Wagner v. U.S.

• Decision Date: 22 June 2005
• Docket Number: No. 2:05-404-23.,Crim. No. 2:02-181.,2:05-404-23.
• Citation: 377 F.Supp.2d 505
• Parties: Theodore WAGNER, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of South Carolina

377 F.Supp.2d 505

Theodore WAGNER, Petitioner, v. UNITED STATES of America, Respondent.

No. 2:05-404-23.

Crim. No. 2:02-181.

United States District Court, D. South Carolina.

June 22, 2005.

Theodore Thomas Wagner, Ridgeland, SC, pro se.

Michael Rhett DeHart, U.S. Attorneys Office, Charleston, SC, for Respondent.

ORDER

DUFFY, District Judge.

This matter is before the court upon Theodore Wagner's ("Wagner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The Government has filed a Response and a Motion to Dismiss. For the reasons set forth herein, the court grants the Government's Motion to Dismiss, and denies Wagner's motion.

BACKGROUND

On April 9, 2002, Wagner was indicted for four counts of production of child pornography, and one count of possession of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(b). On August 14, 2002, Wagner pled guilty to one count of production of child pornography and one count of possession of child pornography pursuant to a written plea agreement.¹ On April 16, 2003, against the advice of his counsel, Wagner informed the court in writing that he wished to withdraw his guilty plea. Wagner formally moved to withdraw his guilty plea in open court on April 21, 2003. After a thorough consideration of the factors set forth in United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991), the court denied his request.² The court then sentenced Wagner to a term of imprisonment of 151 months, and to a term of supervised release of three years to run concurrently on each count.

Wagner appealed his conviction and sentence to the United States Court of Appeals for the Fourth Circuit. On February 23, 2004, the Fourth Circuit affirmed his conviction and sentence. See United States v. Theodore Thomas Wagner, 88 Fed.Appx. 593, 2004 WL 324705 (4th Cir.2004).³

STANDARD OF REVIEW

Wagner proceeds under 28 U.S.C. § 2255, which provides, in relevant part:

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 ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. On a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, the petitioner bears the burden of proving the grounds for collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir.1958). In deciding a § 2255 motion, the court need not hold a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The court has thoroughly reviewed the motions, files, and records in this case and finds that no hearing is necessary.

DISCUSSION

Wagner raises four grounds in support of his motion: (1) that he received ineffective assistance of counsel, as his counsel had a "change of loyalty" during the investigation and prosecution of his case ("Ground One"); (2) that the prosecution team committed "misconduct and felonious acts" ("Ground Two"); (3) that the Moore test used to determine whether he could withdraw his plea is unconstitutional ("Ground Three"); and (4) that the FBI deprived him of his due process rights by instructing state detectives to get a warrant using "known perjured statements." ("Ground Four"). (Motion at 5-6).

A. Grounds Two and Three

As a threshold matter, Grounds Two and Three were raised on direct appeal and were explicitly rejected by the Fourth Circuit. With respect to Ground Two, Wagner argued on appeal that there was prosecutorial misconduct in the district court proceedings, and the Fourth Circuit explicitly rejected this argument. See Wagner, 2004 WL 324705 at *2 ("To the extent that he asserts prosecutorial misconduct, his claim is not supported by the record."). Turning to Ground Three, on appeal Wagner complained of the district court's application of Moore to his case. The Fourth Circuit similarly found no error in this court's application of the so-called Moore test to Wagner's request to withdraw his guilty plea. See Wagner, 2004 WL 324705 at *1-2 ("Wagner also contends that the district court erred in denying his motion to withdraw his guilty plea.... Based on our review of the record, we uphold the district court's finding that [the Moore test] factors do not favor Wagner's position and conclude that the court did not err by denying his motion to withdraw his guilty plea.").⁴

Wagner has not pointed to any intervening change in law that warrants reconsideration of these two claims. See, e.g., Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (holding that a claim may be relitigated in a § 2255 motion when there has been an "intervening change in law" affecting the claim previously decided adversely to the petitioner). Thus, Grounds Two and Three may not be relitigated in this § 2255 proceeding. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.1976); United States v. Sanin, 252 F.3d 79, 83 (2d Cir.2001); United States v. Wiley, 245 F.3d 750, 752 (8th Cir.2001). The court now turns to the only viable grounds Wagner has raised — Grounds One and Four.

B. Ground One — Ineffective Assistance of Counsel

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court held that a meritorious ineffective assistance claim must demonstrate two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Id. at 687-98, 104 S.Ct. 2052. Although Strickland involved a claim of ineffective assistance of counsel in a capital sentencing proceeding, the same two-part standard applies to an ineffective-assistance claim arising out of the guilty plea process. Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

The first part of the test, a court's evaluation of counsel's performance, must be "highly deferential" under this standard, so as not to "second-guess" the performance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal quotation marks and citation omitted); see also Fields v. Attorney General of Maryland, 956 F.2d 1290, 1297-99 (4th Cir.1992); Roach v. Martin, 757 F.2d 1463, 1476 (4th Cir.1985). To establish prejudice and thereby fulfill the second prong of the ineffective assistance test, Wagner must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 58, 106 S.Ct. 366.

Wagner asserts that his counsel was ineffective for myriad reasons, including that counsel (1) misled him "in facts of law", (2) aided the prosecution, (3) lied about the possibilities of filing a motion to suppress; and (4) withheld requested information. Wagner offers no factual support whatsoever for any of these claims.⁵ For example, Wagner never explains how his attorneys misled him on the law, what information was withheld from him, or how either of these two occurrences affected his decision to plead guilty. As numerous courts have noted, "[m]ere conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to raise a constitutional issue." Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir.1998); see also United States v. Collins, 68 F.3d 461, 1995 WL 606786, *1 (4th Cir.1995) ("Because Collins failed to show he was prejudiced by counsel's actions, and only asserted conclusory allegations, the district court properly denied relief on Collins's claims of ineffective assistance of counsel."). While the court need not address Wagner's wholly conclusory and unsupported allegations, the court makes the following observations after a thorough review of counsel's performance.

At the guilty plea hearing, Wagner was questioned at length about the voluntariness of the guilty plea, the consequences of the plea, the potential penalties he faced, and his understanding regarding the impact of the Sentencing Guidelines. From these and other exchanges, it is clear that Wagner was fully aware of the nature of the charge against him (including the applicable law) and of the consequences of pleading guilty prior to entering his guilty plea. Even if counsel gave an inaccurate estimate of Wagner's likely sentence or failed to explain the gravity of the application of the Sentencing Guidelines to his case, Wagner cannot establish that any deficiencies on counsel's part undermined the voluntariness of his guilty plea or a reasonable probability that he would have insisted on going to trial "but for" counsel's deficient performance. Hill, 474 U.S. at 58-59, 106 S.Ct. 366; cf. also U.S. v. Foster, 68 F.3d 86, 88 (4th Cir.1995) ("[I]f the information given by the court at the Rule 11 hearing corrects or clarifies the earlier erroneous information given by the defendant's attorney and the defendant admits to understanding the court's advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant."); United States v. Craig, 985 F.2d 175, 179-80 (4th Cir.1993) (holding that erroneous advice by counsel respecting sentencing possibilities cannot be a "but for" cause of a guilty plea where the plea is entered after the court makes the defendant aware of the correct sentencing possibilities).

Similarly, Wagner's claim that counsel "lied when directly ask[ed] to suppress evidence that it could not be done" lacks merit. (Wagner Mot. at 5). As the Government notes, a state search warrant was issued...