Wadsworth v. USA

Filing 32

MEMORANDUM AND ORDER, Finding that Wadsworth has failed to meet the evidentiary burden to support his claim that he directed his attorney, Kim Freter, to file an appeal, Wadsworth's § 2255 petition, (Doc. 1), is hereby DENIED. Additionally, his reply, (Doc. 30), which the Court construes as a motion for reconsideration pursuant to Fed. R. Civ. Pro. 59(e), presents insufficient grounds to alter judgment. Therefore, his motion for reconsideration, (Doc 30), is likewise DENIED. The Court GRANTS a certificate of appealability. Signed by Judge J. Phil Gilbert on 8/28/2024. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUSTIN A. WADSWORTH,
Petitioner,
v.

Case No. 4:23-cv-04023-JPG

UNITED STATES OF AMERICA,

Criminal No. 4:20-cr-40045-JPG

Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court following an evidentiary hearing on Wadsworth’s
petition to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). The
Court had determined that, while some of Wadsworth’s claims were frivolous, one of his claims
required an evidentiary hearing for the Court to resolve. (Doc. 19). At the conclusion of the
evidentiary hearing, the Court denied Wadsworth’s 2255 petition. Consequently, the Court
DENIES Wadsworth’s § 2255 petition, (Doc. 1). The Court construes Wadsworth’s reply as a
motion for reconsideration and DENIES that motion as well. (Doc. 30)
I.

INTRODUCTION
Wadsworth filed a habeas petition pursuant to § 2255. The Court dismissed some of his

claims as frivolous but reserved ruling on his petition and called an evidentiary hearing.
(Doc. 19).
Rule 8(c) of the Rules Governing Section 2255 Proceedings requires, when an
evidentiary hearing is warranted to resolve a factual dispute, that the Court appoint an attorney to
represent a petitioner under 18 U.S.C. § 3006A. Pursuant to Rule 8(c), the Court appointed CJA
Panel Attorney Robert L. Elovitz, Esq., to represent Wadsworth; however, the scope of Elovitz’s

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representation was limited to the evidentiary hearing, not Wadsworth’s other frivolous claims.
(Doc. 24). The Court called an evidentiary hearing to resolve a factual dispute over whether
Wadsworth directed his attorney, FPD Kim Freter, to appeal his conviction.
Before Elovitz was appointed, the Court granted Wadsworth an extension to reply to the
Government’s response to his initial petition. (Doc. 25). Accordingly, Wadsworth filed a
document that purports to be that reply. (Doc. 30). 1 However, as the Court has already ruled on
his petition and Wadsworth’s reply does not raise any additional facts or legal arguments. The
Court shall construe Wadsworth’s reply as a motion for reconsideration, which the Court
likewise denies.
II.

BACKGROUND
On June 30, 2022, the Petitioner, Justin A. Wadsworth, pled guilty to one count of

attempted enticement of a minor and one count of attempted commercial sex trafficking of a
child. (Case No. 4:20-cr-40045-JPG, Docs. 29, 62). 2 On January 10, 2023, Wadsworth was
sentenced on those counts to the mandatory minimum of 180 months in prison. (Crim., Doc. 69).
On December 26, 2023, Wadsworth filed his motion under § 2255 alleging that he
received ineffective assistance of counsel. Wadsworth claimed that his attorney, Federal Public
Defender Kim Freter, was ineffective in plea negotiations. Additionally, that Freter was
ineffective because she refused to file an appeal after Wadsworth allegedly directed her to file
one. The Court ordered the Government to respond to Wadsworth’s motion. (Doc. 4).
The Government responded with an affidavit from Freter disputing Wadsworth’s claims,
but argued that an evidentiary hearing was required given their testimonies conflicted. (Doc. 17).

Wadsworth filed an additional reply on August 26, 2024, (Doc. 31), however, both that reply and the reply filed on
August 12, 2024, (Doc. 30), appear to be identical.
2
References to documents in Wadsworth’s criminal case will be denoted with “Crim,” followed by the relevant
document number.
1

2

The Government also presented more than sufficient grounds to determine that Wadsworth’s
other claims—that the Government lacked sufficient evidence to establish he violated the
elements of his crimes—were frivolous. Consequently, the Court dismissed those frivolous
claims but reserved ruling on his appellate claims until after the evidentiary hearing. (Doc. 19).
On June 25, 2024, Wadsworth moved for an extension of time to reply to the
Government’s response. (Doc. 23). The Court granted that extension, (Doc. 25), and pushed the
deadline to reply to two weeks after the evidentiary hearing to give Wadsworth the opportunity
to incorporate the facts from the hearing in his reply if he so desired.
On July 23, 2024, the Court held the evidentiary hearing and heard testimony from both
Wadsworth and Freter. (Doc. 29). After testimony concluded, the Court was prepared to rule on
Wadsworth’s petition. The Court found that Freter’s testimony was more credible than
Wadsworth’s and, accordingly, denied Wadsworth’s petition. (Id.).
Wadsworth filed his reply on August 12, 2024. (Doc. 30). In that reply, Wadsworth
submits new evidence—screenshots from his cellphone purportedly showing he searched for the
county sheriff before he arrived at the location of his arrest. He argues that this vindicates him.
Additionally, Wadsworth renews his claims that Freter’s testimony is unspecific and
contradictory. Furthermore, Wadsworth asserts a new claim: that he was under the influence of
prescription medication at the time of his plea, the Court failed to determine his competency,
and, therefore, his plea was not voluntary. Wadsworth also filed a reply on August 26, 2024,
(Doc. 31), but it appears to be a carbon copy of his reply on August 12.
III.

LEGAL STANDARD
The Court must grant a § 2255 motion when a petitioner’s “sentence was imposed in

violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). However,

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“[r]elief under § 2255 is available ‘only in extraordinary situations, such as an error of
constitutional or jurisdictional magnitude or where a fundamental defect has occurred which
results in a complete miscarriage of justice.’” United States v. Coleman, 763 F.3d 706, 708 (7th
Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to
deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of
the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b);
see Shipman v. United States, 925 F.3d 938, 943 (7th Cir. 2019).
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 defense.”
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); Groves v. United States, 755
F.3d 588, 591 (7th Cir. 2014); United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); Wyatt v.
United States, 574 F.3d 455, 457 (7th Cir. 2009). When a defendant instructed their attorney to
file a notice of appeal and their attorney failed to do so, a defendant need not show that they were
prejudiced by that failure, it is per se ineffective assistance of counsel. Castellanos v. United
States, 26 F.3d 717, 720 (7th Cir. 1994).
To satisfy the first prong of the Strickland test, the petitioner must direct the Court to
specific acts or omissions of his counsel. Wyatt, 574 F.3d at 458. The Court must then consider
whether in light of all of the circumstances counsel’s performance was outside the wide range of

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professionally competent assistance. Id. To satisfy the second prong of the Strickland test, the
plaintiff “must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Harrington v. Richter, 562 U.S.
86, 104 (2011) (quoting Strickland, 466 U.S. at 694); accord Groves, 755 F.3d at 591; Jones,
635 F.3d at 915.
While ineffective assistance of counsel may be grounds for withdrawing a guilty plea,
once a defendant is sentenced, that standard is high. United States v. Cross, 962 F.3d 892, 896
(7th Cir. 2020). A defendant must have knowingly, voluntarily, and intelligently entered a plea
of guilty, “with sufficient awareness of the relevant circumstances and likely consequences.”
Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). To withdraw a guilty plea, a defendant must
demonstrate that the ineffectiveness of their counsel rendered their plea unknowing, involuntary,
unintelligent, or without sufficient awareness of the circumstances and consequences. This
includes, for example, cases where a defendant has not been informed of the necessary elements
for the crime. Bradshaw, 545 U.S. at 183; Henderson v. Morgan, 426 U.S. 637, 645-47 (1976)
(“A plea may be found invalid . . . where a defendant pleads guilty to a crime without having
been informed of the crime’s elements.”).
Other examples of ineffectiveness that form sufficient good cause to withdraw a guilty
plea include failure “to learn facts about the case or failed to make a good-faith estimate of the
likely sentence.” United States v. Howard 175 Fed. Appx. 37, 39 (7th Cir. 2006) (citing United
States v. Carroll, 412 F.3d 787, 793 (7th Cir. 2005)). While “a gross mischaracterization of the
sentencing consequences of a plea may indicate that counsel performed deficiently . . . a
counsel’s mere inaccurate prediction of a sentence does not.” Id. (internal citations omitted).

