United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
B. Zagel, United States District Judge.
the Court is Petitioner Paul Schiro's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence.
For the following reasons, Petitioner's Motion is denied.
2007, petitioner Paul Schiro (“Defendant” or
“Schiro”) and others were charged with
racketeering activity and related crimes committed with the
Chicago Outfit, an organized criminal enterprise. Schiro was
presented at trial as a relatively minor player, a burglar
for the Outfit who served as mobster Tony Spilotro's
deputy in Phoenix, Arizona. Schiro was a childhood friend
and, according to testimony, a trusted confidante of
Spilotro. Evidence showed that Schiro began associating with
the Outfit in the 1970's and reported to Joey “the
Clown” Lombardo in addition to working closely with
Spilotro. Various witnesses described Schiro as a
“dangerous man, ” as being on the
“payroll” of the Outfit, and as a minor
participant in the 1986 murder of Emil Vaci in Phoenix,
performing surveillance on the day of the murder.
jury found Schiro guilty as charged but was unable to
unanimously find him guilty of the murder of Emil Vaci. This
Court found clear and convincing evidence supporting
Schiro's involvement in that murder and sentenced Schiro
to twenty years in prison on January 26, 2009. The Seventh
Circuit affirmed the sentence, United States v.
Schiro, 679 F.3d 521 (7th Cir. 2012), and the Supreme
Court denied a writ of certiorari on October 1, 2012.
petition before the Court, Schiro argues that Paul Wagner,
who represented Schiro at trial, provided ineffective
assistance of counsel for failing to pursue a statute of
limitations defense and a withdrawal defense at trial, and
for failing to challenge the sufficiency of the evidence.
Both Schiro and Wagner testified before this court in a
series of hearings on the present petition.
under 28 U.S.C. § 2255 “is available only in
extraordinary situations, such as an error of constitutional
or jurisdictional magnitude or where a fundamental defect has
occurred, ” resulting in “a complete miscarriage
of justice.” Blake v. United States, 723 F.3d
870, 878-79 (7th Cir. 2013). Generally, before a court may
consider a § 2255 petition, the claims must have been
raised and exhausted on direct appeal, Massaro v. United
States, 538 U.S. 500, 504 (2003), except that a
petitioner may raise an ineffective assistance of counsel
claim under § 2255 regardless of whether or not
the petitioner could have raised the claim on direct appeal.
claim of ineffective assistance requires him to show 1) that
counsel was deficient and 2) that this deficiency prejudiced
him. Strickland v. Washington, 466 U.S. 668, 687
(1984). The deficiency prong requires that the petitioner
demonstrate that counsel's performance fell below an
objective standard of reasonableness. Strickland,
466 U.S. at 688. The prejudice prong requires a showing that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different. Id. at
694. In assessing this claim, the court is highly
deferential to counsel and observes “a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance, ”
Strickland, 466 U.S. at 689. A failure to establish
either deficient performance or prejudice dooms the claim,
Gant v. United States, 627 F.3d 677, 682 (7th Cir.
2010) (citing Eddmonds v. Peters, 93 F.3d 1307, 1313
(7th Cir. 1996)), and if the petitioner is unable to make a
sufficient showing on one of the Strickland prongs,
the court need not consider the other. Strickland,
466 U.S. at 697; see Atkins v. Zenk, 667
F.3d 939, 946 (7th Cir. 2012).
Statute of Limitations Defense
argues that his attorney was ineffective for failing to raise
a statute of limitations defense since, in Defendant's
view, he was charged with participating in a 1986 murder that
clearly fell outside the five-year limitations period.
However, this misstates the charge against Defendant, which
was actually for agreeing to participate in racketeering
activities that extended into the five-year period preceding
the 2005 indictment. For example, in 2003 James Marcello
attempted to obstruct justice by bribing Nicholas Calabrese
in furtherance of the conspiracy. Because there was ample
evidence that the conspiracy of which Schiro was found to be
a part continued into the statutory period, Defendant's
counsel could reasonably have believed that a statute of
limitations defense was simply doomed to fail.
defense counsel elected to pursue a strategy of discrediting
government witnesses and attacking the evidence that
Defendant was connected to the Outfit. It is true that
defense counsel could have pursued this strategy and offered
a statute of limitations defense in the alternative. But
counsel could just as easily have determined that a statute
of limitations defense would dilute the defense's primary
message to the jury-that Schiro was never involved with the
Outfit at all. In this context, I find no evidence of
deficient performance and defer to the trial counsel's
reasonable professional judgment on this matter.
respect to the prejudice prong of Strickland, the
Seventh Circuit put to rest any notion that a statute of
limitations defense could have impacted the outcome of ...