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McKibbins v. United States

United States District Court, Seventh Circuit

October 3, 2013

PATRICK McKIBBINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION AND ORDER

ROBERT W. GETTLEMAN, District Judge.

Petitioner Patrick McKibbins has filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255, claiming ineffective assistance of trial counsel. The government opposes petitioner's motion. For the reasons described below, the motion is denied.

BACKGROUND

In 2008, petitioner was arrested in the Northern District of Illinois for traveling in interstate commerce from Wisconsin to Illinois for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. 2423(b). Petitioner was charged in a three-count superseding indictment with using interstate wire communications to attempt to entice an individual whom the petitioner believed to be a female minor, in violation of 18 U.S.C. 2442(b) (Count One); traveling in interstate commerce in order to engage in a sexual act with an individual whom the petitioner believed to be a female minor, in violation of 18 U.S.C. 2423(b) (Count Two); and attempted obstruction of justice, in violation of 18 U.S.C. 1512(c)(1) and (2) (Count Three). On January 16, 2009, following a four day jury trial, petitioner was found guilty on all three counts. Petitioner was subsequently sentenced to 140 months' imprisonment.

Petitioner has filed a § 2255 petition alleging that his trial counsel was ineffective for four reasons: he failed to introduce at trial the results of a psychosexual evaluation that ruled out a diagnosis of pedophilia; he failed to call character witnesses at trial to testify on petitioner's behalf; he refused to permit plaintiff to testify at trial on his own behalf; and he failed to prevent an entrapment defense at trial.

Legal Standard

A. § 2255 Petitions

Section 2255 allows a person convicted of a federal crime to seek to vacate, set aside, or correct his sentence. This relief is available only in limited circumstances, such as where an error is jurisdictional, constitutional, or there has been a "complete miscarriage of justice." See Harris v. United States , 366 F.3d 593, 594 (7th Cir. 2004); Bischel v. United States , 32 F.3d 259, 263 (7th Cir. 1994) (internal quotations and citations omitted). The record is reviewed and all reasonable inferences are drawn in favor of the government. See United States v. Galati , 230 F.3d 254, 258 (7th Cir. 2000); Messinger v. United States , 872 F.2d 217, 219 (7th Cir. 1989).

Section 2255 petitions are subject to various bars, including procedural default. The Seventh Circuit has noted that § 2255 petitions are "neither a recapitulation of nor a substitute for a direct appeal.'" McCleese v. United States , 75 F.3d 1174, 1177 (7th Cir. 1996) (citations omitted). Therefore, a § 2255 motion cannot raise: (1) issues that were raised on direct appeal, unless there is a showing of changed circumstances; (2) non-constitutional issues that could have been raised on direct appeal, but were not; and (3) constitutional issues that were not raised on direct appeal. See Belford v. United States , 975 F.2d 310, 313 (7th Cir. 1992) (overruled on other grounds by Castellanos v. United States , 26 F.3d 717 (7th Cir. 1994)). An ineffective assistance of counsel claim may be brought in a § 2255 motion regardless of whether the claim was raised on appeal. Massaro v. United States , 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

B. Ineffective Assistance of Counsel

To prevail on his claim of ineffective assistance of counsel, petitioner must show that his counsel's conduct "fell below an objective standard of reasonableness" and "outside the wide range of professionally competent assistance." Strickland v. Washington , 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To succeed on a § 2255 petition, petitioner's counsel's errors must be so serious "as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." Lockhart v. Fretwell , 506 U.S. 364, 369-70, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (quoting Strickland , 466 U.S. at 687). In other words, 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." Benefiel v. Davis , 357 F.3d 655, 662 (7th Cir. 2004) (quoting Strickland , 466 U.S. at 694).

Because the court begins with a strong presumption that counsel's conduct falls within the wide range of acceptable professional assistance, petitioner faces a heavy burden in making out a winning ineffective assistance of counsel claim. See Strickland , 466 U.S. at 690; United States v. Ruzzona , 247 F.3d 688, 696 (7th Cir. 2001).

DISCUSSION

Petitioner first argues that counsel failed to introduce evidence of a psychosexual evaluation performed on petitioner in which the psychiatrist concluded that petitioner was not a pedophile.[1] Petitioner's brief characterizes the report as "exculpative, " and claims that this evidence, coupled with testimony from his nieces that he had never acted improperly with them, would have resulted in his acquittal at trial. Petitioner claims these arguments would have bolstered an entrapment defense (which was never argued) by demonstrating that the government's intent was to induce or entrap petitioner to commit a crime for which he had never previously been convicted. He ...


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