Wilson v. U.S., 2:01-CV-20-RL.

• Decision Date: 14 May 2001
• Docket Number: No. 2:01-CV-20-RL.,2:01-CV-20-RL.
• Parties: Kevin Darnell WILSON, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of Indiana

149 F.Supp.2d 1045

Kevin Darnell WILSON, Movant, v. UNITED STATES of America, Respondent.

No. 2:01-CV-20-RL.

United States District Court, N.D. Indiana, Hammond Division.

May 14, 2001.

COPYRIGHT MATERIAL OMITTED

Kevin Darmell Wilson, Jr., pro se.

Clarence Butler, Jr., U.S. Attorney's Office, Dyer, IN, for United States.

ORDER

LOZANO, District Judge.

This matter is before the Court on the Motion Under 28 USC § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody, filed by Movant, Kevin Darnell Wilson, on January 16, 2001. For the reasons set forth below, this motion is DENIED. The Clerk is ORDERED to enter judgment dismissing this civil action with prejudice.

BACKGROUND

Movant, Kevin Darnell Wilson, was convicted of carjacking, in violation of 18 U.S.C. section 2119(2), and of using a firearm during a crime of violence, in violation of 18 U.S.C. section 924(c). Following trial, Wilson discharged his trial counsel, Alexander Woloshansky, and proceeded to sentencing pro se. Wilson then appealed his convictions and sentence to the Seventh Circuit, where Asheesh Agarwal (an attorney appointed by the Seventh Circuit) represented him. The Seventh Circuit affirmed Wilson's convictions and sentence in an unpublished opinion, United States v. Wilson, No. 99-1695, 2000 WL 197913 (7th Cir. Feb.9, 2000). Wilson has now filed a section 2255 motion, followed that up with his supporting memorandum filed on February 2, 2001, the Government has responded, and Wilson has replied.

DISCUSSION

According to the evidence at trial, the facts of this case are briefly as follows: A botched carjacking occurred in Gary, Indiana in December 1997 when a Pontiac Parisienne driven by Lakesha Wade was stopped by another vehicle containing three men. Two of the men got out, and one ordered Wade, at gunpoint, to exit her car. The men failed to commandeer the Pontiac (they could not get it started) and Wade was shot in the arm by one of the men during the encounter. Wade ran for help as her sister (Lasonia Williams), who lived nearby, watched some of the action. Frustrated because they could not get the Pontiac going, the two men jumped back in their car (a third man stayed in the car during the crime) and fled.

A police dispatch went out, and a Gary officer spotted the carjackers' car and trailed it until it crashed into another vehicle. After the crash, the three men got out of the car and took off on foot. The Gary officer, Officer Donald, who recognized Wilson from a previous incident, pursued him on foot. During the chase, Donald saw Wilson toss a gun away. Donald picked up the gun and caught Wilson, and the rest is history. Wilson was charged with carjacking and using a firearm during a crime of violence, Wade and Williams identified Wilson as the shooter, and ballistic tests showed that the gun Wilson ditched had fired a bullet found at the scene. After a jury trial, Wilson was convicted of carjacking and using a firearm during a crime of violence.

In his motion and supporting legal memorandum, Wilson makes a number of arguments previously rejected by the Seventh Circuit in Wilson's direct appeal. While the Government argues that Wilson is precluded from rearguing these issues because the Seventh Circuit has already decided them, the Court exercises its discretion to consider these arguments raised in the motion and supporting memorandum because Wilson, in his reply, alleges that his attorney on appeal erred in failing to drop these arguments from the direct appeal so that Wilson could bring them on collateral attack. See, e.g., United States v. Taglia, 922 F.2d 413, 418 (7th Cir.1991) (providing that a district court may reexamine in collateral proceedings an issue previously decided by the Seventh Circuit during direct appeal if "there is some good reason for reexamining it"). To the extent Wilson in his reply alleges that he is entitled to relief (other than the Court reexamining the aforementioned issues raised in his original motion and supporting memorandum and previously rejected in the direct appeal) as a result of his appellate attorney's ineffectiveness, the Court finds that these arguments have been waived because they were first raised in Wilson's reply; any such arguments were not mentioned in, and could not be liberally construed from, Wilson's original motion and supporting memorandum. See, e.g., United States v. Keith, Nos. 96 C 8461, 87 CR 874-2, 2000 WL 198448, at *4 (N.D.Ill. Feb.11, 2000) (rejecting as waived a section 2255 petitioner's arguments first raised in his reply); United States v. Joiner, 847 F.Supp. 604, 606-607 (N.D.Ill.1994), aff'd, No. 94-2386, 1996 WL 89218 (7th Cir. Mar.1, 1996).

Accordingly, the Court now considers the arguments of Wilson's original section 2255 motion and supporting memorandum without regard to any previous Seventh Circuit rulings on these matters during the direct appeal.

The bulk of Wilson's motion consists of a number of different reasons why he believes Alexander Woloshansky, his trial attorney, was ineffective. Because counsel is presumed effective, a petitioner bears a heavy burden in proving that his attorney rendered ineffective assistance. United States v. Guerrero, 938 F.2d 725, 727 (7th Cir.1991). A conviction will be reversed only if the petitioner satisfies the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this test, the defendant must show 1) that the attorney's representation fell below an objective standard of reasonableness (performance prong), and 2) that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different (prejudice prong). Dugan v. United States, 18 F.3d 460, 463-64 (7th Cir.1994). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Wilson's first ineffective assistance claim is that Woloshansky failed to sufficiently impeach Wade and Williams, through the testimony of other witnesses or otherwise, regarding inconsistencies in their identifications. Wilson claims that Woloshansky did not exploit at trial the fact that Williams had earlier identified Thomas Hightower as one of the men involved in the crime, even though Hightower turned out to be innocent. Wilson also argues that Woloshansky did not sufficiently develop the fact that Wade did not remember seeing the shooter wearing a red hood, which Wilson apparently had on when he was apprehended by Officer Donald. Finally, Wilson argues that Wade's testimony at trial contradicted an earlier statement in which she identified the shooter as a man wearing a black and white hat which was not, at trial, connected to Wilson.

After having reviewed the trial transcripts and the rest of the record in this case, the Court finds that, even assuming Woloshansky was deficient in these three respects, Wilson's ineffective assistance claim must fail because he has failed to satisfy the prejudice prong of the Strickland test. Based on the strength of the Government's evidence at trial, the Court finds that there is not a reasonable probability that the result of the proceedings would have been different even assuming Woloshansky was deficient as claimed by Wilson. Indeed, with the police having observed Wilson fleeing the crashed getaway car and ditching the gun, the only defense that could be advanced by pursuing the issues Wilson claims Woloshansky failed to raise at trial is that while Wilson was involved in the carjacking, he did not himself shoot Wade. Such a defense does not present a reasonable probability of a different outcome because, after review of the Government's evidence at trial, the Court finds Wilson would have still been found guilty of carjacking and using a firearm during a crime of violence under the Government's aiding and abetting theory. See Jury Inst. Nos. 22-23 (instructing the jury that Wilson could be convicted through an aiding and abetting theory); see also United States v. Woods, 148 F.3d 843, 848 (7th Cir.1998); Wright v. United States, 139 F.3d 551, 552 (7th Cir. 1998) (explaining that to sustain a conviction, including an 18 U.S.C. section 924(c) conviction post-Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Government need only prove knowledge of the crime, intent to further it, and some act of help by the defendant). Neither would correction of Woloshansky's alleged deficiencies reasonably lead to a different result at sentencing because of the strength of the Government's evidence that Wilson was the shooter, including the fact that the gun which did the shooting was discarded by Wilson during the chase.

Wilson having failed to show a reasonable probability that the outcome would have been different even assuming Woloshansky was deficient in the alleged respects, the Court finds this ineffective assistance claim meritless. See, e.g., Melvin v. United States, 78 F.3d 327, 329 (7th Cir.1996) (explaining that a court need not consider the performance prong of the Strickland test if the prejudice prong has not been met).

Wilson's next ineffective assistance claim is that Woloshansky failed to object to what Wilson claims to be FBI Special Agent Timothy Campbell's improper bolstering of Wade's testimony and his improper vouching for her credibility. Improper bolstering or vouching occurs when a personal opinion is expressed about a witness' credibility or when it is implied that facts not before the jury lend a witness credibility. United States v. Cornett, 232 F.3d 570, 575 (7th Cir.2000). Upon review of the trial transcripts, the Court first finds that Campbell's testimony was an invited response to Wilson's attack (through Woloshansky) on the failure of the FBI to conduct a more extensive forensic analysis of the evidence. In this regard, the Court notes that Wilson has not alleged...