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United States v. Wilkerson

United States District Court, M.D. Louisiana

November 14, 2017

UNITED STATES OF AMERICA
v.
TABARI WILKERSON

          RULING AND ORDER

          BRIAN A. JACKSON, CHIEF JUDGE

         Before the Court is the Motion to Vacate under 28 U.S.C. § 2255 (Doc. 294) and the Amended Motion to Vacate (Doc. 295) filed by Petitioner Tabari Wilkerson. Petitioner claims that his attorney was ineffective. The United States filed an opposition. (Doc. 312), and Petitioner filed a reply. (Doc. 313). For the following reasons, the Motion to Vacate (Doc. 294) is DENIED AS MOOT, and the Amended Motion to Vacate (Doc. 295) is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         On January 14, 2015, Petitioner was indicted for conspiracy to distribute and possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, two counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1), and three counts of unlawful use of a communications facility in violation of 21 U.S.C. § 846 and 841(a)(1). (Doc. 1 at p. 3, 11-12). At the July 1, 2015, re-arraignment hearing, Petitioner pled guilty, pursuant to a written plea agreement, to conspiracy to distribute and possess with intent to distribute crack cocaine and two counts of distribution of cocaine. (Doc. 137, 140). On November 13, 2015, the court sentenced Petitioner to 112 months imprisonment and three years of supervised release. (Doc. 246).

         Petitioner filed a Motion to Vacate, Set Aside, Or Correct His Sentence under 28 U.S.C. § 2255 on November 30, 2016. (Doc. 294). On January 3, 2017, Petitioner filed an Amended Motion to Vacate. (Doc. 295). Petitioner claims that his attorney was ineffective by failing to: (1) properly communicate with him; (2) conduct an adequate and independent pretrial investigation; (3) attempt to negotiate a more favorable plea agreement; (4) review, discuss, and explain the presentence investigation report; (5) submit mitigation evidence or argue for mitigation at sentencing; (5) object to his sentence as being substantively unreasonable; and (6) file a notice of appeal as Petitioner requested him to do so. (Doc. 295 at p. 2).

          II. LEGAL STANDARD

         Section 2255 provides that a federal prisoner serving a court-imposed sentence may move the court to vacate, set aside or correct his sentence. 28 U.S.C. § 2255(a). Only a narrow set of claims are cognizable on a § 2255 motion. The statute identifies four grounds on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." Id.

         Once a petitioner files a § 2255 motion, the district court is required by statute to hold a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." § 2255(b). Applying this statutory command, demands a two-step inquiry. First, the court must determine whether the record "conclusively negate[s] the factual predicates asserted in support of the motion for post-conviction relief and second whether "the petitioner [would] be entitled to post-conviction relief as a legal matter if those factual allegations which are not conclusively refuted" are true. Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir. 1979).

         III. DISCUSSION

         A. Post-Conviction Relief Waiver

         The Government argues that Petitioner is barred from seeking post-conviction relief because his plea agreement contains a waiver of post-conviction relief. (Doc. 312 at p. 3-4). Petitioner's plea agreement indeed contains a wide-ranging waiver of appeal and collateral remedies provision. (Doc. 140 atp. 11). Petitioner, among other things, waived the right to collaterally attack his conviction and sentence under § 2255. Id. The waiver provision, however, also provides that "[notwithstanding this waiver of appeal and collateral remedies, the defendant may bring any claim of ineffectiveness of counsel." Id. Here, Petitioner's collateral attack on his conviction is based entirely on claims of ineffective assistance of counsel. Petitioner's postconviction appeal waiver thus does not bar the pending § 2255 motion.

         B. Ineffective Assistance of Counsel Claims

         To prevail on an ineffective assistance of counsel claim, a petitioner must establish: (1) that counsel's performance was deficient; and (2) that the deficient conduct prejudiced him. Hill v. Lockhart, 474 U.S. 52, 58, 106 (1985). Judicial scrutiny of counsel's performance must be highly deferential, and courts must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland v. Washington, 466 U.S. 668, 689 (1984). Courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and a defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Id.

         1. Failure ...


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