Wilbourn v. United States of America
Filing
50
MEMORANDUM OPINION AND ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by U.S. District Judge Karen E. Schreier on 8/28/2013. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES MICHAEL WILBOURN,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Civ. 12-4186-KES
MEMORANDUM OPINION AND
ORDER DENYING MOTION
Petitioner, James Michael Wilbourn, moves pro se to vacate his sentence
pursuant to 28 U.S.C. § 2255. For the following reasons, the motion is denied.
BACKGROUND
On October 20, 2010, a jury found Wilbourn guilty of conspiracy to
distribute 50 grams or more of a mixture or substance containing cocaine
base. The court denied Wilbourn’s motion for a judgment of acquittal and for a
new trial. At the first sentencing hearing on January 13, 2011, the court found
that Wilbourn’s conduct involved a lower quantity of drugs than the quantity
found by the jury, and ordered that the presentence report (PSR) be updated to
reflect a quantity of 4.87 grams. The sentencing was continued until
September 9, 2011, when Wilbourn was sentenced to 41 months in prison. The
Eighth Circuit affirmed the conviction and sentence. United States v. Wilbourn,
No. 11-3056, 2012 WL 1957889 (8th Cir. June 1, 2012).
Wilbourn then filed this motion to vacate his sentence. On January 28,
2013, Wilbourn signed an authorization for his trial counsel to disclose
confidential communications. Wilbourn’s counsel filed an affidavit responding
to the allegations of ineffective assistance of counsel asserted by Wilbourn in
his motion to vacate. Wilbourn filed thirteen supplemental pleadings before the
United States filed its response to his motion to vacate, and he filed seven
replies to the United States’s response. More recently, Wilbourn filed a motion
for hearing (Docket 48) and a motion for summary judgment (Docket 49).
The grounds raised by Wilbourn in his motion to vacate are:
(1) ineffective assistance of counsel for failing to request a recess to review
evidence that was untimely disclosed by the government; (2) ineffective
assistance of counsel for failing to recall and impeach witnesses after the
government disclosed the evidence; and (3) ineffective assistance of counsel for
failing to object to PSR paragraphs 8 and 13 during the first sentencing
hearing. In subsequent pleadings, Wilbourn added claims that his lawyer was
ineffective for failing to argue for a mitigating role reduction and that the
prosecutor knowingly used perjured testimony at the trial.
DISCUSSION
A prisoner in custody pursuant to a federal conviction and sentence may
move the court that imposed the sentence to vacate, set aside, or correct the
sentence:
2
[U]pon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.
28 U.S.C. § 2255(a).
I.
Procedural Default of Prosecutorial Misconduct Claim
Wilbourn argues that his co-defendant, Andre Gilbert, testified falsely at
Wilbourn’s trial about a controlled buy that took place with a confidential
informant (CI) on July 20, 2009, and that the government knowingly offered
this perjured testimony to obtain Wilbourn’s conviction.1 The government
argues that Wilbourn procedurally defaulted this claim because he failed to
raise it in his direct appeal.
The right of collateral review is an extraordinary remedy and “will not be
allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614,
621 (1998). Under the doctrine of procedural default, issues that could have
been, but were not, raised on direct appeal are waived and cannot be asserted
for the first time in a collateral § 2255 action absent a showing of cause and
actual prejudice, or a showing of actual innocence. See United States v. Bailey,
235 F.3d 1069, 1071–72 (8th Cir. 2000).
1
Prior to trial, Gilbert pleaded guilty to distributing crack cocaine. At
Wilbourn’s trial, Gilbert testified that Wilbourn told him the CI was going to
stop by to purchase $100 worth of crack cocaine and that Gilbert gave
Wilbourn a package of crack cocaine to complete the transaction.
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Wilbourn contends that he did not procedurally default this claim
because Gilbert’s allegedly false testimony was raised on pages 15 and 16 of
Wilbourn’s Eighth Circuit brief. In his appeal, Wilbourn raised the issue of
Gilbert’s testimony in the context of his argument that the existence of a
conspiracy involving Gilbert and Wilbourn was not supported by the evidence.
