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United States v. Wilkins

United States District Court, District of Columbia

June 6, 2017



          JOHN D. BATES United States District Judge

         On June 20, 2014, Dustin Xavier Wilkins pleaded guilty to a wire fraud scheme in which he conned luxury hotels and other service providers out of more than $100, 000. He was sentenced to 33 months of imprisonment and three years of supervised release. He now brings this petition for habeas corpus relief under 28 U.S.C. § 2255 alleging that his attorneys during both the plea deal stage and the sentencing stage provided him with ineffective assistance of counsel in violation of his Sixth Amendment rights. He seeks to withdraw his guilty plea and instead be tried before a jury, or at the very least, receive a new sentencing hearing. After holding a two-day evidentiary hearing, receiving over 75 exhibits, and reviewing extensive pre- and post-hearing briefing from both sides, the Court will deny Wilkins' petition.


         Prior to his incarceration, Wilkins was an aspiring singer and performer. In an effort to advance his career in the entertainment industry, Wilkins tried to live the celebrity lifestyle. This included staying at expensive hotels, dining in high-end restaurants, riding in limousines, and consuming other luxury goods and services. Wilkins ran into trouble, however, when he paid for these luxury services through a fraudulent debit card scheme. Although Wilkins now disputes some of the specific alleged instances of fraud, or the dollar amounts attached to his fraud, he does not dispute that he committed many of the acts to which he pleaded guilty. The following account is based on the Statement of Offense (to which he agreed) and his testimony in Court during this habeas corpus proceeding.

         Wilkins used a similar modus operandi to defraud a wide range of merchants. He would book a hotel room (for example) in his own name or using an alias, and sometimes represent himself as a VIP affiliated with a well-known record company or celebrity in order to receive corporate rates or special treatment. See Statement of Offense [ECF No. 16] ¶¶ 8, 11. He would then present a pre-paid debit card for payment, which he knew was out of funds. Id. ¶ 12. Later, he would call the merchant purporting to represent the bank or debit-card company, sometimes disguising his voice, and provide fraudulent authorization codes that would allow the transaction to proceed, despite the lack of funds. Id. Only later, when the bank or debit card company reconciled its books, would it notice the unauthorized charge, and “charge back” (that is, recoup) the funds from the vendor. Id. The vendor would then face a loss for the services that Wilkins received.

         Wilkins carried out this scheme at multiple hotels in the D.C. region. See id. ¶¶ 13-24. For example, in January 2009 Wilkins made a reservation at the Hotel Palomar in D.C. for the weekend of the presidential inauguration. Id. ¶ 19. After he checked in, he made multiple purchases that were charged to his hotel room, including dining out, room service, parking, dry cleaning, movie rentals, and a limousine service. Id. ¶ 21. By the time he checked out, his bill totaled $12, 890.67. Id. ¶ 22. He “paid” his bill with a pre-paid debit card using a fraudulent authorization code. Id. Although the charge initially went through (thanks to the fraudulent authorization code), the debit card company ultimately reversed the transaction when it discovered that the card did not have sufficient funds. Id. ¶¶ 22-23. The hotel was then out of pocket the full $12, 890.67. Id.; see also Def.'s Exs. 63 & 69 (business records from the Hotel Palomar documenting unpaid bill).

         In September 2013, Wilkins was indicted on one count of conspiracy to commit wire fraud under 18 U.S.C. §§ 1349 and 1343, eight counts of wire fraud under § 1343, two counts of access device fraud under 18 U.S.C. § 1029(a)(2), and three counts of fraud under 22 D.C. Code §§ 3221(a) and 3222(a)(1). See Indictment [ECF No. 1]. The indictment also included criminal forfeiture allegations seeking a money judgment against Wilkins in the amount of $35, 615.73. Id. ¶ 33.

         In June 2014, Wilkins pleaded guilty to Count Two, wire fraud in violation of 18 U.S.C. § 1343. See Plea Agreement [ECF No. 15] at 1. The agreed-upon loss amount was $106, 668.29. Id. at 9. According to the sentencing guidelines, the offense level for this crime is determined by the loss amount and the number of victims. Thus, in the plea agreement, the parties agreed that Wilkins' estimated adjusted offense level was 17, due to a base offense level of 7, plus 8 levels for a loss amount greater than $70, 000, plus 2 for an offense involving 10 or more victims. See Plea Agreement at 3; U.S.S.G. §§ 2B1.1(a) (base offense level); 2B1.1(b)(1)(E) (loss amount greater than $70, 000); 2B.1(b)(2)(A) (10 or more victims)[1]. The total offense level was then reduced by 3 levels for acceptance of responsibility. See Plea Agreement at 3. The plea agreement also estimated that Wilkins had 12 criminal history points and therefore was in a criminal history category of V. Id. This was based on his prior criminal convictions, including a conviction in 2010 for credit card fraud in Henrico County, Virginia. See id. His applicable guidelines range based on an offense level of 14 and a criminal history category of V was 33-41 months. Id. at 4. During the time of his plea agreement, he was represented by attorney Anthony Miles of the Federal Public Defender's office.

         After his plea agreement, Wilkins became dissatisfied with Miles as his attorney. Although there is conflicting testimony about the extent to which Wilkins communicated with Miles about his unhappiness with the plea agreement, there is no dispute that Miles withdrew as Wilkins' attorney in June 2015, approximately a year after the plea. See June 10, 2015, Minute Order. Attorney Mark Carroll then entered an appearance as Wilkins' attorney. See Not. of Appearance [ECF No. 33].

