Churchill v. United States

1

KENNETH CHURCHILL, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 18-cv-295-pp

United States District Court, E.D. Wisconsin

October 19, 2022

ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE (DKT. NO. 1) AND DISMISSING CASE

HON PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE

On February 26, 2018, the petitioner, representing himself filed a motion to vacate, set aside or correct the sentence imposed in United States v. Churchill, Case No 17-cr-31 (E.D. Wis). Dkt. No. 1. The motion asserts that the petitioner's counsel provided ineffective assistance. Dkt. No. 1. The court denies the petition and dismisses the case.

I. Background

A. Underlying Case

1. Information and plea agreement

On February 15, 2017, the government filed a one-count information charging the petitioner with distributing heroin in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(C). Churchill, Case No. 17-cr-31, Dkt. No. 1. The same day, the petitioner (represented by Attorney Michael Steinle) signed a plea agreement. Dkt. No. 2 at 12. The agreement was filed the same day. The agreement stated that the petitioner was pleading guilty to the count in the information. Id. at ¶¶2-5. The petitioner acknowledged that he had read and fully understood “the nature and elements of the crime with which he ha[d] been charged” and that his attorney fully explained “the terms and conditions of the plea agreement.” Id. at ¶3. The petitioner acknowledged, understood and agreed that he was guilty of the offense in the information. Id. at ¶6. He admitted that the factual basis in the plea agreement established his guilt beyond a reasonable doubt and were true and correct. Id. Those facts provided that

[f]ederal law enforcement agents received information that [the petitioner] was involved in distributing heroin. Based on this information, the agents conducted several controlled buys of heroin from [the petitioner]. Those transactions occurred on May 11, 2015 (5 grams), May 21, 2015 (10 grams), June 3, 2015 (5 grams), June 4, 2015 (5 grams), July 2, 2015 (10 grams), July 22, 2015 (20 grams), and September 22, 2015 (15 grams). During these transactions, [the petitioner] distributed approximately 70 grams of heroin in total.

For the July 22, 2015 transaction, an undercover law enforcement agent (UC) who had been involved in a prior controlled transaction with [the petitioner], contacted [the petitioner] on July 21, 2015 and asked if [the petitioner] was able to sell 20 grams of heroin. [The petitioner] responded that he could and they agreed to conduct the transaction the next day. On July 22, 2015, the UC and [the petitioner] exchanged several text messages and ultimately agreed to meet at a Home Depot store parking lot in Milwaukee. Agents set up surveillance of the parking lot and observed [the petitioner] arrive in his Chevrolet Corvette. [The petitioner] was driving and a female was in the passenger seat. UC then approached the driver's-side window of [the petitioner's] Corvette, UC gave [the petitioner] $3000 in prerecorded buy money. [The petitioner] counted the money and directed UC to the otherside of the vehicle. The female in the passenger seat then removed a baggie from her purse and gave it to UC. The baggie contained 20 grams of heroin. Both parties then left the parking lot.

On October 19, 2015, case agents obtained a federal search warrant to search [the petitioner's] business located at XXXX S. 56th Street, West Allis, Wisconsin, and his residence located at XXXX Holz Drive, Muskego, Wisconsin. That same day, UC contacted [the petitioner] asking if [the petitioner] would sell 35 grams of heroin for $5000.

After several text messages, they agreed to conduct the transaction on October 22, 2015.

On October 22, 2015, [the petitioner] directed UC to come to his business to conduct the transaction. Agents were prepared to execute the search warrant at that time. Agents entered the business, located [the petitioner], and took him into custody. [The petitioner] had loaded 9mm Ruger handgun holstered on his right hip and a plastic baggie containing 35 grams of heroin in his pocket.

Shortly after agents executed the warrant at [the petitioner's] business, they executed the warrant at [the petitioner's] residence. During that search, agents recovered a digital scale, a .22 caliber rifle; a .380 caliber Hi-Point handgun; a .40 caliber Glock handgun; a 9mm Springfield Arms handgun; a .45 caliber Taurus handgun; a .45 caliber Ruger P90 handgun; and a box of assorted ammunition. Agents also recovered approximately $17,330.00 in U.S. currency. A search of that currency revealed several bills that matched those provided to [the petitioner] by the UC during the controlled transactions. This includes a $100 bill that had been provided to [the petitioner] by the UC during the July 22, 2015 transaction, and six $100 bills that had been provided to [the petitioner] by the UC during the September 22, 2015 transaction.