In his § 2255 petition before this court, however, Wilbourn now seeks to shift
the focus of Gilbert’s testimony to a prosecutorial misconduct claim. This claim
is procedurally defaulted because Wilbourn has not established cause and
prejudice, and he has failed to establish actual innocence.
Even if Wilbourn’s prosecutorial misconduct claim were not defaulted, it
would fail because he has not met the required showing that: “(1) the
prosecution used perjured testimony; (2) the prosecution should have known
or actually knew of the perjury; and (3) there was a reasonable likelihood that
the perjured testimony could have affected the jury's verdict.” United States v.
Funchess, 422 F.3d 698, 701 (8th Cir. 2005) (citing United States v. Peterson,
223 F.3d 756, 763 (8th Cir. 2000)).
II.
Ineffective Assistance of Counsel
Wilbourn asserts that his lawyer, Scott Leuning, made four errors that
rendered him ineffective. A defendant who claims to have been deprived of
effective assistance of counsel must show: (1) that his lawyer’s representation
fell below an objective standard of reasonableness; and (2) that the lawyer’s
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deficient performance prejudiced the defendant. Strickland v. Washington, 466
U.S. 668, 688, 694 (1984). For the first requirement of the Strickland test, “the
court must apply an objective standard and determine whether, in light of all
the circumstances, the identified acts or omissions were outside the wide
range of professionally competent assistance while at the same time refraining
from engaging in hindsight or second-guessing of trial counsel’s strategic
decisions.” Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir. 1995) (internal citation
and quotation marks omitted). The court must indulge a strong presumption
that “counsel’s conduct falls within the wide range of reasonable professional
assistance.” Hunter v. Bowersox, 172 F.3d 1016, 1024 (8th Cir. 1999) (quoting
Strickland, 466 U.S. at 689).
A.
Admission of Exhibits 6 Through 10 Without Seeking a
Recess.
In Wilbourn’s first ineffective assistance of counsel claim, he asserts that
Leuning should have requested a recess or a continuance when the
government offered exhibits 6 through 10 (photographs depicting the layout of
Roy Watkins’s apartment where the controlled buy took place on July 20,
2009). The photographs were produced by the government on the second day
of trial during the government’s re-direct examination of William Watkins, after
Leuning had questioned William Watkins and two other witnesses about the
layout of the apartment and where the witnesses were located within the
apartment at the time of the purchase. The photographs had not been
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disclosed by the government prior to trial. Wilbourn argues that Leuning
should have requested time to review the photographs.
Whether or not to request a recess is a matter of trial strategy. Courts
must give great deference to counsel’s informed strategic decisions. See
Middleton v. Roper, 455 F.3d 838, 848–49 (8th Cir. 2006); Laws v. Armontrout,
863 F.2d 1377, 1393 (8th Cir. 1988). In his affidavit, Leuning explains that the
photos were not complex and they “simply provided visual confirmation of the
testimony that had been elicited from the witnesses during trial. . . .” Docket
28 at ¶ 7. He conferred with Wilbourn, who confirmed that the images
contained in the photographs were indeed images of the inside of Roy
Watkins’s apartment, and Leuning felt there was no reason to request a recess.
Leuning’s reasonable decision to proceed without a recess to review the
photographs does not amount to ineffective assistance of counsel, and this
claim is denied.
B.
Failure to Recall Witnesses.
Next, Wilbourn claims that Leuning was ineffective for not recalling
witnesses Laurie Stephanson and Andre Gilbert after the photographs of the
apartment were produced and admitted into evidence. Stephanson and Gilbert
testified on the first day of trial. Stephanson, the CI, testified that she sat at
the dining room table between Wilbourn and Gilbert during the controlled buy.
