KEITH ELLISON, District Judge.
Defendant, a federal inmate proceeding pro se, filed this section 2255 motion challenging his conviction and sentence. (Docket Entry No. 95.) The Government filed a response in opposition (Docket Entry No. 110), to which Defendant filed a reply (Docket Entry No. 112).
Based on consideration of the motions, the responses, the pleadings, the record, and the applicable law, the Court
On February 6, 2013, Defendant pleaded guilty to one count of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349. The plea was entered pursuant to a counseled Rule 11(c)(1)(A) Plea Agreement. The Court sentenced Defendant in an amended judgment to 63 months' imprisonment with three years' supervised release and restitution in the amount of $266,627. The amended judgment was imposed November 24, 2014, and entered June 16, 2015. No notice of appeal was filed.
One month after entry of the amended judgment, Defendant filed the instant section 2255 motion.
In its response, the Government submits the affidavits of defense counsel Richard Kuniansky and Grant M. Scheiner, and argues that Defendant's claims have no merit.
Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to section 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Piacente, 81 F.3d 555, 558 (5th Cir. 1996). Section 2255 is an extraordinary measure, and cannot be used for errors that are not constitutional or jurisdictional if those errors could have been raised on direct appeal. United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error is not of constitutional or jurisdictional magnitude, the movant must show the error could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994). Moreover, a defendant who raises a constitutional or jurisdictional issue for the first time on collateral review must show both cause for his procedural default, and actual prejudice resulting from the error. Piacente, 81 F.3d at 558.
The United States Supreme Court's decision in Strickland v. Washington provides the familiar two-pronged test for establishing a claim of ineffective assistance of counsel:
466 U.S. 668, 687 (1984). In the context of sentencing, the movant must demonstrate a reasonable probability that, but for counsel's errors with respect to sentencing matters, he would have received less time in prison. United States v. Grammas, 376 F.3d 433, 438 (5th Cir. 2004).
Defendant claims that defense counsel were ineffective in the following particulars.
Defendant argues that his first attorney should have moved to dismiss the indictment based on violations of the federal Speedy Trial Act. As correctly argued by the Government, Defendant's guilty plea waived this claim. A guilty plea is an admission by a criminal defendant that he committed the charged offense. North Carolina v. Alford, 400 U.S. 25, 32 (1970); Taylor v. Whitley, 933 F.2d 325, 327 (5th Cir. 1991). A guilty plea waives all nonjurisdictional defects in the prior proceedings except claims of ineffective assistance of counsel relating to the voluntariness of the guilty plea. United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008); Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). That counsel requested and obtained a trial continuance nearly one year prior to his entry of a guilty plea is neither a jurisdictional defect nor a claim of ineffectiveness related to the voluntariness of the subsequent plea. As a result, this claim has been waived.
Regardless, the claim has no merit. In responding to Defendant's argument, counsel Richard Kuniansky testified in his affidavit as follows:
(Docket Entry No. 110, Exhibit.)
The record shows that Defendant was arraigned on a six-count indictment on February 22, 2012, and that he pleaded not guilty through retained counsel, Robert Kuniansky. Defendant was released on bond, and a jury trial was set for April 9, 2012. On March 8, 2012, Defendant moved for a continuance to allow counsel time for trial preparation. In the motion, counsel stated that there was "woefully inadequate [time] to review the discovery in [Defendant's] case, contact witnesses and perform an independent investigation." (Docket Entry No. 19, ¶ 5.) Counsel further stated that it would take "a considerable period of time to digest the discovery" in Defendant's case, which involved a six-count indictment alleging seven year's of criminal conduct by Defendant, with voluminous discovery of some 60,000 pages of documents and numerous prospective witnesses. (Id. at ¶¶ 1-3.) Counsel requested "continuance of at least 120 days from the presently scheduled trial date of April 10, 2012, and preferably until November, 2012." (Id. at ¶ 6.) The motion was unopposed, and this Court granted the continuance on March 9, 2012, resetting trial for October 22, 2012.
On June 14, 2012, the Court entered an order finding that "a continuance from March 9, 2012, through October 22, 2012, serves the ends of justice." (Docket Entry No. 24.) The Court specifically found that:
Id.
Shortly thereafter, Defendant replaced Kuniansky with Scheiner as his retained defense counsel. Defendant filed another motion for continuance on September 4, 2012, stating that his new attorney needed time to prepare for trial. He requested that trial be reset to January 2013. The Court granted the unopposed continuance and reset trial to January 14, 2013. The Court entered an "excusable delay" order, finding that the continuance was appropriate under Section 3161(h)(7)(A) because "the ends of justice served . . . outweigh the best interest of the public, as well as the Defendant, in a speedy trial" and "failure to grant the continuance would stop further proceedings or result in a miscarriage of justice."
