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Wagner v. United States

United States District Court, C.D. Illinois, Peoria Division

October 25, 2019

ERIC D. WAGNER, Petitioner,


          James E. Shadid, United States District Judge

         Now before the Court is Petitioner Eric D. Wagner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 1). Wagner was convicted of knowingly attempting to persuade or induce a minor to engage in illegal sexual activity. Wagner claims his Sixth Amendment rights were violated because his trial counsel provided ineffective assistance when he failed to argue the defenses of outrageous government conduct, entrapment, and belief of age, and to argue that he did not have the requisite intent. He argues appellate counsel was ineffective for failing to raise these issues on appeal as well. He also believes that counsel failed to find text messages that would have supported his version of events and that the government committed a Brady violation for failing to turn over these allegedly existing text messages. The Court finds that Wagner's claims are not supported by the law or the evidence and that he did not receive constitutionally ineffective assistance of counsel. For the reasons explained below, his Motion (Doc. 1) is DENIED.

         I. BACKGROUND[1]

         On January 13, 2014, Detective Avery, an undercover officer posing as “Jen, ” posted an advertisement on the social media website Craigslist indicating that she (Jen) was 18 years old and was “young.bored.home alone need to find somethin to do thats fun and exciting.” Trial Tr. at 37; Ex.1D at 1. Wagner responded to Jen's ad that same day:

home alone sucks, me to, hey im looking for young girls that like boating and tubin drinking this summer out on my boat getting nakid lots of fun im 40 going on 20 I don't care how old the girls are as long as they can keep it a secret, any thing goes kind thing, I can bring the drinks but you want weed you got to get that, im clean and cant have any kids so we can play all day, I like young tight, last year I had 2 sisters but they moved so im looking for new fun, open to ideas, we can meet up sooner try things out and make plans, your pic gets mine, lets have fun

Trial Tr. at 37, 38; Ex.1D at 1. On January 15, 2014, Jen responded to Wagner's message, informing him that she was only 15 years old and that she would understand if he did not want to talk to her because of her age. Trial Tr. at 39; Ex.1D at 1. Wagner answered, “im still interested.” Id.

         Over the next 13 days, Wagner sent numerous text messages and emails to Jen. Ex.1D at 2-21. In those messages, Wagner asked Jen if she was a “cop, ” emphasized the importance of secrecy, asked her whether she “shaved” and “like[d] a guy going down on [her], ” said he was not the type of “guy that will hump and run, ” inquired whether she “use[d] anything” when she “play[ed]” with herself, described how he would use his “firm hands” to “slowly push[]” her “legs open” and then use his tongue to “lick[]” and “suck[]” her when they met in person, and instructed her to get a “fake id.” Ex.1D at 2, 5, 7, 12, 18, 20.

         “Jen” made multiple references to her age being 15 in these messages. Trial Tr. at 40, 51, 74, 182. At Wagner's repeated request, the undercover agent also emailed pictures of “Jen” on two occasions. Trial Tr. at 44, 47. The pictures were not actually of “Jen, ” but were pictures of a 15-year-old girl, which the undercover officer had permission to use. Trial Tr. at 44. Wagner and a female agent posing as “Jen” also talked on the phone three times during this period. The female agent was at least in her 30s. Trial Tr. at 119, 173. The final call, on January 27, 2014, was recorded and played for the jury at the trial.

         Through a series of messages and phone calls, Wagner and Jen agreed to meet on January 28, 2014, at a Casey's General Store in Peoria, Illinois. Trial Tr. at 61, 75, 79; Ex.1D at 4, 13, 20, 21. Upon Wagner's arrival that night, law enforcement officers arrested him. Trial Tr. at 79-87. A search of Wagner's pickup truck resulted in the seizure of condoms and a sheet that Wagner had told Jen he would bring with him “to put underneath [her] butt so in case there's a mess.” Trial Tr. at 97; Ex. 2TR at 20. Agents also discovered internet searches on January 22, 2014 and January 27, 2014 for “Girls First Time Having Sex, ” “Lose Your Virginity Without Pain, ” and “15 year old girl with older guy” on his computer. Trial Tr. at 108-109. During his post-arrest interview, the interviewing agents testified that Wagner said that he knew Jen was 15 years old and that he would have had sex with Jen if given the opportunity. Trial Tr. at 96-97, 163. Wagner also said that her voice sounded like an 18 or 19-year-old. Trial Tr. at 134, 163.

         On February 26, 2014, a grand jury charged Wagner with one count of knowingly attempting to persuade or induce a minor (Jen) to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422. A two-day jury trial began on May 11, 2015. The government presented evidence, which included all the text messages and emails sent between Wagner and “Jen, ” a summary of their first two calls, and a recording of their last phone call.