         In September 2015 Wilkins was sentenced to 33 months' imprisonment to be followed by three years of supervised release. See Sept. 16, 2015, Judgment [ECF No. 46] at 2-3. Immediately afterward, he filed an appeal. See Not. of Appeal [ECF No. 44]. Wilkins then apparently fired Carroll as his attorney, and filed a pro se motion to withdraw his guilty plea, claiming ineffective assistance by both of his former attorneys, Miles and Carroll. See Mot. to Withdraw Guilty Plea [ECF Nos. 49 & 50]. Wilkins obtained new representation, attorney Edward Sussman, who re-filed Wilkins' motion to withdraw his guilty plea styled as a petition for habeas corpus relief. See Petition for Habeas Corpus [ECF No. 66]. Wilkins also voluntarily dismissed his appeal. See Order, Dec. 10, 2015 (No. 15-3058) (D.C. Cir. 2015) (unpublished) [ECF No. 67]. Wilkins was, at that point, displeased with Sussman and hired another attorney, Bernard Grimm, but shortly after, he elected to continue his representation pro se. Ultimately, however, Wilkins obtained by court appointment a new attorney-Gregory Smith-who now represents him in this matter. See Not. of Appearance [ECF No. 87].

         In Wilkins' petition, he alleges that he received ineffective assistance of counsel from both Miles and Carroll. He contends that they provided ineffective assistance at three different stages. First, Wilkins argues that at the plea agreement stage, Miles failed to properly investigate all of the misconduct to which Wilkins pleaded guilty. Second, Wilkins argues that after the plea agreement, both Miles and Carroll failed to move to withdraw Wilkins' guilty plea despite his requests to do so. And third, Wilkins argues that at the sentencing stage, Carroll failed to raise several arguments that could have reduced his sentence.

         The Court received and considered extensive briefing from Wilkins and the government. The Court held a two-day evidentiary hearing on November 28 and 29, 2016, where it heard testimony from Wilkins, Miles, and Carroll, and received over 75 exhibits. The testimony included evidence regarding whether Wilkins was responsible for all of the losses detailed in the Statement of Offense, to what extent Miles investigated those offenses, and the communications between Wilkins and his attorneys. The Court also received and considered post-trial briefs from both parties, as well as the transcript of the evidentiary hearing.


         When a petitioner seeks habeas corpus relief from a sentence imposed by a federal court, if the court finds that there has been “such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). Here, Wilkins alleges that his Sixth Amendment right to effective assistance of counsel was violated by the ineffective assistance that he received from his attorneys.

         “The Sixth Amendment right to counsel ‘is the right to the effective assistance of counsel.'” Buck v. Davis, 137 S.Ct. 759, 775 (2017) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). To succeed on an ineffective assistance of counsel claim, Wilkins bears the burden of showing first “that counsel's performance was deficient” and second “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. “The two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985).

         As to the first prong, counsel's assistance was deficient if it “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. This prong “sets a high bar.” Buck, 137 S.Ct. at 775. “Judicial scrutiny of counsel's performance must be highly deferential. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Strickland, 466 U.S. at 689. Thus, “[it] is only when the lawyer's errors were ‘so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment' that Strickland's first prong is satisfied.” Buck, 137 S.Ct. at 775 (some internal quotation marks omitted) (quoting Strickland, 466 U.S. at 687).

         As to the second prong, the “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.


         Wilkins alleges that his two attorneys failed him at three separate points in time: at the guilty plea stage, after his guilty plea when he allegedly asked counsel to withdraw his plea, and at the sentencing stage. The Court considers each in turn.

         I. The Guilty Plea

         Wilkins alleges that Miles failed to perform an adequate investigation into whether or not Wilkins committed all of the acts listed in the Statement of Offense in the proposed plea agreement, and therefore that Miles' advice regarding the plea was ineffective. An attorney's “strategic choices made after thorough investigation of law and facts . . . are virtually unchallengeable.” Id. at 690; see also United States v. Catlett, 97 F.3d 565, 570 (D.C. Cir. 1996) (applying the same test). Conversely, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91. “In other words, ” the Supreme Court explains, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691. Thus, “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. The D.C. Circuit has described this standard as “whether [the] attorney's less-than-thorough pre-trial investigation was supported by ‘reasonable professional judgments.'” United States v. Mohammed, 693 F.3d 192, 203 (D.C. Cir. 2012) (quoting Strickland, 466 U.S. at 691).

         At the plea agreement stage, “in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. As the Supreme Court has explained, “the determination whether the error ‘prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea.” Id. Thus, “[t]his assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.” Id. (internal citation omitted). Both the length of the potential sentence following conviction as compared to the plea agreement, and the strength of the government's evidence, are relevant to this analysis. See United States v. McCoy, 215 F.3d 102, 108 (D.C. Cir. 2000); see also United States v. Zaitar, 641 F. App'x 1, 1-2 (D.C. Cir. 2015); United States v. Wright, 429 F. App'x 4, 5 (D.C. Cir. 2011). In determining whether there is a reasonable probability that the defendant would have gone to trial, a court considers “not only the count to which the defendant pled guilty, but also the other counts he would have faced had he gone to trial.” In re Sealed Case, 488 F.3d 1011, 1017 (D.C. Cir. 2007)

         Based on the testimony and exhibits presented during the evidentiary hearing, the Court finds that nearly all aspects of Miles's performance at the plea agreement stage did not “f[a]ll below an objective standard of reasonableness.” See Strickland, 466 U.S. at 688. Rather, his admittedly less-than-thorough investigation was not unreasonable given “all the circumstances, ” and his subsequent strategic choice to recommend that ...

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