Id.

The agreement indicated that the petitioner understood and agreed that the maximum penalty for the charged offense was twenty years in prison, a one million dollar fine and a lifetime of supervised release; he understood and agreed that the count in the information carried mandatory minimum of three years of supervised release and a mandatory special assessment of one hundred dollars. Id. at ¶7. The petitioner acknowledged, understood and agreed that he had “discussed the relevant statutes as well as the applicable sentencing guidelines with his attorney. Id. at ¶8.

The agreement also laid out the elements of the charge. Id. at ¶9. It said that the parties understood and agreed that in order to sustain the heroin distribution charge, the government must prove beyond a reasonable doubt that (1) the petitioner “knowingly distributed a substance containing heroin,” and (2) the petitioner “knew the substance was some kind of controlled substance.” Id. The petitioner acknowledged and agreed “that his attorney . . . discussed the applicable sentencing guidelines provisions with him to [the petitioner's] satisfaction.” Id. at ¶12. He acknowledged and understood “that the sentencing guidelines recommendations contained in this agreement [did] not create any right to be sentenced within any particular range.” Id. at ¶14. The parties acknowledged, understood and agreed that the sentencing court could “consider relevant conduct in calculating the sentencing guidelines range, even if the relevant conduct is not the subject of the offense to which [the petitioner] [was] pleading guilty.” Id. at ¶15.

The parties “agree[d] to recommend to the sentencing court that the applicable base offense level for the offense charged in Count One is 24.” Id. at ¶17. They agreed “to recommend to the sentencing court that a 2-level increase under U.S.S.G. § 2D1.1(b)(1) . . . for possession of a firearm [was] applicable to the offense level for the offense charged in Count One.” Id. at ¶18. The government agreed to recommend a 2-level decrease for the petitioner's acceptance of responsibility, “but only if [the petitioner] exhibit[ed] conduct consistent with the acceptance of responsibility.” Id. at ¶19. The government agreed that if the court determined at sentencing that the 2-level decrease applied to the petitioner, it would move for an additional 1-level decrease under U.S.S.G. §3E1.1(b) for the petitioner's timely notification of his intent to plead guilty. Id. The parties acknowledged, understood and agreed that “neither the sentencing court nor the United States Probation Office is a party to or bound by this agreement.” Id. at ¶23. The agreement indicated that “[t]he United States Probation Office [would] make its own recommendations to the sentencing court,” and “[t]he sentencing court [would] make its own determinations regarding any and all issues relating to the imposition of sentence and [might] impose any sentence authorized by law up to the maximum penalties.” Id. The petitioner acknowledged, understood and agreed that he could not “move to withdraw the guilty plea solely as a result of the sentence imposed by the court.” Id. at ¶24.

The plea agreement provided that if the petitioner “violate[d] any term of [the] agreement at any time, engage[d] in any further criminal activity prior to sentencing, or fail[ed] to appear for sentencing, [the] agreement [would] become null and void at the discretion of the government.” Id. at ¶37. If the agreement “[was] revoked or if [the petitioner's] conviction ultimately [was] overturned, then the government retain[ed] the right to reinstate any and all dismissed charges and to file any and all charges which were not filed because of [the] agreement.” Id. Finally, the petitioner acknowledged, understood and agreed that he was “plead[ing] guilty freely and voluntarily because he [was] in fact guilty,” and that “no threats, promises, representations, or other inducements ha[d] been made, nor agreements reached, other than those set forth in [the] agreement, to induce [the petitioner] to plead guilty.” Id. at ¶38.

2. Arraignment and plea hearing

On March 21, 2017, the court held an arraignment and plea hearing. Dkt. No. 7. The petitioner appeared in person with Attorney Steinle. Id. The court's minutes reflect that during the almost hour-long hearing, the court placed the petitioner under oath, reviewed the plea agreement with him, questioned him, “recounted that the charge involved a maximum prison term of twenty years and a maximum fine of $1,000,000,” and mentioned that the charge carried a special assessment of $100 and maximum term of lifetime supervised release. Id. “After [the petitioner] had answered all of the court's questions, the court found that [the petitioner] understood his trial rights,...