Cary Lamar Wilkerson, Jr. v. United States

Summary

The United States District Court for the Eastern District of Kentucky denies Cary Lamar Wilkerson Jr.'s pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The court holds that Wilkerson's non-ineffective-assistance claims were procedurally defaulted and alternatively rejects his challenges concerning interstate commerce, the guilty plea, sentencing enhancement, and ineffective assistance of counsel. The court also indicates that a certificate of appealability should be denied.

Holdings

1. A § 2255 petitioner may not obtain collateral review of claims that could have been raised on direct appeal unless the petitioner establishes cause for the default or actual innocence. Wilkerson established neither.
2. The interstate-commerce requirement of § 922(g)(1) is satisfied when the firearm crossed state lines at some point before the defendant possessed it; the firearm need not have entered the state illegally or been first possessed by the defendant immediately after crossing state lines.
3. Wilkerson's guilty plea was knowing and intelligent because the court complied with Rule 11, Wilkerson had an opportunity to review the indictment, and he repeatedly affirmed that he understood the charges, rights waived, and consequences of the plea.
4. The guilty plea had a sufficient factual basis under Rule 11(b)(3). The court need only subjectively satisfy itself that some evidence supports the plea, and the indictment, presentence report, plea proceedings, and sentencing proceedings may be considered together.
5. The § 841 sentencing enhancement was not invalid merely because the predicate robbery occurred when Wilkerson was a juvenile or because intervening convictions occurred before the federal offense. A conviction for which Wilkerson was sentenced as an adult could serve as the predicate, and § 841 does not require the predicate conviction to be the most recent conviction.
6. Wilkerson failed to establish ineffective assistance because he did not show either constitutionally deficient performance or resulting prejudice. His alleged interstate-commerce defense lacked merit, and his assertions regarding counsel's advice and the dismissed appeal did not demonstrate that counsel's performance fell outside the range of reasonable professional assistance.

Questions Presented

1. Whether Wilkerson's claims other than ineffective assistance of counsel were procedurally defaulted because they could have been raised on direct appeal but were not.
2. Whether the firearms satisfied the interstate-commerce element of 18 U.S.C. § 922(g)(1).
3. Whether Wilkerson's guilty plea was knowing and intelligent and supported by a sufficient factual basis under Federal Rule of Criminal Procedure 11.
4. Whether the sentencing enhancement under 21 U.S.C. § 841 was improper because the predicate robbery occurred when Wilkerson was a juvenile or because it was not the most recent conviction.
5. Whether Wilkerson was entitled to a retroactive downward variance or departure based on his youth.
6. Whether trial or appellate counsel rendered ineffective assistance under the Sixth Amendment.

Disposition

dismissed