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Wunderli v. United States

United States District Court, E.D. Missouri, Southeastern Division

March 27, 2018

MARK WUNDERLI, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Movant Mark Wunderli's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 and supplements. (Docs. 1, 12, 21, 22.) The Government has responded. (Doc. 11.) For the following reasons, Movant's petition is DENIED and this action is DISMISSED with prejudice.

         I. Introduction and Background

         Movant was indicted on one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). (Doc. 49 in United States v. Wunderli, No. 4:11-cr-00538.) On May 15, 2013, Movant pleaded guilty pursuant to a plea agreement to the first count in exchange for the Government's agreement not to pursue the second. (Doc. 81 in Wunderli, No. 4:11-cr-00538 [hereinafter Plea Agreement]; Doc. 120 at 12-13, 26 in Wunderli, No. 4:11-cr-00538 [hereinafter Plea Tr.].)

         After initially pleading not guilty, Movant filed several pretrial motions to suppress and for disclosure of evidence. A hearing was held at which counsel for Movant argued diligently.

         The magistrate judge recommended denying each motion as either moot or on its merits. After the Court adopted the recommendation, United States v. Wunderli, No. 4:11-cr-00538, 2012 WL 1432586, at *1 (E.D. Mo. Apr. 25, 2012), the Movant notified the Court that he intended to change his plea. The written plea agreement set out the offense conduct and the range of penalties and included a waiver of appeal and post-conviction rights except in instances of prosecutorial misconduct and ineffective assistance of counsel. (Plea Agreement.)

         At the change-of-plea hearing, the Court questioned Movant extensively. Under oath, Movant affirmed that he understood the offense conduct and that he had committed each element of the crime. (Plea Tr. at 12-13.) Movant agreed that the Government's recitation of the facts, including his criminal conduct, were true. (Id. at 15.) Movant stated that he understood the presentence report, the range of punishment, and the relevant post-release conditions. (Id. at 16-21.) Movant affirmed his understanding that he was waiving the majority of his appeal and post-conviction rights. (Id. at 22.) Movant expressly stated that he had read and understood the conditions of the plea agreement, that he had had an opportunity to discuss them with his counsel, and that he had no questions for his counsel or the Court. (Id. at 10.) Movant affirmed on five occasions that his plea was knowing and voluntary. (Id. at 10, 22-23, 26.)

         Movant also affirmed that he was satisfied with his counsel's representation. (Id. at 7.) He stated that counsel had answered all of his questions, done everything Movant had asked him to do, had explained the nature and elements of, and possible defenses to, the charges, as well as the potential consequences of Movant's guilty plea. (Id. at 6-7.) When asked by the Court directly, Movant answered that he had no questions about counsel's representation or his case. (Id.)

         The Court accepted Movant's plea and a presentence report was prepared. (Doc. 88 in Wunderli, No. 4:11-cr-00538 [hereinafter PSR.].) The report calculated a guideline range of 78 to 96 months in prison to be followed by a supervised release term of five years to life. (Id. at 14-15.) The conviction carried a five-year minimum. (Id.) Counsel for Movant filed a twenty-page memorandum arguing for a below-guidelines sentence of 60 months. (Doc. 93 in Wunderli, No. 4:11-cr-00538.)

         At sentencing, the Court again confirmed that Movant's guilty plea was knowing and voluntary. (Doc. 111 at 4 in Wunderli, No. 4:11-cr-00538 [hereinafter “Sentencing Tr.”].) When asked whether counsel had adequately explained the case and answered all of Movant's questions, Movant respond, “It has been a long confusing amount of proceedings for me. I believe in good faith. [Counsel] has been doing a lot. . . . I believe here in the Federal Court I think he has done a well job.” (Id. at 4-5.) When the Court asked if there was anything Movant had asked counsel to do that counsel had not done, Movant responded, “There was evidence that I brought up at one time. [Counsel] referred to it. It would be the proverbial smoking gun that would put the case at rest. When I obtained the evidence, it was discarded as not being relevant.” (Id. at 5-6.) The Court asked whether Movant believed there was evidence that would exonerate him, [1] and Movant replied, “I thought it might when I originally brought it up it. It sounded like it might be, but then after I got the evidence, [counsel] informed me that it was not-so maybe it was a misunderstanding when it was first talked about, or I don't know so.” (Id. at 6.) The Court then asked Movant if he was denying his guilt, to which Movant responded, “No. I have stood here and taken that plea, ” but added, “When I pled, I misunderstood what I was pleading to. I thought I was pleading to . . . the Possession, the one that did not have a five-year minimum.” (Id. at 6-7.) The Court reminded Movant that he had signed the written plea agreement, which expressly stated that Movant was pleading guilty to receipt of child pornography and that the crime carried a five-year minimum sentence. (Id. at 8.) Movant agreed that he had read the agreement and knew when he pleaded guilty to receipt of child pornography that he faced a five-year minimum. (Id.)

         When the Court inquired again about the “smoking gun” evidence, counsel interjected that he and his investigator had “reviewed every single page of evidence the Government had in this case, ” that he had interviewed “well over 22 witness” identified by Movant, and that he had retained an information-technology expert to evaluate the computer evidence involved in the case. (Id. at 9-10.) Counsel stated that he and his investigator looked into the “smoking gun” evidence and determined that it would not benefit Movant in the way he suggested.[2] (Id. at 12.) In addition, counsel told the Court that he had read the plea agreement to Movant verbatim and had explained “the legal ramifications associated with entering a plea agreement.” (Id.) After again confirming with Movant that he was guilty of receipt of child pornography, the Court indicated that it believed counsel had devoted a significant amount of time and effort to Movant's defense and had negotiated a very favorable plea agreement on his behalf. (Id. at 16-17.) The Court ultimately sentenced Movant to a term of 92 months in prison to be followed by lifetime supervised release. (Id. at 43-44.) The Court ordered the sentence to run concurrent to any term imposed in the associated state law case. (Id.)

         Movant waited nearly five months to appeal. (See Doc. 106 in Wunderli, No. 4:11-cr-00538.) On August 19, 2014, the Eighth Circuit denied the appeal. (See Doc. 123 in Wunderli, No. 4:11-cr-00538.) On October 17, 2014, Movant filed this § 2255 motion, advancing several instances of ineffective assistance of counsel, alleging:

a. Counsel lied and misrepresented himself and information;
b. Failed to communicate the case status, information regarding investigations, etc.;
c. Told Movant that he had a good case for over a year and then “in the last couple of weeks” told Movant that he had no case and pressured him to accept the plea agreement;
d. Misinformed Movant about “the full conditions of [his] plea and its ramifications such as term of supervision;”
e. Failed to contact all the witnesses that Movant identified and misrepresented others' statements;
f. Failed to provide Movant information regarding appeals; g. Failed to investigate or present exculpatory evidence;
h. Routinely failed to provide promised documents and evidence;
i. Argued against Movant at sentencing; and
j. “[F]ailed to provide other legal ...

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