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Wilson v. United States

April 9, 2009

DEREK WILSON, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court is pro se Petitioner Derek Wilson's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies Wilson's Section 2255 motion.

BACKGROUND

In a second superseding indictment, Wilson was charged with conspiring to commit an offense against the United States, namely, robbery of persons having lawful charge, control, and custody of money and property of the United States, in violation of 18 U.S.C. § 371, and robbing persons having lawful charge, control, and custody of money and property of the United States, in violation of 18 U.S.C. § 2114(a). Following a jury trial, the jury convicted Wilson and his co-defendant Charles Ross of robbing a postal truck docked at the Grand Crossing Post Office Annex in Chicago, Illinois. Wilson, a former postal employee, used his inside knowledge of the post office to facilitate the robbery. On May 4, 2005, the Court sentenced Wilson to 100 months imprisonment. On December 14, 2007, the Seventh Circuit affirmed Wilson's conviction on appeal. See United States v. Ross, 510 F.3d 702 (7th Cir. 2007).

LEGAL STANDARD

"[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). A district court will only grant a Section 2255 motion to vacate, set aside or correct a sentence if the petitioner establishes "that the district court sentenced him in violation of the Constitution or laws of the United States or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Hays v. United States, 397 F.3d 564, 566-67 (7th Cir. 2005) (citations and internal quotations omitted). A Section 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal the same claims a second time. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (Section 2255 motion is "neither a recapitulation of nor a substitute for a direct appeal.") (citation omitted). Accordingly, if a Section 2255 petitioner does not raise a claim in his direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, see Fuller v. United States, 398 F.3d 644, 648 (7th Cir. 2005), that enforcing the procedural default would lead to a "fundamental miscarriage of justice," see Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006), or a change of circumstances involving facts or law. See Varela, 481 F.3d at 935-36. Because claims of constitutionally ineffective assistance of counsel usually involve evidence outside the record, such claims may be brought for the first time in a Section 2255 motion. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Torzala v. United States, 545 F.3d 517, 524 (7th Cir. 2008).

ANALYSIS

Construing Wilson's pro se Section 2255 motion liberally, see Dale v. Poston, 548 F.3d 563, 568 (7th Cir. 2008), he brings the following claims: (1) ineffective assistance of trial counsel; and (2) ineffective assistance of appellate counsel.

I. Ineffective Assistance of Trial Counsel

To establish ineffective assistance of counsel, Wilson must show (1) his attorney's performance "fell below an objective standard of reasonableness," and (2) "but for counsel's unprofessional errors the result of the proceeding would have been different." See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If Wilson fails to make a proper showing under one of the Strickland prongs, the Court need not consider the other. See id. at 697 ("In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant ...."); see also Amerson v. Farrey, 492 F.3d 848, 851 (7th Cir. 2007). Meanwhile, "because counsel is presumed effective, a defendant bears a heavy burden in challenging his attorney's effectiveness." United States v. Hatten-Lubick, 525 F.3d 575, 579 (7th Cir. 2008); United States v. Recendiz, 557 F.3d 511, 531 (7th Cir. 2009) (there is a "strong presumption that the attorney performed effectively").

A. Motion to Sever, Motion to Exclude, Key Witness

First, Wilson claims that his trial counsel was constitutionally ineffective because she failed to file a motion to sever his trial from his co-defendant's trial and failed to raise Bruton issues. Wilson also maintains that counsel was ineffective for failing to move to exclude a redacted tape. Wilson's claims have no factual basis because his trial counsel adopted his co-defendant's counsel's motion to sever the trial that the Court denied. (03 CR 822-3, R. 152-1.)

Moreover, Wilson's counsel also raised Bruton issues and moved to exclude the redacted tape at issue. (See id.) Because Wilson's allegations are unequivocally contradicted by the record, they cannot serve as a factual basis for these ineffective assistance of counsel claims.

In his 2255 motion, Wilson also argues that his trial counsel failed to properly review evidence and failed to file a motion to dismiss the indictment. Wilson, however, fails to give any specific details about these claims, and thus these undeveloped arguments are waived. See Argyropoulos v. City of Alton, 539 F.3d 724, 739 (7th Cir. 2008) (undeveloped and legally unsupported arguments are waived even when those arguments raise constitutional issues). For the first time in his reply brief, Wilson argues that his trial counsel was ineffective for failing to investigate a key witness, James Anderson. Wilson's argument made for the first time in his reply brief is waived. See Porco v. Trustees of Ind. Univ., 453 F.3d 390, 395 (7th Cir. 2006) (even when litigant is pro se, arguments made for the first time in reply brief are waived). Moreover, Wilson's argument is without merit because although Wilson sets forth his own affidavit of Anderson's potential testimony, this affidavit and his cursory argument do not fulfill Wilson's obligation to provide "a comprehensive showing of what the potential witness' testimony would have been and how it would have produced a different result." Brown v. McGinnis, 9 ...


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