Opinion
2:20 CR 190
12-20-2024
UNITED STATES OF AMERICA v. JOHNNY WILBOURN
OPINION AND ORDER
JAMES T. MOODY, JUDGE
Petitioner Johnny Wilbourn has filed a motion to vacate his sentence under 28 U.S.C. § 2255. (DE # 142.) For the reasons that follow, petitioner's motion is denied.
I. BACKGROUND
In September of 2023, after pleading guilty, Wilbourn was convicted of distribution of crack cocaine, in violation 21 U.S.C. § 841(a)(1), (b)(1)(C). (DE # 127.) In his plea agreement, he waived his right to appeal or collaterally challenge his sentence on any ground other than ineffective assistance of counsel. (DE # 60 at 5.) Wilbourn subsequently filed, and then voluntarily dismissed, a direct appeal. (DE # 140.)
Wilbourn now seeks to vacate his conviction and sentence on the basis that he received ineffective assistance of counsel. (DE # 143.) He claims that his counsel failed to advise him that he could be sentenced as a career offender, and also failed to challenge the search warrant. He also directly challenges this court's calculation of his sentence. His motion is fully briefed and is ripe for ruling.
II. LEGAL STANDARD
A § 2255 motion allows a person in federal custody to attack his or her sentence on constitutional grounds, because it is otherwise illegal, or because the court that imposed it was without jurisdiction. 28 U.S.C. § 2255(a). Motions to vacate a conviction or correct a sentence ask a court to grant an extraordinary remedy to a person who has already had an opportunity for full process. Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006).
III. DISCUSSION
A. Ineffective Assistance of Counsel Claims
1. Legal Standard
Claims for ineffective assistance of counsel are analyzed under Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, “a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.” Massaro v. United States, 538 U.S. 500, 505 (2003). “To satisfy the deficient performance prong, a petitioner must show that the representation his attorney provided fell below an objective standard of reasonableness.” Vinyard v. United States, 804 F.3d 1218, 1225 (7th Cir. 2015). “A court's scrutiny of an attorney's performance is ‘highly deferential' to eliminate as much as possible the distorting effects of hindsight, and we ‘must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” Id. (internal citation omitted). “The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal citation omitted).
To satisfy the prejudice prong, a petitioner must establish that “‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Strickland, 466 U.S. at 694. “This does not mean that the defendant must show that counsel's deficient conduct more likely than not altered the outcome in the case. Rather, a reasonable probability is a probability sufficient to undermine confidence in the outcome, which in turn means a substantial, not just conceivable likelihood of a different result.” Harris v. Thompson, 698 F.3d 609, 644 (7th Cir. 2012) (internal citations and quotation marks omitted). If a petitioner fails to make a proper showing under one of the Strickland prongs, the court need not consider the other. See Strickland, 466 U.S. at 697.
“[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). The performance prong is the same as that outlined in Strickland. Id. To establish prejudice in a case where the petitioner pleaded guilty, “the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59; see also Morales v. Boatwright, 580 F.3d 653, 663 (7th Cir. 2009). “[T]he petitioner must do more than simply allege ‘that he would have insisted on going to trial'; he must also come forward with objective evidence that he would not have pled guilty. Objective evidence includes the nature of the misinformation provided by the attorney to the petitioner and the history of plea negotiations.” Hutchings v. United States, 618 F.3d 693, 697 (7th Cir. 2010) (internal citation omitted).
2. Counsel's Sentencing Predictions
Wilbourn claims that he received ineffective assistance of counsel because his counsel failed to advise him that he could be sentenced as a career offender. (DE # 143 at 4.) He argues that his plea was not knowing or voluntary because he did not understand the sentencing consequences. (Id.) He has submitted an affidavit from the attorney who represented him in negotiating the plea agreement, in which his attorney admits that he was unaware that Wilbourn would qualify as a career offender and therefore did not advise Wilbourn of the same. (DE # 144.)
After Wilbourn pleaded guilty, and the presentence investigation report revealed that Wilbourn qualified as a career offender, Wilbourn requested and was appointed new counsel. (See DE ## 104-106.) His new counsel then filed a motion to withdraw Wilbourn's guilty plea and plea agreement on the basis that Wilbourn did not understand that he would be sentenced as a career offender at the time he entered the agreement and guilty plea. (DE # 108.) This court denied that motion, finding that Wilbourn's sworn statements during the plea colloquy precluded a finding that his plea was not knowing or voluntary. (DE # 111.) Specifically, Wilbourn stated that: he understood that his sentence would be determined by a combination of the advisory sentencing guidelines, possible authorized departures and variances from the guidelines, as well as other sentencing factors; that the district court would not be able to determine the guideline range until after the pre-sentence report was completed and any objections to the report were submitted; and that the ultimate guideline ranges, and sentence ultimately imposed, might be different from any estimate his lawyer may have given him. (Id.; see also DE # 103.)
