Wilson v. United States of America

Filing 19

ORDER DENYING re 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence (2255) filed by Gary K. Wilson. Signed by Judge Marcia G. Cooke on 7/18/2011. (tm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 09-23473-CIV-COOKE
Criminal Case No. 04-20487-CR-COOKE
GARY K. WILSON,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent.
____________________________________________/
ORDER DENYING MOTION TO VACATE
THIS MATTER is before me on Petitioner Gary K. Wilson’s Motion to Vacate pursuant
to 28 U.S.C. § 2255. (CIV-ECF No. 1; CR-ECF No. 544). I have reviewed the motion, the
Government’s response (CIV-ECF No. 10), Wilson’s reply thereto (CIV-ECF No. 13), and all
pertinent portions of the underlying criminal file (United States v. Wilson, et al., Case No. 0420487-CR-COOKE). For the reasons explained below, the Motion to Vacate is denied.
PROCEDURAL HISTORY
On February 24, 2005, Gary K. Wilson, Anthony Collins, Charles Wooten, Castra PierreLouis, Harold Wiggins, Larry Green and Gena Wiggins were charged by a five-count
Superseding Indictment for drug related charges and a charge of conspiracy to commit robbery
and extortion in violation of the Hobbs Act, 18 U.S.C. § 1951(a). (Superseding Indictment CRECF No. 220). Wilson, specifically, was charged with conspiracy with intent to distribute five
kilograms or more of cocaine and fifty grams or more of a mixture substance containing cocaine
base (Count 1), conspiracy to commit robbery and extortion (Count 2), and attempted possession
with the intent to distribute five kilograms or more of a mixture of substance containing a

detectable amount of cocaine (Count 3). (Id.). On July 5, 2005, Wilson was convicted on all
three counts. (Jury Verdict, CR-ECF No. 387). The Government sought to enhance Wilson’s
sentence with two prior 1997 convictions for felony cocaine possession. (See Notice of Intent to
Introduce Prior Convictions, CR-ECF Nos. 325).

During the sentencing hearings, Wilson

challenged the propriety of the Court’s use of the prior convictions to enhance his sentence. (See
Mem. of Law re Issues Raised at Oct. 19, 2005 Sentencing Hr’g, CR-ECF No. 434). The Court
concluded that 21 U.S.C. § 851(e) barred Wilson from challenging the validity of any prior
conviction used for his sentencing enhancement. Accordingly, on November 9, 2005, Wilson
was sentenced to a term of thirty years on Count 1, twenty years on Count 2, and a mandatory
life sentence on Count 3. (Judgment as to Gary K. Wilson, CR-ECF No. 447).
On direct appeal, Wilson challenged the Court’s denial of his motion to dismiss the
Superseding Indictment and motion to suppress wiretap evidence. (See Mandate of USCA
Affirming Judgment of District Court as to Gary K. Wilson, CR-ECF No. 536). No other
challenges were made. Wilson now moves to vacate his sentence on the ground that he was
denied effective assistance of counsel where his lawyer failed to appeal the following three
issues: (1) the potential prejudice resulting from Wilson staring at jurors during trial; (2) the
Court’s order to shackle Wilson for the duration of the trial; and (3) the use of Wilson’s prior
convictions for sentencing enhancement.
DISCUSSION
In order to prevail on a claim of ineffective assistance of counsel, the movant must
establish: (1) deficient performance – that his counsel’s representation fell below an objective
standard of reasonableness; and (2) prejudice – but for the deficiency in representation, there is a
reasonable probability that the result of the proceeding would have been different. Strickland v.

