McCormick v. United States

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

KEVIN JAMES MCCORMICK,

Petitioner,

v. Case No. 21-cv-00217-JPG

UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM AND ORDER

This matter is before the Court on petitioner Kevin James McCormick (“Petitioner” or

“McCormick”) Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.

On February 10, 2020, the Court sentenced him to serve 132 months in prison on Count 1 for

conspiracy to commit wire fraud. McCormick’s criminal Case No. is 3:17-cr-30192-JBM-3. On

February 24, 2021, Mr. McCormick filed a timely motion under § 2255 challenging his

conviction and sentence. On April 8, 2021, Mr. McCormick filed an amended § 2255 motion.

This motion alleges three grounds for relief – ineffective assistance of counsel for failure to enter

into a plea and offer cooperation, ineffective assistance of counsel for having an actual conflict

of interest, and, in the alternative of the first two, that Petitioner’s guilty plea was not knowing,

intelligent, and voluntary.

Remarkably and to the Court’s great satisfaction, the Government concedes and agrees

that this Court should vacate the sentence of McCormick and order a re-sentencing. The Court

will do so.

I. Background

Petitioner’s conviction arose from his ownership and operation of a business in southern

Florida that was originally known as First Choice Tech Support, but later changed its name to

Client Care Experts (“Client Care/First Choice”). Client Care/First Choice was a type of

telemarketing business that is commonly referred to as a “tech scam.” An investigation into the

business revealed that Client Care/First Choice defrauded 40,000 victims out of more than

$25,000,000.

Many of the salespersons and mid-level managers were indicted and/or pled guilty prior

to charges being filed against Petitioner. Petitioner was initially represented by Stephen R.

Wigginton. On March 13, 2019, Wigginton filed a motion to withdraw as McCormick’s attorney

because he stated he was in a serious car accident in February 2019 and was under continuing

care. On April 12, 2021, Matthew Radefeld entered his appearance on behalf of Petitioner and

Judge Yandle continued the trial for four months. On July 29, 2019, the case was reassigned to

Judge Joe Billy McDade of the Central District of Illinois, who was sitting by designation. After

evaluating evidence against his client, Mr. Radefeld explored a possible cooperation plea

agreement with the Government. McCormick pled guilty on August 12, 2019.

Based on McCormick’s cooperation, the Government moved for a downward departure

of 33% below the low-end of the Sentencing Guidelines range. However, because McCormick

was the last defendant in his case to plead guilty and was not needed against his co-defendants,

the amount of reduction recommended (33%) was not as large as the reductions recommended

for the other defendants. During McCormick’s sentencing hearing on February 10, 2020, the

Sentencing Guidelines range was 151-188 months. Judge McDade granted McCormick a

downward departure, but not to the extent requested by the Government. Judge McDade

sentenced McCormick to 132 months of imprisonment.

II. Analysis

a. Ineffective Assistance of Counsel

The Court must grant a § 2255 motion when a petitioner’s “sentence was imposed in

violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). However,

“[r]elief under § 2255 is available ‘only in extraordinary situations, such as an error of

constitutional or jurisdictional magnitude or where a fundamental defect has occurred which

results in a complete miscarriage of justice.’” United States v. Coleman, 763 F.3d 706, 708 (7th

Cir. 2014) (quoting Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013)). It is proper to

deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of

the case conclusively demonstrate that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b);

see Shipman v. United States, 925 F.3d 938, 943 (7th Cir. 2019).

McCormick asserts violations of his Sixth Amendment rights. The Sixth Amendment to

the Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . .

to have the Assistance of Counsel for [his] defence.” U.S. Const. amend. VI. This right to

assistance of counsel encompasses the right to effective assistance of counsel. McMann v.

Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir.

2009). A party claiming ineffective assistance of counsel bears the burden of showing (1) that his

trial counsel’s performance fell below objective standards for reasonably effective representation

and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-

94 (1984); Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014); United States v. Jones,

635 F.3d 909, 915 (7th Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009).

In a case where a petitioner pled guilty as a result of alleged ineffective assistance of

counsel, to satisfy the first prong of the Strickland test, the petitioner must show that his

counsel’s advice leading to the plea was outside the range of professionally competent

assistance. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (citing McMann, 397 U.S. at 771; Tollett

v. Henderson, 411 U.S. 258, 267 (1973)). To satisfy the second Strickland prong, he must show

that there is a reasonable probability that, but for his counsel’s deficient performance, he would

not have entered a guilty plea and instead would have gone to trial. Lee v. United States, 137 S.

Ct. 1958, 1965 (2017); Hill, 474 U.S. at 59; United States v. Parker, 609 F.3d 891, 894 (7th Cir.

2010); Wyatt, 574 F.3d at 458; Richardson v. United States, 379 F.3d 485, 487 (7th Cir. 2004).

