealability and invited the
Seventh Circuit or United States Supreme Court to reach a different result, given the
enactment of the Fair Sentencing Act of 2010 just two months after the United States
Supreme Court declined to grant Shields relief on appeal.
On appeal, the Seventh Circuit vacated this court’s decision in a brief order. The
order suggested that § 2255 relief may be available because: (1) the Supreme Court had
already granted certiorari in Kimbrough more than a month before Shields’ sentencing; (2)
the Seventh Circuit affirmed his sentence on direct appeal in part for his failure to
challenge the extreme disparity between the sentencing guidelines for distribution of crack

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and powder cocaine; (3) it appeared that Shields wished to preserve that argument prior to
his sentencing hearing, which his counsel chose to disregard; and (4) the disparity issue
pending in Kimball could dramatically affect Shields’ guideline range. See Shields v. United
States, No. 14-2042, dkt. #24 (June 29, 2016). The court found “it particularly troubling
that his Federal Defender did not preserve the argument, against the backdrop of the
Supreme Court’s grant of certiorari in a high-profile case with such clear relevance to
Shields’ situation.” Id. at 3. Without expounding further on the prejudice prong of the
Strickland analysis, the Seventh Circuit remanded for further factual development as to
“whether the district court credited Shields’ claims regarding his conversations with trial
counsel.” Id. at 4. Now pending in this court is Shields’ Amended Motion to Vacate.
(Dkt. #31.)
OPINION
Based on the new information provided by Shields’ Federal Defender on remand
consistent with the Seventh Circuit’s mandate, this court now agrees that petitioner’s
sentence should be vacated. Specifically, in a new affidavit, Shields’ Federal Defender
acknowledges that he failed to revisit the Kimbrough argument after the United States
Supreme Court granted certiorari not as a matter of strategy, but because “he just did not
think about it.” (Id. at # 31-1, at 2.) The government disputes neither the veracity of
Shields’ statements about his originally asking his counsel to challenge the guideline
disparity for crack powder cocaine, nor counsel’s statements about his initial refusal to raise
the issue, and subsequent failure to revisit that decision after cert was granted in Kimbrough.

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Accordingly, the court credits both of their statements.
Still, the government continues to oppose resentencing on the ground that Shields
has not made the requisite prejudice showing that would warrant § 2255 relief. At best
the court can tell, the government’s argument appears to be that Shields would have
received the same sentence in 2007 with or without a challenge to the crack/powder
disparity, especially since the Seventh Circuit did not find that Kimbrough applied to career
offenders like petitioner for three more years in United States v. Corner, 598 F.3d 411 (7th
Cir. 2010). This may well be true, but that likelihood completely ignores the prejudice to
Shields. By the simple failure to preserve the Kimbrough issue by formal objection at the
time of sentencing, Shields’ was denied the opportunity to be resentenced under the new
guidelines, an opportunity of which thousands of other have been allowed to avail
themselves since.
While the Seventh Circuit’s order did not explicitly address the prejudice prong of
the Strickland analysis, it did cite to Government of Virgin Islands v. Forte, 865 F.2d 59, 62-63
(3d Cir. 1989). In Forte, the Court of Appeals for the Third Circuit reversed denial of a
§ 2255 petition in which the petitioner argued that his attorney was ineffective for failure
to object to the prosecution’s apparently unjustified preemptory strikes of minority
members of the jury panel, even though the Supreme Court had already granted certiorari in
Batson v. Kentucky, 476 U.S. 79 (1986)).

In addressing the prejudice prong of the

Strickland analysis, the Third Circuit assumed that the result would not have been different
had the objection been preserved at trial, but found that because the result would have

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likely been different on appeal, the petitioner was nonetheless prejudiced.

Id. at 64

(“While we realize that ordinarily the Strickland principles are advanced when the
contention is made that the trial cannot be relied upon to have produced a just result, we
see no logical reason why they should not be applicable when the defendant was denied a
just result on appeal because of the ineffectiveness of his attorney at the trial.”).
Certainly, the Seventh Circuit’s reliance on the Third Circuit’s Forte decision suggests the
same result here, regardless of whether the prejudice would have manifested itself on direct
appeal or, as here, on collateral attack. Either way, Shields is entitled to be resentenced
under a new guideline range. Accordingly, his § 2255 motion now will be granted.
ORDER
IT IS ORDERED that:
(1) Diaunte Shields’ amended motion to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255 (dkt. #31) is GRANTED.
(2) This matter is set for resentencing on May 4, 2017, at 1:00 p.m., with the
Presentence Report due March 31, and objections due April 14.
Entered this 28th day of February, 2017.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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