Wilkins v. U.S.

Full title: MICHAEL WILKINS, SR., Petitioner, v. U.S., Respondent

Court: United States District Court, N.D. Illinois, Eastern Division

Date published: Aug 31, 2004

No. 04 C 5000 (N.D. Ill. Aug. 31, 2004)

Opinion

No. 04 C 5000.

August 31, 2004

MEMORANDUM OPINION AND ORDER

JAMES MORAN, Senior District Judge

On March 23, 2004, petitioner Michael Wilkins, Sr. pled guilty to fraud and aiding false statements on tax returns, in violation of 18 U.S.C. § 1341 and 26 U.S.C. § 7206(2) (USA v. Wilkins, 02 CR 349). Petitioner was sentenced to 48 months for the fraud and 36 months for aiding false statements — sentences to be served concurrently. Wilkins now petitions to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.

Under § 2255, a prisoner may challenge his sentence on the grounds that it violates the Constitution, the court imposed it without jurisdiction, it is in excess of the maximum allowed by law, or it is otherwise subject to collateral attack. 28 U.S.C. § 2255. Petitioner argues that his sentence should be vacated because of his attorney's ineffective assistance of counsel and because the court abused its discretion by not allowing petitioner's argument for a downward departure from the sentencing guidelines.

To prove an ineffective-assistance-of-counsel claim, petitioner must show that his counsel's performance "fell below an objective standard of reasonableness and outside the wide range of professionally competent assistance." Reeves v. U.S., 255 F.3d 389, 393 (7^th Cir. 2001). Generally, he must also show that there is a reasonable probability that, but for his counsel's incompetence, the outcome of his sentencing would have been different. See id. Petitioner argues that his counsel's failure to present mitigating circumstances, which justified the downward departure from the sentencing range, amounted to ineffective assistance. He further maintains that the court's failure to consider such arguments was an abuse of discretion. Contrary to petitioner's claim, his counsel did, in a sentencing memorandum presented to the court, argue that petitioner's physical ailments and family circumstances warranted a downward departure. The government opposed any downward departures and argued for an upward departure. As is within our discretion, we rejected both petitioner's request for a downward departure and the government's request for an upward departure. Thus, petitioner's failure to receive a downward departure in sentencing did not result from counsel's ineffective assistance of counsel, nor the court's abuse of discretion.

Petitioner also claims that his attorney failed to file a direct appeal of his sentence despite petitioner's request that he do so. The Seventh Circuit has held that an attorney's "failure to take an appeal, despite the defendant's request, is ineffective assistance without regard to the probability of success on appeal." Castellanos v. United States, 26 F.3d 717, 719 (7^th Cir. 1994). Though an attorney may counsel a client against an imprudent appeal, he must file a notice of appeal and represent the client, if the client insists on appealing, unless the attorney is relieved by the court of appeals. Id. Petitioner, who did not waive his right to appeal, claims that he informed his attorney that he wanted to appeal his sentence. His attorney allegedly told petitioner that he could not think of any grounds for appeal and no appeal was filed.

Under § 2255, petitioner is entitled to a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . ." 28 U.S.C. § 2255; See Stoia v. U.S., 22 F.3d 766, 768 (7^th Cir. 1994) ("A section 2255 petitioner is entitled to an evidentiary hearing on his claims, when he alleges facts that, if proven, would entitle him to relief.") From this record we cannot conclusively determine that petitioner is not entitled to relief. We do not know whether petitioner requested that his attorney appeal and remained insistent on an appeal despite his attorney's objection. If petitioner did make such a request, he would be entitled to appropriate relief for ineffective assistance of counsel — the right to an appellate proceeding represented by counsel, unless the court of appeals relieves counsel of that obligation, even though the appeal has no chance of success.¹ See Castellanos, 26 F.3d at 720. Before deciding whether to grant petitioner a hearing, we will give the government an opportunity to respond to Wilkins' petition. In addition to addressing whether Wilkins is entitled to a hearing, the government may choose to address whether Wilkins' presence would be required if an evidentiary hearing is granted.

1 We are unaware of any meritorious grounds. For example, petitioner complains of enhancement due to loss amounts, but he admitted those loss amounts in his plea agreement.

CONCLUSION

The government will be given the opportunity to respond to Wilkins' petition before we render a decision on its merits.