Wheelock v. USA

Filing 3

ORDER summarily denying 1 Petition for Writ of Error Coram Nobis and dismissing this action signed by Chief Judge William C Griesbach on 5/28/2013. (cc: all counsel via CM/ECF, Wayne Wheelock, Jr via U.S. Mail)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WAYNE WHEELOCK, JR.,
Petitioner,
v.

Case No. 13-C-0588

UNITED STATES OF AMERICA,
Respondent.

ORDER SUMMARILY DENYING PETITION
FOR WRIT OF ERROR CORAM NOBIS

Wayne Wheelock, Jr., who is apparently serving a federal sentence at the Federal
Correctional Institution in Petersburg, Virginia, filed a petition for a writ of error coram nobis
challenging his 1996 conviction in this court (Case No. 96-CR-97) for sexual abuse in violation of
18 U.S.C. § 2242(2)(B) and § 1153. Wheelock has already completed the 112-month sentence he
received from this court for the offense and is no longer on supervised release. He nevertheless
seeks to vacate his conviction on the grounds that his guilty plea was coerced and he is actually
innocent of the crime. For the reasons that follow, his petition is summarily denied.
The “extraordinary remedy” afforded by the ancient common law writ of error coram nobis
is discretionary, Howard v. United States, 962 F.2d 651, 653 (7th Cir. 1992), and is used only to
correct errors “of the most fundamental character,” United States v. Bush, 888 F.2d 1145, 1147 (7th
Cir. 1989) (quoting United States v. Morgan, 346 U.S. 502, 512 (1954)). The Supreme Court noted
that it is “‘difficult to conceive of a situation in a federal criminal case today where [a writ of coram
nobis] would be necessary or appropriate.’” Carlisle v. United States, 517 U.S. 416, 429 (1996)

(quoting United States v. Smith, 331 U.S. 469, 475 n.4 (1947)). The writ is traditionally only used
to correct errors of fact not appearing on the record, an error of which the court would not have
committed had the matter been brought to the attention of the court. See United States v. Keane,
852 F.2d 199, 203 (7th Cir. 1988) (“[T]he writ was used to raise claims that were not apparent from
the face of the record and understandably not raised at trial (e.g., that the un-counseled defendant
was insane at the time of the plea or that the defendant had entered the guilty plea out of fear of mob
violence).... [T]he writ is still generally limited to claims that rest on facts dehors the record.”
(quoting Yale Kamisar, Wayne R. LaFave & Jerold H. Israel, Modern Criminal Procedure 1468
(6th ed. 1986))).
In order to obtain relief in the form of a writ of coram nobis, a petitioner must show that
(1) the claim could not have been raised on direct appeal; (2) the conviction produces lingering civil
disabilities, and (3) the alleged error is the type of defect that would have justified relief pursuant
to 28 U.S.C. § 2255. United States v. Doe, 867 F.2d 986, (7th Cir. 1989). In addition, there must
have been sound reasons for the defendant’s failure to seek earlier relief. In cases of inordinate
delay in seeking relief, the doctrine of laches may also serve to bar issuance of the writ. See, e.g.,
United States v. Correa-De Jesus, 708 F.2d 1283 (7th Cir. 1983); United States v. Darnell, 716 F.2d
479 (7th Cir. 1983).
Where the record shows on its face that the conviction was valid, a writ of coram nobis
cannot issue and the petition may be summarily dismissed by the district court without a hearing.
Cf. Morgan, 346 U.S. at 512 (“Where it cannot be deduced from the record whether counsel was
properly waived, we think, no other remedy being then available and sound reasons existing for
failure to seek appropriate relief, this motion in the nature of the extraordinary writ of coram nobis
must be heard by the federal trial court.”).

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The court assumes that Wheelock is under a continuing civil disability given the nature of
his federal conviction. Wheelock was an adult at the time of the assault involving a minor victim
and thus, he is subject to the reporting requirements for sexual offenders under the Sex Offender
Registration and Notification Act. Despite this fact, it is apparent from the record that Wheelock
is not entitled to the relief he seeks.
Wheelock’s conviction arose out of the April 1993 gang rape of a thirteen-year-old girl on
the Menominee Indian Reservation. According to a transcript of the plea hearing, Wheelock and
several other individuals had provided alcohol to the girl and, after she became intoxicated and
unconscious, sexually assaulted her. Several witnesses heard her screaming before she lost
consciousness. The government claimed that Wheelock’s DNA was found in a condom discarded
at the scene, and co-actors and others present at the time indicated that Wheelock had intercourse
with the victim. (Plea Hr’g Tr. 6-7.) Wheelock acknowledged that the summary of the evidence
provided by the Assistant U.S. Attorney was accurate (id. at 8:4-6), and after a thorough colloquy
with the court, entered his plea of guilty. Two related charges, including a charge of aggravated
sexual abuse of a child, were dismissed.
In his petition, Wheelock now claims he is actually innocent of the crime to which he pled
guilty almost seventeen years ago. He claims that he pled guilty even though he was innocent
because his attorney told him that a jury would not believe him and he would receive a sentence of
thirty years if he went to trial. He also claims that his plea was invalid because he pled guilty as a
principal but was charged in the indictment as an aider and abettor under 18 U.S.C. § 2. Finally,
Wheelock claims that the government failed to present sufficient evidence to support his conviction.
Even if Wheelock’s petition was a motion for post conviction relief under 28 U.S.C. § 2255
brought within a year of his conviction, it would be summarily denied. The fact that he asserts his

