Wilkins v. United States

682 F.Supp.3d 1137

Christopher Tavorris WILKINS, Movant, v. UNITED STATES of America, Respondent.

CASE NO. 23-80033-CIV-ALTMAN

CASE NO. 19-80032-CR-ALTMAN

United States District Court, S.D. Florida

Entered July 13, 2023

Signed July 12, 2023

Christopher Tavorris Wilkins, Coleman, FL, Pro Se. Marty Fulgueira Elfenbein, United States Attorney's Office, Miami, FL, for Respondent in No. 23-80033.

Ajay Alexander, U.S. Attorney's Office, Fort Lauderdale, FL, John C. McMillan, Ellen L. Cohen, United States Attorney's Office, West Palm Beach, FL, for Respondent in No. 19-80032.

ORDER

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

A federal jury in our District found the Movant, Christopher Tavorris Wilkins, guilty of possessing a firearm and ammunition after having been convicted of a felony and of tampering with a cooperating witness. See Amended Judgment, United States v. Wilkins, No. 19-80032-CR-ALTMAN (S.D. Fla. Mar. 23, 2021), ECF No. 249 at 1-2. For these crimes, we sentenced Wilkins to 210 months in federal prison. Ibid. Wilkins has now filed a motion to vacate under 28 U.S.C. § 2255, challenging his conviction and sentence. See Motion to Vacate ("Motion") [ECF No. 1]. After careful review, we DENY the Motion.

THE FACTS

On March 14, 2019, a grand jury in the Southern District of Florida charged Wilkins with committing five separate crimes: two counts of felon in possession of ammunition (Counts 1 and 2); one count of felon in possession of a firearm (Count 3); one count of conspiracy to distribute cocaine (Count 4); and one count of possession of a firearm in furtherance of a drug trafficking crime (Count 5). See Indictment, United States v. Wilkins, No. 19-80032-CR-ALTMAN (S.D. Fla. Mar. 14, 2019), ECF No. 1 at 1-3. A few months later, on August 29, 2019, the grand jury returned a Superseding Indictment that charged Wilkins with two additional counts of tampering with a witness, victim, or informant (Counts 6 and 7). See Superseding Indictment, United States v. Wilkins, No. 19-80032-CR-ALTMAN (S.D. Fla. Aug. 29, 2019), ECF No. 57 at 4-5. In these two new counts, the Government alleged that Wilkins had attempted to "intimidate, threaten, [or] corruptly persuade" a witness—Wilkins's former girlfriend, C.S.—in a concerted effort to prevent her from testifying before the grand jury (Count 6) and from cooperating with law enforcement (Count 7). Ibid.

Wilkins took his case to trial, where (over the course of five days) the jury heard from C.S.—among many other witnesses. After one day of deliberations, the jury acquitted Wilkins of Counts 2, 4, and 5 of the Superseding Indictment, but found him guilty of Counts 1, 3, 6, and 7. See Verdict, United States v. Wilkins, No. 19-80032-CR-ALTMAN (S.D. Fla. Nov. 8, 2019), ECF No. 125 at 1-4.¹ On April 30, 2020, Wilkins filed a "Rule 29 Motion for Acquittal and Rule 33 Motion for New Trial as to Counts 6 and 7," arguing that C.S.'s testimony was insufficient to prove that he had engaged in witness tampering. See Motion for Judgment of Acquittal, United States v. Wilkins, No. 19-80032-CR-ALTMAN (S.D. Fla. Apr. 30, 2020), ECF No. 179 at 11 ("In this case, the Government failed to prove that CS was actually telling the truth, so it is equally plausible that Defendant was persuading CS to tell the truth—only it was not the 'truth' that the Government wanted her to say."). Rejecting this argument as "ludicrous," we found that Wilkins's text messages to C.S. were so "self-evidently menacing" that "CS's credibility was mostly (if not wholly) irrelevant to the outcome." United States v. Wilkins (Wilkins I), 2020 WL 7294525, at *9, *14 (S.D. Fla. Dec. 10, 2020) (Altman, J.).

