United States District Court, M.D. Tennessee, Cookeville Division
WAVERLYJA CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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.
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).
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).
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.)
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.
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.)
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.)