United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
case is before the Court on Petitioner Andrew Chase
Wilkie's pro se Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Civ. Doc. 2; §
2255 Motion) and Memorandum in Support (Civ. Doc. 3;
Memorandum). Wilkie alleges that he received
ineffective assistance of counsel regarding plea negotiations
and sentencing. The United States responds that the §
2255 Motion is untimely. (Civ. Doc. 7; Response). Wilkie
filed a reply and an accompanying affidavit, which, liberally
construed, suggests that Wilkie claims a right to equitable
tolling. (Civ. Doc. 10; Reply); (Civ. Doc. 10-1; Affidavit).
The matter is ripe for a decision.
to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing
Section 2255 Proceedings, the Court has considered the need for
an evidentiary hearing and determines that a hearing is not
necessary to resolve the merits of this action. See Rosin
v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an
evidentiary hearing on a § 2255 motion is not required
when the petitioner asserts allegations that are
affirmatively contradicted by the record or patently
frivolous, or if in assuming the facts that he alleges are
true, he still would not be entitled to any relief);
Patel v. United States, 252 Fed.Appx. 970, 975 (11th
Cir. 2007). For the reasons set forth below,
Wilkie's § 2255 Motion is due to be dismissed.
facts of the underlying offenses are thoroughly recounted in
United States v. Godwin, 765 F.3d 1306, 1310-13
(11th Cir. 2014), but the Court briefly summarizes them here.
Wilkie was a member of a dog tag-wearing gang named
“The Guardians, ” which tried to model itself
after the infamous “Hell's Angels” motorcycle
gang. Over a span of 15 months between 2009 and 2010, the
group terrorized people in and around Jacksonville, Florida
by committing a series of crimes, including armed bank
robberies, home invasion robberies, fencing stolen items,
stockpiling firearms and body armor, selling drugs, and
beating one man, Dillon Burkhalter, to the brink of death. As
a member of The Guardians, Wilkie held the title of
“the Enforcer.” In that role, he participated in
the savage attack on Burkhalter, the home invasion robberies
of Brigg and Lita Hart, Harold and Vicki Shafer, and Robert
and Larita Holland (where Wilkie put a gun to the head of the
Hollands' son), as well as the attempted robbery of an
EverBank branch, just to name a few.
October 20, 2011, a grand jury sitting in the Middle District
of Florida returned a Second Superseding Indictment against
Wilkie and several co-defendants. (Crim. Doc. 138; Second
Superseding Indictment). The grand jury charged Wilkie with
one count of violating the Racketeer Influenced and Corrupt
Organizations Act (RICO), pursuant to 18 U.S.C. §
1962(c) (Count One), one count of conspiracy to violate RICO,
in violation of 18 U.S.C. § 1962(d) (Count Two), and one
count of committing a violent crime in aid of racketeering,
in violation of 18 U.S.C. §§ 1959(a)(4) and 2
(Count Three). As part of Count One, the grand jury charged
Wilkie with committing 14 racketeering acts, including
extortion, home invasion robbery, bank robbery, and the
distribution of steroids, cocaine, and oxycodone. Second
Superseding Indictment at 6-17. Wilkie initially pled not
guilty to the charges. (Crim. Doc. 142; Minute Entry for
March 19, 2012, Wilkie pled guilty to Counts One and Two
pursuant to a written Plea Agreement. (Crim. Doc. 202; Plea
Agreement). In doing so, Wilkie admitted to committing four
racketeering acts related to Count One, consisting of three
acts of home invasion robbery and one act of bank robbery.
Plea Agreement at 1-2. In exchange for his guilty plea, the
United States agreed to dismiss Count Three of the Second
Superseding Indictment. Id. at 7. The Court
determined that Wilkie's guilty plea was knowingly and
voluntarily made and adjudicated him accordingly.
(See Crim. Doc. 203; Report and Recommendation
Concerning Plea of Guilty); (Crim. Doc. 264; Acceptance of
sentencing hearing, the Court determined that Wilkie's
unadjusted advisory sentencing range under the United States
Sentencing Guidelines was between 292 and 365 months in
prison, based on a total offense level of 38 and a Criminal
History Category of III. (Crim. Doc. 411; Sentencing Tr. Vol.