Gilbert, the co-defendant, testified that he sat on the couch in the living room
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and the transaction only involved Stephanson and Wilbourn. On the second
day of trial, Watkins testified that he sat on the couch in the living room while
Gilbert, Wilbourn, and Stephanson stood in the entry hallway and conducted
the transaction. The photographs of the apartment were produced for the first
time by the government during the re-direct examination of Watkins. Leuning’s
cross-examinations of Stephanson, Gilbert, and Watkins focused on their
inconsistent statements and on the layout of the apartment. Wilbourn argues
that Leuning should have recalled Stephanson and Gilbert to impeach their
testimony with the photographs. Specifically, Wilbourn says that Leuning
should have impeached Stephanson about buying drugs with Gilbert and
about using drugs with William Watkins, and that he should have impeached
Gilbert about not being involved with the drug buy. See Docket 41. These
areas of impeachment, however, do not relate to photographs of the apartment,
and Wilbourn has failed to explain how Leuning would have used the
photographs to impeach the testimony of Stephanson and Gilbert.
Counsel’s decision whether to call a witness is trial strategy. Johnson v.
Lockhart, 921 F.2d 796, 799 (8th Cir. 1990). Leuning stated in his affidavit
that “there was no need to recall either Gilbert or Stephenson to the witness
stand, as I had already questioned each of them thoroughly regarding the
layout of the apartment and their location within the apartment during the
time in question.” Docket 39 at ¶ 7. Recalling Stephanson or Gilbert to rehash
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the same testimony using the photographs would have been cumulative of
other testimony presented, and Leuning’s performance was not deficient. See
Hall v. Luebbers, 296 F.3d 685, 694 (8th Cir. 2002) (impact of additional notes,
letters, or witness testimony would be minimal since it was cumulative).
Even if Wilbourn could establish that Leuning was deficient for failing to
recall Stephanson and Gilbert, Wilbourn cannot establish that he suffered
prejudice because there is no evidence that the outcome of the trial would have
been different had counsel recalled the witnesses. See Davis v. Norris, 423 F.3d
868, 877 (8th Cir. 2005) (even if counsel's performance was deficient, the
movant must also establish prejudice by showing the result of the proceeding
would have been different if counsel had not erred). The jury heard the
inconsistent testimony regarding the location and actions of the people within
the apartment at the time of the controlled buy. In addition, the Eighth Circuit
held that Wilbourn’s own statements, recorded by the CI during the drug buy,
supported his knowledge of the drug conspiracy, and that his membership in a
drug conspiracy could be inferred from his conduct described by numerous
witnesses at trial. Therefore, this court concludes that the outcome of the trial
would not have been different if counsel had been able to use the photographs
of the apartment to impeach the testimony of Stephanson and Gilbert.
Because Wilbourn is unable to establish that he suffered any prejudice, his
claim fails.
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Wilbourn emphasizes the fact that Leuning moved for a new trial based
on the government’s failure to produce the photographs of the apartment prior
to trial.2 Leuning argued in support of the motion for new trial that the
photographs were crucial evidence that would have assisted the crossexamination of Stephanson and Gilbert, and that the government’s failure to
produce the photographs violated Brady v. Maryland, 373 U.S. 83 (1963). But
Leuning did not explain how the photographs would have assisted the crossexamination, and a review of Leuning’s cross-examinations of Stephanson and
Gilbert convinces this court that Wilbourn was not prejudiced by Leuning’s
failure to recall Stephanson and Gilbert after the photographs were produced.
C.
Failure to Object to PSR Paragraphs 8 and 13 During the First
Sentencing Hearing.
In his third claim, Wilbourn argues that Leuning should have objected to
paragraphs 8 and 13 of the PSR during the first sentencing hearing on
January 13, 2011. The record shows that Leuning made a written objection to
paragraph 13 on December 23, 2010, and argued in favor of that objection at
the first sentencing hearing on January 13, 2011. Accordingly, any ineffective
assistance claim based on a failure to object to paragraph 13 of the PSR does
not entitle Wilbourn to relief.
2
The fact that Leuning requested a new trial on this ground supports the
court’s conclusion that he was a diligent and conscientious advocate for
Wilbourn.
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Paragraph 8 of the PSR addresses the drug quantity of crack cocaine
sold during the controlled buy at Roy Watkins’s apartment on July 20, 2009.
The original drug quantity in paragraph 8 was 1.2 grams and it was later
reduced to 0.87 grams.3 In his affidavit, Leuning stated that he felt it was the
best strategic decision not to object to paragraph 8 of the PSR because
everyone agreed Wilbourn was present in the apartment at the time of the
controlled drug buy. Although he did attempt to have all of paragraph 8
stricken from the PSR at the second sentencing, the court held the request was
untimely.
An objection to paragraph 8 would have been meritless. The defense
strategy in this case was to acknowledge that Wilbourn used drugs, but to
challenge his involvement in a conspiracy to sell drugs. In the face of the
evidence against Wilbourn, this was a reasonable strategy. Once the jury
determined Wilbourn was guilty of conspiracy to distribute cocaine base, there
was no basis for counsel to challenge the drug amount in paragraph 8. It was
impossible to challenge the fact that Wilbourn was present during the
controlled drug buy when everyone agreed he was there and his voice is on the
recording. Because of this evidence, the court would have overruled an
3
Prior to the second sentencing hearing, Leuning realized the chemist’s
analysis was wrong, and the actual amount was 0.87 grams instead of 1.2
grams. He notified the probation officer and the PSR was adjusted to reflect the
correct quantity.
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objection to paragraph 8. Leuning’s decision not to object to paragraph 8 at the
first sentencing hearing is the sort of reasoned strategic decision of counsel
that is “virtually unchallengeable.” Strickland, 466 U.S. at 690.
Moreover, in order for Wilbourn to show that he suffered prejudice as a
result of counsel’s ineffectiveness at sentencing, he must show that there is a
reasonable probability that, but for counsel’s errors, the sentencing would
have been different. See Auman v. United States, 67 F.3d 157, 162 (8th Cir.
1995). There is no evidence that, but for Leuning’s failure to object to
paragraph 8, Wilbourn would have received a lesser sentence.4 As a result, this
ineffective assistance of counsel claim must be denied.
D.
Failure to Argue for a Mitigating Role Reduction.
Wilbourn alleges in his final claim that Leuning failed to argue for a
mitigating role reduction. This claim clearly lacks merit because Leuning did,
in fact, argue for such a reduction. See Docket 208 at 9–12. The request for a
decrease was considered but rejected by this court. Id. at 13–14. That the
court overruled the objection does not mean counsel was constitutionally
ineffective, and relief on this claim is denied.
4
In fact, Leuning’s performance resulted in a much lower sentence for
Wilbourn who faced a 20-year mandatory minimum sentence based on the
jury’s finding that he conspired to sell over 50 grams of crack cocaine. Leuning
successfully argued that the court could sentence Wilbourn below the
mandatory minimum, and convinced the court to attribute to Wilbourn only
the drug amounts that he personally handled. With only 4.87 grams of crack
attributed to Wilbourn, the court sentenced him to 41 months in prison.
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III.
Evidentiary Hearing and Certificate of Appealability
If the motion, files, and records of the case conclusively establish that
the petitioner is not entitled to relief, the court is not required to conduct an
evidentiary hearing. See Garcia v. United States, 679 F.3d 1013, 1014 (8th Cir.
2012). There is no need for an evidentiary hearing in this case because it is
clear from the record that Wilbourn’s claims do not warrant relief under 28
U.S.C. § 2255.
When the district court has denied a motion under 28 U.S.C. § 2255, the
movant may not appeal without a certificate of appealability. Such a certificate
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). A “substantial showing” under
this section is a showing 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). The court determines that Wilbourn has not made a
substantial showing of the denial of a constitutional right and a certificate of
appealability will not be issued. It is therefore
ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 (Docket 1) is denied.
IT IS FURTHER ORDERED that a Certificate of Appealability will not
issue on the claims raised in the § 2255 motion.
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IT IS FURTHER ORDERED that the motion for hearing (Docket 48) and
motion for summary judgment (Docket 49) are denied.
Dated August 28, 2013.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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