Wampler v. USA
Filing
1
OPINION AND ORDER The section 2255 motion is DENIED. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE. Furthermore, this Court declines to issue a certificate of appealability.***Civil Case Terminated. Signed by Judge Rudy Lozano on 3/27/17. (Copy mailed to pro se party)(kjp)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOSHUA WAMPLER,
Defendant.
)
)
)
)
)
)
)
)
)
NO. 2:09-CR-35
(2:14-CV-7)
OPINION AND ORDER
This matter is before the Court on the Motion Under 28 U.S.C.
Section 2255 To Vacate, Set Aside, Or Correct Sentence By a Person
in Federal Custody, filed by Joshua Wampler on January 7, 2014 (DE
#649).
For the reasons set forth below, the section 2255 motion
is DENIED.
PREJUDICE.
The Clerk is ORDERED to DISMISS this case WITH
Furthermore,
this
Court
declines
to
issue
a
certificate of appealability.
BACKGROUND
On September 17, 2009, a Superseding Indictment was filed
against
Joshua
Wampler
(“Wampler”)
and
six
other
defendants.
Wampler was charged in Counts One and Eight of the nine count
Superseding Indictment.
Count One charged Wampler and others with
conspiring to distribute heroin, and Count Eight charged Wampler
with substantive heroin distribution in violation of 21 U.S.C. §§
841(a)(1), 846.
On March 23, 2010, Wampler entered into a plea agreement with
the Government, and the agreement was filed with this Court.
In
it, Wampler agreed to plead guilty to Count One of the Superseding
Indictment.
The Government and Wampler also reached certain
agreements that were not binding on the Court.
Specifically, they
agreed that if Wampler continued to accept responsibility for his
criminal conduct, he should receive a two point, and if eligible,
an additional one point reduction in his Guideline offense level.
They also agreed that the Government would recommend a sentence
equal to the minimum of the applicable guideline range.
Wampler
agreed that his attorney had “done all that anyone could do to
counsel and assist [him],” that he was offering his guilty plea
“freely and voluntarily and of [his] own accord,” that “no promises
[had] been made to [him] other than those contained in [the]
agreement,” and that he had not been “threatened in any way by
anyone to cause [him] to plead guilty in accordance with [the]
agreement.”
(DE #180, ¶¶ 11-12.)
This Court held a change of plea hearing on March 24, 2010.
2
During that Rule 11 hearing, 1 Wampler was placed under oath and
was advised that any false statements could later be used against
him.
When asked whether he had ever been treated for any mental
illness or addiction to drugs of any kind, Wampler responded only
that he had been in rehabilitation for drug use in the past but
that nothing about those treatments would “in any way prohibit
[him] or give [him] a problem with being about to proceed” with
the plea hearing.
(DE #330, pp. 7-8.)
The Court specifically
questioned Wampler about medications:
Q. Mr. Wampler, are you presently under the
influence of any drug or medication or
alcoholic beverage of any kind?
A. No narcotics. I take Depakote.
Q. And does that cause you to become sleepy or
drowsy?
A. No, sir.
Q. Does that in any way prohibit you from being
able to proceed with today’s hearing?
A. No, sir.
(Id. at 8-9.)
Wampler confirmed that he wished to plead guilty
to Count One, that he was doing so knowingly and voluntarily, and
that no one had made any promises, assurances, or threats to him
regarding his choice to plead guilty.
The Court explained the
penalties that Wampler was facing, and Wampler confirmed that he
understood those penalties.
Wampler also acknowledged that he
understood that the Court would not make a determination as to an
1
The transcript of the plea hearing is found at DE #330.
3
appropriate sentence until after the Presentence Investigation
Report (“PSR”) was prepared by the probation department and the
parties had had an opportunity to challenge the PSR.
The Court
went over the general impact of the sentencing guidelines and each
of the non-binding recommendations in detail.
acceptance
of
responsibility,
the
Court
and
With regard to
Wampler
following exchange:
Q. Another factor, and a very, very important
factor, it’s whether or not you have accepted
responsibility for the commission of the crime
to which you’re pleading guilty.
That’s an
important
factor,
Mr.
Wampler,
because
depending upon the circumstances, you can
either get a minus two or a minus three points.
The lower the number of point[s], the smaller
the guideline range, that’s in your favor. Do
you understand that?
A. Yes, Your Honor.
Q. Now, you may ask me, ‘How do I show
acceptance of responsibility?’ Very simple.
One, by continuing to admit all of your
involvement in the crime including relevant
conduct. Do you understand that?
A. Yes, Your Honor.
Q. Two, by not giving me different stories
about what occurred; three, by not being
involved in any more crimes or any further
crimes; and, four, by not attempting to
withdraw
your
plea
of
guilty.
Do
you
understand that?
A. Yes, Your Honor.
. . .
Q. Okay. Let’s go back to these nonbinding
recommendations. [The] [f]irst nonbinding
recommendation that you and the Government are
going to make is that you should get the
maximum deduction of points for acceptance of
responsibility. Do you understand that?
