JAMES S. MOODY, Jr., District Judge.
THIS CAUSE came before the Court for an evidentiary hearing on July 22, 2014, upon Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Dkt. #1), the Government's Response thereto (Dkt. #11), and Petitioner's Reply (Dkt. #17). Upon consideration, the Court concludes that the petition should be denied.
At his sentencing, Edwards admitted to the following facts contained in his presentence report:
From the evidentiary hearing of July 22, 2014, the Court makes the following additional findings. The government was presented with substantial evidence of Edwards' fraudulent activity by the lawyers from the civil case. With this information, Assistant U. S. Attorney Thomas Palermo called Edwards' attorney, Bruce Young, and told him about the information he had against Edwards. Basically, Palermo told Young that the government had Edwards "dead to rights," and asked if Edwards wanted to plead guilty and cooperate. It was a take it or leave it deal. The government had such a strong case, it was not willing to negotiate.
Young discussed the matter with Edwards, told him about the evidence already in the possession of the government, and explained the options available to Edwards. Edwards chose to plead guilty and cooperate. Young explained to Edwards that, if he cooperated, he had to tell the government everything, be completely truthful, and be helpful. Edwards agreed and began debriefing with government agents. Edwards told Young that he was satisfied with meeting with the agents without Young present. It is common in the Middle District of Florida for cooperating defendants to meet with government agents without counsel present.
Edwards signed a written plea agreement admitting to the facts already known by the government. He admitted even more facts during his conversations with government agents. At the time of the execution of the guilty plea, the government did not know that Edwards' mother had been used to play the part of an employee of the East West bank as a part of the fraudulent scheme.
At some point subsequent to Edwards' debriefing sessions with the agents, Attorney Young withdrew from the case, and Edwards hired Bjorn Brunvand as new counsel. Over several meetings, Brunvand reviewed with Edwards the evidence, the plea agreement, and Edwards' options. They discussed the possibility and advisability of withdrawing from the plea agreement. After representing Edwards for a period of time, a conflict arose and Brunvand withdrew as counsel. Edwards then hired Peter Sartes.
Mr. Sartes was careful to make sure his retainer was not paid with fraudulently obtained funds. He required it to be paid from family members, not Edwards. Edwards' mother came in to pay the fee. Mr. Sartes, in an abundance of caution, required Mrs. Edwards to sign an affidavit that the fee was in fact coming from her funds and was not connected to her son in any way. It turned out that that affidavit, like so many of the documents in this case, was false.
Not realizing he too had been scammed, Mr. Sartes began preparing for the sentencing hearing. He reviewed the plea agreement and the facts with Edwards. He obtained from Edwards possible mitigating factors for use at sentencing. Edwards claimed (1) he had mental health issues that made him susceptible to manipulation and that he had been manipulated by Marc Allen, and (2) Marc Allen was the driving force behind the fraudulent schemes.
As to the mental health issues, Edwards explained that he had been seen by Dr. Lazaro while incarcerated at the Citrus County Jail and that she would testify that he had a mental condition that made him susceptible to manipulation by others. Mr. Sartes knew Dr. Lazaro fairly well because she had testified before in some of his cases. He called Dr. Lazaro's office and left word that he represented Edwards who said she could testify that Edwards had a mental condition making him susceptible to manipulation by others. Dr. Lazaro returned the call and left word with Sartes' paralegal that her testimony would be of no help to Edwards. Shortly thereafter, Edwards was Baker Acted (involuntarily held for psychiatric evaluation) when he self-reported himself to a psychiatric hospital as being a danger to either himself or others. Mr. Sartes doubted that hospitalization would be of use at sentencing because Edwards self-reported, particularly after the case "blew up." And very shortly before the scheduled sentencing, Mr. Sartes received a letter from "Jan Edwards" reportedly a psychiatrist from California, with information about Edwards' prior mental health issues. Mr. Sartes, now becoming very cautious about any evidence in the case, called the phone number shown on the letterhead, and no one answered the phone. He never received a call back nor was he ever able to locate a California psychiatrist named Jan Edwards.
