MICHAEL R. BARRETT, District Judge.
This matter is before the Court on Petitioner Caesarea Develle James, Jr.'s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence (Doc. 109) and the Government's response (Doc. 111), as well as Petitioner's Motion for Leave to File Supplemental Motion under 28 U.S.C. § 2255 (Doc. 129), Petitioner's Motion for Leave to File Supporting Affidavit (Doc. 135), the Government's response (Doc. 137), and Petitioner's additional supporting memorandum (Doc. 143).
The factual and procedural background of the case is set forth in the August 24, 2012 decision from the Sixth Circuit as follows:
United States v. James, 496 F. App'x 541, 543-44 (6th Cir. 2012); see also (Doc. 128, PageId 2315-17).
On June 21, 2011, this Court sentenced James to 51 months imprisonment and 3 years of supervised release on Counts 1, 2, and 4. (Doc. 102). James filed a direct appeal of the judgment on June 30, 2011. (Doc. 104). On July 19, 2011, James filed his pro se § 2255 motion. (Doc. 109). The Sixth Circuit thereafter affirmed the judgment of the district court on the direct appeal. James, 496 F. App'x at 543; see also (Doc. 128).
On September 4, 2012, James filed a pro se motion for leave to file a supplemental § 2255 motion. (Doc. 129). On September 21, 2012, James filed a motion for leave to file a supporting affidavit for the § 2255 motion. (Doc. 135). On May 2, 2013, James filed a supporting memorandum. (Doc. 143).
A prisoner seeking relief under 28 U.S.C. § 2255 must allege either "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid." Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)). To prevail on a § 2255 motion alleging constitutional error, the prisoner must show that the error had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005). A § 2255 motion may not be used to relitigate an issue raised and considered on direct appeal absent highly exceptional circumstances. Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999).
If a prisoner fails to raise a claim on direct appeal, then that claim generally is procedurally defaulted. Bousley v. United States, 523 U.S. 614, 621 (1998); Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001). To obtain review of a defaulted claim in a § 2255 motion, the prisoner must show cause to excuse his failure to raise the claim previously and actual prejudice resulting from the alleged violation, or that he is actually innocent. Bousely, 523 U.S. at 622; Peveler, 269 F.3d at 698-700.
Pursuant to 28 U.S.C. § 2255(f), there is a one-year statute of limitations for filing a motion to vacate, set aside, or correct a sentence. That limitation period shall run from the latest of:
Here, the Court will consider both James's original § 2255 motion as well as his supplemental § 2555 and affidavit. Although the original § 2255 motion initially was premature, it is proper to consider it now that the appeals have concluded, along with the supplemental § 2255 motion which was timely filed.
In the § 2255 motions, Defendant raises multiple issues. Those issues are addressed below.
James argues that there were several defects in the indictment that resulted in a violation of his due process rights. For the reasons set forth below, his arguments are not well taken.
As none of the arguments concerning a defect in the indictment were raised on direct appeal, they are procedurally defaulted unless James has shown cause and actual prejudice, or that review is necessary to prevent a fundamental miscarriage of justice. He has not done so here. The Second Superseding Indictment was filed well before trial such that James and his counsel had notice of any purported defects prior to the time for appeal but those issues were not raised. His stated inability to communicate with his attorney from jail does not present sufficient cause for failure to raise it on direct appeal. See Bousley, 523 U.S. at 622; see also Murray v. Carrier, 477 U.S. 478, 485 (1986) (indicating that "default of a constitutional claim by counsel pursuant to a trial strategy or tactical decision would, absent extraordinary circumstances, bind the habeas petitioner even if he had not personally waived that claim" and that "cause" must ordinarily turn on whether the petitioner can show "some objective factor external to the defense impeded counsel's efforts to comply"); Broom v. Mitchell, 441 F.3d 392, 401 (6th Cir. 2006) (relying on Murray).