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claims in a petition for a writ of coram nobis more than fifteen years too late weakens them further.
Wheelock’s allegation that his attorney told him that he could receive a sentence of thirty years if
he went to trial, even if true, does not constitute ineffective assistance of counsel. Wheelock was
facing a charge of aggravated sexual abuse of a child contrary to 18 U.S.C. § 2241(a)(1) at the time,
as well as the sexual abuse charge for which he was sentenced. Had he gone to trial and been
convicted of aggravated sexual abuse of a child, a sentence of thirty years could well have been
imposed. Thirty years is the current mandatory minimum for that offence. 18 U.S.C. § 2241(c).
Given the aggravated nature of the crime, a prediction that Wheelock would get thirty years if
convicted at trial would not have been unreasonable.
In any event, the thorough plea colloquy conducted by Judge Curran belies any claim that
Wheelock’s plea was not voluntary. In addition to acknowledging that the government’s description
of his involvement in the offense was accurate, Wheelock stated under oath that no one had either
threatened him or made any promises to him in order to get him to enter the plea agreement. In fact,
he testified that the only reason he was entering a plea of guilty was because he was guilty of that
offense. (Plea Hr’g Tr. 18: 11-20.) A defendant’s responses during a plea colloquy are presumed
truthful. See Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000) (“Bridgeman's
argument that his counsel's advice rendered his plea unwitting and involuntary is belied by his own
statements at the change of plea hearing, which are presumed truthful.”). In effect, Wheelock is
claiming that he lied at the change of plea hearing when asked why he was pleading guilty. His
claim is patently incredible:
Rational conduct requires that voluntary responses made by a defendant under oath
before an examining judge be binding. Such a requirement is consistent with reason
and common sense. For a defendant to claim (as Ellison has) that he believed he

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could lie and later recant to achieve some perceived advantage does not comport
with rational conduct.
United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987).
Wheelock’s remaining claims are likewise without merit. His argument that the factual basis
is insufficient because he admitted conduct that made him a principal but was charged as an aider
and abettor is frivolous. In essence, Wheelock’s argument is that he was accused of only helping
another commit the crime but, in fact, he admitted committing it himself. Therefore his plea was
invalid and he is actually innocent.
Wheelock was charged under 18 U.S.C. § 2, which provides that one who aids and abets a
crime is punishable as a principal. “This provision does not define a crime but merely makes
punishable as a principal one who aids or abets another in the commission of a substantive offense.”
United States v. Cowart, 595 F.2d 1023, 1031, n10 (5th Cir. 1979). Adding a reference to 18 U.S.C.
§ 2 in the indictment is not required in order to convict on a theory of accomplice liability. United
States v. Tucker, 552 F.2d 202, 204 (7th Cir. 1977). Doing so, however, is intended to provide
notice to the defendant so as to avoid unfair surprise in the event the government’s evidence comes
up short of proving the defendant’s direct commission of the offense. Id. Having admitted his
involvement in the crime as a principal, Wheelock provided a factual basis for his conviction that
was more than sufficient.
Wheelock’s argument that the evidence was insufficient to prove his guilt is likewise
frivolous. A guilty plea obviates the need for the government to prove its case; that’s its purpose.
By entering a plea of guilty, Wheelock waived his right to have the government present evidence
sufficient to prove his guilt beyond a reasonable doubt. See United States v. Brown, 870 F.2d 1354,
1358 (7th Cir.1989) (“Once a plea of guilty has been entered, non-jurisdictional challenges to the
constitutionality of the conviction are waived and only the knowing and voluntary nature of the plea
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may be attacked”). Thus, the government had no obligation or need to introduce DNA evidence or
the live testimony of those witnesses who were present at the scene of the crime.
Finally, the doctrine of laches also serves to bar relief under a writ of coram nobis.
Wheelock entered a guilty plea and was sentenced more than sixteen years ago. Wheelock does not
explain why he waited sixteen years to challenge his conviction, especially given his assertion that
he is actually innocent. He could have sought relief sooner, in a direct appeal or on a motion for
post conviction relief under 28 U.S.C. § 2255. Courts must consider the strong policy in favor of
protecting the finality of judgments and should not “create an incentive for delay by persons
challenging criminal convictions.” Correa-De Jesus, 708 F.3d at 1286. Because Wheelock waited
too long to challenge his conviction and he has not provided a sufficient reason to excuse his delay,
his petition is also barred by laches. See id. (holding that a 14-year delay in challenging a 16-yearold conviction barred petition for coram nobis under laches). Accordingly, Wheelock’s petition for
a writ of error coram nobis is summarily denied and this action is dismissed.
Dated this 28th day of May, 2013.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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