The case "blew up" when the government finally learned that Edwards had lied to them. A part of the fraudulent scheme involved someone playing the part of Michelle Lowe of the East West Bancorp in California. A bank letter of credit, purportedly from the East West bank, had been forged, showing Michelle Lowe as the executing officer and her phone number. When one called the phone number to verify the letter of credit, a phone.com voice mail box with a female voice identifying herself as "Michelle Lowe" would answer and ask for call back information. A "Michelle Lowe" would then call back and verify whatever information was sought. The government had an audiotape with "Michelle Lowe's" voice. After listening to the audiotape, Edwards identified "Michelle Lowe" as Greta Monty knowing the government would consider her criminally involved in the conspiracy.
The government diligently pursued Greta Monty to charge her as a co-conspirator, but when they finally interviewed her, she obviously was not the voice on the phone. Greta Monty turned out to be from Albania and had a thick Eastern European accent. The voice on the phone had clear diction with no trace of an accent.
After further investigation, the government was able to identify the female voice as that of Edwards' mother. With that information in hand, the government invited Mr. Sartes and Edwards into the office for a conversation. The audio file of the female voice identifying herself as "Michelle" of East West bank was played in front of Edwards and Sartes. This time, Edwards was reluctant to identify the voice. Edwards was then told that the government believed the voice in the recording was that of his mother. Edwards acted surprised and asked to hear the recording again. After replaying the recording, Edwards agreed that the recording did sound something like his mother's voice. At the time, Edwards lived with his mother.
When asked why he previously identified the voice as that of Greta Monty, who had an Albanian accent, Edwards said that the listening conditions on the previous occasion were poor. The recording was played during the hearing for the Court's benefit and the voice was crystal clear. In a subsequent interview with the defendant's mother, she admitted that she was, in fact, the voice on the recording. Of course, all of this caught Mr. Sartes completely by surprise.
Shortly before the sentencing hearing, the prosecutor made a courtesy call to Mr. Sartes advising him that the government was flying in witnesses from all over the country to rebut any possible sentencing mitigation factor Mr. Sartes might raise. The government had proof that several of the documents Edwards had given Mr. Sartes in an attempt to show that Marc Allen, not Edwards, was the true driving force behind the fraud turned out to be forgeries. The government had copies of checks written by Edwards on a bank account he claimed was only accessible by Marc Allen. As to the various notarizations on false documents that Edwards claimed had been obtained by Marc Allen, the government had proof that the signatures of the California notaries were falsified by use of a computer cut-and-paste. The government had the notaries from California flown in as witnesses. In fact, the government had Marc Allen prepared to testify at the sentencing.
Mr. Sartes was concerned that the use of most of the evidence provided him by Edwards for use in mitigation would do nothing more than open the proverbial can of worms. He discussed with Edwards the danger of having all of this brought out and rehashed in front of the sentencing judge. Edwards agreed that Mr. Sartes should only use very limited items in his mitigation argument.
On September 26, 2012, Edwards was sentenced to 210 months imprisonment. Edwards now claims that his guilty plea and his 210 month sentence were the product of poor representation by each of his three lawyers.
Edwards breaks this claim into two subparts, Claim 1.1 and Claim 1.2. Claim 1.1 and Edwards' argument in support is, in its entirety, as follows:
This claim fails. First, Edwards is mistaken. Law enforcement officers are entitled to question him without counsel as long as it is with his permission. Edwards consented to meeting with the agents without counsel present. His statements would not have been suppressed. Second, he did not make any statements until after he had agreed to plead guilty. The government left him little choice. They had him "dead to rights" without his statements. He voluntarily chose to plead guilty and then speak with the agents in an attempt to reduce his sentence.
His entire argument in Claim 1.2 is:
If Mr. Edwards had known that their conduct was insufficient to justify a prosecution, then he would not have agreed to the plea agreement.