On December 10, 2012, Defendant filed a third motion for continuance, seeking a continuance of his rearraignment set for January 10, 2013. Counsel asked that the rearraignment be moved to February 2013 due to a scheduling conflict. The Court granted the unopposed motion and reset rearraignment for February 6, 2013. On February 6, 2013, Defendant pleaded guilty to one count of the indictment pursuant to a written Plea Agreement.
The federal Speedy Trial Act ("STA") requires that federal criminal defendants pleading not guilty be tried within 70 days of their indictment or arraignment, whichever comes later. 18 U.S.C. § 3161(c). However, section 3161(h) of the STA sets forth "a long and detailed list of periods of delay that are excluded in computing the time within which trial must start." Zedner v. United States, 547 U.S. 489, 497 (2006). Specifically, delays resulting from the district court's consideration of any pretrial motion or a continuance, where the district court finds on the record that the ends of justice outweigh the interests of the public and the defendant in a speedy trial, are automatically excluded from the 70-day time limit. See 18 U.S.C. § 3161(h)(1), (h)(7). Defendant's claim that the Government failed to bring him to trial within the 70-day time limit is mistaken, as he fails to exclude the delays for which the Court entered proper "excusable delay" orders.
Moreover, counsel was not ineffective in seeking a continuance in order to have adequate time to prepare for trial. Nor does Defendant establish that, but for counsel's seeking a continuance, there is a reasonable probability that the result of the trial would have been favorably different. No ineffective assistance of counsel is shown, and habeas relief is unwarranted.
Defendant next claims that counsel failed to investigate the case before advising him to plead guilty. His claim is without merit. A defendant who claims counsel failed to investigate "must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial." Trottie v. Stephens, 720 F.3d 231, 243 (5th Cir. 2013); see also Druery v. Thaler, 647 F.3d 535, 541 (5th Cir. 2011). Defendant's claim lacks the requisite details regarding what further investigation into each of those facts would have revealed, and how those facts would have been of substantial benefit to his defense or changed his plea. His bare allegations do not suffice to overcome the strong presumption that any decision by counsel not to investigate further was the product of reasonable professional judgment. See Nelson v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); see also Strickland, 466 U.S. at 690 (noting that counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment").
Regardless, no ineffective assistance is shown. In responding to Defendant's claim, counsel Scheiner testified in his affidavit as follows:
(Docket Entry No. 110, Exhibit.)
The record shows that, for purposes of investigation for the guilty plea, Defendant was represented and advised by a defense team of no fewer than three well-known, experienced, and knowledgeable criminal defense attorneys — Scheiner, Pena, and Lowther — and a forensic consultant and a sentencing mitigation specialist. Scheiner's affidavit testimony shows that counsel and the defense experts exhaustively investigated the case and the evidence prior to recommending that Defendant plead guilty. When it was clear to the defense team that a guilty plea would be the best approach, Defendant's team focused its attention on how to obtain the most favorable sentence possible under the facts and evidence, including consideration for acceptance of responsibility. These strategies were reasonable, and Defendant's complaints fail to rebut the strong presumption that his counsel's actions were matters of professional judgment and reasonable trial strategy. Defendant demonstrates neither deficient performance nor actual prejudice, and ineffective assistance of counsel is not shown.
Habeas relief under section 2255 is unwarranted.
Defendant further asserts that counsel was ineffective in inducing him to sign a plea agreement containing factual stipulations that enhanced his sentence. Specifically, he states that he was unaware of the sentencing consequences of his stipulations that he was the leader or organizer of a conspiracy involving five or more participants, and that he victimized more than 50 people. Defendant contends that, had he known these stipulations would automatically increase his sentence, he would have insisted that the Government be forced to prove them.
In responding to this claim, counsel Scheiner testified in his affidavit as follows:
(Docket Entry No. 110, Exhibit.)
Moreover, the Court asked Defendant during the plea hearing whether anyone had threatened him or tried to coerce him to plead guilty; Defendant replied, "No, Your Honor." (Docket Entry No. 107, p. 4.) Defendant's bald allegation here that defense counsel had forced or "inveigled" him to plead guilty is insufficient to refute his statement made in open court and on the record that no one had coerced his plea.