4
had
the
A. Yes, Your Honor.
Q. Now, the Government is going to make this
recommendation, Mr. Wampler, as long as you
continue
to
demonstrate
acceptance
of
responsibility. You start lying, you start
giving different stories about what occurred,
you start being involved in any other crimes,
or you start attempting to withdraw your plea
of guilty, they don’t have to make the
recommendation. And if they don’t make the
recommendation for those reasons, not only
will they not make the recommendation, you
will not be allowed to withdraw your plea of
guilty or your plea agreement. Do you
understand that?
A. Yes, Your Honor.
Q. Mr. Wampler, even if you, your attorney,
and the Government all recommend that you get
acceptance of responsibility, who makes the
final decision?
A. You do, Your Honor.
Q. That’s right. And I may agree with all of
you. I may not. I will have the final say. Do
you understand that?
A. Yes, sir.
Q. Are you in agreement with that?
A. Yes, sir.
(Id. at 18-20.)
The Court also discussed the appellate waiver in detail with
Wampler as follows:
Q. Okay. Let’s go on to subparagraph D. That
talks about appeals, Mr. Wampler. Do you
understand that in all criminal cases, a
defendant has a right to appeal his conviction
and/or sentence in a case? Do you understand
that?
A. Yes, Your Honor.
Q. In this case, you have acknowledged that I
have the jurisdiction and authority to
sentence you up to the maximum provided for by
the statute. Do you understand that?
5
A. Yes, Your Honor.
Q. And I told you that before when I said you
were facing up to life in prison, a fine of up
to $4 million, or a combination of both of
those, up to life supervised release, and a
$100 special assessment. Do you understand
that?
A. Yes, Your Honor.
Q. Mr. Wampler, basically what you’re doing in
this paragraph is you’re giving up all of your
rights to an appeal, either the manner in
which you were found guilty or any sentence
that you may receive. Do you understand that?
A. Yes, Your Honor.
Q. For all practical purposes, Mr. Wampler,
that’s all of your rights to an appeal.
There’s a few that you can’t give up. One of
them is jurisdiction. Do you understand that?
A. Yes, Your Honor.
Q. Do you understand that the Government is
not giving up any of their rights to an appeal?
A. Yes, Your Honor.
Q. Down the road, if you don’t like the
sentence that you get and you think it’s too
high, Mr. Bosch won't be able to appeal it. Do
you understand that?
A. Yes, sir.
Q. Or if you don’t like some of the rulings
that I made in the case, Mr. Bosch won’t be
able to appeal that for all practical
purposes. Do you understand that?
A. Yes, sir.
Q. You sure this is what you want to do?
A. Yes, sir.
Q. And you understand that once I grant it,
you won’t be able to reverse and say, ‘I
changed my mind.’
A. Yes, sir.
Q. Anybody force you to do this?
A. No, sir.
Q. Are you doing it knowingly and voluntarily?
A. Yes, sir.
Q. Did you talk to your attorney and discuss
it fully with him?
A. Yes, sir, I did.
6
Q. Do you have any questions of the Court?
A. No, sir.
Q. And are you asking me to approve it as part
of your plea agreement?
A. Yes, Your Honor.
Q. Let’s go on to subparagraph C. That deals
with your right to give up – I’m sorry. Let me
back up back to this waiver of appeal. That
also includes giving up your right to appeal
on the basis of incompetence of counsel except
as it relates to the negotiation of this
waiver. Do you understand that?
A. Yes, Your Honor.
(Id. at 21-23.)
Wampler
participated
then
in
proceeded
the
to
conspiracy
describe
to
obtain
how
he
heroin
knowingly
in
Illinois and distribute it in Porter County, Indiana.
Chicago,
After the
Government had provided its statement in support of a violation of
21 U.S.C. sections 841(a)(1) and 846, Wampler stated that he agreed
with the Government’s statement of facts.
The Court accepted
Wampler’s guilty plea and adjudged him guilty.
On September 14, 2010, the Court received a letter from
Wampler indicating that he wished to fire his attorney, Michael W.
Bosch
(“Attorney
Bosch”),
and
withdraw
his
plea
of
guilty.
Wampler claimed that Attorney Bosch had “lied to [him], misled
[him], made promises to [him], and out and out tricked [him] into
signing the plea [agreement].”
(DE #311.)
7
The Court held a
hearing on September 30, 2010, 2 at which the concerns in Wampler’s
letter were addressed.
his
desires
and
After thoroughly questioning Wampler about
intentions,
advising
him
of
his
rights,
and
reviewing the transcript of the initial plea hearing with him, the
Court concluded that the testimony given by Wampler during the
change
of
plea
hearing
afterwards was not.
plea
was
denied.
was
truthful
and
that
the
testimony
Therefore, his request to withdraw his guilty
The
Court
then
warned
Wampler
of
the
ramifications of firing his counsel but ultimately granted his
request to terminate Attorney Bosch.
However, the Court ordered
Attorney Bosch to remain in the case as standby counsel.
