Wagner v. USA

Filing 4

MEMORANDUM AND ORDER, finding as moot 3 MOTION for Hearing filed by Matthew A. Wagner and ordering the Government to file a response to grounds 1 and 4 of the petitioner's 2255 motion. Signed by Judge J. Phil Gilbert on 10/29/2012. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MATTHEW A. WAGNER,
Petitioner,
v.

Case No. 11-cv-424-JPG

UNITED STATES OF AMERICA,

Criminal No 09-cr-40045-JPG

Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Matthew A. Wagner’s motion to vacate,
set aside or correct his sentence pursuant to 28 U.S.C. § 2255. On June 17, 2009, the grand jury
returned an indictment charging Wagner’s codefendant James S. Hubbard with conspiring to
distribute and possess with intent to distribute 500 grams or more of cocaine in violation of 21
U.S.C. § 841(a) and (b)(1)(B). On October 21, 2009, the grand jury returned a superseding
indictment adding Wagner as a defendant in the same charge. On February 5, 2010, the petitioner
pled guilty to the charge. In his plea colloquy, he admitted facts sufficient to support his
conviction. On May 20, 2010, the Court found Wagner’s relevant conduct to be more than 500
grams but less than 2 kilograms of cocaine and sentenced him to serve 90 months in prison. The
petitioner did not appeal his conviction or his sentence.
In his § 2255 motion, the petitioner raises the following claims:
1. ineffective assistance of counsel in advice leading to petitioner’s guilty plea which resulted
in an involuntary guilty plea;
2. ineffective assistance of counsel in failing to object to the constructive amendment of the
indictment;
3. conviction based on insufficient evidence; and
4. ineffective assistance of counsel in failing to object to the presentence investigation

report’s relevant conduct, some of which was obtained in an investigation of a state case
that ended in a nolle prosequi.
Ground 2
Ground 2 has no merit. Wagner believes the Government constructively amended the
indictment by adding him as a defendant in the superseding indictment when he had not been a
target in the initial investigation and had not been mentioned as a coconspirator in the original
indictment. He believes his counsel was constitutionally ineffective for failing to object to the
superseding indictment on this basis.
The Sixth Amendment to the Constitution provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. This right to assistance of counsel encompasses the right to effective assistance of
counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d
687, 690 (7th Cir. 2009). A party claiming ineffective assistance of counsel bears the burden of
showing (1) that his trial counsel’s performance fell below objective standards for reasonably
effective representation and (2) that this deficiency prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F.3d 909, 915 (7th Cir.
2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009), cert. denied, 130 S. Ct. 2431
(2010); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000).
Even assuming Wagner’s allegations are true, as a matter of law there is simply nothing
wrong with a grand jury’s adding an individual as a defendant in a superseding indictment when
that individual was not a target of the initial investigation and was not mentioned in the original
indictment. Wagner’s counsel’s failure to object to his first appearance in the superseding
indictment was not deficient performance and did not prejudice Wagner’s case. Ground 2 does
not warrant relief under § 2255.

Ground 3
Ground 3 has no merit. Wagner believes the Government had no evidence showing he
committed the conspiracy with which he was convicted. This challenge to the sufficiency of the
evidence is not a constitutional challenge and therefore cannot be raised for the first time in a §
2255 motion. See Broadway v. United States, 104 F.3d 901, 904 (7th Cir. 1997) (“insufficient
evidence was a matter for direct appeal”). A defendant cannot raise in a ' 2255 motion
nonconstitutional issues that he could have but failed to raise on direct appeal. Sandoval v. United
States, 574 F.3d 847, 850 (7th Cir. 2009); Lanier v. United States, 220 F.3d 833, 842 (7th Cir.
2000). Furthermore, even if he could raise this challenge in this proceeding, the record contains
sufficient evidence of his guilt to sustain a conviction: his own sworn statements at his plea
hearing, which he does not now disavow. To the extent defense counsel’s misevaluation of the
Government’s evidence led to advice to plead guilty, that theory is covered by Ground 1. Ground
3 does not warrant relief under § 2255.
The Court ORDERS the Government to file a response to Grounds 1 and 4 of the
petitioner’s § 2255 motion within THIRTY DAYS of the date this order is entered. The
Government shall, as part of its response, attach all relevant portions of the record in the
underlying criminal case. In light of this ruling, Wagner’s motion to enter the petition on the
docket so that it can be heard (Doc. 3) is MOOT.
IT IS SO ORDERED.
DATED: October 29, 2012
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE