Rook v. USA
ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). (Schroeppel, Kerry) Modified on 5/7/2012 copy mailed certified/return receipt requested to Daniel Rook, #21077-045, Millington Federal Prison Camp, P.O. Box 2000, Millington, TN 38083-2000, receipt #7011 0470 0000 7865 9049 (Siegert, Karen).
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
Case No. 11-3403-CV-S-RED
Crim No. 08-3106-01-CR-S-RED
Before the Court is Petitioner’s Motion to Vacate, Set Aside and/or Correct Sentence (Doc.
1). For the following reasons, the Court DENIES Petitioner’s motion.
On April 16, 2010, Petitioner pled guilty, without a plea agreement, to nine counts of
structuring transactions to evade reporting requirements and one count of possession of stolen
firearms. Petitioner was sentenced on October 18, 2010 and was committed to custody for 24
months. Now before the Court is Petitioner’s § 2255 Motion wherein he argues that he received
ineffective assistance of counsel.
Petitioner bases his § 2255 Motion on the argument that he received ineffective assistance
of counsel from his retained attorney, Dee Wampler. Petitioner argues that he received ineffective
assistance of counsel as Mr. Wampler: (1) was prejudiced by his earlier representation of
Petitioner’s brother in an unrelated case; (2) influenced his staff that Petitioner was guilty; (3) did
not order Petitioner to undergo any psychiatric and/or psychological evaluations; (4) did not force
the government to prove the elements of the crime, i.e. the mens rea requirement or that the relevant
deposits were illegally received; (5) was diagnosed with cancer and did not advise Petitioner of his
illness; (6) did not bargain with the Government for a plea agreement; and (7) did not advise the
Probation Office or the Court of information which could have resulted in a lesser sentence for
“When a defendant is represented by counsel during the plea process and enters a plea upon
counsel's advice, the voluntariness of the plea depends on whether counsel's advice 'was within the
range of competence demanded of attorneys in criminal cases.'" Blalock v. Lockhart, 977 F.2d 1255,
1257 (8th Cir. 1992). The two-part test outlined in Strickland v. Washington, 446 U.S. 668, 687-88
(1984), applies to challenges to guilty pleas based on ineffective assistance of counsel. Id. To
establish an ineffective assistance claim, Petitioner must prove that (1) counsel’s performance was
deficient, falling below an objective standard of reasonableness, and (2) that the deficient
performance prejudiced him so as to deprive him of fair proceedings. Strickland v. Washington, 446
U.S. 668, 687-88 (1984). Counsel is "strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. To
satisfy a showing of deficiency, a defendant must show that counsel failed to exercise the skills and
diligence a reasonably competent attorney would have exhibited given the circumstances. See
United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1994). To establish prejudiced performance,
a defendant must show that there is a reasonable probability that, but for counsel’s unreasonable
professional errors, the results of the proceeding would have been different. See id. Because
Petitioner pled guilty, he must also prove "there is a reasonable probability that, but for counsel's
errors, he would not have pled guilty and would have insisted on going to trial." Mathews v. United
States, 114 F.3d 112, 113-14 (8th Cir. 1997).
First, Petitioner argues that Mr. Wampler’s representation of his brother constituted
ineffective assistance of counsel. However, Petitioner never explains how Mr. Wampler’s prior
representation of his brother in an unrelated case affected Petitioner’s decision to plea guilty to the
relevant crimes and, further, that absent these facts Petitioner would have insisted on going to trial.
Petitioner additionally argues that he was subject to ineffective assistance of counsel as Mr.
Wampler influenced his staff that Petitioner was guilty. However, once again, Petitioner does not
explain how this set of circumstances affected his decision to plea guilty and, thus, does not
sufficiently illustrate prejudice.
Petitioner also argues that Mr. Wampler’s failure to request a mental examination of
Petitioner constituted ineffective assistance of counsel. Petitioner argues that if Mr. Wampler would
have requested a mental examination, he may have found out that Petitioner performed the crime
due to his “minimal education to diminished capacity, bi-polar and/or Obsessive Compulsive
Disorder, or even temporary insanity.” When strategic choices are made “‘after less than complete
investigation [they] are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.’” Nooner v. Norris, 402 F.3d 801, 808 (8th Cir.
2005)(quoting Strickland at 690-91). “A particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Nooner, 402 F.3d at 808. Petitioner’s presentence investigation report
indicates that Petitioner had no known history of emotional or mental problems. Moreover,
Petitioner sets forth no evidence that he ever indicated to Mr. Wampler that he was suffering from
mental problems. Therefore, Mr. Wampler’s decision to not request a mental examination of
Petitioner was reasonable considering the circumstances. See Jones v. Delo, 258 F.3d 893 (8th Cir.
2001)(concluding that counsel’s assistance was not deficient when he did not investigate petitioner’s
mental condition at the guilt phase of the trial even when there was evidence that petitioner may
have suffered from a mental disease); See Stanely v. Lockhart, 941 F.2d 707 (8th Cir.
1991)(considering the fact that petitioner had not revealed any history of mental problems to counsel
when concluding that counsel’s assistance was not ineffective for failing to request a mental
examination of petitioner). Additionally, at his plea hearing, the undersigned asked Petitioner: (1)
whether he considered himself competent to enter a plea of guilty in his case and; (2) whether he
was currently diagnosed with a mental disease or had been diagnosed with a mental disease in the
past. Petitioner responded to these questions by stating that he considered himself competent to
enter a plea of guilty and, further, that he was not currently diagnosed with a mental disease nor has
he ever been diagnosed with a mental disease. Further, in his motion, Petitioner never argues that
he actually suffered from some sort of mental disease that would have been revealed by a mental
examination. Finally, Petitioner again fails to explain how Mr. Wampler’s failure to request a
mental examination affected his decision to plead guilty and once again does not establish the
necessary element of prejudice.
Petitioner also argues that he was subject to ineffective assistance of counsel as Mr. Wampler
did not “suggest to the Government that [Petitioner] did not demonstrate the mens rea of the crimes
of which he was initially accused” and, further “did not force the Government through discovery to
show the evidence that [Petitioner] ever tried to sell the first piece of equipment or firearms that he
purchased.” However, because Petitioner plead guilty before trial, the Government did not need to
prove any of the elements of the crime. Moreover, at Petitioner’s plea hearing, the Government set
forth the evidence that it possessed which indicated that the Government would be able to prove
each element of the crimes to which Petitioner plead guilty. Petitioner agreed, at his plea hearing,
that the Government could present this evidence at trial. Furthermore, once again, Petitioner fails
to explain how these actions affected his decision to plea guilty and establish the element of
Petitioner further argues that, if Mr. Wampler would have told Petitioner about his battle
with cancer, he would have retained other counsel and, had he retained other counsel, his “decision
as to whether to opt for a trial or plead guilty could have been different.” However, Petitioner states
that he learned that Mr. Wampler had cancer and was currently in remission in February 2010,
approximately two months before Petitioner plead guilty. Therefore, as Petitioner did not change
counsel once he discovered Mr. Wampler’s illness, it is clear that Petitioner was not overly
concerned that the state of Mr. Wampler’s health would affect his representation.
Petitioner further argues that he was prejudiced as Mr. Wampler did not bargain with the
Government for a plea agreement. First, there is no evidence that the Government would have even
entered into a plea agreement with Petitioner. Moreover, even if Mr. Wampler would have been
able to obtain a plea agreement for Petitioner, in order to receive the benefits of the plea agreement,
Petitioner would have to had plead guilty to the crime. Thus, Petitioner has not demonstrated
sufficient prejudice as Petitioner has not shown that there was a “reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”
Petitioner finally argues that he was prejudiced as Mr. Wampler did not advise the Probation
Office or the Court of information which could have resulted in a lesser sentence for Petitioner. The
information Petitioner references is any potential information discovered in a mental evaluation and
Petitioner’s allegation that he had been given $600,000 cash by his father at his death, which would,
allegedly, indicate a legitimate reason for Petitioner to be in possession of such a large amount of
money. However, Petitioner has not established a reasonable probability that the result of his
sentencing would have been different had Mr. Wampler performed a mental evaluation and, as
mentioned above, Petitioner has not indicated that he actually suffers from a mental disorder.
Moreover, Petitioner has not established a reasonable probability that the result of his sentencing
would have been different had Mr. Wampler relayed the fact that Petitioner was given $600,000 cash
by his father at death. See U.S. v. Apfel, 97 F.3d 1074, 1077 (concluding that petitioner “ha[d] not
established a reasonable probability that the result of his sentencing would have been different had
his counsel objected to the government’s failure to prove the type of methamphetamine involved in
his offense” when petitioner claimed he used the l-methamphetamine, a drug indicating a lesser
sentence, but petitioner had “not shown a reasonable probability that the government would not have
been able to prove by a preponderance of the evidence that the offense involved dmethamphetamine” and, thus, holding that petitioner could not demonstrate ineffective assistance
of counsel). In fact, the source of the money is irrelevant to Defendant's charges.1 Furthermore, at
Petitioner's plea hearing, the undersigned asked the United States Attorney to summarize the
evidence the Government believed that it would present if the case went to trial. Among this
evidence was the fact that Petitioner had been making bank deposits to avoid the reporting
requirements required by law. Petitioner, at his plea hearing, agreed that the Government could
present these facts and admitted to engaging in the activities. For these reasons, Petitioner has not
illustrated the prejudice prong of the Strickland test.
The long and short of it is that, even if Petitioner did receive ineffective assistance counsel,
he did not meet his burden of showing that he was prejudiced by the allegedly deficient counsel.
Petitioner plead guilty to Counts One through Nine in his Superceding Indictment which
were based on 31 U.S.C.A. § 5324(a)(3) and related to his financial transactions. Pursuant to §
5324(a)(3) "No person shall, for the purpose of evading the reporting requirements of section
5313(a) or 5325 or any regulation prescribed under any such section, the reporting or
recordkeeping requirements imposed by any order issued under section 5326, or the
recordkeeping requirements imposed by any regulation prescribed under section 21 of the
Federal Deposit Insurance Act or section 123 of Public Law 91-508 -- (3) structure or assist in
structuring, or attempt to structure or assist in structuring, any transaction with one or more
domestic financial institutions."
Petitioner has set forth no evidence which demonstrates a “reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have instead gone to trial.” Instead,
Petitioner asserts that, but for counsel’s errors, he may have changed attorneys, entered into a plea
agreement, or received a reduced sentence. For these reasons and the reasons set forth above, the
Court finds that Petitioner has not met the burden required for a successful ineffective assistance of
counsel claim and, thus, denies Petitioner’s motion.
Furthermore, the Court will not conduct an evidentiary hearing on Petitioner’s ineffective
assistance of counsel claims, as “the motion and the files and records of the case conclusively show
that [Petitioner] is entitled to no relief.” 28 U.S.C. 2255(b); See also Watson v. United States, 493
F.3d 960, 963 (8th Cir. 2007)(“No [evidentiary] hearing is required where the claim is inadequate
on its face or if the record affirmatively refuses the factual assertions upon which it is based.”).
Finally, the Court must decide whether to issue a certificate of appealability which would
allow Petitioner to appeal the denial of his § 2255 Motion. A certificate of appealability should
only be issued if "the applicant has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). This standard requires Petitioner to show that "reasonable jurists
would find the district court's assessment of the constitutional claims debatable or wrong." Slack
v. McDaniel, 529 U.S. 473, 484 (2000). As shown above, Petitioner has not demonstrated how he
was prejudiced by his trial counsel’s alleged deficient performance, an essential element for an
ineffective assistance of counsel claim and, thus, Petitioner has not made a substantial showing of
the denial of his constitutional right. For these reasons, the Court will not issue a certificate of
appealability on any issue in this case.
For the reasons above, the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. § 2255 (Doc. 1) is DENIED.
The Clerk of the Court is directed to mail a copy of this Order via certified mail, return
receipt requested, at Daniel Rook 21077-045, Millington Federal Prison Camp, PO Box 2000,
Millington, Tennessee 38083-2000.
IT IS SO ORDERED.
May 7, 2012
/s/ Richard E. Dorr
RICHARD E. DORR, JUDGE
UNITED STATES DISTRICT COURT
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