Before sentencing, the Government filed a "Motion for the Court to Impose an Upward Departure or Upward Variance." Motion for Upward Departure, United States v. Wilkins, No. 19-80032-CR-ALTMAN (S.D. Fla. July 6, 2020), ECF No. 197. In support of that motion, the Government advanced three arguments: (1) that Wilkins had "tragically lived a life of unabated serious criminal activity from the age of 9," id. at 4; (2) that, during the course of this prosecution, Wilkins had "engaged in a continuous and egregious pattern of attempting to obstruct justice, including overt threats of death to the government's witnesses," id. at 10; and (3) that Wilkins's "future prognosis" as a productive member of society was grim given his lack of education, his inability to hold "gainful, lawful employment since 2012," and his propensity "to engage in violent criminal conduct," id. at 10-11. We granted the Government's Motion for an Upward Departure at Wilkins's sentencing and "increase[d] the total offense level from 27 to 29." Sentencing Tr., United States v. Wilkins, No. 19-80032-CR-ALTMAN (S.D. Fla. Feb. 22, 2021), ECF No. 245 at 81. We then sentenced Wilkins to 210 months in federal prison. See Amended Judgment, United States v. Wilkins, No. 19-80032-CR-ALTMAN (S.D. Fla. Mar. 23, 2021), ECF No. 249 at 1-2.²

Wilkins appealed his conviction and sentence to the Eleventh Circuit on December 26, 2020. See Notice of Appeal, United States v. Wilkins, No. 19-80032-CR-ALTMAN (S.D. Fla. Dec. 26, 2020), ECF No. 238. In that direct appeal, Wilkins argued that we had erred "by denying his motion for judgment of acquittal based on insufficient evidence," and that we had improperly "enhanc[ed] his offense level under four Sentencing Guidelines provisions . . . and abused [our] discretion by imposing an unreasonable sentence." United States v. Wilkins (Wilkins II), 2022 WL 98748, at *1 (11th Cir. Jan. 10, 2022). The Eleventh Circuit rejected these contentions and affirmed Wilkins's conviction and sentence in full. See id. at *8 ("In sum, we affirm Wilkins's convictions for witness tampering under § 1512(b) because they are supported by sufficient evidence. We affirm Wilkins's 210-month sentence because the district court did not err in calculating the guideline range or even assuming it did, any error was harmless and the sentence is substantively reasonable."). Wilkins filed this § 2255 Motion on January 5, 2023.³ See Motion at 18.

THE LAW

A. Motions to Vacate Under 28 U.S.C. § 2255

Because collateral review isn't a substitute for a direct appeal, a movant can proceed under § 2255 only in extremely limited circumstances. As relevant here, a prisoner is entitled to relief under § 2255 if (1) "the sentence was imposed in violation of the Constitution or laws of the United States," (2) "the court was without jurisdiction to impose such sentence," (3) "the sentence was in excess of the maximum authorized by law," or (4) the sentence is "otherwise subject to collateral attack." § 2255(a); accord McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). In other words, "relief under § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." Richards v. United States, 837 F.2d 965, 966 (11th Cir. 1988) (cleaned up); see also United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ("[W]e have long and consistently affirmed that a collateral challenge will not do service for an appeal."). If a court grants a § 2255 claim, the court "shall vacate and set aside the judgment and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." § 2255(b). The movant bears the burden of proving his § 2255 claim. See Beeman v. United States, 871 F.3d 1215, 1222 (11th Cir. 2017) ("We rest our conclusion that a § 2255 movant must prove his [claim] on a long line of authority holding that a § 2255 movant bears the burden to prove the claims in his § 2255 motion." (cleaned up)), cert. denied, — U.S. —, 139 S. Ct. 1168, 203 L.Ed.2d 211 (2019).

B. Ineffective Assistance of Counsel

The Sixth Amendment affords a criminal defendant the right to "the Assistance of Counsel for his defen[s]e." U.S. CONST. amend. VI. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, a habeas litigant must demonstrate "that (1) his counsel's performance was deficient and 'fell below an objective standard of reasonableness,' and (2) the deficient performance prejudiced his defense." Raleigh v. Sec'y, Fla. Dep't of Corr., 827 F.3d 938, 957 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). This same standard applies to alleged errors made by both trial and appellate counsel. See Farina v. Sec'y, Fla. Dep't of Corr., 536 F. App'x 966, 979 (11th Cir. 2013) ("A claim of ineffective assistance of appellate counsel is evaluated under the same standard as for trial counsel.").

To establish the first prong (deficiency), "a petitioner must [show] that no competent counsel would have taken the action that his counsel did take[.]" Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc) (emphasis added). So, if "some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial," counsel could not have performed deficiently. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (quoting White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992)).

As for the second prong (prejudice), "a defendant is prejudiced by his counsel's deficient performance if 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Porter v. McCollum, 558 U.S. 30, 40, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). "A reasonable probability is a probability...