United States District Court, W.D. New York
AMENDED DECISION AND ORDER
CHARLES J. SIRAGUSA, UNITED STATES DISTRICT JUDGE
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.
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. §
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.
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
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
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.
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.
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 ...