United States v. Wilks, 84-CR-11.

• Decision Date: 11 February 1985
• Docket Number: No. 84-CR-11.,84-CR-11.
• Citation: 602 F. Supp. 322
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: UNITED STATES of America, Plaintiff, v. Curtis L. WILKS, Defendant.

602 F. Supp. 322

UNITED STATES of America, Plaintiff, v. Curtis L. WILKS, Defendant.

No. 84-CR-11.

United States District Court, E.D. Wisconsin.

February 11, 1985.

Jan Kearney, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff.

Louis B. Aderman, Milwaukee, Wis., for defendant.

DECISION AND ORDER

WARREN, District Judge.

Presently before the Court in this matter is the defendant's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, the habeas corpus statute for prisoners in federal custody. Consistent with the Court's scheduling order of August 16, 1984, the motion has been briefed and is now ripe for resolution.

The Court, having reviewed the parties' motion papers and carefully considered their respective arguments, concludes, for the reasons stated below, that the motion must be denied.

BACKGROUND

On December 8, 1983, a criminal complaint and warrant were issued in this case, charging that on December 2, 1983, the defendant, Curtis Lee Wilks, took $8,201.00 from the M & I Northern Bank, 3536 West Fond du Lac Avenue, Milwaukee, Wisconsin, and, in so doing, assaulted the teller and put her life in jeopardy by the use of a dangerous weapon, all in violation of 18 U.S.C. § 2113(a) & (d). A one-count criminal indictment on the same charge was issued on January 17, 1984.

A three-day jury trial was held before this Court in March of 1984, throughout which the defendant was represented by Attorney Louis B. Aderman. The Government was represented by Assistant United States Attorney Jan E. Kearney. On March 30, 1984, the jury returned a verdict of guilty, and the defendant was so adjudged.

On May 16, 1984, the Court held a hearing for the purpose of sentencing the defendant. As before, Attorney Aderman appeared for the defendant and Assistant United States Attorney Jan E. Kearney appeared on behalf of the United States. The Court, pursuant to its well-established procedure, permitted the defendant and Attorneys Aderman and Kearney to make statements with respect to the proper sentencing disposition. Based on their remarks and it own consideration of the presentence report and the nature of the subject crime, the Court sentenced the defendant to ten (10) years in the custody of the Attorney General or his authorized representative. The Court noted that the sentence was imposed pursuant to 18 U.S.C. § 4205(b)(2). See Transcript of Proceedings at 12 (May 16, 1984). The Court also explained the defendant's right to appeal and the filing requirements attendant on any timely appeal. See Transcript of Proceedings at 12-13 (May 16, 1984).

On June 25, 1984, the defendant filed a motion for a reduction of sentence, pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. This motion and the accompanying memoranda in support and opposition were carefully considered by the Court, as was the Government's opposing brief. The motion was denied by the Court's Decision And Order of July 16, 1984.

On August 14, 1984, the defendant filed the present motion, pursuant to 28 U.S.C. § 2255, requesting the Court to vacate, set aside, or correct his sentence. In the memorandum in support of this motion, the defendant raises four related grounds which purportedly support the relief he requests — namely, that he was denied effective assistance of counsel; that improper procedures were used during sentencing; that hearsay evidence was relied on by the Court in imposing sentence, and that inconsistent assessments of his mental competence have been made throughout his criminal prosecution and incarceration. The Government has filed a brief, opposing the motion on all four grounds.

28 U.S.C. § 2255 AND THE MERITS OF THE DEFENDANT'S PRESENT MOTION

Section 2255 of Title 28 of the United States Code provides, in pertinent part, as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence ...

If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

As indicated above, the defendant has articulated four arguments in support of his present motion. Because several of the substantive issues the movant raises by his motion are apparently offered in support of more than one of the related bases upon which he seeks relief, the Court will address each of the defendant's particular contentions absent consistent reference to the four principal grounds upon which he moves.

The petitioner's first — and perhaps primary argument—is that he was denied effective assistance of counsel before, during, and after trial. Specifically, the defendant alleges that error was committed by his retained counsel in refusing to pursue a plea agreement, in compelling the defendant to testify at trial, in failing to object to certain prosecution evidence, and in purportedly advising the defendant that his right to appeal must be waived. Defendant's Memorandum In Support Of Motion at 1-2 (August 14, 1984).

As counsel for the Government accurately notes in her opposing brief, the Court of Appeals for the Seventh Circuit has recently articulated clear standards to be used by trial courts in addressing a § 2255 challenge like the present. In United States v. Payne, 741 F.2d 887, 891 (7th Cir.1984), the circuit court stated that ineffective assistance claims must be evaluated in light of the purpose of the Sixth Amendment's right to counsel, which is to ensure a fair trial, as follows:

"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." ... To establish that his counsel's conduct was constitutionally defective, a defendant now is required to show both that the conduct was deficient and that this deficiency prejudiced the result ...

To establish that counsel's conduct was deficient, the defendant must show counsel's specific acts or omissions which, viewed from the perspective of counsel at the time of trial, fell below the standard of reasonable professional assistance .... In making such a showing, defendant must overcome the presumptions that counsel's conduct amounted to sound trial strategy ..., and that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." ... To satisfy the second prong, that counsel's deficient conduct was prejudicial, defendant must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" citations omitted.

See also United States v. Noble, 754 F.2d 1324 at 1335-36 (7th Cir.1985) (citing Strickland v. Washington, ___ U.S. ___, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) for standards to be applied in evaluating Sixth Amendment ineffective assistance claims).

Even assuming that defense counsel in this case committed the several errors alleged — an assumption, as discussed below, wholly unsupported by the record — there is nothing to indicate that the disposition of the defendant's case would have been different had they not occurred. The evidence of the defendant's guilt, as adduced at trial, was overwhelming; indeed, the defendant himself testified to his participation in the robbery for which he was indicted and discussed in some detail the nature of the travels and drug purchases that followed. Because the Court finds no basis upon which the jury's finding of guilt might reasonably be attacked as inappropriate or misguided, it must conclude that the movant has utterly failed to establish a probability that, but for the alleged errors, the disposition of his case would have been different. Accordingly, the Court rejects the defendant's contention that he was somehow denied effective assistance of counsel.

The Court's conclusion in this regard is further supported by its findings that none of the so-called errors committed by defense counsel "fell below the standard of reasonable professional assistance." United States v. Payne, 741 F.2d 887, 891 (7th Cir.1984). With respect to his claim that counsel ineffectively handled matters regarding his competency to stand trial, the defendant is surely aware that his attorney properly brought...