The sentencing hearing was initially set for January 28, 2011,
but was continued to March 24, 2011.
Wampler represented himself
for several months leading up to the date of the sentencing
hearing, yet on February 17, 2011, he sent the Court a letter
asking to have Attorney Bosch reappointed as his primary counsel.
The Court granted that request and ordered Attorney Bosch to look
into any relevant sentencing issues.
After several continuances, the sentencing hearing commenced
on June 1, 2012.
During that hearing, the Court sua sponte
requested that the parties argue whether Wampler should be given
2
The transcript of the hearing is found at DE #571.
8
credit for acceptance of responsibility.
Attorney Bosch requested
a continuance in order to prepare for the argument, and the
sentencing hearing was continued to July 30, 2012.
At that
hearing, the Court denied to give Wampler credit for acceptance of
responsibility, finding that he had been untruthful in attempting
to withdraw his guilty plea.
imprisonment
of
151
supervised release.
months
Wampler was sentenced to a term of
followed
by
a
five
year
term
of
Judgment was entered on August 1, 2012.
On August 9, 2012, Wampler, through Attorney Bosch, filed a
timely notice of appeal. 3
The Seventh Circuit Court of Appeals
dismissed Wampler’s appeal on April 15, 2013, noting that the
appellate waiver in the plea agreement was enforceable because the
transcript from the plea hearing demonstrated that Wampler had
knowingly and voluntarily pleaded guilty.
See United States v.
Zitt, 714 F.3d 511, 515 (7th Cir. 2013).
On January 7, 2014, Wampler filed the instant motion pursuant
to section 2255 in which he alleges that Attorney Bosch was
ineffective because he: (1) “refused to challenge the validity of
a last-minute career offender enhancement”; (2) told Wampler that
he “could not fight the drug weight” and that his “co-defendants
3
Wampler initially filed a pro se notice of appeal on August 1, 2012, but
Attorney Bosch later filed a notice of appeal for him. Wampler’s pro se
notice of appeal was later voluntarily dismissed.
9
signed the same plea”; and (3) had a conflict of interest due to
the fact that he worked for the Lake County Sherriff’s Department
during the pendency of Wampler’s case.
(DE #649.)
Wampler also
argues that his “psych meds” (Depakote and Elavil) prevented him
from knowingly and voluntarily entering into his guilty plea.
(Id.)
After several requests for an extension, the Government
filed a response on May 1, 2014.
Almost a year later, on March
9, 2015, the Court received a letter from Wampler indicating that
he had not received the Government’s response and requesting an
extension of time within which to file a reply.
In the interests
of justice, the Court granted Wampler’s request and ordered him to
file a reply by April 24, 2015.
his reply.
On March 27, 2015, Wampler filed
The motion is thus ripe for adjudication.
DISCUSSION
Habeas corpus relief under 28 U.S.C. section 2255 is reserved
for “extraordinary situations.”
812, 816 (7th Cir. 1996).
Prewitt v. United States, 83 F.3d
In order to proceed on a habeas corpus
motion pursuant to 28 U.S.C. section 2255, a federal prisoner must
show that the district court sentenced him in violation of the
Constitution or laws of the United States, or that the sentence
was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.
Id.
10
A
section
2255
motion
is
neither
recapitulation of a direct appeal.
a
substitute
for
nor
Id.; Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by
Castellanos v. United States, 26 F.3d 717 (7th Cir. 1994).
As a
result:
[T]here are three types of issues that a
section 2255 motion cannot raise: (1) issues
that were raised on direct appeal, absent a
showing
of
changed
circumstances;
(2)
nonconstitutional issues that could have been
but were not raised on direct appeal; and (3)
constitutional issues that were not raised on
direct appeal, unless the section 2255
petitioner
demonstrates
cause
for
the
procedural default as well as actual prejudice
from the failure to appeal.
Belford, 975 F.2d at 313.
Additionally, aside from demonstrating
“cause” and “prejudice” from the failure to raise constitutional
errors
on
direct
appeal,
a
section
2255
petitioner
may
alternatively pursue such errors after demonstrating that the
district court’s refusal to consider the claims would lead to a
fundamental miscarriage of justice.
McCleese v. United States,
75 F.3d 1174, 1177 (7th Cir. 1996).
In assessing Wampler’s motion, the Court is mindful of the
well-settled
principle
that,
when
interpreting
a
pro
se
petitioner’s complaint or section 2255 motion, district courts
have
a
“special
liberally.
responsibility”
to
construe
such
pleadings
Donald v. Cook County Sheriff's Dep’t, 95 F.3d 548,
11
555 (7th Cir. 1996); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (a
“pro se complaint, ‘however inartfully pleaded’ must be held to
‘less
stringent
standards
than
formal
pleadings
drafted
by
lawyers’”) (quoting Haines v. Kerner, 404 U.S. 519 (1972)); Brown
v. Roe, 279 F.3d 742, 746 (9th Cir. 2002) (“[p]ro se habeas
petitioners
are
to
be
afforded
‘the
benefit
of
any
doubt’”)
(quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)).
