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September 23, 1993

ANDRE W. AHERN, Defendant.


The opinion of the court was delivered by: MILTON I. SHADUR


Andre Ahern ("Ahern") has just filed a motion for this Court's reconsideration and vacation of its September 7, 1993 memorandum opinion and order (the "Opinion"), in which this Court dismissed Ahern's 28 U.S.C. ยง 2255 ("Section 2255") motion attacking his already-once-reduced sentence. For the reasons briefly stated here, Ahern's current motion is denied.

 In substantial part Ahern really complains of this Court's having adhered to the procedure that is expressly prescribed by Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts ("Section 2255 Rules"):


The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.

 And that Rule in turn implements the express terms that have been set out by Congress in Section 2255 itself (emphasis added):


Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

 Thus both Section 2255 and Rule 4(b) mandate the type of initial judicial scrutiny reflected in the Opinion, and mandate with equal force the threshold dismissal of any Section 2255 motion that cannot survive that scrutiny as a matter of law.

 It is simply not true, as Ahern asserts at page 3 of his current memorandum, that he "inherently possesses the due process right to file an action with this Court and subsequently file an argument which would exhaustively set forth the factual basis legally supporting movant's claims." In that sense this proceeding is not akin to the standard that is set out in Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) for Fed. R. Civ. P. 12(b)(6) dismissals, as quoted by Ahern at his Mem. 2 n.2--for this Court is not duty bound to accept Ahern's allegations in the teeth of clear record evidence to the contrary. *fn1"

 What Ahern refuses to recognize is that he has received due process of law in the real sense of that concept: He has been afforded all the process that is his due. There is no need to repeat (or to attempt to summarize accurately in brief compass) what this Court has said at length in the Opinion. Both facets of Ahern's Section 2255 motion did not survive threshold scrutiny in legal terms--the first facet because he was doomed to fail on the second ("prejudice") branch of the Strickland v. Washington formulation (thus mooting the first ("cause") branch, on which an evidentiary hearing might have been required), and the second facet because it unquestionably involved a pure question of law (one so recently ruled upon by our Court of Appeals in United States v. Ahmad, No. 92-3909, 1993 U.S. App. LEXIS 21587 (7th Cir. Aug. 24)). Hence there was plainly no need for an evidentiary presentation on either ground advanced by Ahern.

 Indeed, to return briefly to Ahern's first ground, the Opinion may well have given Ahern more than his due in legal terms. Most recently the Supreme Court has framed the second ("prejudice") branch of the Strickland inquiry in a somewhat narrower fashion ( Lockhart v. Fretwell, 122 L. Ed. 2d 180, 113 S. Ct. 838, 844 (1993)):


It focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.

 En route to that restatement the Court said (id. at 842-43 (footnote omitted)):


Thus, an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.

 And see our Court of Appeals' current decision in Durrive v. United States, 1993 U.S. App. LEXIS 23565, No. 92-3872, slip op. at 4-5 (7th Cir. Sept. 10, 1993), which characterizes Lockhart as "rejecting the equation between causation [in the but-for sense] and prejudice."

 In summary, nothing that Ahern now sets out in his motion for reconsideration requires a fresh look at, let alone the vacation of, the Opinion. Ahern's current motion is denied.

 Milton I. Shadur

 Senior United States District Judge

 Date: September 23, 1993

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