Wilkerson v. U.S., No. 78-2862
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | Before COLEMAN, FAY and RUBIN; PER CURIAM |
| Citation | 591 F.2d 1046 |
| Docket Number | No. 78-2862 |
| Decision Date | 21 March 1979 |
| Parties | Sidney Ray WILKERSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Summary Calendar. * |
Page 1046
v.
UNITED STATES of America, Respondent-Appellee.
Fifth Circuit.
Sidney Ray Wilkerson, pro se.
Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Arnaldo N. Cavazos, Jr., Asst. U. S. Atty., Dallas, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before COLEMAN, FAY and RUBIN, Circuit Judges.
PER CURIAM:
Appellant Wilkerson was convicted after a jury trial of delivering $13,140 in counterfeit
Page 1047
bills and of conspiracy, in violation of 18 U.S.C. §§ 473 and 371. He was sentenced to consecutive sentences of five years for conspiracy and ten years on the substantive count, to run consecutive to another sentence imposed in 1971. His conviction was affirmed on direct appeal. United States v. Wilkerson, 5 Cir. 1976, 534 F.2d 43.Wilkerson now seeks relief under 28 U.S.C. § 2255 on the grounds of ineffectiveness of his court-appointed counsel; the failure of the trial judge to recuse himself for bias; improper jury instructions and double jeopardy; and disparity of sentencing between Wilkerson and his co-conspirators who pleaded guilty. The district court denied § 2255 relief. We affirm.
A. Ineffectiveness of Counsel
An examination of the record discloses that appellant's court-appointed counsel rendered reasonably effective assistance within the standards of MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599, Modified on other grounds, 5 Cir., en banc 1961, 289 F.2d 928, Cert. denied, 1961, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78, and Herring v. Estelle, 5 Cir. 1974, 491 F.2d 125, 127. Counsel filed appropriate pretrial motions and conducted a vigorous defense.
Appellant complains that his counsel failed to investigate the background of a key prosecution witness and his role in the conspiracy and was therefore unable to impeach his damaging testimony effectively. But a defendant is not entitled to errorless counsel, nor counsel ineffective only in hindsight. Moreover, the evidence of guilt against appellant was overwhelming. As this court noted on direct appeal:
The evidence against the appellant, accepted by the jury, emanating from eyewitnesses co-conspirators and government agents thoroughly demonstrated guilt. A verdict of not guilty would have been a stunning surprise. (534 F.2d at 44.)
Effective counsel need only have "an opportunity to investigate (the charges against the defendant) If necessary . . ." (emphasis added). Windom v. Cook, 5 Cir. 1970, 423 F.2d 721, 721, Quoting from Calloway v. Powell, 5 Cir. 1968...
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Washington v. Strickland, No. 81-5379
...based upon lack of possession excuses failure to investigate defense based upon absence of knowledge); Wilkerson v. United States, 591 F.2d 1046, 1047 (5th Cir.1979) (strategic choice to concentrate upon legal challenges where government's evidence was overwhelming excuses failure to perfor......
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Pickens v. Lockhart, No. PB-C-81-141.
...v. Estelle, 622 F.2d 124 (5th Cir. 1980), cert. denied 449 U.S. 996, 101 S.Ct. 537, 66 L.Ed.2d 295 (1981). 13 Wilkerson v. United States, 591 F.2d 1046 (5th Cir. 14 Id. at 1047. 15 The court noted as follows in n. 3 at 527: "Several courts have declined to find there exists sufficient evide......
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Washington v. Watkins, No. 80-3072
...Ogle v. Estelle, 641 F.2d 1122, 1128 (5th Cir. 1981); Hill v. Wainwright, 617 F.2d 375, 380 (5th Cir. 1980); Wilkerson v. United States, 591 F.2d 1046, 1047 (5th Cir. 1979); Franklin v. United States, 589 F.2d 192, 194 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2177, 60 L.Ed.2d 1055 (......
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Jones v. State, No. 2014–KA–00993–SCT.
...F.2d 149, 161 n. 13 (5th Cir.1988) ; United States v. D'Antignac, 628 F.2d 428, 435 n. 10 (5th Cir.1980) ; Wilkerson v. United States, 591 F.2d 1046 (5th Cir.1979) (approving an instruction that testimony of a co-conspirator must be weighed with...
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Washington v. Strickland, No. 81-5379
...based upon lack of possession excuses failure to investigate defense based upon absence of knowledge); Wilkerson v. United States, 591 F.2d 1046, 1047 (5th Cir.1979) (strategic choice to concentrate upon legal challenges where government's evidence was overwhelming excuses failure to perfor......
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Pickens v. Lockhart, No. PB-C-81-141.
...v. Estelle, 622 F.2d 124 (5th Cir. 1980), cert. denied 449 U.S. 996, 101 S.Ct. 537, 66 L.Ed.2d 295 (1981). 13 Wilkerson v. United States, 591 F.2d 1046 (5th Cir. 14 Id. at 1047. 15 The court noted as follows in n. 3 at 527: "Several courts have declined to find there exists sufficient evide......
-
Washington v. Watkins, No. 80-3072
...Ogle v. Estelle, 641 F.2d 1122, 1128 (5th Cir. 1981); Hill v. Wainwright, 617 F.2d 375, 380 (5th Cir. 1980); Wilkerson v. United States, 591 F.2d 1046, 1047 (5th Cir. 1979); Franklin v. United States, 589 F.2d 192, 194 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2177, 60 L.Ed.2d 1055 (......
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Jones v. State, No. 2014–KA–00993–SCT.
...F.2d 149, 161 n. 13 (5th Cir.1988) ; United States v. D'Antignac, 628 F.2d 428, 435 n. 10 (5th Cir.1980) ; Wilkerson v. United States, 591 F.2d 1046 (5th Cir.1979) (approving an instruction that testimony of a co-conspirator must be weighed with...