In other words:
the mandated liberal construction afforded to
pro se pleadings ‘means that if the court can
reasonably read the pleadings to state a valid
claim on which the [petitioner] could prevail,
it should do so despite the [petitioner’s]
failure to cite proper legal authority, his
confusion of various legal theories, his poor
syntax and sentence construction, or his
unfamiliarity with pleading requirements.’
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999) (habeas
petition from state court conviction) (alterations in original)
(quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
On the other hand, “a district court should not ‘assume the role
of advocate for the pro se litigant’ and may ‘not rewrite a
petition to include claims that were never presented.’”
Id.
The
Court has assessed Wampler’s claims with these guidelines in mind.
12
Preclusive Effect of Plea Agreement Waiver
As noted above, Wampler’s plea agreement contains an appeal
waiver,
in
conviction
which
and
Wampler
sentence.
has
agreed
A
to
waive
“[w]aiver
is
the
relinquishment or abandonment of a known right.”
v. Sumner, 265 F.3d 532, 537 (7th Cir. 2001).
appeal
of
his
intentional
United States
The Seventh Circuit
has consistently stated that valid appellate waivers are to be
upheld.
1997).
United States v. Woolley, 123 F.3d 627, 631 (7th Cir.
“For an appeal waiver to be valid, it must be express and
unambiguous, and the record must clearly demonstrate that it was
made
knowingly
and
voluntarily.”
internal quotation marks omitted).
Id.
at
632
(citations
and
When deciding the validity of
an appeal waiver, courts may look to the language of the plea
agreement as well as the colloquy at the plea hearing.
Id.
See
also United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995)
(“Most waivers are effective when set out in writing and signed.”).
Specifically with regard to a section 2255 motion, the Seventh
Circuit has held that a waiver to file such a motion contained in
a plea agreement is enforceable if the waiver itself is: (1)
knowing and voluntary; and (2) if the defendant cannot establish
a claim for ineffective assistance of counsel in connection with
negotiating the agreement.
Mason v. United States, 211 F.3d 1065,
1068-69 (7th Cir. 2000); Jones v. United States, 167 F.3d 1142,
13
1145 (7th Cir. 1999).
Thus, it must be determined if Wampler
waived his rights knowingly and voluntarily and whether he has
established a claim for ineffective assistance of counsel in
connection with negotiating the agreement.
Wampler Entered Into the Waiver Knowingly and Voluntarily
As noted above, courts enforce a plea agreement’s waiver “if
its terms are clear and unambiguous and the record shows that the
defendant knowingly and voluntarily entered into the agreement.”
United States v. Blinn, 490 F.3d 586, 588 (7th Cir. 2007).
Courts
may consider a defendant’s signature on the plea agreement and his
statements during the plea colloquy as evidence of a knowing and
voluntary waiver.
United States v. Jemison, 237 F.3d 911, 917–18
(7th Cir. 2001).
Wampler’s plea agreement contains the following appellate
waiver:
I understand that the law gives a convicted
person the right to appeal the conviction and
the sentence imposed; I also understand that
no one can predict the precise sentence that
will be imposed, and that the Court has
jurisdiction and authority to impose any
sentence within the statutory maximum set for
my offense(s) as set forth in this plea
agreement; with this understanding and in
consideration of the government’s entry into
this plea agreement, I expressly waive my
right to appeal or to contest my conviction
and my sentence and any restitution order
imposed or the manner in which my conviction
14
or my sentence or the restitution order was
determined or imposed, to any Court on any
ground, including any claim of ineffective
assistance of counsel unless the claimed
ineffective assistance of counsel relates
directly to this waiver or its negotiation,
including any appeal under Title 18, United
States Code, Section 3742 or any postconviction proceeding, including but not
limited to, a proceeding under Title 28,
United States Code, Section 2255.
(DE #180, ¶ 7(d).)
Wampler and Attorney Bosch both signed the
plea agreement, and it is undisputed that the waiver itself is
clear and unambiguous.
During the change of plea hearing, Wampler
was placed under oath and was asked whether there were any mental
issues or medications that prohibited him in any way from being
able to proceed with the hearing.
not.
Wampler replied that there were
When specifically asked about medications, Wampler replied
that he was currently taking Depakote but confirmed that it did
not “cause [him] to become sleepy or drowsy” or prohibit him in
any way from being able to proceed with his change of plea.
(DE
#330, pp. 8-9.)
At the Court’s prompting, Wampler read the waiver provision
to himself.
Furthermore, upon questioning from the Court, Wampler
agreed under oath that he had previously read the waiver with
Attorney Bosch, that he understood it, and that he agreed with it.
As noted in more detail above, the Court explained the terms of
the waiver in open court, noting that Wampler was “giving up all
15
of [his] rights to an appeal, either the manner in which [he was]
found guilty or any sentence that [he would] receive,” and Wampler
confirmed that he made the decision to waive those rights knowingly
and voluntarily and that no one forced him to do so; he also
indicated that he had no questions about the waiver.
