United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
Ellwart has filed a motion for post-conviction relief under
28 U.S.C. § 2255 to challenge the sentence he received
after he pleaded guilty to conspiracy to distribute
methamphetamine. He contends that his counsel was
constitutionally ineffective by (1) refusing to let him see
discovery; (2) giving him the wrong legal advice about the
amount of prison time he faced by pleading guilty; and (3)
telling him not to withdraw his plea at sentencing after
learning that his maximum supervised release term was life,
not three years as stated in the plea agreement.
denying Ellwart's motion because he has failed to show
that he received ineffective assistance of counsel. I am also
denying as moot the government's motion for an order that
Ellwart waived his attorney-client privilege for the purpose
of litigating his § 2255 motion. Dkt. 2. I do not need
to review a declaration from Ellwart's counsel to resolve
was involved in a large-scale conspiracy to distribute
methamphetamine in Wausau, Wisconsin. He entered into a
written plea agreement with the government, agreeing to plead
guilty to the one-count indictment. Dkt. 42 in
16-cr-70-jdp-2. That count carried a maximum prison sentence
of 20 years and maximum term of supervised release of life.
The plea agreement included a provision stating that Ellwart
“acknowledges his understanding that the Court is not
required to accept any recommendations which may be made by
the United States and that the Court can impose any sentence
up to and including the maximum penalties set out
January 25, 2017 plea hearing, I discussed with Ellwart what
expectations he had, if any, as to the sentence that he might
receive. I confirmed with Ellwart that his counsel had
discussed with him the possibility of receiving the maximum
penalties applying to the offense. Dkt. 85 in 16-cr-70-jdp-2
at 7. I explained how Ellwart's guideline range under the
Federal Sentencing Guidelines would be calculated and that I
would consider his guideline range as one factor in
determining his sentence. Id. at 8-10. Then, I asked
Ellwart a series of questions to confirm that his plea was
knowing and voluntary. Ellwart acknowledged that he
understood the terms of the agreement, including the rights
he was giving up by pleading guilty and that he would not be
free to withdraw his guilty plea, even if I decided not to
follow the government's recommendations regarding
sentencing. Id. at 11-14, 17. The government then
summarized the evidence that would be offered at trial to
prove Ellwart's guilt, including that Ellwart bought
methamphetamine from Kyle Quintana and Anthony Rogers and
sold it to others, that Ellwart controlled access to
Quintana's stash house, and that Ellwart went to
Minnesota with Rogers to purchase methamphetamine.
Id. at 19-21. After the government's recitation
of the evidence, Ellwart's counsel acknowledged that the
government would be able to prove facts at trial showing that
Ellwart was involved in the drug conspiracy. Id. at
asked Ellwart to explain in his own words what happened.
Ellwart stated that he owed Quintana money so he started
doing “errands for him [like] watch[ing] his dog and
giv[ing] him rides places.” Id. at 25. Ellwart
then said that he “didn't know exactly why
[Quintana] was going to those places, but I kind of had an
idea of what he was doing and [he] still decided to assist
him with it.” Id. I asked follow-up questions
regarding Ellwart's involvement in the drug conspiracy:
Court: [W]hen you say you “had an idea, ” what
did you think [Kyle Quintana] was doing?
Ellwart: Like, I kind of figured he was selling
methamphetamine, but I wasn't--I didn't never ask him
about it, but I was pretty positive that's what he was
Court: Okay Ellwart: And I rode with Kayla Harris and
[Anthony] Rogers one time. Kayla Harris asked me if I wanted
to ride with. They were going to Minneapolis, and she said
that she was getting a set of rims for her truck for giving
Rogers a ride there, so I was like, sure, I'll ride with.
Court: Okay. Did you know what the purpose of the trip was
other than the rims?
Ellwart: Yeah. I figured so.
Court: Okay. And what was that purpose?
Ellwart: So Rogers could pick up methamphetamine. Other than
that, I would watch Kyle [Quintana's] dogs, and he would
give me methamphetamine for ...