ORDER AND REASONS

IVAN L.R. LEMELLE, District Judge.

I. NATURE OF MOTION AND RELIEF SOUGHT

Before the Court is Defendant Mark Titus's Motion for Post-Conviction Relief under 28 U.S.C. § 2255. (Rec. Doc. 249). Titus seeks to have his conviction and sentence for Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. § 371 vacated on two grounds of alleged ineffective assistance of counsel. (See Rec. Doc. 249-1). Titus further requests that the Court hold an evidentiary hearing for purposes of judging the validity of his claims of ineffective assistance. (Rec. Doc. 250). The Government opposes the motion for post-conviction relief. (Rec. Docs. 256). For the reasons that follow, IT IS ORDERED that Titus's motions are DENIED.

II. FACTS AND PROCEDURAL HISTORY

Titus's conviction and sentence are the result of extensive litigation in this section of court spanning the better part of three years; familiarity with the facts and parties is presumed. Briefly, however, Mark Titus was sentenced on October 10, 2012, to a term of 60 months imprisonment, after pleading guilty to a charge of Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. § 371. (Rec. Doc. 72). That plea was entered pursuant to an agreement under which the Government declined to charge Titus with additional offenses in return for his cooperation in an investigation into alleged fraud perpetrated by his brother-in-law, Dominic Fazzio, in connection with the so-called "River Birch Probe." See United States v. Fazzio, Civil Action No. 11-157(C) (E.D. La. 2011).

In these post-conviction proceedings, Titus raises two claims of ineffective assistance of counsel. He first argues that his retained trial counsel, James Ardoin, provided constitutionally deficient assistance in connection with Titus's guilty plea. This claim concerns allegations that Assistant United States Attorneys negotiating on behalf of the Government made representations to Titus's original counsel, Paul Villalobos, and a private investigator retained by Titus to assist with the proceedings, Tim Wilson, that the Government did not intend to pursue forfeiture of Titus's assets in the event he pled guilty. Titus claims Ardoin was made aware of these alleged assurances at the time he was retained to represent Titus and further that he knew that the Government's abstention from forfeiture was a motivating factor for Titus to plead guilty.

When the Government subsequently initiated civil forfeiture proceedings, Titus argues Ardoin labored under a conflict of interest while litigating a motion to withdraw Titus's guilty plea, which Ardoin filed shortly before Titus's sentencing hearing. (See Rec. Doc. 58). In order to explain the failure to file the motion until that relatively advanced stage of the proceedings, Ardoin argued to the Court that his client had only recently made him aware of the alleged side agreement with the Government. According to Titus, Ardoin's representations concerning late discovery of the side-agreement claim were untrue and caused the Court to disbelieve Titus's allegations, dismissing them as eleventh-hour fabrications. Titus claims effective litigation of the motion to withdraw his plea would have required Ardoin to admit to misleading the Court and breaching his professional responsibilities to his client. Accordingly, Titus argues Ardoin was the subject of a conflict of interest, which resulted in constitutionally deficient representation and prejudice to his client. Titus further argues Ardoin performed deficiently in failing to ensure Wilson's appearance for live testimony at the hearing on the motion to withdraw plea; ostensibly out of fear that Wilson would confirm Ardoin's prior knowledge of the side-agreement claim.

Titus's second ineffective-assistance claim concerns Ardoin's litigation of the civil forfeiture proceedings themselves. According to Titus, Ardoin failed to timely inform him when the Government moved for a preliminary order of forfeiture and further failed to file a response after the Court granted the defense additional time to oppose the Government's forfeiture motion. For reasons discussed below, these claims are precluded in this phase of the proceedings.

III. CONTENTIONS OF MOVANT

A. Litigation of the Motion to Withdraw Guilty Plea

As to his first claim, Titus argues he is able to satisfy both elements of the Strickland standard applicable in the Fifth Circuit to ineffective-assistance-of-counsel claims relating to alleged conflicts of interest. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); Beets v. Scott, 65 F.3d 1258, 1260 (5th Cir. 1995)(en banc). These require Titus to establish: (i) that his counsel's performance fell below an objective standard of reasonableness, and (ii) that he suffered prejudice as a result of this deficient performance (i.e., that the result of the proceedings would have been different but for counsel's unprofessional errors).

