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United States of America v. Rodney T. Wilson

February 1, 2011


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Rodney T. Wilson's (Wilson) motion to vacate, set aside, or correct pursuant to 28 U.S.C. § 2255 (Section 2255). For the reasons stated below, we deny the Section 2255 motion.


On May 15, 2007, a jury convicted Wilson on Count One of the indictment in criminal case number 06 CR 509 (Indictment), which charged Wilson with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On August 22, 2007, the court in the criminal action sentenced Wilson to 95 months imprisonment. Wilson appealed his sentence, and on January 5, 2009, his appeal was denied. On February 24, 2010, Wilson filed the instant Section 2255 motion seeking to vacate or set aside his sentence. On January 7, 2011, the instant action was reassigned to the undersigned judge.


Section 2255 provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." Id. The relief sought in a Section 2255 motion "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).


Wilson argues that he was denied effective assistance of counsel at trial. Wilson contends that his trial counsel erred by: (1) not seeking the dismissal of the Indictment after receiving an affidavit from defense witness Terrance Whitehead (Whitehead), (2) improperly impeaching Whitehead, (3) failing to investigate whether Wilson made a statement to a Cook County Assistant State's Attorney (ASA), (4) failing to obtain recordings of police radio transmissions regarding Wilson's background, (5) failing to cross-examine the Government's witness, Shirley Coleman (Coleman), regarding whether she was coerced into cooperating with the Government, and (6) failing to submit Coleman's affidavit to the appellate court.

In order for a petitioner to show that his counsel was ineffective, the "petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced his defense." Johnson v. Thurmer, 624 F.3d 786, 791 (7th Cir. 2010)(citing Strickland v. Washington, 466 U.S. 668, 689-92 (1984)). There is a "'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Ward v. Jenkins, 613 F.3d 692, 699 (7th Cir. 2010)(quoting Strickland, 466 U.S. at 689); see also Johnson, 624 F.3d at 791 (stating that there is an "assumption that [petitioner's] counsel 'rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment'" and "[t]o establish deficient performance in spite of that assumption, [the petitioner] must show that counsel's representation 'fell below an objective standard of reasonableness' based on prevailing norms of professional conduct")(quoting Strickland, 466 U.S. at 688-90). In order to establish prejudice by ineffective assistance of counsel, the 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." Johnson, 624 F.3d at 791 (quoting Strickland, 466 U.S. at 694).

I. Moving for Dismissal of Indictment

Wilson contends that his counsel should have moved to dismiss the Indictment when his counsel allegedly received an affidavit from Whitehead (Whitehead Affidavit), in which Whitehead purportedly swore to certain facts on November 8, 2006. Wilson has provided a copy of the Whitehead Affidavit with his Section 2255 motion. Wilson claims that Whitehead provided Wilson's counsel with the Whitehead Affidavit "six months before trial," that Wilson "discussed how to proceed with the affidavit numerous times," and that Wilson asked his counsel to move to dismiss the Indictment based on the Whitehead Affidavit. (Mot. 4).

The Government has cited to portions of the trial transcript that the Government contends show that Whitehead testified during his cross-examination that he sent an affidavit to Wilson's mother that was supposed to be given to Wilson's counsel. (Tr. 503-04). The Government indicates that Wilson's counsel denied in open court that he ever received the Whitehead Affidavit and that Wilson's counsel later signed a stipulation (Stipulation), which was admitted at Wilson's trial, agreeing that Wilson's counsel never received any correspondence or affidavit from Whitehead. Wilson has not presented evidence to call into question the validity of that Stipulation. The Stipulation also bears Wilson's signature. Wilson has not explained why his signature is on the Stipulation, if he believed at that time that his counsel had received the Whitehead Affidavit prior to trial, and he had, as he now claims, been previously discussing the Whitehead Affidavit with his counsel.

In addition, even if Wilson's counsel had received the Whitehead Affidavit prior to Wilson's trial, the affidavit would not have provided Wilson's counsel with a good faith basis to move to dismiss the Indictment since "'[c]hallenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence.'" United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009)(quoting United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006)). The fact that Whitehead may have presented some allegations that contradicted the evidence presented by the Government at trial merely would have pointed out a conflict ...

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