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United States v. Wingate

United States District Court, E.D. Kentucky, Central Division, Lexington

January 25, 2018

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JEFFREY S. WINGATE, DEFENDANT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Edward B. Atkins, United States Magistrate Judge

         INTRODUCTION

         Defendant Jeffrey S. Wingate pled guilty and was convicted under 21 U.S.C. § 841 for possession with intent to distribute oxycodone. [R. 162; R. 298]. Defendant was sentenced to one-hundred fifty (150) months of imprisonment to be followed by three (3) years of supervised release. [R. 298]. Defendant now challenges the imposition of that sentence in his pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. [R. 447]. Defendant makes three primary arguments. First, Defendant alleges his counsel was conflicted due to his prior representation of a government informant. [R. 447 at 4]. Second, Defendant alleges his counsel's ineffective assistance prevented him from entering a knowing and voluntary plea agreement. [Id. at 5]. Third, Defendant alleges his counsel coerced him into signing his plea agreement in order to avoid trial. [Id. at 6]. In addition, Defendant articulates a fourth argument: that the many mistakes of his counsel throughout his representation amounted to cumulative error resulting in prejudice. [Id. at 8]. The United States, however, refutes all of Defendant's arguments.

         First, the United States notes that Defendant's counsel was not unlawfully conflicted. Defendant has failed to show that his counsel “was influenced in his basic strategic decisions by the interests of the former client.” [R. 466 at 5 (quoting United States v. Taylor, 489 F. App'x 34, 43 (6th Cir. 2012))]. Second, the United States notes that any deficient performance by Defendant's counsel could not have precluded him from entering a knowing and voluntary plea agreement because “[t]he change-of-plea colloquy here included all the elements needed to establish a voluntary and knowing plea.” [Id. at 10 (quoting United States v. Powell, 798 F.3d 431, 434 (6th Cir. 2015))]. Third, the United States notes that Defendant's new claims of coercion by his attorney to enter a plea agreement go “against his own statements at his rearraignment hearing.” [Id. at 9]. “Wingate stated that no one had made any promises to him and no one had threatened or forced him to enter in the agreement.” [Id. (citing R. 337 at 15 ¶¶ 12-20)]. Finally, the United States undermines Defendants' argument of cumulative error: “Where, as here, no individual ruling has been shown to be erroneous, there is no ‘error' to consider, and the cumulative error doctrine does not warrant reversal.” [Id. at 11 (quoting United States v. Sypher, 684 F.3d 622, 628 (6th Cir. 2012)].

         The matter is ripe for decision, following the submission the of Defendant's Reply, [R. 472]. For the reasons set forth below, the undersigned recommends that Defendant's Motion to Vacate, [R. 447], be DENIED.

         ANALYSIS OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

         Defendant brings his Motion to Vacate under 28 U.S.C. § 2255. Section 2255(a) provides that a prisoner in custody under a sentence of a United States Court may petition that court to amend his or her sentence upon the grounds that the sentence was imposed in violation of the Constitution or laws of the United States, that the court imposing the sentence lacked jurisdiction to do so, that the sentence is excessive, or that the sentence is otherwise subject to collateral attack. Such a defendant must sustain any allegation by a preponderance of the evidence. McQueen v. United States, 58 F. App'x 73, 76 (6th Cir. 2003) (“Defendants seeking to set aside their sentences pursuant to 28 U.S.C. § 2255 have the burden of sustaining their contentions by a preponderance of the evidence.”); see also Pough v. United States, 442 F.3§d 959, 964 (6th Cir. 2006). If alleging a constitutional error, such a defendant must show the error “had a substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). Alternately, if alleging a non-constitutional error, such a defendant must establish “a fundamental defect which inherently results in a complete miscarriage of justice . . . an error so egregious that it amounts to a violation of due process.” Watson, 165 F.3d at 488 (citing United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)).

         Ineffective assistance of counsel is a constitutional ground on which a sentence may be challenged under Section 2255. Strickland v. Washington, 466 U.S. 668 (1984); see also Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001). In evaluating such a challenge, the Sixth Circuit applies the two-prong test established in Strickland. Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005); see also Strickland, 466 U.S. at 687. Under Strickland, a defendant first must show his or her counsel was deficient. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Second, a defendant must show the deficient performance actually prejudiced the defense. “This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Both elements must be shown. Thus, not only must the attorney's performance have been deficient, but that specific deficiency must also have been the antecedent without which the Defendant's sentence would not have been imposed. Id.

         It is true that “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id. at 688. Nonetheless, an attorney representing a criminal defendant does have some specific, articulable duties. All attorneys owe their clients a duty of loyalty; a duty to avoid conflicts; a duty to advocate, inform, and consult; and counsel has a duty “to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Id. In evaluating an attorney's duties to his or her client and the sufficiency of an attorney's performance of them, however, courts must be highly deferential. “It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence.” Id.; see also Engle v. Isaac, 456 U.S. 107, 133-34 (1982); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2009). Indeed, there is a presumption of adequate representation. “[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (quotation and citation omitted).