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IV.

ANALYSIS

A. Failure to Appeal Claims
Beginning with the issue of the Notice of Appeal, Freter’s sworn affidavit conflicted with
Wadsworth’s claims. In her affidavit, Freter stated that she spoke to Wadsworth after the
sentencing and advised him—given he received the statutory minimum—that he received the
best possible outcome. According to Freter, Wadsworth did not “unequivocally communicate” to
her that he wanted her to file an appeal, nor did he indicate any issues he wanted to raise on
appeal. (Doc. 14, Ex. D).
The next time Wadsworth contacted Freter was in a voicemail where he said that the date
to report to the Bureau of Prisons was earlier than he hoped. In that voicemail he “did not
communicate that he wanted his sentence appealed or that he wanted to contest his guilty plea.”
(Id.). However, Freter declared that she “would have filed a Notice of Appeal had Mr.
Wadsworth unequivocally communicated from [the day he was sentenced] through [the day of
his voicemail] that he wanted [her] to file [a Notice of Appeal].” (Id.).
In contrast, Wadsworth filed his own affidavit claiming he told Freter that “something did
not feel right and that [he] would like to file an appeal.” (Doc. 12). He claimed he said this in
front of his father. (Id.). According to Wadsworth, Freter said she “would be in touch with
[him]” but “never filed a notice of appeal.” (Id.).
What precisely was said is in dispute. Additionally, while Freter stated that Wadsworth
did not unequivocally communicate his desire to file an appeal, some elaboration was necessary.
The Government alleged that this is a “he-said-she-said” situation and that an evidentiary hearing
was required; the Court agreed.
At the evidentiary hearing, Freter and Wadsworth both provided testimony. Wadsworth

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repeated his claim that he said “something did not feel right” about the plea and that he wished to
file an appeal. He renewed his claim that Freter told him she would be in touch. Wadsworth did
not mention this appeal in his voicemail, nor did he send an email. When asked whether there
were any witnesses to his conversation with Freter—as his affidavit heavily implied his father
was witness to the conversation—Wadsworth clarified that his father was not a witness to the
conversation, nor could he name any other witnesses that may corroborate his story.
When Freter testified, she reiterated claims in her affidavit that Wadsworth’s voicemail
did not mention wanting to file an appeal, nor does she recall him mentioning an appeal to her.
She testified that, while she cannot remember specific details of her conversation, that she has
developed a routine response to all clients who expressed a desire to appeal. She testified that if
he mentioned an appeal, she would have immediately questioned Wadsworth because she would
need to know the basis of the appeal in short order. Freter did not recall any of that with respect
to Wadsworth and, given she habitually responds the same way when a client asks to appeal, she
asserts that she does not believe he directed her to file an appeal.
As the petitioner, Wadsworth bears the evidentiary burden of showing that Freter was
ineffective. Wadsworth has presented no documents, no witnesses, no specific details that would
corroborate his claims. Wadsworth’s affidavit was highly misleading concerning the presence of
his father as a witness. This cuts against the credibility of Wadsworth’s testimony, both because
his testimony appears inconsistent with his affidavit and because Wadsworth affirms that there
were no witnesses to his conversation.
Wadsworth had ample opportunity to ask about a notice of appeal or to express his desire
to file one—in voicemail, email, or in person. The Court advised Wadsworth both of his right to
appeal and the appellate filing window at the entry of his guilty plea. Wadsworth presents only

