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Wolcott v. United States

United States District Court, M.D. Tennessee, Cookeville Division

February 5, 2018

JOSEPH WOLCOTT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          WAVERLYJA CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court is Joseph Wolcott's Motion to Vacate his sentence in Case Number 2:08-cr-13-1 (the “Petition”). (Doc. No. 1.) On September 12, 2017, the Court held an evidentiary hearing on Claim Three in the Petition. For the following reasons, the Petition is denied.

         I. PROCEDURAL HISTORY

         On December 3, 2008, a Grand Jury indicted Wolcott on (1) conspiracy to distribute and to possess with intent to distribute marijuana; (2) traveling in interstate commerce to distribute the proceeds of an unlawful activity; (3) use of wire communications to facilitate illegal gambling; and (4) conducting an illegal gambling business. United States v. Wolcott, No. 2:08-cr-13, Doc. No. 3. The Magistrate Judge appointed the Public Defender to represent Wolcott. Id. at Doc. No. 30 (Dec. 5, 2008). On January 22, 2009, appointed counsel filed a Motion to Substitute Attorney for Wolcott, indicating that Wolcott had retained attorney Patrick T. McNally, id. at Doc. No. 161 (Jan. 22, 2009), which the Honorable Todd J. Campbell granted, id. at Doc. No. 162 (Jan. 23, 2009).

         On February 4, 2009, the Grand Jury returned a Superseding Indictment against Wolcott. Id. at Doc. No. 186. In it, Count 1 differed from the original Indictment by charging conspiracy to distribute and to possess with intent to distribute 1, 000 kilograms or more of marijuana. Id. The superseding indictment also added two charges for conspiracy to commit money laundering. Id. On July 1, 2009, Wolcott was temporarily detained, and subsequently the Honorable William J. Haynes ordered that Wolcott be detained pending trial. Id. at Doc. Nos. 350, 377.

         On August 25, 2009, Peter Strianse entered an appearance on behalf of Wolcott. Id. at Doc. No. 405. On March 15, 2010, Strianse moved for Judge Haynes to reconsider his decision to detain Wolcott pending trial. Id. at Doc. No. 590. In support, Strianse notified the court about Wolcott's medical problems, including his “profound memory loss.” Id. at 3. Judge Haynes denied the motion and Wolcott remained detained. Id. at Doc. No. 628.

         On March 31, 2010, the Grand Jury returned a second superseding indictment against Wolcott. Id. at Doc. No. 598. This indictment added the charge that Wolcott sponsored and exhibited an animal in an animal fighting venture. Id. On January 14, 2011, the Government filed an Information, pursuant to 21 U.S.C. § 851 (an “851 Information”), to establish that Wolcott had a prior felony drug conviction, raising Wolcott's mandatory minimum sentence on Count 1 to twenty years of imprisonment, if convicted. Id. at Doc. No. 680.

         On January 25, 2011, Wolcott went to trial on the Second Superseding Indictment. Id. at Doc. No. 697. On February 4, the jury found Wolcott guilty of (1) conspiracy to distribute and to possess with intent to distribute 1, 000 kilograms or more of marijuana; (2) traveling in interstate commerce to distribute the proceeds of an unlawful activity involving gambling; (3) conducting an illegal gambling business; (4) conspiracy to commit money laundering; and (5) sponsoring and exhibiting an animal in an animal fighting venture. Id. at Doc. No. 712. Judge Haynes sentenced Wolcott to serve a total of 276 months of imprisonment followed by ten years of supervised release. Id. at Doc. No. 814 (June 8, 2011). The United States Court of Appeals for the Sixth Circuit affirmed the judgment. Id. at Doc. No. 955 (June 8, 2012).

         II. ANALYSIS

         Wolcott moves to vacate his sentence on four grounds: (1) the district court, rather than the jury, determined the fact of his prior conviction to enhance his mandatory minimum sentence; (2) the district court did not use the correct approach, nor did trial counsel ask the court to do so, in enhancing the mandatory minimum penalty based upon a disputed prior conviction; (3) ineffective assistance of trial counsel in plea negotiations; and (4) ineffective assistance of trial counsel for preventing Wolcott from testifying and appellate counsel for failing to raise the issue on appeal. (Doc. No. 2.) Judge Haynes granted an evidentiary hearing on the third claim (Doc. No. 23), and Wolcott subsequently clarified his third claim (Doc. No. 45) pursuant to the Court's Order (Doc. No. 41).

         A. Third Claim

         Wolcott alleges that his trial counsel was ineffective during the plea negotiation process because he failed to correctly advise Wolcott on the effect of an 851 Information and he failed to recognize the impact of Wolcott's physical and mental impairments on his ability to comprehend plea offers. (Doc. No. 45 at 5.)

         1. Facts

         Peter Strianse served as Wolcott's sole counsel for his trial with Patrick McNalley as his co-counsel for much of the preparation. Strianse's good friend and colleague Kim Hodde represented Wolcott's son and codefendant, Kevin, and Jodie Bell represented Wolcott's then-wife and codefendant Rachel. (Doc. No. 64 at 10, 122.) Alex Little served as lead counsel for the United States.

         Strianse has been practicing law for thirty-seven years and as a defense attorney for over twenty. (Id. at 37.) He is a former organized crime drug enforcement task force federal prosecutor. (Id. at 21.) Strianse visited Wolcott sixty-eight times over the twenty-one-month period prior to trial. (Id. at 16.)

         Because one of Wolcott's codefendants was Kevin, the relationship between Hodde and Strianse was a little different than the typical relationship between counsels for co-defendants. (Id. at 115-16.) As a result of this, Hodde allowed Kevin to talk with Strianse about his representation of Wolcott without going through Hodde. (Id. at 115.) ...


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