In his reply to the Government's response, Defendant specifically complains that the Factual Stipulations counsel "inveigled" him to sign were incorrect and proved that counsel had not "bothered" to investigate the facts of the case. Defendant points out that, although the Factual Stipulations stated he was "an organizer/leader of criminal activity that involved five or more participants," the Government had agreed in the February 6, 2014, PSR that the conspiracy involved fewer than five criminal participants. Defendant's argument ignores the fact that in the revised PSR dated February 18, 2014, the Government stated that, "[Defendant] was the organizer of the conspiracy, which involved more than five criminal participants[.]" (Docket Entry No. 52, ¶ 6.) This statement was not changed or otherwise amended in the second revision dated February 24, 2014. (Docket Entry No. 58.) Thus, contrary to Defendant's claim, defense counsel did not unilaterally increase Defendant's sentence by stipulating that the conspiracy involved more than five criminal participants.
Although defense counsel and Defendant disagree as to whether the defense team explained the sentencing consequences of the Factual Stipulations, Defendant does not prevail under Strickland. Defendant fails to establish that, but for specific deficient conduct by counsel, there is a reasonable probability that he would not have pleaded guilty and would have insisted on proceeding to trial, or that this Court would have imposed a lower sentence.
Habeas relief under section 2255 is unwarranted.
Defendant also argues that counsel failed to present meritorious arguments for a downward departure at the sentencing hearing. Defendant admits that counsel did make some arguments for a downward departure, but that he neglected to raise all of the possible arguments. Defendant contends that counsel should have also argued (1) that a too-lengthy sentence does not promote respect for the law; (2) that a first-time criminal offender such as Defendant merits a downward variance, and (3) that the length of time that elapsed before Defendant's criminal offense justifies a downward departure.
Defendant's arguments are refuted by the record. Counsel raised these and similar arguments in Defendant's sentencing memorandum, which this Court carefully and thoroughly reviewed prior to sentencing. Counsel argued that Defendant was 54-years of age and had no criminal history, and that a sentence substantially below 33-41 months would reflect the seriousness of the crime while promoting respect for the law. (Docket Entry No. 70.) That counsel's arguments found no purchase at sentencing does not constitute, or even evince, ineffective assistance. See Urista v. United States, 2015 WL 4588352, at *3 (N.D. Tex. July 30, 2015); see also Youngblood v. Maggio, 696 F.2d 407, 410 (5th Cir. 1983).
Habeas relief is unwarranted on this claim.
As his final ground for relief, Defendant contends that counsel should have objected to the Government's breach of the plea agreement, in that the Government failed to recommend a low-end Guideline sentence. According to Defendant, the Government agreed in the Plea Agreement to recommend a sentence at the lower end of the applicable guideline range. He argues that the Government failed to abide by the agreement because it recommended a 63-month sentence, which was the maximum sentence.
Defendant misconstrues the record, and his factual allegations are incorrect. Defendant pleaded guilty to one count of conspiracy to commit mail fraud and wire fraud, which carried a statutory maximum penalty of imprisonment of up to twenty years and a fine of $250,000 or more. 18 U.S.C. § 3571. The Government agreed in the Plea Agreement to recommend to the Court a sentence at the low end of the applicable Guideline range. (Docket Entry No. 34, at ¶ 12.) At the sentencing hearing, the Government reiterated the guidelines sentence range of 63-78 months, and asked the Court to sentence Defendant at the low end of that range. According to the Government's sentencing memorandum, this recommendation was based on a total offense level of 26 and a criminal history category of I. (Docket Entry No. 42, p. 2.)
The Government made clear its recommendation at the sentencing hearing, as shown by the following excerpt:
(Sentencing Transcript, pp. 82-83, emphasis added.)
However, the Court did not accept the Government's recommendation, and asked the probation officer to calculate a new guidelines range based on a lower proposed loss amount, as follows:
Id., p. 92.
Consequently, the Government's low end recommendation of 63 months, at Level 26, was not accepted by this Court, as the Court did not agree with the Government's higher loss amount. The Court recalculated the sentencing range at Level 24, and the same 63 months became the high end of the guidelines range for that level. The Court then pronounced sentence of 63 months' incarceration, with the amount of restitution to be determined at a later date.
The Government did not breach the Plea Agreement, and counsel was not ineffective in failing to argue that it did. Relief under section 2255 is unwarranted.
Defendant's motion for relief under section 2255 (Docket Entry No. 95) is
The Clerk of Court is
