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United States v. Wiley

United States District Court, D. South Carolina, Columbia Division

September 19, 2019

United States of America,
v.
Elise Wiley, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendant’s motion for relief under 28 U.S.C. § 2255. ECF No. 53. Defendant argues her counsel was ineffective for several reasons: (1) “erroneous advise [sic] to induce acceptance of plea agreement and/or Information”; (2) acting as a “mere spectator” and failing to object to constitutional violations at sentencing; (3) failing to call witnesses at sentencing; and (4) failing to assist with a Rule 35 motion for substantial assistance. Id. The court directed Defendant to notify the court of her election regarding waiver of attorney/client privilege. ECF No. 57. Defendant elected to waive the privilege, limited to the § 2255 motion proceedings. ECF No. 59. The Government filed a response in opposition, including an affidavit from Defendant’s counsel, and motion for summary judgment. ECF Nos. 66, 67. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the summary judgment procedure and the consequences if she failed to respond. ECF No. 68. Defendant filed her response. ECF No. 70. This matter is ripe for resolution.

         BACKGROUND

         On August 8, 2017, Defendant was indicted on two counts: 1) using the internet and a telephone to attempt to persuade, induce, and entice two minors to engage in prostitution, in violation of 18 U.S.C. § 2422(b); and 2) making a materially false statement by giving a false name to Special Agents of the FBI, in violation of 18 U.S.C. § 1001. ECF No. 18.

         Defendant entered into a written plea agreement to plead guilty to an Information charging enticement of a person to travel in interstate commerce for prostitution, a violation of 18 U.S.C. § 2422. ECF No. 33. Included in her Plea Agreement were cooperation language, a stipulation by both parties that the appropriate disposition of the case was a sentence of 120 months, and appellate and § 2255 waivers. Id. at ¶¶ 5-7, 8, 11. She waived Indictment and entered a guilty plea on November 16, 2017. ECF No. 39. The Presentence Report (“PSR”) determined her total offense level to be 12, criminal history category I, with a guideline range of 10-16 months, but noted the stipulation in the Plea Agreement to 120 months actual incarceration. ECF No. 51 at ¶ 113. The guideline range for supervised release was five years to Life. Id. at ¶ 119. Defendant did not raise objections to the PSR.

         Prior to sentencing, the Government filed a motion to depart from the guidelines. ECF No. 46. The Government requested the court depart upward to 120 months to “reflect the nature of the Defendant’s criminal conduct (in accordance with the parties’ stipulation), ” then downward to reflect her substantial assistance (no amount was suggested by the Government regarding the downward departure). Id. at 1. At sentencing on February 22, 2018, the court granted the upward and downward departures, and sentenced Defendant to 84 months’ imprisonment and a Lifetime term of supervised release. ECF No. 48. Defendant did not appeal her conviction or sentence.

         STANDARD

         The standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984). In order to succeed on such a claim, Defendant must first show that her counsel’s performance was “deficient, ” Strickland, 466 U.S. at 687-88, and that such deficiency resulted in actual prejudice to Defendant. Id. As to the first prong of the Strickland test, a defense attorney’s conduct is deficient if it fails to meet a standard of “reasonably effective assistance.” Id. at 687. A reviewing court must “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690; see also Lockhart v. Fretwell, 506 U.S. 364, 371-72 (1993).

         Under the second prong of the Strickland test, Defendant must establish that she experienced prejudice as a result of counsel’s ineffectiveness, meaning that there exists “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” United States v. Fugit, 703 F.3d 248, 259 (4th Cir. 2012) (internal quotation marks and citation omitted). A defendant must affirmatively prove prejudice that is “so serious as to deprive the defendant of a fair trial.” Strickland, 466 U.S. at 687. Because “[t]he defendant bears the burden of proving Strickland prejudice, ” if a defendant fails to meet this burden, “a reviewing court need not consider the performance prong.” Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 (4th Cir. 1992) (citing Strickland, 466 U.S. at 697).