Here, Wilbourn's claim fails on the prejudice prong of the Strickland analysis. He has failed to establish that there is a reasonable probability that he would not have pled guilty absent his attorney's erroneous advice. In support of his claim, Wilbourn has pointed to his own assertion that he would not have accepted the plea agreement if he had known that he could be sentenced as a career offender, and his attorney's admission that he failed to advise Wilbourn of the possibility of being sentenced as a career offender. This is insufficient to establish prejudice in the face of the other objective evidence in the record. Wilbourn's plea agreement and his statements during the change of plea hearing demonstrate that he entered the plea agreement aware that: he could be sentenced to up to 20 years in prison; the court would not be able to determined the advisory guideline range until after the presentence report was completed; and that the ultimate guideline range and sentence could be different from any estimate his lawyer had given him. (DE # 103 at 11.) Wilbourn's testimony refutes his present claim that he would have insisted on going to trial, but for his attorney's miscalculation.
The Seventh Circuit has rejected ineffective assistance claims in cases where the defendant claims that his attorney failed to advise him on the potential for a career offender enhancement, finding that the defendant's statements at the plea colloquy precluded a finding of prejudice. See e.g. Wyatt v. United States, 574 F.3d 455, 458-59 (7th Cir. 2009); Bethel v. United States, 458 F.3d 711, 718-19 (7th Cir. 2006).
As the Seventh Circuit held in Bethel, Wilbourn “cannot now be heard to complain that he would not have pled guilty if he had known his sentence would be more severe than his lawyer predicted. He specifically disclaimed that risk at his change of plea hearing.” Bethel, 458 F.3d at 718.
3. Remaining Ineffective Assistance Claims
In his plea agreement, Wilbourn admitted to distributing 0.219 grams of cocaine base, also known as crack cocaine. (DE # 60 at 6.) Wilbourn now claims that he received ineffective assistance of counsel because the plea agreement's factual basis was inconsistent with the search warrant affidavit, and therefore the plea agreement was inaccurate. (DE # 143 at 6.) Here, again, Wilbourn's claim of prejudice is defeated by the statements he made during his plea colloquy. During his change of plea hearing, Wilbourn confirmed the truth of the Government's representation regarding the factual basis of his offense (that he threw 0.219 net grams of cocaine base to an unidentified male, who then gave it to a confidential informant in exchange for U.S. currency). (DE # 103 at 16-17.) He offers no compelling reason why this under-oath admission should now be disregarded. See United States v. Parker, 609 F.3d 891, 895-96 (7th Cir. 2010) (rejecting ineffective assistance claim because claim would require court to find that petitioner committed perjury when he admitted to amount of drugs at plea hearing); United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005) (“[A] motion that can succeed only if the defendant committed perjury at the plea proceedings may be rejected out of hand unless the defendant has a compelling explanation for the contradiction.”).
Wilbourn also argues that his counsel should have filed a motion to suppress the evidence obtained through the search warrant. (DE # 143 at 8.) He argues that he was not the main subject of the warrant and that the warrant did not claim that he distributed or possessed crack cocaine. (Id. at 9.) He did not attach the warrant as an exhibit. Regardless, Wilbourn's guilty plea and conviction did not arise from the September 29, 2020, search warrant, but rather from his sale of crack to a confidential source on August 27, 2020. (DE # 87 at 3; DE # 103 at 15-16.) He has not established that any failure on the part of his counsel to challenge the search warrant resulted in any prejudice related to his decision to plead guilty to this sale.
Finally, Wilbourn also argues that police officers must have unlawfully identified him by accessing personal information associated with his phone number. (DE # 143 at 9.) He presents nothing but conjecture in support of this argument and has failed to establish any prejudice resulting from his attorney's failure to present this argument.
5. Cumulative Effect of Alleged Errors
It is not enough for this court to consider whether each alleged error, alone, rises to the level of Strickland prejudice. The court also considers defense counsel's performance as a whole, and any cumulative effect of the alleged errors. Cook v. Foster, 948 F.3d 896, 908 (7th Cir. 2020). When this court evaluates counsel's performance as a whole, Wilbourn has not demonstrated a reasonable probability that the outcome of his criminal proceedings would have been different had his counsel raised the objections he identifies.
