Vanwinkle v. United States
2011 U.S. App. LEXIS 9551
6th Cir.2011Background
- Vanwinkle conspired to obtain goods using false UPC labels and device-making equipment with two others.
- Scheme involved placing fraudulent UPC labels on high-value items at multiple retailers and using returned items to obtain credits and reship items.
- April 24, 2007: grand jury returned seven-count indictment against Vanwinkle for conspiracy, possession of equipment, counterfeit access devices, use of access devices, and mail/wire fraud offenses.
- August 8, 2007: Vanwinkle pled guilty to Counts One and Two in exchange for dismissal of remaining, more serious counts.
- January 17, 2008: district court sentenced Vanwinkle to consecutive terms for Counts One and Two; no direct appeal.
- November 2008: Vanwinkle filed § 2255 motion challenging the plea, sentence, and other claims; later added a challenge to the legal sufficiency of the plea based on Lutz.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had subject matter jurisdiction to accept the plea | Vanwinkle argued lack of federal crime; jurisdiction compromised | Indictment charged valid federal offenses; jurisdiction bars none | Jurisdiction proper; district court had subject matter jurisdiction |
| Whether Vanwinkle procedurally_DEFAULTED due process challenge to the guilty plea | UPC label not an access device, plea violates §1029(a) | Challenge is properly a statutory interpretation issue; default applies | Claim procedurally defaulted and not excused |
| Whether actual innocence can excuse procedural default on the more serious charges | Actual innocence of mail/wire fraud charges could excuse default | Cannot show actual innocence; burden unmet | Vanwinkle failed to show actual innocence; default stands |
| Whether the government waived procedural default by not objecting on merits | Walters rule uniform waiver applies; government waived | Walters does not apply; merits were decided against him and government preserved | Government did not waive the right to raise procedural default |
| Whether the UPC label constitutes an access device under § 1029(a) merits review were reached | UPC label does not access an account; not an access device | UPC label creates an account/means to access value; falls within § 1029(a) | Merits not reached due to procedural default |
Key Cases Cited
- Bousley v. United States, 523 U.S. 614 (1998) (actual innocence required to excuse procedural default)
- Cotton v. United States, 535 U.S. 625 (2002) (defective indictment does not strip district court of jurisdiction)
- Logan v. United States, 434 F.3d 503 (6th Cir. 2006) (direct appeal required for statutory interpretation challenges)
- Luster v. United States, 168 F.3d 913 (6th Cir. 1999) (actual innocence must be shown with all evidence, including presentence report)
- Gray v. Netherland, 518 U.S. 152 (1996) (Walters-type waiver considerations; procedural default)
- Souter v. Jones, 395 F.3d 577 (6th Cir. 2005) (stick to appellate rights post-magistrate recommendation; not waiver by outcome)
- Walters v. United States, 638 F.2d 947 (6th Cir. 1981) (require objections to magistrate recommendations to preserve appeal)
- Thomas v. Arn, 474 U.S. 140 (1985) (affirming Walters framework for objections on review)
- Peveler v. United States, 269 F.3d 693 (6th Cir. 2001) (actual innocence standard and collateral review considerations)
- Elzy v. United States, 205 F.3d 882 (6th Cir. 2000) (procedural default and finality considerations)
- United States v. Adesida, 129 F.3d 846 (6th Cir. 1997) (jurisdiction and collateral review principles)
- United States v. Tunning, 69 F.3d 107 (6th Cir. 1995) (plea sufficiency challenges under Rule 11 treated as legal sufficiency inquiries)