As to the first element, Titus argues Ardoin's performance fell below an objective standard of reasonableness when he violated his duty of loyalty by placing his own interests above those of his client. According to Titus, Ardoin's representations to the Court in an October 5th letter, explaining the circumstances surrounding the filing of the motion to withdraw the plea, made it look as though Titus was lying about the alleged side agreement with the Government. (Rec. Doc. 64-3). Titus further argues Ardoin performed deficiently in failing to seek a continuance of the sentencing hearing, at which the Court set argument on the motion to withdraw plea, when it was evident that Wilson, the private investigator retained by Titus, would be unable to appear to testify.

As to the issue of prejudice, Titus argues Ardoin's representations to the Court undermined the basis for the motion to withdraw his plea. Titus argues there is a reasonable probability the Court would have reached a different conclusion had Ardoin arranged for the Court to hear Wilson's testimony concerning the Government's alleged assurances. Titus also argues the Court would have ruled differently in denying credit for acceptance of responsibility had Ardoin properly represented the basis for the motion to withdraw plea, to the extent the Court made statements concerning Titus's last-minute protestations of innocence in denying a three-level reduction in the offense level used to calculate his applicable sentencing guideline range. Finally, and apparently in the alternative, Titus argues a recent Supreme Court case undermines the Fifth Circuit's requirement of a showing of prejudice for ineffective-assistance claims premised on attorney-client conflicts of interest. See Christeson v. Roper, No. 14-6873, 135 S.Ct. 891 (2015). Titus therefore requests that the Court vacate his conviction, allow a new hearing on his motion to withdraw plea, and hold a new sentencing hearing with different counsel.

B. Litigation of the Forfeiture Provision

As to the forfeiture issue, Titus argues Ardoin made no effort to negotiate favorable application of the forfeiture clause in Titus's plea agreement despite alleged assurances by Ardoin that the clause's failure to identify specific property would afford such an opportunity over the course of the ensuing proceedings. Further, Titus argues Ardoin failed to contest the Government's amended forfeiture motion despite the Court's having granted a continuance on a conditional grant of that motion, which afforded the defense 30 days to respond. According to Titus, had Ardoin performed adequate investigation, he would have discovered a viable defense (that the subject property was not purchased with tainted funds) and there is a reasonable probability the property could have been saved.

Importantly, Titus argues Fifth Circuit precedent precluding litigation of claims unrelated to the custodial aspects of a defendant's sentence via a Section 2255 motion (e.g., the forfeiture claims presently at issue) ought to be reconsidered and that, alternatively, if such claims are not properly litigated via 2255 motions, Titus's claim should be treated as a request for a writ of error coram nobis. See United States v. Segler, 37 F.3d 1131, 1136-47 (5th Cir. 1995).

IV. CONTENTIONS OF OPPONENTS

A. Litigation of the Motion to Withdraw Guilty Plea

The Government counters that Ardoin's performance in litigating the motion to withdraw plea was not deficient and, in any event, Titus cannot meet his burden of showing prejudice under Strickland. As to the issue of performance, the Government contends the record reflects that Ardoin vigorously litigated Titus's claim of a secret side agreement with the Government. With respect to Titus's claims that Ardoin's October 5th letter to the Court "ambushed" his client at the sentencing hearing, the Government argues the entire letter, read in context, belies any such claim. According to the Government, Titus's only argument as to how Ardoin should have performed differently is that he should have insisted upon Wilson's appearance for live testimony on the allegations of a side agreement with the Government. However, because Titus cannot show any prejudice resulting from this failure, the Government contends Ardoin's performance in this respect is immaterial.

As to the issue of prejudice, the Government argues the Court simply did not credit Wilson's account regarding the secret side agreement, which account was embodied and presented to the Court in an affidavit submitted in connection with Titus's motion to withdraw his plea. In light of the "overwhelming evidence" presented by the Government against the existence of any such agreement, the Government contends Titus is unable to show that Wilson's live testimony creates a reasonable probability that the result of the proceedings would have been different. See Strickland, 466 U.S. at 694. This evidence included:

In light of the above, the Government contends Titus is unable to satisfy the Strickland standard and that his ineffective-assistance-of-counsel claim is without merit as to the litigation of his motion to withdraw plea. To the extent Titus argues he need not establish prejudice in the instant context, the Government argues this claim is incorrect and that, in any event, Fifth Circuit law requiring a showing of prejudice even in situations involving alleged attorney-client conflicts of interest remains binding on this Court unless and until the Fifth Circuit rules otherwise. See Beets v. Scott, 65 F.3d 1258, 1260 (5th Cir. 1995)(en banc).

