United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This matter is before the Court on Petitioner Wilson's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On March 3, 2011, a jury convicted Petitioner of four counts of violating 18 U.S.C § 242 (depriving others of their due process rights), based on the assaults of four inmates (Jimmy Todd, Jonathan Garrett, Gary Gieselman, and William Hawkins) between July and November 2005 in the Washington County, Missouri, jail while Petitioner was the chief administrator of the jail; and two counts of violating 18 U.S.C. § 1001 (making false statements), based on Petitioner making false statements to an FBI agent during the investigation of the assaults. This Court sentenced Petitioner to a total of 120 months in prison followed by three years of supervised release. On August 2, 2012, Petitioner's convictions and sentences were affirmed on direct appeal.
Petitioner now moves to set aside his convictions and sentences pursuant to 28 U.S.C. § 2255, claiming eight grounds of ineffective assistance of defense counsel. Petitioner claims that defense counsel was ineffective in failing to: (1) interview or subpoena the victims and obtain medical records (presumably Gieselman's, the only victim whose injuries required medical attention); (2)(a) negotiate a favorable plea offer (like the one the government had previously made for 36 months' imprisonment), and (2)(b) inform Petitioner of the expiration date of the 36-month offer before it had expired; (3) interview or present at trial former employees and colleagues of Petitioner "who could have given positive information to [his] character and non-violent nature spanning 30 years in law enforcement"; (4) coherently examine and cross-examine witnesses instead of asking nonsensical questions; (5) effectively cross-examine investigating FBI agent Patrick Cunningham with respect to an alibi defense, and present Petitioner's wife as an alibi witness; (6) permit Petitioner to testify, knowing that Petitioner wished to do so; (7) procure witnesses to "solidify [Petitioner's innocence]"; and (8) "address possible departure from agreed upon jury instructions." On October 29, 2014, an evidentiary hearing was held on Ground Two. For the reasons set forth below, Petitioner's motion shall be denied in its entirety.
Plea Offer, Trial, and Sentencing
Petitioner was indicted on July 15, 2010, and several days later retained defense counsel. The record establishes that on October 1, 2010, the government sent defense counsel a written proposed plea agreement, pursuant to which Petitioner would plead guilty to all counts except Count III (the count involving the assault of Gieselman), in exchange for the government dismissing Count III, and an advisory guidelines sentencing range of 37 to 45 months' imprisonment. The letter stated that "if the defendant pleads guilty to Count III, his [guidelines range would be 62-78 months]. If convicted of Count III at trial, his [guidelines range would be 87-101 months]." (Doc. No. 37-2.) The letter gave counsel until 5:00 p.m. on November 19, 2010, to inform the government if Petitioner intended to accept the plea offer.
On November 8, 2010, the trial date was reset from December 6, 2010, to February 28, 2011. A final pretrial conference was held in open court, with Petitioner present, on Wednesday, February 23, 2011. Upon inquiry by the Court as to whether the parties had engaged in plea negotiations, the prosecuting attorney advised the Court that "back in the fall" the government had made a plea offer but that the offer had not been accepted and had expired in November. The Court ascertained that the government "would not be offended" if defense counsel reopened negotiations for a plea offer, even for one with the same terms as the offer that had expired, and encouraged the parties to engage in good faith plea discussions in the days leading up to trial. (Doc. No. 19-1 at 4-5.)
No agreement was reached and the four-day trial commenced on February 28, 2011, as scheduled. In affirming Petitioner's conviction, the Eighth Circuit summarized the government's evidence at trial as follows:
During his tenure as the chief administrator of the Washington County Jail in Missouri, [Petitioner] either personally injured or caused the injuries of four prisoners between July 2005 and November 2005.
On July 27, 2005, a pretrial detainee, Jimmy Todd, attracted attention by yelling and generally being "annoying." The attending jailors informed [Petitioner] about Todd's disruptive behavior. [Petitioner] instructed the officers to move Todd to a special cell, designated "C tank." C tank was known as the "rougher tank" because it contained Thomas Mackley - a detainee who was known to be violent. One officer questioned [Petitioner]'s order to place Todd in C Tank with Mackley. In response, [Petitioner] pointed to his badge and said, "I'm the [expletive] Major." Before the officers placed Todd in C Tank, [Petitioner] spoke with Mackley. After the officers placed Todd in C Tank, [Petitioner] said to the cell occupants, "Have fun, boys." Soon afterwards, Todd began beating on the door of the cell, pleading, "[g]et me out of here." The officers removed Todd from the cell and observed that his face was bloody and swollen. [Petitioner] then asked Todd, "Did I get my point across?" [Petitioner] later gave cigarettes as a reward to Mackley and his cellmates who battered Todd.
On August 14, 2005, Jonathan Garrett, also a pretrial detainee, rapped and sang loudly. Corrections officers Valeria Wilson ("Valeria") and Jessica Reed asked Garrett to be quiet, but Garrett continued to rap loudly. Valeria called her father, [Petitioner], and explained to him the problem she was having with Garrett. [Petitioner] later arrived at the jail with four officers. [Petitioner] walked into Garrett's cell and stated, "Hello, I'm Major Vern [Petitioner]. I run this jail." [Petitioner] mentioned Valeria's relation to him and then proceeded to hit Garrett in the head four to six times, so that "almost after every strike [Garrett's] head bounced off the concrete wall that was behind him." [Petitioner] then put his knee on Garrett's chest and yelled in his face.
On September 29, 2005, Gary Gieselman, another pretrial detainee, yelled and swore at Valeria. Valeria reacted by putting Gieselman in C Tank with Mackley. Valeria then told [Petitioner] that Gieselman annoyed her. [Petitioner] called Gieselman over and told him in front of the other prisoners, including Mackley, that his daughter Valeria was "not going to have any problems in his jail." [Petitioner] then nodded his head and "smirked" at Mackley. After [Petitioner] left, Mackley told the others in the cell that they would probably "be rewarded" if they assaulted Gieselman. After a brief discussion, several of the prisoners assaulted Gieselman. By the time they finished, blood covered Gieselman, and "[h]e could barely stand up." Gieselman's medical records showed that he sustained gross swelling in his face and eye, a lacerated lip, multiple facial wounds, and a swollen ear. A CT scan further showed a fractured orbital bone. In relation to this incident, inmate Rodney Rawlins testified that the prisoners had previously decided that they would not "beat up" Gieselman, unless [Petitioner] stopped by the cell after Valeria. The next day, [Petitioner] visited the cell and gave cigarettes to the prisoners who assaulted Gieselman.
On November 6, 2005, arrestee Billy Hawkins was "banging" and "clanging" on the cell door. [Petitioner] walked up to Hawkins's cell and asked, "Do you know who the [expletive] I am[?]" Hawkins replied, "Yeah, you're the Major." [Petitioner] then hit Hawkins in the face two to three times, beating his head against a concrete wall.
A former corrections officer in the jail, Michael Hahn, complained about [Petitioner]'s maltreatment of these prisoners. Based on these complaints, FBI Special Agent Patrick Cunningham began to investigate. As a part of his investigation, Special Agent Cunningham spoke to [Petitioner] and informed him that he was investigating the possible abuse of Todd and Gieselman. In December 2008, [Petitioner] made two false ...