United States v. Wilson
| Decision Date | 14 July 2020 |
| Docket Number | No. 20-3030,20-3030 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GERALD WILSON, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Kan.)
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
Proceeding pro se,1 Gerald Wilson seeks a Certificate of Appealability (COA) to challenge the district court's denial of his 28 U.S.C. § 2255 habeas petition. He argues that, by not challenging the facial validity of the government's wiretap orders, his trial counsel provided ineffective assistance of counsel. Because such a Fourth Amendment challenge would have been meritless, Wilson has not made a substantial showing of a denial of his Sixth Amendment right to effective assistance of counsel. Nor has he made acolorable claim of actual innocence. Accordingly, we deny a COA and dismiss this case. We grant Wilson's motion to proceed in forma pauperis.
On April 1, 2014, a federal grand jury seated in the District of Kansas indicted Gerald Beasley (Beasley), his sons, Antoine Beasley (Antoine Beasley) and Gerald Wilson (Wilson), and nine other defendants in a thirty-four count Second Superseding Indictment. The Indictment charged Wilson with the following crimes:
The Indictment was the product of an extensive investigation by numerous federal agencies, including the Bureau of Alcohol, Tobacco, Firearms and Explosives, into the Beasley family's criminal activity. The most productive facet of that investigation involved two wiretaps, one for Beasley's cell phone (Target Telephone # 1, number 316-409-4289) and one for Antoine Beasley's cell phone (Target Telephone # 2, number 316-992-9165). As Wilson admits, the wiretaps produced a "mountain of evidence" incriminating "[him] and all his codefendants." R. vol. 1 at 498.
Both Beasleys moved to suppress evidence obtained from the wiretaps, arguing (among other things) that they were issued without probable cause and in contraventionof 18 U.S.C. § 2518(1)(c)'s necessity requirement.2 Wilson joined the motions, but the district court denied both motions.
Having suffered a significant setback, Wilson decided it was best to cut his losses. On April 19, 2017, he filed in the district court a petition to enter a guilty plea. That same day, Wilson signed a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). In return for the government's promise to dismiss Counts 15, 29, 30, and 31, Wilson agreed to plead guilty to Count 32 (possession of a controlled substance with intent to distribute). As a factual basis for the plea, Wilson admitted that during a search of his Kansas residence officers had found "approximately 931 grams" of cocaine and that he had possessed cocaine with intent to distribute. R. vol. 1 at 473. Wilson's plea agreement contained this waiver provision:
The defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, his conviction, or the components of the sentence to be imposed herein, including the length and conditions of supervised release, as well as any sentence imposed upon a revocation of supervised release. . . . The defendant also waives any right to challenge his sentence, or the manner in which it was determined, or otherwise attempt to modify or change his sentence, in any collateral attack, including, but not limited to, a motion brought under 28 U.S.C. § 2255 (), or a motion brought under Federal Rule of Civil Procedure 60(b).
Id. at 476-77. Important here, in an exception following that waiver, the plea agreement states that "[n]otwithstanding the foregoing waivers, the parties understand that thedefendant in no way waives any subsequent claims with regards to ineffective assistance of counsel or prosecutorial misconduct." Id. at 477.
On July 20, 2017, the district court accepted Wilson's plea, sentencing him to seventy months' imprisonment and four years' supervised release.
Less than a year later, on June 21, 2018, Wilson filed a motion under 28 U.S.C. § 2255, seeking to vacate his conviction. Attempting to invoke the exception to his collateral-attack waiver, Wilson raised an ineffective-assistance-of-counsel claim.3 Specifically, he argued that he had been prejudiced by his counsel's alleged ineffective performance in not raising three arguments: (i) that the wiretap orders were facially insufficient because they stated that "interceptions may take place when the target telephone is located in any other jurisdiction within the United States"; (ii) that the orders were facially insufficient under § 2518(4)(b) for not identifying "the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted"; and (iii) that because the orders failed to provide the necessary location information, they were roving wiretaps, meaning they were improperly authorized by a "Deputy Assistant Attorney General."4 R. vol. 1 at 488-89, 492, 493-94.
The district court dismissed Wilson's § 2255 petition. United States v. Wilson, No. 13-1012-12-JTM, 2020 WL 430218, at *6 (D. Kan. Jan. 28, 2020). Without mentioning or considering the exception to Wilson's collateral-attack waiver, the court concluded that Wilson had presented "no reason it should not be enforced." Id. at *2 (citation omitted). That said, the court noted that, under "the [Plea] Agreement and Cockerham," Wilson could challenge his counsel's alleged ineffective performance in negotiating his plea agreement. Id. at *1. But the court ruled that Wilson's ineffective-assistance claims were unrelated to his plea agreement or waiver and "instead [were] wholly tangential to the final plea agreement and waiver[.]" Id.
Despite that ruling, the district court next addressed the merits of Wilson's petition. The court reasoned that, under Dahda v. United States, 138 S. Ct. 1491 (2018), his challenge to the geographical scope of the wiretap orders failed because "the expansive geographic language in the warrant[s] was surplusage[.]" Id. at *2-3. And though the court reasoned that Dahda would have prohibited the government from introducing evidence obtained from a cell phone located outside of Kansas when, at the same time, a listening post had also been outside of Kansas, the record showed that such a situation had never occurred. See id. at *3 (). As for Wilson's related argument that the orders werefacially insufficient for failing to "explicitly mandate that the listening post be in Kansas," the court concluded that no authority "create[d] the explicit location requirement defendant invokes." Id. Finally, the orders did not create roving wiretaps, the court concluded, because they allowed interceptions for only "particular telephones[.]" Id. at *4.
The court also noted that Wilson had filed a motion to amend his habeas petition to assert a claim of actual innocence. Id. at *5. Wilson argued that his lawyer had misinformed him "that he did not have the right to present evidence of his innocence at trial and that he was guaranteed to lose." R. vol. 1 at 556, 565. Dismissing that claim, the court explained that Wilson's motion failed because it did not create "a colorable showing" of actual innocence, among other things. Wilson, 2020 WL 430218, at *5.
After rejecting Wilson's arguments, the court denied a COA, reasoning that reasonable jurists could not debate that Wilson's § 2255 petition was procedurally barred and substantively meritless. Id. at *4-6. Wilson now seeks a COA to challenge the district court's dismissal of his § 2255 petition.
Wilson must obtain a COA to appeal the district court's dismissal of his § 2255 petition. See 28 U.S.C. § 2253(c)(1)(B). We will issue a COA only when a § 2255 petitioner makes "a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). Here, the district court dismissed Wilson's petition on both procedural and substantive grounds. See United States v. Wicken, 514 F. App'x 721, 723-24 (10th Cir.2013) (unpublished) (). Wilson therefore faces a double hurdle: he must show "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling" and "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).
We review de novo whether a defendant's collateral-challenge waiver is enforceable. See United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008). In analyzing that issue, we ask three questions: "(1) whether the disputed [claim] falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice." United States v. Viera, 674 F.3d 1214, 1217 (10th Cir. 2012) (alteration in original) (internal quotation marks omitted) (quoting United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per...
To continue reading
Request your trial