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Wilkie v. United States

United States District Court, M.D. Florida, Jacksonville Division

July 29, 2019




         This 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).[1] 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.

         Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings[2], 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).[3] For the reasons set forth below, Wilkie's § 2255 Motion is due to be dismissed.

         I. Background

         The 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)[4], as well as the attempted robbery of an EverBank branch, just to name a few.

         On 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 Re-arraignment).

         On 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 Guilty Plea).

         At his 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).

         Wilkie 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 sentence.

         The 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 expires.”).

         II. The § 2255 Motion

         More 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.[5] 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 id.[6]

         Notably, 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 limitations:

         * 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 final;
(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 governmental action;
(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 ...

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