         I. Whether Defendant's Counsel was Subject to a Conflict

         Defendant alleges his counsel, Burl McCoy, was unconstitutionally conflicted through his prior representation of David Knell during a separate action in 2013. Defendant alleges Knell, who acted as a confidential informant for the United States, sought to obtain evidence of Defendant's misdeeds. [R. 447-1 at 3]. Defendant asserts his counsel's prior representation of Knell constitutes an actual conflict of interest under Moss v. United States, 323 F.3d 445 (6th Cir. 2003). In support of his argument, Defendant has submitted an affidavit, executed by Knell, wherein Knell attests that Defendant's counsel considered Defendant to be a “horrible” man. [R. 447-2 at 4]. Further, Defendant's counsel “urged [Knell] to cooperate with the government by recording audio with Jeff Wingate in hopes of obtaining time off my eventual sentence.” [Id.]. In sum, Defendant alleges that his counsel's representation and statements to Knell in a separate action two years prior to his representation of Defendant created an unconstitutional conflict, resulting in a valid claim of ineffective assistance. [R. 447-1 at 3-5].

         “Joint, or dual, representation occurs where a single attorney represents two or more co-defendants in the same proceeding.” Moss v. United States, 323 F.3d 445, 455 (6th Cir. 2003) (emphasis added). “Successive representation occurs where defense counsel has previously represented a co-defendant or trial witness.” Id. at 549. Joint or successive representation of co-defendants, however, although suspect, “does not per se constitute ineffective assistance of counsel.” Id. at 445. Further, “[i]t is more difficult for a defendant to show that counsel actively represented conflicting interests in cases of successive rather than simultaneous representation.” Id. at 549. Nonetheless, there remains a risk of an unconstitutional conflict, especially in cases “where an attorney's former client serves as a government witness against the attorney's current client.” [Id. at 460 (citing United States v. McCutcheon, 86 F.3d 187, 189 (11th Cir.1996); United States v. Flynn, 87 F.3d 996 (8th Cir.1996); Enoch v. Gramley, 70 F.3d 1490, 1496 (7th Cir.1995); United States v. Malpiedi, 62 F.3d 465 (2d Cir.1995); Takacs v. Engle, 768 F.2d 122, 125 (6th Cir.1985))].

         “[I]n order to prevail on a claim of ineffective assistance of counsel as a result of a conflict of interest, a petitioner who has entered a guilty plea must establish: ‘(1) that there was an actual conflict of interest; and (2) that the conflict adversely affected the voluntary nature of the guilty plea entered by the defendants.'” Moss, 323 F.3d at 467 (quoting Thomas v. Foltz, 818 F.2d 476, 480 (6th Cir. 1987)); see also Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980). To show an actual conflict of interest, a defendant “must point to specific instances in the record that suggest an actual conflict or impairment of [his or her] interests.” Thomas, 818 F.2d at 481. A defendant further “must make a factual showing of inconsistent interests and demonstrate that the attorney made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other.” Id. “But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Cuyler, 446 U.S. at 350 (emphasis added). If a defendant establishes an actual conflict, he or she must also establish an adverse effect. To do so, a defendant must show “that ‘counsel was influenced in his basic strategic decisions by the interests [of the former client], ' as where the conflict ‘prevents an attorney . . . from arguing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing the other.'” Moss, 323 F.3d at 446.

         Although Defendant has succeeded in showing that some form of succeeding representation of criminal defendants exists here, [R. 447-2, Exhibits 1 and 2; R. 466-1 at 1 ¶ 2], Defendant has failed to show the presence of an “actual conflict of interest, ” that counsel was “influenced in his basic strategic decisions, ” or that counsel prevented Defendant from entering a knowing and voluntary guilty plea.[1] In fact, Defendant makes no specific claim of adverse effect anywhere in his Motion to Vacate, [See, e.g., R. 447 at 3-5], other than his broad argument for the existence of a conflict. Further, the affidavit of David Knell is not grounds for finding either an actual conflict or an adverse effect. None of the claims of Knell bear on counsel's direct representation of Defendant in his own criminal proceeding, which was a separate action that occurred a full two years following counsel's representation of Knell. [R. 447-2 at 4; compare R. 447-2 at 2 (case terminated May 2013), with R. 298 (judgment entered April 2015)]. Knell and Defendant's proceedings were separate actions, separated by years. Knell was not a co-defendant of Defendant's in any case. Similarly, no evidence has been produced that Knell acted as a witness in Defendant's case. As such, there is no evidence of an actual conflict of interest in this case. Defendant's argument of unconstitutionally conflicted representation fails.

