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Wrolen v. United States

July 27, 2010


The opinion of the court was delivered by: J. Phil Gilbert District Judge


This matter comes before the Court on Petitioner Richard Wrolen's (hereinafter "Wrolen") Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1) pursuant to 28 U.S.C. § 2255 and Memorandum (Docs. 1-1, 1-2, 1-3, 1-4, 1-5, 1-6) in support thereof. Following threshold review by this Court, (see Doc. 3), the Government filed a Response (Doc. 17) to the instant motion, to which Wrolen did not submit a reply.

For the following reasons, the Court DENIES the instant motion.


On April 5, 2006, Wrolen was indicted for one count of conspiracy to manufacture, distribute, and possess with intent to distribute more than 50 grams of methamphetamine and more than 500 grams of a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The Government subsequently filed an information to establish prior conviction pursuant to 21 U.S.C. § 851.

On November 8, 2006, a superseding indictment was returned against Wrolen that added and dropped several individuals to the overall, alleged conspiracy. Three days before his scheduled jury trial, Wrolen entered an open plea of guilty to the only count of the superseding indictment. At the change of plea hearing, Timothy Capps (hereinafter "Capps") represented Wrolen. While Wrolen awaited sentencing, the Court honored Capps' request to withdraw from representation. The Court terminated Capps as defense counsel of record on the same date it appointed Steven Stenger (hereinafter "Stenger") to Wrolen's case. Stenger would represent Wrolen at sentencing and throughout his appeal to the Seventh Circuit Court of Appeals.

The Court held sentencing on February 29, 2008. At that time, the Court determined that, for purposes of the United States Sentencing Guidelines (hereinafter "U.S.S.G."), Wrolen's total offense level was 38 and his criminal history category was II, which rendered an advisory guideline range of 240-293 months imprisonment. However, the aforementioned § 851 information, to which Wrolen unsuccessfully objected, brought with it a twenty-year mandatory minimum pursuant to 21 U.S.C. § 841(b)(1)(A)(viii). The Court ultimately sentenced Wrolen to 252 months imprisonment and 10 years supervised release with a $200 fine and $100 special assessment.

In appealing the Court's judgment, Wrolen challenged the constitutionality of his sentence, arguing that it was "was based on facts not alleged in the indictment or proven to a jury beyond a reasonable doubt." United States v. Wrolen, Case No. 06-cr-40019-JPG (Doc. 761, p. 3) (S.D. Ill. July 30, 2008). Acknowleging the viability of Almendarez-Torres v. United States, 523 U.S. 224, 227 (1998), wherein the United States Supreme Court held that prior convictions need not be charged in an indictment or proven beyond a reasonable doubt to a jury, the Seventh Circuit summarily rejected Wrolen's arguments and affirmed the Court's judgment. Wrolen never sought a writ of certiorari from the Supreme Court; rather he timely filed the instant motion on January 15, 2009.


As a preliminary matter, the Court notes its concurrence with the Government's assessment of Wrolen's motion and memorandum, namely that they are "lengthy and tedious." (Doc. 8, p. 37). Wrolen spends 66 pages arguing much of what could have been condensed into less than 15 pages. His three primary arguments are as follows:

1) He unknowingly and involuntarily entered into a guilty plea;

2) His sentence violated applicable law and the U.S.S.G., and;

3) He suffered from ineffective assistance of counsel. (See Doc. 1-6, p. 3). Given Wrolen's lack of brevity and, consequentially, clarity, it is difficult to discern which of Wrolen's numerous sub-arguments support his main arguments; nevertheless, the Court has done its best to structure this memorandum and order in a logical fashion. With that said, each of Wrolen's central contentions will be addressed in kind.

I. Section 2255 Generally

The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255 (2006). However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). More precisely, "[r]elief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted).

Of course, a § 2255 motion does not substitute for a direct appeal. A defendant cannot raise constitutional issues that he could have but did not directly appeal unless he shows good cause for and actual prejudice from his failure to raise them on appeal or unless failure to consider the claim would result in a fundamental miscarriage of justice.*fn1 Bousley v. United States, 523 U.S. 614, 622 (1998); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. The failure to hear a claim for ineffective assistance of counsel in a § 2255 motion is generally considered to work a fundamental miscarriage of justice because often such claims can be heard in no other forum. They are rarely appropriate for direct review since they often turn on events not contained in the record of a criminal proceeding. Massaro v. United States, 538 U.S. 500, 504-05 (2003); Fountain, 211 F.3d at 433-34. Further, the district court before which the original criminal trial occurred, not an appellate court, is in the best position to initially make the determination about the effectiveness of counsel in a particular trial and potential prejudice that stemmed from that performance. Massaro, 538 U.S. at 504-05. For these reasons, ineffective assistance of counsel claims, regardless of their substance, may be raised for the first time in a § 2255 petition.

An evidentiary hearing on a § 2255 habeas petition is required when the motion is accompanied by "a detailed and specific affidavit which shows that the petitioner has actual proof of the allegations going beyond mere unsupported assertions." Barry v. United States, 528 F.2d 1094, 1101 (7th Cir. 1976) (footnote omitted). "Mere unsupported allegations cannot sustain a petitioner's request for a hearing." Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir. 1989). As will be seen, Wrolen's allegations are unsupported by the record; subsequently, the Court sees no reason to hold an evidentiary hearing regarding Wrolen's claims.

II. Wrolen Entered a Knowing, Voluntary, and Competent Guilty Plea

Wrolen first argues that he did not knowingly and voluntarily enter a guilty plea. Assuming arguendo that Wrolen's claims of ineffective assistance of appellate counsel demonstrate good cause for failing to appeal this constitutional issue,*fn2 Wrolen must still show actual prejudice from this failure to prosecute. Put simply, this is something he cannot do, as the record shows that Wrolen entered a knowing, voluntary, and competent plea.

Before accepting Wrolen's guilty plea, the Court conducted a lengthy colloquy with Wrolen that contained the following relevant exchanges:

THE COURT: This matter comes before this Court for a change of plea; is that correct?

MR. NORWOOD: That was my understanding, Your Honor.

MR. CAPPS: Yes, Your Honor.

United States v. Wrolen, Case No. 06-cr-40019-JPG (Doc. 672, p. 3) (S.D. Ill. Mar. 28, 2008) (emphasis added) (refuting Wrolen's position that he thought the change of ...

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