B. Litigation of the Forfeiture Provision

As to the forfeiture issue, the Government advances three arguments. First, the Government argues Titus waived his right to appeal or seek post-conviction relief concerning forfeiture issues in his plea agreement. Second, the Government claims challenges to forfeiture provisions are not properly litigated through Section 2255 collateral proceedings. And finally, the Government argues that even if Titus could challenge forfeiture under Section 2255, he cannot show deficient performance by counsel under Strickland.

V. 28 U.S.C. § 2255

Section 2255 authorizes collateral attacks upon sentences and convictions by prisoners in federal custody:

28 U.S.C. § 2255(a). Under Section 2255, one basis for challenging the validity of a prisoner's custody or sentence is by way of a claim of ineffective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed. 2d 714 (2003). An ineffective-assistance-of-counsel claim has two components: (1) the defendant must show that his attorney's performance was deficient and (2) he must show that he was prejudiced by that deficient performance. Loden v. McCarty, 778 F.3d 484 (5th Cir. Feb. 13, 2015)(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To show deficient performance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Reed v. Stephens, 739 F.3d 753, 773 (5th Cir. 2014). Counsel's performance is judged based on prevailing norms of practice, and judicial scrutiny of counsel's performance must be highly deferential to avoid "the distorting effects of hindsight." Carty v. Thaler, 583 F.3d 244, 258 (5th Cir. 2009). To show prejudice, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

VI. DISCUSSION

A. Litigation of the Motion to Withdraw Guilty Plea

1. Deficient Performance

As noted above, Titus argues Ardoin performed deficiently in breaching his duty of loyalty; ostensibly in failing to move to withdraw his plea earlier in the proceedings and in sending a letter to the Court explaining the circumstances surrounding the filing of the motion. Additionally, Titus argues Ardoin should have moved to continue his sentencing hearing to ensure the availability for live testimony of the private investigator, Wilson.

As the record makes eminently clear, Titus entered a guilty plea pursuant to a written agreement with the Government that included express forfeiture language: "The defendant also agrees to forfeit any proceeds, profits or property received from his fraud of Garner Services, Limited." (Rec. Doc. 30 at 2). The agreement also included a so-called "merger" clause: "The defendant understands that the statements set forth above represent defendant's entire agreement with the Government; there are not any agreements, letters, or notations that will affect this agreement." (Rec. Doc. 30 at 4). At a re-arraignment hearing on October 26, 2011, that plea agreement was presented to the Court pursuant to the following colloquy:

(Rec. Doc. 89 at 14-16)

(Rec. Doc. 89 at 17-18). Following the Court's acceptance of Titus's guilty plea, denial of the motion to withdraw plea, supra, and eventual imposition of sentence, Titus appealed to the United States Court of Appeals for the Fifth Circuit. That Court affirmed the denial of the motion to withdraw plea, finding the record supported the conclusion that Titus's plea was knowing and voluntary and further crediting this Court's rejection of Titus's claims as to the alleged anti-forfeiture deal as likely fictitious.1

As noted above, the most tangible of Ardoin's failures alleged by Titus is in failing to seek continuance of Titus's sentencing hearing in order to ensure that Wilson would be available for live testimony on the issue of the alleged side agreement. Nevertheless, Ardoin submitted a sworn affidavit by Wilson as an attachment to the motion to withdraw plea. (See Rec. Doc. 58-2). That affidavit set forth the details of Wilson's involvement as an intermediary in initial discussions between Titus and the Government, including alleged conversations between Wilson and Assistant United States Attorneys Perricone and Mann concerning the Government's intention not to act on the forfeiture provision included in Titus's plea agreement.2 Titus has failed to make any showing as to how Wilson's live testimony — which, assuming it were entirely consistent with the sworn statements in his affidavit, would have been, at most, redundant — would in any way have altered the outcome of the proceedings. Weighed against the substantial contrary evidence submitted by the Government, the Court cannot say that Ardoin's performance fell below an objective standard of reasonableness in failing to seek a continuance for purposes of allowing Wilson to testify.

As to Titus's claim that Ardoin's failure to raise the issue of the alleged side agreement earlier in the proceedings, the Court finds these claims to be unworthy of credit. To suggest that Ardoin was aware of the alleged side agreement at the outset of his representation and failed to raise issues relating thereto for over a year would require the Court to conclude that Ardoin misled the Court through his statements at Titus's re-arraignment concerning the absence of any agreements aside those embodied in the written agreement and further allowed his client to perjure himself in making similar representations. It would additionally necessitate the conclusion that Ardoin's statements in his letter to the Court prior to the sentencing hearing explaining the late filing of the motion to withdraw the plea were equally dishonest. However, because the Court recognizes that these inferences constitute the basis for Titus's argument that Ardoin labored under a conflict of interest, we may assume for present purposes that the failure to raise the issue earlier in the proceedings did indeed amount to deficient performance. (Although this requires the Court to assign a level of credibility to Titus and Wilson that is simply not warranted by the record). Because Titus has failed to establish prejudice therefrom, however, such a conclusion has no bearing on the merit of his ineffective-assistance claim.