         Nonetheless, in passing, Defendant makes two subsidiary arguments. First, Defendant argues counsel represented Defendant's son-in-law, Morgan Culberson, throughout a criminal investigation simultaneously with counsel's representation of Defendant, thus presenting an unconstitutional conflict through joint representation. [R. 447-1 at 5-6]. Culberson, however, was not a co-defendant in Defendant's case, and Defendant has put forward no evidence that Culberson acted as a witness against Defendant. Defendant has produced no evidence of a conflict beyond his accusations. For that reason, this Court finds that there are insufficient facts in the record to find a conflict of interest in this case. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980) (there must be evidence that counsel actively represented conflicting interests).

         Second, Defendant argues one of his attorneys, Brandon Marshall, who aided Defendant with sentencing, [R. 287], was engaged in the representation of both Defendant and his son-in-law, Culberson. [R. 447-1 at 7]. Here, Defendant attempts to make a connection between his admission to possessing a gun, [R. 296 at 1-2 ¶ 3], and Culberson's alleged denial of possession of that same gun, [R. 447-1 at 7]. Again, Culberson was never Defendant's co-defendant and Defendant has produced no evidence that Culberson acted as a witness against Defendant for the United States. [R. 466 at 7]. Defendant, however, argues that this representation lead to the imposition of a sentencing enhancement under the United States Sentencing Guidelines for Defendant's possession of a gun.[2] [R. 447-1 at 7; R. 296 at 3 ¶ 5(c)]. Defendant, however, forgets that he admitted to possessing the gun at issue in the execution of his Plea Agreement, to which he attested his assent under oath at his Rearraignment. [R. 337 at 11 ¶ 15-15 ¶ 11, 15 ¶ 6-11 (THE COURT: “Mr. Wingate, were you able to hear Mr. Duncan as he was reviewing your plea agreement?” DEFENDANT: “Yes, sir.” THE COURT: “Did he accurately summarize it as you understand it?” DEFENDANT: “Yes, sir.”)]. It also unclear how Defendant's admission to possessing a gun is directly related to Culberson's alleged denial of possession of a gun. Further, possession is not an exclusive concept, and even if Culberson had admitted to possession the gun, that would not preclude Defendant from constructively possessing it as well.

         “Possession may be either actual or constructive and it need not be exclusive but may be joint.” United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973), abrogated on other grounds by Scarborough v. United States, 431 U.S. 563 (1977) (citing United States v. Black, 472 F.2d 130 (6th Cir. 1972); United States v. Holt, 427 F.2d 1114 (8th Cir. 1970)). Constructive possession exists “when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” Id. “Proof that ‘the person has dominion over the premises where the firearm is located' is sufficient to establish constructive possession.” United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998) (quoting United States v. Clemis, 11 F.3d 597, 601 (6th Cir. 1993) (per curiam)). Joint possession exists when two or more people share actual or constructive possession over an object. United States v. Chesney, 86 F.3d 564, 573 (6th Cir. 1996) (“[T]wo or more persons may share possession of an item.”).

         The firearm at issue was discovered inside Defendant's residence, along with 2, 500 oxycodone pills, and $200, 000.00 cash. [R. 296 at 2 ¶ 3]. Defendant stipulated his possession of all of those items. [R. 296 at 2 ¶ 3]. Even if Defendant had denied possession of those items and the gun, however, Defendant also stipulated that the United States could prove beyond a reasonable doubt his possession of those items and the gun. [Id.]. Further, even if Culberson had admitted possession of the gun, that would not preclude Defendant's joint possession of that same gun with Culberson, as the gun was found in Defendant's residence, as he stipulated. [Id.].

         Defendant has provided this Court with no factual evidence of an actual conflict. Likewise, Defendant has failed to produce evidence of a connection between Culberson's denial of possession of a gun, and Defendant's admission to possession of a gun, or even that a connection between the two would be relevant. Thus, there are insufficient facts to find an adverse effect as well, even assuming the presence of a conflict. Further, no case was ever brought against Culberson, Culberson and Defendant were not co-defendants, and Defendant has produced no evidence that Culberson acted as a witness against Defendant. There are simply insufficient facts to support a claim of an unconstitutional conflict of interest in this case.

         II. Whether Defendant Knowingly and Voluntarily Entered his Plea

         Defendant's second and third arguments are that counsel's ineffective assistance prevented him from knowingly and voluntarily entering his guilty plea, and that Defendant's counsel misrepresented the crime and plea agreement to Defendant, coercing him to enter a guilty plea to avoid trial. [R. 447-1 at 8-21]. Defendant makes a variety of claims in support of these two assertions. In sum, Defendant argues his counsel failed to understand the crimes with which Defendant was charged, [Id. at 8-11]; failed to investigate the evidence against Defendant and failed to challenge the amount of drugs attributed to Defendant, [Id. at 11-12, 16-18]; failed to challenge the use of unlawfully obtained evidence against Defendant, [Id. at 12-15]; failed to object to Defendant's leadership enhancement, [Id. at 18-19]; and coerced Defendant into entering a plea agreement, rather than proceed to trial, [Id. at 19-21]. Each of these arguments-all of which fail-shall be addressed in turn.

         A. Whether Counsel Misunderstood the ...


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