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his testimony as evidence, yet that too is unpersuasive. His testimony lacked specific details that
would lend to his credibility.
In contrast, Freter’s testimony is persuasive. As the Court observed during the hearing,
the word “appeal” is a “trigger word;” defense attorneys are well aware that a failure to appeal is
per se ineffective assistance of counsel, as would Freter. The mention of an “appeal” would
generally warrant a response and prompt questions on the basis for an appeal. As an experienced
defense attorney who has filed many appeals over the years, Freter was familiar with the process.
As Freter testified, filing an appeal is not a huge burden nor is it incredibly time consuming.
Additionally, under Rule 406 of the Federal Rules of Evidence:
Evidence of a person’s habit or an organization’s routine practice may be admitted
to prove that on a particular occasion the person or organization acted in accordance
with the habit or routine practice. The court may admit this evidence regardless of
whether it is corroborated or whether there was an eyewitness.
Fed. R. Evid. 406. Given Freter’s years of practice as a defense attorney and her experience
filing appeals, her claims that she provides a routine response and questions to clients asking for
an appeal, are reasonable. Though Freter cannot recall the specifics of the conversation in detail
and Wadsworth claims he mentioned an appeal, neither Wadsworth nor Freter recall any
questions or responses that would be consistent with Freter’s habitual response. Were
Wadsworth’s testimony to be believed, not only would Freter have failed to file an appeal and
failed to follow up on the details of that appeal, she also would have broken from her habit or
routine practice. That seems unlikely.
In summary, Wadsworth’s testimony and now his affidavit are of questionable credibility
and Wadsworth has failed to offer any corroborating evidence or convincing testimony. In
contrast, Freter’s testimony is consistent with her affidavit and evidence of habit is especially
persuasive here. There is no indication why Freter would break with her routine practice here,
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nor why she would refuse to ask even basic questions she must know for filing the notice of
appeal.
For all these reasons, the Court found that Wadsworth has failed to meet his burden.
B. Involuntary Plea & Additional Evidence for Frivolous Claims
In Wadsworth’s reply to the Government’s response to his habeas petition, Wadsworth
raises a new claim: that his plea was involuntary based on the medication he was taking at the
plea. Wadsworth asserts that the Court asked him if he was on medication. After he relayed his
medication to the Court and said that he was “good,” Wadsworth alleges that the Court “failed to
inquire further as to the effect of the medication on his ability to enter a knowing and voluntary
guilty plea.” (Doc. 30). Wadsworth claims that the Court’s purported failure to question or
ascertain Wadsworth’s competence to plead after being informed that he was on medication
renders his plea involuntary.
Wadsworth is mistaken.
A review of the change of plea transcript reveals that the Court did ask whether the
medication affected his ability to understand the proceedings. Wadsworth confirmed that his
medication did not interfere with his ability to plead.
THE COURT: Are you currently on any medication?
THE DEFENDANT: I am.
THE COURT: What medications are you on?
THE DEFENDANT: I am taking pain medicine, Percocet, for my back, but I'm good.
THE COURT: When is the last time you took it?
THE DEFENDANT: It was yesterday.
THE COURT: Does it have any effect on your ability to be understand (sic) what you are
doing here right now?
THE DEFENDANT: No, sir.
Change of Plea Trans. 4:1-12. Wadsworth has presented no evidence nor any convincing
argument why he was not competent at his change of plea based on his medication.
Wadsworth’s reply also includes more “evidence” that he believes exonerates him. The
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Court has already determined that Wadsworth’s claims as to the sufficiency of the evidence for
his conviction and claims of his innocence are frivolous. Wadsworth’s inclusion of screenshots
indicating he searched for the sheriff does not come close to exonerating him. The screenshots he
submitted include searches for the local newspaper alongside the search for the sheriff.
Wadsworth claims that it shows he intended to contact the sheriff’s office, but it could just as
easily show that Wadsworth was searching local news and the sheriffs office to find out if there
was any information on law enforcement sting operations. While Wadsworth’s motive is unclear,
these screenshots are not the “smoking gun” that Wadsworth seems to believe they are.
As the Court construes his reply as a motion for reconsideration, and the facts and
arguments Wadsworth raises do not approach the standard for amending judgment under Fed. R.
Civ. Pro. 59(e), his motion for reconsideration is denied.
V.

CONCLUSION
Finding that Wadsworth has failed to meet the evidentiary burden to support his claim

that he directed his attorney, Kim Freter, to file an appeal, Wadsworth’s § 2255 petition,
(Doc. 1), is hereby DENIED. Additionally, his reply, (Doc. 30), which the Court construes as a
motion for reconsideration pursuant to Fed. R. Civ. Pro. 59(e), presents insufficient grounds to
alter judgment. Therefore, his motion for reconsideration, (Doc 30), is likewise DENIED.
After the hearing, Wadsworth’s attorney contacted Chambers and stated that he intended
to file an appeal. Given Wadsworth is represented by counsel and counsel has requested an
appeal, the Court GRANTS a certificate of appealability.
IT IS SO ORDERED.
DATED: August 28, 2024
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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