         After the Government rested, Wagner's counsel, Mr. Alvarado, moved for an acquittal arguing that there was insufficient evidence to show that he was meeting a minor, and that interstate commerce was used. Trial Tr. at 234-35. The Court denied the motion. Trial Tr. at 237. Wagner did not testify, and defense counsel had no evidence or witnesses to present.

         After the two-day trial, the jury found Wagner guilty. R. 38, Verdict. On October 1, 2015, Wagner was sentenced to 132 months' imprisonment, followed by 12 years' supervised release. R. 49, Judgment. During Wagner's allocution, he claimed that he was just “[p]laying games with scammers and the fake ads” and it was “[his] own little way of getting even” with those whom he claimed had scammed him over the years. R. 60, Sent. Tr. at 12-13. He claimed that “there is just no way . . . [he] would ever be with somebody that young” and he only planned to take Jen to a mall the night of his arrest. Id.

         Wagner appealed his sentence on several grounds. The Seventh Circuit affirmed the guidelines calculation and one of the conditions of supervised release, but vacated two special conditions of supervised release. R. 66, Mandate. Wagner was resentenced to the same prison and supervised release term, but without the vacated supervised release conditions on February 14, 2018. R. 71, Amended Judgment.

         On February 19, 2019, Wagner filed this Motion to Set Aside, Vacate, or Correct Sentence Pursuant to 28 U.S.C. § 2255. He raises the following grounds for relief: (1) the government's conduct in creating and posting Craigslist personal ads amounted to outrageous government conduct in violation of Wagner's due process rights and his trial and appellate counsel provided ineffective assistance when they failed to raise this argument at trial and on appeal; (2) counsel was ineffective for failing to raise an entrapment defense, failing to seek an entrapment jury instruction, and failing to argue the defense of entrapment as a matter of law and seek an acquittal; (3) counsel was ineffective for failing to seek or argue a belief of age defense and jury instruction, and appellate counsel was deficient in not raising an age-related defense in the direct appeal; (4) that counsel was ineffective because no jury instruction or appellate argument was presented regarding the requisite intent elements, and Wagner did not have the requisite intent so he is factually innocent of the offense; (5) trial counsel was ineffective for failing to investigate and obtain exculpatory evidence, specifically text messages that indicated his belief that “Jen” was twenty-years old and demonstrated his reluctance to meet; and (6) his rights under Brady v. Maryland, 373 U.S. 83 (1963) were violated when the Government withheld and deleted exculpatory text messages and emails.

         The Court ordered the Government to respond, which it did on April 25, 2019 (Doc. 8). The Government's response includes an affidavit from Wagner's trial counsel, Mr. Alvarado (Doc. 8-1). Wagner filed a reply on June 21, 2019. This Order follows.


         A person convicted of a federal crime may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief under § 2555 is an extraordinary remedy because a § 2255 petitioner has already had “an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). A petitioner may avail himself of § 2255 relief only if he can show that there are “flaws in the conviction or sentence which are jurisdictional in nature, constitutional in magnitude or result in a complete miscarriage of justice.” Boyer v. United States, 55 F.2d 296, 298 (7th Cir. 1995), cert. denied, 116 S.Ct. 268 (1995).

         Section 2255 is limited to correcting errors that “vitiate the sentencing court's jurisdiction or are otherwise of constitutional magnitude.Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993) (citing Scott v. United States, 997 F.2d 340 (7th Cir. 1993)). A § 2255 motion is not a substitute for a direct appeal. Doe v. United States, 51 F.3d 693, 698 (7th Cir. 1995), cert. denied, 116 S.Ct. 205 (1995); McCleese v. United States, 75 F.3d 1174, 1177 (7th Cir. 1996). However, “it is generally proper to raise arguments of ineffective assistance of counsel for the first time on collateral review in a § 2255 petition because such claims usually. . . involve evidence outside the record.” Galbraith v. United States, 313 F.3d 1001, 1007 (7th Cir. 2002).

         The Sixth Amendment guarantees criminal defendants effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984). Under Strickland's familiar two-part test, Petitioner must show both that his attorney's performance was deficient and that he was prejudiced as a result. Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015). “[I]neffective assistance of counsel is a single ground for relief no matter how many failings the lawyer may have displayed. Counsel's work must be assessed as a whole; it is the overall deficient performance, rather than a specific failing, that constitutes the ground of relief.” Peoples v. United States, 403 F.3d 844, 848 (7th Cir. ...

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