Counsel’s deficient performance must have been a decisive factor in the defendant’s

decision to enter a guilty plea. Wyatt, 574 F.3d at 458; see Julian v. Bartley, 495 F.3d 487, 498

(7th Cir. 2007). To make such a showing, the petitioner must present objective evidence that he

would not have entered a guilty plea; his own self-serving testimony that he would have insisted

on going to trial is not enough. Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011);

McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996) (citing Toro v. Fairman, 940 F.2d

1065, 1068 (7th Cir. 1991)); see Wyatt, 574 F.3d at 458 (stating “a defendant’s mere allegation

that he would have chosen a path other than the conditional plea is insufficient by itself to

establish prejudice.”). “Courts should not upset a plea solely because of post hoc assertions from

a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should

instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.”

Lee, 137 S. Ct. at 1967.

In some instances, counsel’s deficient performance is so stark that prejudice can be

presumed such as where counsel abandoned a defendant or utterly failed to represent her. This

presumption can occur:

in the face of a “complete denial of counsel” or denial at a “critical stage” of the

litigation. The presumption would also be triggered if counsel “entirely fails to

subject the prosecution’s case to meaningful adversarial testing,” or if, due to the

timing of the trial or other factors, “the likelihood that any lawyer, even a fully

competent one, could provide effective assistance is [] small.”

Smith v. Brown, 764 F.3d 790, 796 (7th Cir. 2014) (quoting United States v. Cronic, 466 U.S.

648, 659-60 (1984); internal citations omitted).

A critical stage in a criminal case is “every stage of the criminal process between

arraignment and appeal that either addresses a substantive issue or risks loss of a procedural

right.” See Schmidt v. Foster, 911 F.3d 469, 491-92 (7th Cir. 2018).

First, the Court will note that the Government has conceded this ground for relief and

states that counsel Stephen R. Wigginton’s performance as McCormick’s attorney was affected

by his excessive drinking and alcoholism, and McCormick was prejudiced as a result. As a

remedy, the Government proposes that McCormick’s sentence be vacated and that on

resentencing, the Government will make a new 5K1.1 motion on behalf of Mr. McCormick

recommending a 50% reduction of the low-end of the Guideline range. (Doc. 6 at 12). Petitioner

agrees with this remedy (Doc. 16 at 3).

As the parties have detailed counsel’s ineffectiveness in their briefing, the Court will

briefly enumerate how counsel for McCormick was ineffective. First, Wigginton was charged

with driving while intoxicated three separate occasions in a 2.5 year timespan (May 2017-

December 2019). During the third driving while under the influence (“DUI”), Wigginton crashed

his vehicle and failed a sobriety test. Wigginton was involved with more car accidents and the

parties believe these were also alcohol related.

Wiggington’s longtime friend and co-counsel, Chris Cuento, sent an email to McCormick

during his representation of McCormick. Shockingly, Cuento was once co-counsel to

McCormick regarding the underlying case.1 This email is reproduced below:

1 Chris F. Cuento briefly represented McCormick from February 5, 2019 – February 21, 2019. (Doc. 6 at 2).

Kevin, thank you for returning my call. As I explained, I really believe Steve’s

alcoholism has resurfaced to the extent that I don’t think he can adequately

represent you. It pains me to say this as he is one of my oldest and dearest

childhood friends. . . . You informed me that you had already concluded the same

and related a bizarre anecdote wherein he accused you of stealing his wallet in

some sort of alcoholic hallucination. You told me that you had already decided to

replace him. . . .

(Doc. 6 at Exhibit D).

In early 2019, the Government also admits that Wigginton made several statements to the

Government and the Court that he was experiencing health problems, and these issues were

preventing him from preparing for trial. (Doc. 12 at 10). Wigginton told the AUSA assigned to

the case that he was expected in Madison County court to participate in a 30-day substance abuse

evaluation (Doc. 6 at Exhibit B).

The Court finds, under the first Strickland prong, that Wigginton’s performance fell far

below objective standards for reasonably effective representation. Wigginton’s performance is

stark and believes that counsel utterly failed to represent his client.

Regarding prejudice, McCormick was clearly prejudiced by Wigginton’s deficient

representation. After Wigginton withdrew as McCormick’s counsel, he did not receive the same

benefit for his plea and sentencing that earlier cooperation with the government would have

provided. But for counsel’s errors, McCormick’s sentence would have been lower than 132

months that he received. Petitioner satisfies the second prong under Strickland.

b. Grounds 2 and 3

In light of the fact that the Court is finding that Wigginton’s performance is deficient

under Strickland and ordering McCormick’s sentence vacated, the Court will not reach the merits

of Petitioner’s second and third claims.

III. Conclusion

Accordingly, the Court hereby:

• GRANTS McCormick’s amended § 2255 motion (Doc. 6);

• Renders MOOT Petitioner’s Motion for Extension of Time (Doc. 15);

• VACATES McCormick’s sentence imposed on February 10, 2020, as reflected in the

judgment entered on February 10, 2020 (Doc. 225 in United States v. McCormick, Case

No. 17-cr-30192-JBM);

• DIRECTS the Clerk of Court to enter judgment accordingly;

• DIRECTS the Clerk of Court to docket this order in McCormick’s civil and criminal

cases.

IT IS SO ORDERED.

Dated: January 27, 2022

/s/_J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE