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United States v. Wilke

United States District Court, W.D. New York

July 19, 2017

UNITED STATES OF AMERICA,
v.
DALTON WILKE, Defendant.

          AMENDED DECISION AND ORDER

          CHARLES J. SIRAGUSA, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Dalton Wilke (“Wilke” or “Defendant”), acting as his own counsel, moves this Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Motion to Vacate under 28 U.S.C. § 2255, Apr. 15, 2013, ECF No. 99. For the reasons stated below, the application is denied.

         BACKGROUND

         Wilke claims that his trial counsel, Donald Thompson, provided ineffective assistance, entitling him to sentence relief. Wilke is currently serving a term of 120 months in federal prison following convictions for utilizing a means and facility of interstate commerce to entice a minor to engage in sexual activity (18 U.S.C. § 2422(b)), receipt of child pornography (18 U.S.C. § 2252(a)(2)(A)), and possession of child pornography (18 U.S.C. § 2252(a)(5)(B)).

         After reviewing the answer, transcripts filed in the case, and arguments submitted by Wilke, both in his initial motion, and in his reply, the Court concludes no evidentiary hearing is necessary to decide the application. Rule 8(a), Rules Governing Section 2255 Proceedings.

         The procedural history of this case was accurately set forth in the Government's Response, ECF No. 101, and need not be repeated here in its entirety. It is sufficient to note the following:

On February 18, 2010, the grand jury for the Western District of New York returned a Superseding Indictment charging Wilke with three violations of federal law, as well as a computer forfeiture allegation. Count 1 charged Wilke with utilizing a means and facility of interstate commerce to entice an individual he believed to be 15-years old to engage in sexual activity in violation of 18 U.S.C. § 2422(b). Count 2 charged Wilke with the receipt of an item of child pornography on or before July 6, 2008, in violation of 18 U.S.C. § 2252A(2)(A). Count 3 charged Wilke with knowingly possessing a OneTouch external hard drive that contained child pornography on or before August 8, 2008, in violation of 18 U.S.C. § 2252A(2)(5)(B). On May 5, 2010, a jury found Wilke guilty of all three charges.
On March 7, 2011, the district court sentenced Wilke to, inter alia, 120 months imprisonment on Count 1, 60 months imprisonment each on Counts 2 and 3, all counts to run concurrently. The district court also imposed concurrent 25-year terms of supervised release.
The Judgment in a Criminal Case was entered on March 15, 2011. On March 21, 2011, Wilke entered a timely Notice of Appeal.
The Second Circuit Court of Appeals affirmed Wilke's conviction on May 31, 2012. Certiorari was denied by the United States Supreme Court on October 1, 2012.

         Government's Response at 1-2, Jul. 12, 2013, ECF No. 101. On April 9, 2013, Wilke, proceeding pro se, filed the instant Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255. The motion states three grounds for Defendant's claim of ineffective counsel relating to: conflict of interest, entrapment, and defective indictment.

         STANDARD OF LAW

         Section 2255 of Title 28 of the United States Code provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral ...

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