2

Washington, 466 U.S. 668, 687 (1984); Chandler v. United States, 218 F.3d 1305, 1312 (11th
Cir. 2000) (en banc). The standard is the same for claims of ineffective assistance on appeal.
Matire v. Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987). There is no reason for a court to
approach the inquiry in any specific order, or even to address both components of the inquiry if
the defendant makes in inefficient showing on one. Strickland, 466 U.S. at 697. Thus, a court
may decline to reach the performance prong of the standard if it is convinced that the prejudice
prong cannot be satisfied. Id. at 697; Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir. 1995).
A prisoner who collaterally attacks his convictions can establish cause for procedural
default if he can show that his attorney’s performance failed to meet the Strickland standard.
Reece v. United States, 119 F.3d 1462, 1465 (11th Cir. 1997). Review of a counsel’s conduct,
however, is to be highly deferential. Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.
1994). “Courts should at the start presume effectiveness and should always avoid secondguessing with the benefit of hindsight.” White v. Singletary, 972 F.2d 1218, 1220 (11th Cir.
1992); Atkins v. Singletary, 965 F.2d 952, 958 (11th Cir. 1992). Because a “wide range” of
performance is constitutionally acceptable, “the cases in which habeas petitions can properly
prevail on the ground of ineffective assistance of counsel are few and far between.” Rogers v.
Zant, 13 F.2d 384, 386 (11th Cir. 1994). However, an appellate counsel’s performance is
prejudicial if it found that the neglected claim would have had a “reasonable probability of
success on appeal.” Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009) (citing Heath
v. Jones, 941 F.2d 1126, 1132 (11th Cir. 1991)).
A. Claim One – Failure to Appeal Jury Bias
Wilson asserts that he was denied effective assistance of counsel where his appellate
lawyer failed to raise the issue of jury bias on appeal.

3

“In a criminal case, any private

communication, contact, or tampering directly or indirectly, with a juror during a trial about the
matter pending before the jury is … deemed presumptively prejudicial.”

United States v.

Khanani, 502 F.3d 1281, 1291 (11th Cir. 2007) (citing Remmer v. United States, 347 U.S. 227,
229(1954) and McNair v. Campbell, 416 F.3d 1291, 1307 (11th Cir. 2005)). A new trial is
mandated if a juror’s exposure to extraneous material or influence “poses a reasonable possibility
of prejudice to the defendant.” Id. (citing United States v. Rowe, 906 F.2d 654, 656 (11th Cir.
1990)). To trigger the presumption, a defendant must establish that an extrinsic contact with a
jury, in fact, occurred. United States v. Caporale, 806 F.2d 1487, 1503 (11th Cir. 1986). Where
a defendant raises a colorable claim of extrinsic or extraneous influence, a court must conduct a
hearing to “investigate the asserted impropriety.” See Remmer, 347 U.S. at 229; United States v.
Winkle, 587 F.2d 705, 714 (5th Cir. 1979).1 “[A]n adequate demonstration of extrinsic influence
upon the jury overcomes the presumption of jury impartiality; it shifts the burden to the
Government to demonstrate that the influence was not, in fact, prejudicial.” Winkle, 587 F.2d at
714. “The factual determination of whether consideration of extrinsic evidence caused the
defendant prejudice is committed to the trial court’s ‘large discretion.’” BankAtlantic v. Blythe
Eastman Paine Webber, Inc., 955 F.2d 1467, 1472 (11th Cir. 1992) (citation omitted).
Wilson maintains that several jurors expressed concern about the staring and that the
Court informed Wilson’s trial counsel that “evidently the way your client looks at the jury is
making them nervous.” (See CIV-ECF No. 1 at 14). Wilson claims that staring at the jurors
created a grave risk of prejudice. I disagree. “When a defendant stares at a juror during the
course of his trial, he has introduced no outside contact with, nor special information about, a

1
The Eleventh Circuit has adopted, as binding precedent, all decisions of the former Fifth Circuit
handed down prior to close of business on September 30, 1981. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir. 1981) (en banc).

4

party or witness.” United States v. Owens, 426 F.3d 800, 805 (6th Cir. 2005); see also United
States v. Lopez, 271 F.3d 472 (3d Cir. 2001) (upholding district court’s decision not to question
juror after complaint that defendant stared during trial because such conduct did not constitute
outside influence). Although the Eleventh Circuit is silent as to whether staring constitutes an
“extrinsic influence” which would in turn trigger a court’s obligation to conduct a Remmer
hearing, the Eleventh Circuit has held that locking eyes with a defendant on one occasion would
not affect jury deliberations and, “even assuming an extrinsic contact with a jury in fact,
occurred, it was not prejudicial.” Khanani, 502 F.3d at 1292. Given the existing law in the
Third, Sixth and Eleventh Circuits, the Court had no duty to conduct a Remmer hearing. Wilson
has thus failed to establish a lack of reasonableness or prejudice arising from counsel’s failure to
pursue this argument on appeal. There has been no showing that the result of the proceeding
would have been different had counsel presented this argument on appeal. Therefore, Wilson is
not entitled to relief on claim one.
B. Claim Two – Failure to Appeal Court’s Order to Have Wilson Shackled During Trial
In claim two, Wilson asserts that he was denied effective assistance of counsel where his
appellate lawyer failed to appeal the Court’s order to have Wilson shackled throughout the
duration of trial.