B. Other Claims
In addition to his ineffective assistance claims, Wilbourn also argues that this court erred in calculating his sentence. (DE # 143 at 10.) However, in his plea agreement, Wilbourn explicitly waived his right to challenge his conviction or sentence on any ground other than a claim of ineffective assistance of counsel. Wilbourn's present claims are foreclosed by his appeal waiver if: (1) his claims fall within the scope of his appeal waiver, and (2) the waiver is valid. See United States v. Perillo, 897 F.3d 878, 882 (7th Cir. 2018), reh'g denied (Aug. 20, 2018). Here, Wilbourn's claims regarding the calculation of his sentence fall within the scope of his appeal waiver. Therefore, the court considers the validity of his waiver.
An appeal waiver is valid and enforceable “ ‘so long as the record clearly demonstrates that it was made knowingly and voluntarily.' ” Id. at 883 (quoting United States v. McGuire, 796 F.3d 712, 715 (7th Cir. 2015)). A plea was made knowingly and voluntarily if, “ ‘looking at the total circumstances surrounding the plea, the defendant was informed of his or her rights.' ” Id. (quoting United States v. Kelly, 337 F.3d 897, 902 (7th Cir. 2003)). Courts look to the language of the plea agreement and the defendant's statements during the Rule 11 plea colloquy to determine whether the defendant knew and understood the plea agreement. United States v. Chapa, 602 F.3d 865, 868 (7th Cir. 2010). “A written appellate waiver signed by the defendant will typically be voluntary and knowing[.]” United States v. Galloway, 917 F.3d 604, 606 (7th Cir. 2019).
Other than the arguments that this court has already considered and rejected, Wilbourn does claim that his plea agreement, or the appeal waiver contained therein, was not knowing or voluntary. This court already determined that his plea agreement was knowing and voluntary (see DE # 111), and has now rejected all of Wilbourn's other assertions regarding the knowing and voluntary nature of his plea agreement. The record demonstrates that Wilbourn knowingly and voluntarily entered into both his plea agreement and his appeal waiver. Accordingly, his claims regarding his sentencing calculations are barred by his appeal waiver.
C. No Hearing Necessary
Wilbourn has requested an evidentiary hearing on his motion to vacate. (DE # 143 at 14.) “The court should grant an evidentiary hearing on a § 2255 motion when the petitioner ‘alleges facts that, if proven, would entitle him to relief.' ” Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009) (internal citations omitted). However, where a petitioner has failed to present facts necessary to substantiate his claim, he cannot meet the threshold requirement for entitlement to an evidentiary hearing, and a district court may properly deny such a motion. Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005). Wilbourn has not presented facts that, if proven, would entitle him to relief. Thus, he is not entitled to an evidentiary hearing.
D. Appointment Of Counsel Unnecessary
The court denies Wilbourn's motion for appointed counsel. (DE # 141.) “Prisoners do not have a constitutional right to the assistance of counsel in post-conviction collateral attacks.” Socha v. Boughton, 763 F.3d 674, 685 (7th Cir. 2014); see also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Powell v. Davis, 415 F.3d 722, 727 (7th Cir. 2005). Furthermore, because Wilbourn's case does not involve the death penalty, he has no statutory right to appointed counsel. However, a district court may appoint counsel if “the interests of justice so require[.]” 18 U.S.C. § 3006A(a)(2)(B). The court is also authorized to appoint counsel if an evidentiary hearing is warranted, R. Gov. Sec. 2255 Pro. 8(c), or if counsel is necessary for effective discovery, R. Gov. Sec. 2255 Pro. 6(a).
The court finds that, in this case, the interests of justice do not require the appointment of counsel. Wilbourn's claims in his motion are straightforward. Moreover, his filings demonstrate that he was able to represent his interests and advocate for his motion to vacate without the appointment of counsel.
E. Certificate Of Appealability
Pursuant to § 2255 Habeas Corpus Rule 11, the court must consider whether to grant or deny a certificate of appealability. A court should issue such a certificate only if the movant has made a substantial showing of the denial of a constitutional right, such that reasonable jurists would find debatable whether the district court correctly resolved the issues or would conclude that those issues deserve further proceedings. 28 U.S.C. § 2255; 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 337-38 (2003). In light of the foregoing, the court finds that the conditions for the issuance of a certificate of appealability are not present in this case. Therefore, no certificate will issue.
III. CONCLUSION
For the foregoing reasons, the court DENIES Johnny Wilbourn's motion to vacate under 28 U.S.C. § 2255 (DE # 142), and DENIES Johnny Wilbourn a certificate of appealability. The court also DENIES Johnny Wilbourn's motion for appointment of counsel. (DE # 141.)
SO ORDERED.