2. Prejudice

As discussed above, assuming Ardoin's performance was deficient in litigating the motion to withdraw Titus's guilty plea, Titus still bears the burden of establishing prejudice therefrom.3 This requires Titus to establish a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Thus, the relevant inquiry is whether, had Ardoin moved to withdraw Titus's guilty plea earlier in the proceedings and/or insisted on the live testimony of Wilson, there is a reasonable probability that the Court would have allowed him to withdraw his plea and/or imposed a different sentence. For numerous reasons, the answer is no.

First, as discussed above, the record clearly reflects that Titus entered a knowing and voluntary plea. There is further no dispute that he affirmed the veracity of the contents of his plea agreement and the absence of any other agreements both orally before the Court and in affixing his signature to the plea agreement. Additionally, the Government presented numerous affidavits denying the existence of any side agreements regarding forfeiture. (See Rec. Docs. 61-1, 61-2, 61-3, 61-4, 61-5). Finally, and most infelicitous for Titus, is his own conduct following entry of his guilty plea.

The record reflects that in the interim between Titus's pleading guilty and sentencing, the Government moved, on October 9, 2012, for an order to show cause why his bond should not be revoked. (Rec. Doc. 52). That motion was heard before Magistrate Judge Chasez on August 15, 2012. (Rec. Doc. 55). Although Judge Chasez did not ultimately have an opportunity to rule on the pending motion to revoke bond before this Court imposed sentence, a record was developed of the hearing on that motion and both sides had opportunity to present post-hearing briefing on the issue. (See Rec. Docs. 55, 56, 57). Collectively, these reveal that shortly after the entry of his plea, Titus engaged in a practice of making regular withdrawals (in the form of checks written to himself and his wife) in amounts just below the $10,000 limit above which banks are required to file a currency transaction report ("CTR") with the IRS. (See Rec. Doc. 55 at 17-23). Although Titus contested the Government's having established his knowledge of the reporting standards so as to satisfy the mens rea component of the anti-structuring statute, 31 U.S.C. § 5324(a)(3), the facts speak for themselves and the pattern of withdrawals clearly served, at the very least, to undermine Titus's credibility as to any claims that the Government had promised not to pursue forfeiture of his assets. Indeed, testimony at the hearing on the motion to revoke bond revealed that Titus met with FBI Forfeiture Investigators at the outset of the investigation into Garner Services and continuing past entry of his plea.4 The record reflects that on November 2, 2011, Titus opened a new bank account into which a sum (the legality of the source of which is not in issue) was deposited and from which the structured transactions were withdrawn. (Rec. Doc. 55 at 16). This account was opened a mere seven days after Titus's entry of his plea and the structured transactions began as early as January 6, 2012 — approximately two months after the plea. (Rec. Doc. 55 at 16). The near immediacy of his undertaking such activity belies any potential claim by Titus that he entered the plea under the initial impression of an intact no-forfeiture agreement with the Government.

Because Titus affirmed the veracity and exclusivity of the contents of his plea agreement under oath before this Court at the time of his re-arraignment, because his conduct following entry of his plea was patently inconsistent with any claim of a secret anti-forfeiture side agreement with the Government, and finally because the sworn affidavits of the Assistant United States Attorneys involved with the matter patently contradict such a claim, Titus has made no showing that an earlier motion to withdraw his plea, or the presentation of Wilson's live testimony premised on the existence of such an agreement, would in any way have altered the outcome of the proceedings on the motion to withdraw plea. Accordingly, he cannot satisfy the prejudice requirement of Strickland and his ineffective-assistance claim is without merit.

B. Litigation of the Forfeiture Provision

1. Section 2255 Habeas Proceedings

Titus also contests the judgment of forfeiture entered against him, alleging that Ardoin's constitutionally deficient performance in litigating the forfeiture provision of his plea agreement caused him prejudice. Because the Court concludes that such an issue is not properly raised in collateral proceedings under Section 2255, it has occasion to address neither Titus's arguments under Strickland, nor the Government's arguments pertaining to the validity of the waiver provision contained in Titus's plea agreement.