(Id. at 22-
23.)
Following the Court’s careful explanation of the consequences
of pleading guilty, a factual basis was set forth for Wampler’s
guilty plea, he agreed with the prosecution version of the facts,
and he pleaded guilty.
The Court then found that the plea was
entered knowingly and voluntarily and supported by an independent
basis in fact containing each of the essential elements of the
offense.
From this evidence, the Court is satisfied that the appeal
waiver is enforceable.
See Jemison, 237 F.3d 911 at 917.
Because
Wampler knowingly and voluntarily entered into the plea agreement,
and because all of its provisions -- including the waivers -- were
explained to him at the change of plea hearing without any requests
for further clarification or disagreement, he is bound by it.
Given this Court’s finding that the waiver provision in his plea
agreement is enforceable, Wampler’s section 2255 motion must fail
unless he points directly to ineffective negotiation that would
have rendered the entire plea agreement invalid or fundamentally
16
unfair for the Court to enforce.
Wampler argues that Attorney
Bosch was ineffective in several respects, and the Court will
address each claim in turn below. 4
Wampler’s Ineffective Assistance of Counsel Claims
Claims of ineffective assistance of counsel are governed by
the two-pronged test set forth in Strickland v. Washington, 466
U.S. 668 (1984).
To prevail on an ineffective assistance of
counsel claim, a defendant must show that the specific acts or
omissions of his attorney “fell below an objective standard of
reasonableness” and were “outside the wide range of professionally
competent assistance.”
Barker v. United States, 7 F.3d 629, 633
(7th Cir. 1993) (quoting Strickland, 466 U.S. at 688, 690); see
also Hardamon v. United States, 319 F.3d 943, 948 (7th Cir. 2003);
Anderson v. Sternes, 243 F.3d 1049, 1057 (7th Cir. 2001).
The
second Strickland prong requires defendant to show prejudice,
4
The Court notes that, after this motion was filed, the Attorney General
directed all federal prosecutors to refrain from seeking appellate waivers of
ineffective assistance of counsel going forward. See Office of the Deputy
Att’y Gen., Memorandum to all Federal Prosecutors: Dep’t Policy on Waivers of
Claims of Ineffective Assistance of Counsel (Oct. 14, 2014) available at
http://www.justice.gov/sites/default/files/pressreleases/attachments/2014/10/15/dept-policy-on-waivers-of-claims-ofineffective-assistance-of-counsel.pdf. For waivers that existed prior to
October 14, 2014, the Attorney General stated that the Government should
simply decline to enforce the waiver to block that claim. Id. The DOJ's
change in policy, however, did not alter the law, and in the Seventh Circuit,
waivers such as this one remain enforceable. See United States v. Roach, 600
Fed. Appx. 472, 473 (7th Cir. 2015).
17
which entails showing by “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would
have
Regarding
been
the
different.”
Strickland,
deficient-performance
prong,
466
U.S.
great
at
694.
deference
is
given to counsel’s performance, and the defendant has a heavy
burden
to
overcome
performance.
758
(7th
the
strong
presumption
of
effective
Id. at 690; Coleman v. United States, 318 F.3d 754,
Cir.
2003)
(citation
omitted).
A
defendant
must
establish specific acts or admissions that fell below professional
norms.
Strickland,
466
U.S.
at
690.
If
one
prong
is
not
satisfied, it is unnecessary to reach the merits of the second
prong.
The
Id. at 697.
Seventh
Circuit
has
held
that
“[o]nly
those
habeas
petitioners who can prove under Strickland that they have been
denied a fair trial by the gross incompetence of their attorneys
will be granted the writ.”
86 (7th Cir. 2005).
Canaan v. McBride, 395 F.3d 376, 385-
Additionally, trial counsel “is entitled to
a ‘strong presumption’ that his performance fell ‘within the range
of reasonable professional assistance’ and will not be judged with
the benefit of hindsight.’”
Almonacid v. United States, 476 F.3d
518, 521 (7th Cir. 2007) (citing Strickland, 466 U.S. at 689).
To establish prejudice in the pleading context, a defendant
18
must show that “but for counsel’s erroneous advice, he would not
have pleaded guilty.”
Hays v. United States, 397 F.3d 564, 568
(7th Cir. 2005) (quoting Bridgeman v. United States, 229 F.3d 589,
592 (7th Cir. 2000)).
To do so, he cannot merely insist that he
would have gone to trial; “he must also come forward with objective
evidence that he would not have pled guilty.”
Hutchings v. United
States, 618 F.3d 693, 697 (7th Cir. 2010) (citing United States v.
Cieslowski, 410 F.3d 353, 359 (7th Cir. 2005)).
Career Offender Status Objection
Wampler first argues that Attorney Bosch was ineffective
because he failed to challenge his status as a career offender.
According to Wampler, in an early version of the PSR, the probation
department deemed him a career offender, and Attorney Bosch told
Wampler that they had “no grounds to fight it.”
(DE #649, p. 14.)
Due to Attorney Bosch’s alleged refusal to help fight the career
status designation, Wampler claims that he was forced to fire
Attorney Bosch and attempt to withdraw his plea, which eventually
led to the loss of acceptance of responsibility during sentencing.
As an initial matter, the Court notes that Attorney Bosch’s
alleged actions or inactions in response to a draft of the PSR are
not related to the voluntariness of the waiver or the negotiation
19
of the plea agreement.
Whether Attorney Bosch chose to “fight”
the career offender designation once the PSR was issued, which was
several
months
after
the
plea
negotiations
irrelevant to the question at hand.
took
place,
is
As noted above, Wampler is
bound by the appeal waiver unless he is able to point directly to
an ineffective negotiation that rendered the plea invalid; his
argument
regarding
the
career
offender
status
issue
has
not
established this, so the claim is waived.
Even if Wampler was able to overcome the plea waiver, his
argument fails on the merits.
It is true that an initial version
of the PSR listed Wampler as a career offender.
However, as the
Government points out, it is undisputed that the final version of
the PSR did not categorize Wampler as a career offender under
U.S.S.G. section 4B1.1 and that this Court did not sentence Wampler
as a career offender at his sentencing hearing.
#589, p. 4; see also PSR dated June 9, 2011.)
(See e.g. DE
Because the career
offender designation did not apply to Wampler and his sentence was
not enhanced in any way by it, he has not established that he was
prejudiced by Attorney Bosch’s alleged failure to challenge the
initial PSR.
See United States v. Taylor, 569 F.3d 742, 748 (7th
Cir. 2009) (“Courts may deny ineffective assistance of counsel
claims for lack of prejudice without ever considering the question
20
of counsel’s actual performance.”).
Statements
Allegedly
Made
by
Attorney
Bosch
Regarding
Wampler’s Criminal History, Drug Weight and Co-Defendants’ Plea
Agreements
Next
Wampler
argues
that
Attorney
Bosch
was
ineffective
because he allegedly told Wampler “over and over” that he would
not be found to be a career offender, that the drug weight assigned
to him could not be contested, and that all of his co-defendants
had signed the same plea agreements.
(DE #649, p. 7.)
Wampler
alleges that Attorney Bosch “guaranteed [him] a life sentence if
[he] didn’t take this plea bargain.”
(Id.)
The Government argues
that, even if Attorney Bosch did indeed make these representations,
Wampler has failed to establish that the alleged statements from
Attorney Bosch amount to deficient performance or resulted in any
prejudice to him.
In his reply brief, Wampler states that he
“will not respond to this issue at this time.”
(DE #694.)
Assuming for the moment that Wampler has not forfeited this issue
by failing to reply to the Government’s arguments, Wampler may
pursue the claim despite the waiver outlined above because it
relates to the negotiation of the plea agreement.
However, the Court need not delve too deeply into the matter
21
because Wampler’s claims are flatly contradicted by his testimony
at the change of plea hearing.
It is undisputed that Wampler knew
what sentence he was potentially facing.
He was advised of the
possible penalties at his initial appearance on March 3, 2009, and
again on September 29, 2009, after the superseding indictment was
filed.
The plea agreement itself set forth Wampler’s possible
penalties.
The Court advised Wampler of the possible penalties
in detail at the change of plea hearing, including the fact that
this Court was not bound by the parties’ recommendations and that
he could receive a sentence up to the statutory maximum of life
imprisonment.
charges
Wampler indicated that he had fully discussed the
against
him
and
agreement
with
Attorney
indicated
that
he
was
the
Bosch
fully
penalties
prior
to
satisfied
counsel, representation, and advice.
outlined
in
the
plea
the
hearing,
and
he
with
Attorney
Bosch’s
More importantly, Wampler
confirmed that no one, including Attorney Bosch, had “made any
other or different promise or assurance to [him] of any kind in an
effort to induce or cause [him] to enter a plea of guilty in this
case.”
(DE #330, p. 30.)
When Wampler sent the Court a letter
indicating that he wished to withdraw his plea of guilty because
Attorney
Bosch
had
allegedly
lied
to
him
regarding
the
plea
agreement and sentencing terms, a hearing on the matter was held.
22
After
fully
evaluating
reviewing
Wampler’s
the
evidence,
credibility,
the
hearing
Court
testimony,
found
that
and
the
testimony given by Wampler during the change of plea hearing was
truthful and that Wampler’s subsequent allegations and testimony
were not.
In the instant motion, Wampler now argues that Attorney Bosch
“lied, tricked, and coerced [him] into signing the plea” by making
promises with regard to the effect of his criminal history on his
sentence, the options related to the weight of the drugs, and the
existence and terms of the plea agreements of his co-defendants.
(DE #649, p. 14.)
evidence
suggesting
However, he has not put forth any competent
that
this
is
the
case.
A
defendant’s
statements given under oath during a plea colloquy are presumed to
be true.
2012).
United States v. Redmond, 667 F.3d 863, 870 (7th Cir.
“Because of the great weight we place on these in-court
statements,
we
credit
them
over
[defendant’s]
later
claims.”
United States v. Martinez, 169 F.3d 1049, 1054 (7th Cir. 1999).
The Court will not allow Wampler to rewrite history in order to
undercut the provisions to which he willingly agreed.
Id. (citing
United States v. Byrd, 669 F. Supp. 861 (N.D. Ill. 1987)).
See
also United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000)
(representations made by the defendant during a change of plea
23
hearing are “entitled to a presumption of verity.”). 5
Furthermore, as the Government points out, Wampler is not
able to establish actual prejudice with regard to this claim.
To
do so, Wampler must provide “probative, objective evidence” that
he would not have pled guilty but for Attorney Bosch’s conduct;
“[t]he mere allegation . . . that he would have insisted on going
to trial is insufficient to establish prejudice.”
Hutchings, 618
F.3d at 697 (citations and internal quotation marks omitted).
Not
only has Wampler failed to establish that Attorney Bosch did not
learn the facts of the case or provide a good-faith estimate of a
likely sentence, Cieslowski, 410 F.3d at 359, he has also not
asserted that he is innocent of the crime he pled guilty to.
In
fact, even after bringing Attorney Bosch’s alleged “lies, tricks,
and coercions” to the Court’s attention via letter, during a
hearing on the matter Wampler unequivocally stated that he was
guilty of the crime charged.
When asked by this Court whether he
had testified during the change of plea hearing that he was guilty
5
Furthermore, “[w]hen a district court conducts a Rule 11 colloquy, it is
not putting on a show for the defendant, the public, or anybody else. The
purpose of a Rule 11 colloquy is to expose coercion or mistake, and the
district judge must be able to rely on the defendant’s sworn testimony at
that hearing. Because the court takes a criminal defendant’s rights at a
change-of-plea hearing very seriously, it is reasonable to expect, and
demand, that the criminal defendant do so as well. For that reason, a
defendant is normally bound by the representations he makes to a court during
the colloquy.” Hutchings, 618 F.3d at 699 (internal quotation marks and
citations omitted).
24
of the charged crime, Wampler indicated that he had.
to state that, “I was guilty of a crime.
not guilty of a crime.”
He went on
I am not saying that I’m
(DE #571, p. 15.)
Ultimately, Wampler
was sentenced to 151 months on Count One, and cannot show that but
for Attorney Bosch’s conduct, it is reasonably probable that the
results of the proceeding would have been different.
See Pole v.
Randolph, 570 F.3d 922, 934 (7th Cir. 2009).
Conflict of Interest
Wampler also alleges that Attorney Bosch was ineffective
because his “working for the Lake County Sherriff’s Department at
the same time he represented [him] without his consent” constituted
an impermissible conflict of interest.
(DE #649, p. 5.)
In his
reply brief, Wampler states that he has “numerous conflicts of
interest with Lake County Sheriffs” and would not want to be
represented by anyone associated with the Department for fear of
their bias.
(DE #694, p. 4.)
He alleges that Attorney Bosch was
“also a cop at the time of his defense.”
(Id. at 5.)
As with the
claim that Attorney Bosch was ineffective for failing to object to
his career offender designation, Wampler has not established that
this claim is related to the negotiation of the plea agreement in
any way, so it is waived.
25
Moreover, even assuming it was not waived, it fails on the
merits.
As noted by the Seventh Circuit Court of Appeals:
[t]here are two ways to assert a claim based
on counsel’s conflict of interest. One, under
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), the
petitioner may show that his attorney had a
potential conflict of interest and that the
potential conflict prejudiced his defense; or
two, the petitioner may proceed under Cuyler
v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64
L.Ed.2d 333 (1980), where he must establish a
violation ‘by showing that ‘an actual conflict
of interest adversely affected his lawyer’s
performance.’” Stoia [v. United States, 22
F.3d 766, 770 (7th Cir. 1994)] (quoting
Sullivan, 446 U.S. at 348, 100 S.Ct. 1708)
(emphasis added).
Hall v. United States, 371 F.3d 969, 973 (7th Cir. 2004).
Because
Wampler did not notify the Court of the alleged conflict prior to
sentencing
and
because
he
has
not
presented
any
evidence
or
argument that the potential conflict resulted in actual prejudice,
the Court assumes that Wampler is attempting to proceed under
Cuyler.
Under Cuyler, a defendant must show “both an ‘actual
conflict
of
performance.”
interest’
Stoia,
(citation omitted).
and
22
an
F.3d
adverse
at
770
effect
on
lawyer’s
(emphasis
in
original)
If a defendant can satisfy both prongs of
this test, prejudice will be presumed.
Id. at 770-71.
An actual
conflict of interest exists if an attorney is forced to make a
decision that would place his or her personal interests over that
26
of the client.
is
a
“lapse
Id. at 771.
in
interests. . . .”
omitted).
An adverse effect results when there
representation
contrary
to
the
defendant’s
Id. (internal quotation marks and citations
A defendant must present “specific instances where
counsel could and would have done something different[ly]” absent
the conflict.
Griffin v. Camp, 40 F.3d 170, 173 (7th Cir. 1994)
(citing Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir. 1992)).
Here, Wampler alleges vaguely that he has a “history” with
the Lake County Sherriff’s Department that causes him to believe
Attorney Bosch was biased against him in some unspecified way.
The Government argues that, while it is undisputed that Attorney
Bosch was employed by Lake County as an Assistant Public Defender
to assist with civil cases during the time in question, such
employment does not in any way suggest there was an actual conflict
with his representation of Wampler’s Federal drug conspiracy case. 6
The
Court
agrees
with
the
Government.
Wampler
has
not
identified any instances in which Attorney Bosch’s alleged bias
manifested itself.
It is not reasonable to infer that Attorney
Bosch’s work on civil cases pertaining to the Lake County Sheriff’s
Department would force him to make a decision advancing his own
6
The Government points out that the Lake County Sheriff’s Department was not
involved in the conspiracy investigation of the case at bar.
27
interests to the detriment of Wampler.
Nor is there any indication
in the record that Attorney Bosch’s employment adversely impacted
his performance on Wampler’s case in any manner.
This claim is
meritless.
Wampler’s Medications
Finally, Wampler argues that the medications he was taking
prevented him from knowingly and voluntarily entering his guilty
plea.
record.
As noted in detail above, this claim is belied by the
To begin with, the record does not contain any medical
evidence that Wampler’s “psych meds” caused him cognitive issues
that would render him incompetent.
The Court specifically asked
Wampler about his medication usage during the change of plea
hearing, and Wampler indicated that the Depakote did not affect
him in any way with respect to voluntarily entering a plea of
guilty.
Wampler stated that the medication neither caused him to
become sleepy or drowsy nor prohibited him from being able to
proceed with the hearing.
The Court carefully observed Wampler’s
demeanor throughout, and there was no indication that Wampler
failed to understand the proceedings or the significance of his
plea.
See United States v. Walker, 447 F.3d 999, 1004 (7th Cir.
2006) (“The only rational manner in which a judge may determine
whether a plea is knowingly and voluntarily made, is to observe
28
the defendant’s demeanor and responses to the court’s questions
and to rely on the defendant’s sworn answers.”)
Furthermore,
as
the
Government
points
out,
Wampler
procedurally defaulted on this claim because he failed to raise
the issue on direct appeal.
“A claim cannot be raised for the
first time in a § 2255 motion if it could have been raised at trial
or on direct appeal.”
McCoy v. United States, 815 F.3d 292, 295
(7th Cir. 2016) (citing Sandoval v. United States, 574 F.3d 847,
850 (7th Cir. 2009)).
To obtain such review, a petitioner must
show good cause for not raising the claim earlier and that he would
suffer actual prejudice for the default.
Hale v. United States,
710 F.3d 711, 713 (7th Cir. 2013); Gant v. United States, 627 F.3d
677,
683
(7th
Cir.
2010).
“[E]ven
the
voluntariness
and
intelligence of a guilty plea can be attacked on collateral review
only if first challenged on direct review.”
Bousley v. United
States, 523 U.S. 614, 621 (1998).
Wampler never specifically asked the Seventh Circuit Court of
Appeals
to
challenge
his
guilty
plea
on
involuntariness due to his medication usage.
the
basis
of
Although Wampler
states that he did not raise this issue on direct appeal because
Attorney Bosch also acted as his appellate counsel, this does not
establish good cause for the failure.
29
Moreover, Wampler has not
shown
actual
prejudice
because,
as
noted
above,
even
after
attempting to withdraw his plea of guilty many months after the
change of plea hearing, he admitted that he was guilty of the
crime.
See McCoy, 815 F.3d at 295 (“Absent a showing of both
cause and prejudice, procedural default will only be excused if
the prisoner can demonstrate that he is ‘actually innocent’ of the
crimes of which he was convicted.”)
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
appealability
applicant.”
when
it
enters
a
final
order
adverse
to
the
A certificate of appealability may issue only if the
applicant “has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. ' 2253(c)(2).
To make such a
showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should
have been resolved in a different manner or that the issues
presented
were
adequate
to
deserve
encouragement
to
proceed
further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks and citation omitted).
For the reasons set forth above, Wampler has not stated any
30
grounds for relief under section 2255.
for
a
determination
decision
debatable
that
or
reasonable
incorrect
encouragement to proceed further.
or
The Court finds no basis
jurists
that
would
the
find
issues
this
deserve
Therefore, a certificate of
appealability will not be issued.
CONCLUSION
For the aforementioned reasons, the section 2255 motion is
DENIED.
The Clerk is ORDERED to DISMISS this case WITH PREJUDICE.
Furthermore,
this
Court
declines
to
issue
a
certificate
of
appealability.
DATED: March 27, 2017
/s/ RUDY LOZANO, Judge
United States District Court
31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?