Wilson, however, presents no legal or factual argument to effectively

demonstrate how the shackles deprived him of his right to a fair trial.
“[T]he presumption of innocence is an integral part of a criminal defendant’s right to a
fair trial.” U.S. v. Durham, 287 F.3d 1297, 1304 (11th Cir. 2002) (citing Estelle v. Williams, 425
U.S. 501, 503 (1976)). “The presence of shackles and other physical restraints on a defendant
ted to erode this presumption of innocence.” Id. (citing United States v. Mayes, 158 F.3d 1215,
1225 (11th Cir. 1998)). “Under some circumstances, [however,] shackling ‘is necessary for the

5

safe, reasonable and orderly progress of trial.’” United States v. Mayes, 158 F.3d 1215, 1225
(11th Cir. 1998) (citation omitted). The use of physical restraints that are visible to a jury are
constitutionally prohibited, unless, a trial court, in its discretion, concludes that such restraints
are justified by a specific state interest in a particular trial. Deck v. Missouri, 544 U.S. 622, 629
(2005). “Courtroom security is a competing interest that may, at times, ‘outweigh a defendant’s
right to stand before the jury untainted by physical reminders of his status as an accused.’”
Mayes, 158 F.3d at 1225 (quoting Allen v. Montgomery, 728 F.2d 1409, 1413 (11th Cir. 1984)).
Trial judges have reasonable discretion in balancing these interests and determining whether to
physically restrain a criminal defendant. Id.
The Court ordered Wilson and his co-defendants to be shackled after the Court received
reports that the defendants were attempting to threaten and intimidate the trial witnesses. (See
Transcript of Motion Hearing, CR-ECF No. 349 at 77). The Court also went through great
lengths to ensure that the shackles were not visible to the jury by draping a cloth over the front of
the defense table. In light of Wilson’s criminal history, the number of defendants being tried,
and the apparent safety concerns, the Court was permitted to exercise its discretion in ordering
Wilson to be shackled. Wilson is not entitled to relief on claim two, as counsel’s failure to raise
the shackling issue on appeal did not cause prejudice.
C. Claim Three – Failure to Appeal Sentencing Enhancement
Finally, Wilson alleges that his appellate counsel provided ineffective assistance by
failing to appeal his sentencing enhancement. Specifically, Wilson argues that at least one of the
1997 felony convictions was obtained in violation of his Sixth Amendment right to counsel and
therefore cannot be used for sentencing enhancement purposes. Wilson does not dispute that he

6

was convicted for felony cocaine possession twelve years before trial and sentencing. Wilson
does, however, dispute whether he is procedurally barred from challenging the enhancement.
Subsection (e) of 21 U.S.C. § 851, titled “Statute of Limitations,” states that “[n]o person
who stands convicted of an offense under this part may challenge the validity of any prior
conviction alleged under this section which occurred more than five years before the date of the
information alleging such prior conviction.”

21 U.S.C. § 851(e). The “five year limitation is

reasonably tailored to impose enhanced sentences on recidivists.” United States v. Williams, 954
F.2d 668, 673 (11th Cir. 1992); United States v. Weaver, 905 F.2d 1466, 1482 (11th Cir. 1990)
Wilson’s convictions occurred more than five years ago. Any challenge as to the validity of the
convictions is thus time barred.
CONCLUSION

A criminal defendant who fails to raise an available issue on direct appeal is procedurally

barred from raising the claim in a 28 U.S.C. § 2255 motion, absent a showing of cause and
prejudice or a fundamental miscarriage of justice. Mills v. United States, 36 F.3d 1052, 1055
(11th Cir. 1994). Wilson has failed to establish cause, prejudice or a fundamental miscarriage of
justice to warrant vacature under 28 U.S.C. § 2255. The Motion to Vacate (CIV-ECF No. 1; CRECF No. 544) is therefore DENIED. The Clerk is directed to CLOSE this case. All pending
motions are denied as moot.
DONE and ORDERED in chambers at Miami, Florida this 18TH day of June 2011.

Copies furnished to:
Counsel of Record

7