         Counsel has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. However, Strickland does not require counsel to investigate every conceivable line of mitigating evidence, and “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 690-91; see also Buckner v. Polk, 453 F.3d 195, 201 (4th Cir. 2006) (explaining counsel’s conduct is generally presumed to be a reasonable strategic choice). The Fourth Circuit has held that “an allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence . . . would have been produced.” Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996).

         DISCUSSION

         Defendant’s initial motion alleges her counsel was ineffective in four ways, by failing to: (1) properly advise her regarding the impact of her plea agreement and Information; (2) raise objections at sentencing; (3) call witnesses on her behalf at sentencing; and (4) assist with a Rule 35(b) motion. ECF No. 53. She also argues counsel failed to appeal the resolution of her case. Id. at 4.

         The Government argues counsel was not ineffective as he negotiated a deal for his client that resulted in a sentence “well below what she would have received if convicted for violations of the substantive crime(s) of human trafficking . . . or enticement of a minor to commit prostitution, ” as those statutes require a mandatory minimum sentence of 120 months. ECF No. 66 at 5. The Government contends the deal procured for Defendant limited her “overall potential liability of a potential life sentence, ” and “was the mandatory minimum of the substantive offense [charged in the Indictment] and drastically below a guideline calculation of the recruiting and prostituting of children – which are the crimes that the defendant committed and counsel was negotiating to avoid.” Id. at 6. The Government also argues Defendant’s claims are belied by her sworn statements at sentencing that she understood the plea agreement and sentencing exposure, and agreed to the imposition of a 120-month sentence as stipulated in her Plea Agreement. Id. at 7-8. The Government notes Defendant received a sentence reduction pursuant to § 5K1. Id. at 9. Finally, it maintains her claim of counsel failing to appeal is contradicted by the record. Id. For these reasons, it argues, Defendant’s counsel was not ineffective.

         In her reply, Defendant argues her attorney failed to address her desire to appeal in his affidavit, and notes “a defendant represented by counsel has a right to be consulted about a direct appeal and counsel had a responsibility to file the notice of appeal. When represented by counsel, a defendant does not have a right to act pro se.” ECF No. 70 at 1. She requests appointment of counsel and an evidentiary hearing. Id. at 2. In addition, she contends counsel allowing her to plead to the Information was “of little or no benefit to the Petitioner where the plea agreement included a stipulation that the Government could present evidence against Petitioner from their ongoing investigation.” Id. She contends if the Government had been restricted from using relevant conduct, she would have received a lower sentence. She further argues she was “constructively denied counsel” at sentencing because counsel failed to object to the Government’s arguments for an upward departure and failed to argue for a lower sentence. Id. at 3. If he had done so, she contends, she would have received a sentence within the guidelines calculated by Probation. Id. Finally, she argues her friends and family would have testified at sentencing that she was a victim of sex trafficking, and experts in the sex trafficking field could have testified as well, resulting in a lower sentence. Id. at 3-4.

         1. Plea Agreement and Information

         Defendant alleges her attorney failed to counsel her appropriately regarding her accepting a plea to an Information, and failed to assist her to understand the consequences of “withdrawing a plea agreement.”[1] ECF No. 53 at 4. As a consequence, she contends, she received a higher sentence than the one called for in the PSR. Id. In her Reply, she also argues she received little to no benefit from pleading to the Information, as opposed to the Indictment, because the plea agreement included a stipulation that the Government could use evidence learned from their ongoing investigation against her at sentencing. ECF No. 70 at 2-3. She contends she would have received a lower sentence if the Government had been restricted from utilizing additional relevant conduct. Id. at 3.

         As noted by the Government, it is clear based on counsel’s and Defendant’s statements at sentencing that Defendant received a substantial benefit from counsel’s negotiations with the Government regarding Defendant’s plea agreement. By pleading to the Information instead of the counts charged in the Indictment, Defendant avoided a mandatory minimum 120-month sentence and the possibility of a guideline sentence in excess of that mandatory minimum. In exchange, the Government and Defendant stipulated to a sentence of 120 months, with an opportunity for reduction based on substantial assistance. Through these negotiations, defense counsel ensured Defendant’s maximum sentence would be 120 months (provided she did not breach the Plea Agreement), instead of the minimum required by statute if she pled to the Indictment. Further, counsel secured ...


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