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United States v. Schiro

United States District Court, N.D. Illinois, Eastern Division

November 8, 2016



          James B. Zagel, United States District Judge.

         Before 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.

         I. BACKGROUND

         In 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.

         The 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.

         In the 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.


         Relief 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. Id.

         Schiro's 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).


         A. Statute of Limitations Defense

         Defendant 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.

         Instead, 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.

         With 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 ...

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