III at 89). However, the Court determined that the severity
of Wilkie's offense conduct - in particular, the fact
that Wilkie committed several violent home invasion robberies
- warranted a sentence above the Guidelines range.
(See Crim. Doc. 410; Sentencing Tr. Vol. II at 157);
(Crim. Doc. 411; Sentencing Tr. Vol. III at 106-08); (Crim.
Doc. 415; Sentencing Tr. Vol. IV at 4-11). As such, the Court
applied a two-level upward departure under U.S.S.G. §
5K2.0, bringing Wilkie's total offense level to 40 and
yielding an advisory Guidelines range of 360 months to life
in prison. Sentencing Tr. Vol. II at 157; Sentencing Tr. Vol.
III at 108. The Court noted in the alternative that even if
it had not applied the upward departure, the facts would have
supported an upward variance under 18 U.S.C. § 3553(a).
Sentencing Tr. Vol. II at 157. Ultimately, the Court
sentenced Wilkie to concurrent terms of 420 months in prison
with respect to Counts One and Two, followed by a 5-year term
of supervised release. Sentencing Tr. Vol. IV at 9-10; (Crim.
Doc. 366; Judgment).
appealed the sentence, “argu[ing] that the district
court erred in departing from the Guidelines sentence range
under § 5K2.0, because the underlying basis for the
departure-robberies taking place at victims' homes-was
not a permissible ground for a departure.” United
States v. Wilkie, 589 Fed.Appx. 504, 505 (11th Cir.
2015). Wilkie also challenged the sentence as substantively
unreasonable. Id. The Eleventh Circuit rejected both
of Wilkie's arguments. Id. at 505-06. The court
explained, among other things, that even if it was erroneous
to apply an upward departure under U.S.S.G. § 5K2.0, an
upward variance under the § 3553(a) factors would have
been appropriate “because the record demonstrates that
Wilkie's offense conduct included breaking into a home,
holding a victim at gunpoint, tying her up, and ransacking
her house for valuables.” Id. at 506. Thus,
the Eleventh Circuit affirmed Wilkie's conviction and
Eleventh Circuit issued its opinion on January 2, 2015.
Wilkie did not petition the United States Supreme Court for a
writ of certiorari. As such, Wilkie's conviction and
sentence became final 90 days later, on April 2, 2015, when
the time to file a petition for certiorari review expired.
See Clay v. United States, 537 U.S. 522, 532 (2003)
(“We hold that, for federal criminal defendants who do
not file a petition for certiorari with this Court on direct
review, § 2255's one-year limitation period starts
to run when the time for seeking such review
The § 2255 Motion
than a year later, on July 27, 2016, Wilkie filed the instant
§ 2255 Motion. See § 2255 Motion at 12;
Houston v. Lack, 487 U.S. 266, 276 (1988) (a pro se
prisoner's court filing is deemed filed on the date it is
delivered to prison authorities for mailing). In it Wilkie
raises two claims of ineffective assistance of counsel.
First, he argues that counsel gave ineffective assistance
during plea negotiations because counsel failed to advise
Wilkie “what he would be pleading guilty to” and
“what constitutional rights the defendant would be
waiving by entering into the plea agreement.”
Id. at 4. Second, Wilkie claims that counsel gave
ineffective assistance at sentencing by failing to prevent
the introduction of hearsay testimony, which Wilkie claims
was used to enhance his sentence. Id. at 5. Wilkie
also suggests that counsel abandoned him mid-way through the
sentencing proceedings, after defense counsel had accepted a
job with the local State Attorney's Office. See
section 18 on page 10 of the Court's § 2255 form
advised Wilkie as follows:
18. TIMELINESS OF MOTION: If your judgment of
conviction became final over one year ago, you must explain
why the one-year statute of limitations as contained in 28
U-S.C § 2255 does not bar your motion.
§ 2255 Motion at 10. The next page of the § 2255
form advised Wilkie of 28 U.S.C. § 2255's statute of
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") as contained in 28 U.S.C § 2255,
paragraph 6, provides in part that:
A one-year period of limitation shall apply to i motion under
this section. The limitation period shall
run from the latest of -
(1) the date on which the judgment of conviction became
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making such a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
§ 2255 Motion at 11. Despite the admonition, Wilkie left
section 18 blank and failed to acknowledge in any way that
his § 2255 Motion was untimely or to explain why it