In United States v. Segler, 37 F.3d 1131, 1137 (5th Cir. 1994), the Fifth Circuit held:

By contrast where, for example, the prisoner's claim relates only to a fine, as was the case in Segler, "his claim falls outside § 2225." Id. Limiting § 2255's application to the custodial aspects of a prisoner's sentence, reasoned the Fifth Circuit, "promotes even-handed treatment of similar Sixth Amendment claims. A convicted defendant who receives an allegedly erroneous fine because of constitutionally inadequate assistance of counsel cannot seek post-conviction relief under § 2255, and neither should a petitioner who is both fined and imprisoned have an opportunity to assert an identical fine-related claim under § 2255." Segler, 37 F.3d at 1137 (internal citations omitted). Subsequently, a number of district courts within the Fifth Circuit have applied Segler to instances such as the present where the petitioner seeks to challenge the forfeiture aspect of his sentence. See, e.g., Neill v. United States, 2011 WL 817190, at *5 (E.D. Tex. Jan. 12, 2011), report and recommendation adopted by 2011 811706 (E.D. Tex. Mar. 2, 2011); Gasanova v. United States, 2007 WL 2815696, at *8 (W.D. Tex. Sep. 6, 2007). This tack has also been approved by the Fifth Circuit in an unpublished opinion. See United States v. Banguera, 62 F.3d 393, 1995 WL 449891, at *1 (5th Cir. Jun 30, 1995). ("Section 2255 is limited to claims relating to unlawful custody. United States v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994). Because Banguera is challenging only the forfeiture of assets, which does not go to the validity of his conviction or sentence, his claim is not cognizable under § 2255.").

The custodial distinction has also been applied in the First, Second, Seventh, Ninth, and Eleventh Circuits to prevent Section 2255 challenges to restitution orders. Kaminski v. United States, 339 F.3d 84, 88-89 (2d Cir. 2003)(adopting the Segler rationale to prevent non-custodial challenges even where coupled with custodial challenges); United States v. Kramer, 195 F.3d 1129 (9th Cir. 1999); Blaik v. United States, 161 F.3d 1341, 1342-43 (11th Cir. 1998)(on reh'g); Barnickel v. United States, 113 F.3d 704, 706 (7th Cir. 1997); Smullen v. United States, 94 F.3d 20, 25 (1st Cir. 1996); accord, Winkelman v. United States, 494 Fed. App'x 217, 220, n.4 (3d Cir. 2012), cert. denied, 133 S.Ct. (2012).

The law is thus settled and clear that a petitioner such as Titus may not challenge the forfeiture aspect of his sentence via a motion brought under § 2255. Accordingly, the Court has no further occasion to analyze the issue under the auspices of a claim of ineffective assistance of counsel.

2. Petition for Writ of Error Coram Nobis

The Court writes briefly to note that a prisoner subject to both custodial and non-custodial sentencing terms is not without recourse to challenge the validity of the latter. He may, by complying with applicable procedures, challenge the non-custodial term on direct appeal (which Titus failed to do here), or, under extraordinary circumstances, he may raise the claim by way of a petition for writ of error coram nobis. See Barnickel v. United States, 852 F.2d 199 (7th Cir. 1988). Nevertheless, such a writ will not issue as to claims that could have been raised on direct appeal. Id. Accordingly, Titus has no basis to petition the Court on coram nobis grounds in these proceedings.

C. Evidentiary Hearing

For the reasons discussed above, Titus has made no showing as to the likely merit of his ineffective-assistance claim. See United States v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008)(petitioner must establish independent indicia of the likely merit of his allegations to warrant holding evidentiary hearing). Nothing suggests that he would be able to establish the existence of an alleged side-agreement with the Government by way of any evidence or argument he has not already effectively raised before this Court.5 He is further precluded by law from challenging forfeiture in the instant proceedings. Accordingly, there is no basis to hold an evidentiary hearing on his § 2255 Motion.

VII. CONCLUSION

Because Titus has not satisfied either element of the Strickland standard as to his ineffective-assistance claim relating to the litigation of the motion to withdraw plea, and further because he may not challenge the forfeiture provision of his sentence by way of a motion brought under § 2255, IT IS ORDERED THAT his Motion to Vacate (Rec. Doc. 249) is DENIED.

Because there is no basis to warrant hearing of additional evidence, IT IS FURTHER ORDERED THAT Titus's Motion for Evidentiary Hearing (Rec. Doc. 250) is DENIED.