Again, Edwards is mistaken. At the time he signed his plea agreement, and even at the time of the entry of his guilty plea, the government did not know his mother had participated in the conspiracy. Edwards had lied and identified an innocent person as the one who had participated in the conspiracy by making the fake voice recording. And his statement that his mother never participated in the fraud is another in a long, long line of false statements. It is incredulous that one who makes a voice recording identifying herself as "Michelle Lowe" when that is not her real name obviously knows it is being used for an illegitimate purpose. That aside, in their testimony, all three attorneys were quite clear that the government never threatened Edwards about his mother in order to get him to plead guilty.
Again, Edwards has broken this claim into two subparts, Claim 2.1 and Claim 2.2. The argument in Claim 2.1 in its entirety is:
Petition (Dkt. #1), pp. 14-15.
Edwards is mistaken. He did not make a proffer because the government never offered him the opportunity to make a proffer. His only opportunity from the government, other than go to trial, was to plead guilty with no proffer letter and cooperate. The government had him "dead to rights." His statements that he would not have been prosecuted but for his "proffer," or would have received a substantially lower term of imprisonment is conclusory, unsupported, and wrong. Edwards' loss of his potential benefit of cooperation was due to his own lies, not any failure on the part of his attorney.
Edwards' argument in support of Claim 2.2, in its entirety, is:
Petition (Dkt. #1), p. 15.
This claim fails because, again, Edwards is mistaken. Attorney Young did review the elements of the crime with Edwards and also reviewed the plea agreement with him prior to Edwards executing the plea agreement. Young discussed with Edwards the consequences of the plea and the options available. When they had these discussions, Attorney Young, like the government, had no idea that Edwards' mother had been a participant in the fraud. A lawyer cannot advise his client of consequences arising from events the client has hidden from him. As to Edwards' claim that his lawyers were ineffective for allowing him to waive his right to collaterally attack his sentence on the grounds of ineffective assistance of counsel, he cannot show prejudice because this Court is allowing him to make those claims. Since he has not shown deficient performance or prejudice, this claim fails.
In support of ground three, Edward argues variously that many of the facts in the presentence report were inaccurate, Marc Allen was the driving force behind the fraud, his portion of the stolen funds was zero, not $507,000, and he had been subjected to abuse and fear by Marc Allen causing him to be easily manipulated.
These claims are unsupported by the evidence. Edwards himself at sentencing admitted the facts in the presentence report were true. Dr. Lazaro from the Citrus County Jail would not testify that Edwards was easily manipulated. Mr. Sartes obtained the bank records from the government concerning the $507,000 and examined them closely and determined that Edwards' claim that he received no part of the $507,000 was false. In sum, the Court finds that Mr. Sartes performed admirably at sentencing with the limited true facts available to him. This claim fails.
In support of ground four, Edwards argues that the appeal waiver contained in his plea agreement constitutes ineffective assistance of counsel. The appeal waiver portion of the plea agreement is a standard paragraph of written plea agreements in the Middle District of Florida. It is not ineffective assistance of counsel to allow a client to sign such an agreement. As to Edwards' claims about the waiver of his right to collaterally attack his sentence on the grounds of ineffective assistance of counsel, he is unable to show prejudice because this Court is allowing him to make those claims in this petition. His problem, of course, is that once he has made the claims, they fail for lack of support. He has shown neither deficient performance nor prejudice resulting from the act of any of his three lawyers. This ground is merely conclusory and fails.
In support of ground five, Edwards contends that the government, not he, breached the plea agreement. He claims that he gave the government names of other parties who committed crimes. But there was no such testimony at the evidentiary hearing. In fact, Edwards declined to testify. The evidence that was introduced supports that Edwards, not the government, was the one that breached the agreement. He lied.
Because none of the five grounds raised by Edwards has merit, the petition fails. It is therefore ORDERED AND ADJUDGED that:
1. Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Dkt. #1) is DENIED.
2. The Clerk is directed to enter judgment in favor of Respondent and against the Petitioner, terminate any pending motions, and close this file.
3. The Clerk is directed to terminate from pending status the related motion (CR Dkt. #63) in criminal case number 8:11-cr-476-T-30TBM.
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability. Id. "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004)(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