Even assuming arguendo that the claims are not procedurally defaulted, James still has not met his burden under § 2255. First, James contends that the indictment was defective because the element of "materiality" was not described in the wire fraud, mail fraud, or false oaths in bankruptcy counts. That argument is flawed. Even though materiality is a requisite element of mail and wire fraud and false oaths, the term "materiality" need not be used in the indictment. United States v. McAuliffe, 490 F.3d 526, 531-32 (6th Cir. 2007); United States v. Overmyer, 867 F.2d 937, 950 (6th Cir. Ohio 1989); United States v. Gellene, 182 F.3d 578, 587 (7th Cir. 1999). "Materiality" is part and parcel of the word "fraud" or "false," and "materiality" can be inferred from the allegations in the indictment. McAuliffe, 490 F.3d at 532. Contrary to James's argument, the indictment as a whole supports the Government's position that Counts 1, 2, and 4 of the Second Superseding Indictment are sufficient, as the language follows the applicable statutes, each count includes the term "defraud" or "false," and each count contains allegations from which it may reasonably be inferred that the fraud or falsity at issue was material. (Doc. 45, PageId 553-57). Count 4 also indicates that the falsity related to "material matters." (Doc. 45, PageId 557). Additionally, the element of materiality was included in the Final Jury Instructions for each of the three counts. (Doc. 84, PageId 729-31, 733-35; Doc. 122, PageId 2197). The jury thus has the opportunity to decide whether the Government met its burden of proving that element, and the jury ultimately decided in the Government's favor on that issue by returning a guilty verdict on Counts 1, 2 and 4. As such, the alleged error did not rise to the level of a fundamental defect nor did it have a substantial and injurious effect on the proceedings.
Second, James argues that the indictment was duplicitous. As pointed out by the Government, however, the duplicity issue was ruled upon with respect to the first superseding indictment. (Doc. 43). The grand jury thereafter returned the Second Superseding Indictment that addressed the duplicity issues identified by the Court. (Doc. 45). The duplicity issue thus was remedied before trial and was not raised again. It thus was not a fundamental defect and it did not have a substantial and injurious effect on the proceedings.
Third, James argues that the indictment was defective because the alleged victim was not properly identified. In particular, James contends that Guaranteed Rate and WMC Mortgage were not the actual victims because they were not licensed in Ohio and did not actually lend the funds. Both lenders testified at trial, however, that they provided the funds for the loans that were the subject of the charges and suffered a loss. (Doc. 115, PageId 1406-08, 1424, 1544-55, 1574-75). The indictment thus is consistent with the evidence presented at trial. Accordingly, the alleged error did rise to the level of a fundamental defect nor did it have a substantial and injurious effect on the proceedings.
Fourth, James contends that the indictment was defective because it failed to state that it was foreseeable that his action would cause an interstate communication. That argument is flawed. Even though foreseeability is a part of mail and wire fraud, the term is not included in the statute itself and need not be used in the indictment. United States v. Frost, 125 F.3d 346, 354 (6th Cir. 1997); see also United States v. Martinez, 588 F.3d 301, 316 (6th Cir. 2009), 18 U.S.C. §§ 1341, 1343. Contrary to James's argument, the indictment as a whole supports the Government's position that Counts 1 and 2 of the Second Superseding Indictment are sufficient, as its language follows the statutes, and it contains allegations from which it may reasonably be inferred that the interstate communication was foreseeable. (Doc. 45, PageId 554-56). Further, James has not shown that the alleged error rose to the level of a fundamental defect or had a substantial and injurious effect on the proceedings. The issue of foreseeability was included in the Final Jury Instructions for each of the three counts. (Doc. 84, PageId 731, 735). The jury thus has the opportunity to decide whether the Government met its burden of proving that element, and the jury ultimately decided in the Government's favor on that issue by returning a guilty verdict on Counts 1 and 2.
In any event, "the general rule is that a defendant cannot attack an indictment in a § 2255 proceeding unless the indictment is so defective on its face that it does not charge an offense under any reasonable construction." United States v. Smith, 815 F.2d 81 (table), 1987 U.S. App. LEXIS 1727, at *2 (6th Cir. 1987) (citing Eisner v. United States, 351 F.2d 55, 56 (6th Cir. 1965), disapproved on other grounds, Kaufman v. United States, 394 U.S. 217, 220 (1969)). The alleged errors in the indictment were not so defective. Accordingly, James may not obtain relief under § 2255 on any of the above grounds.
James argues that the Government suppressed exculpatory evidence prior to trial in violation of Brady v. Maryland, 373 U.S. 83 (1963). James identifies the following as the allegedly undisclosed evidence: (1) the case Logan v. WMC Mortgage Corp., 410 B.R. 270 (Bankr. S.D. Ohio August 14, 2009), wherein WMC failed to properly notarize a signature; (2) a case from an Illinois court in 2010 where Guaranteed Rate was found guilty of conspiracy to commit mortgage fraud; (3) information that WMC and Guaranteed Rate violated Ohio law because they did not possess a broker's license or office in Ohio; (4) information that the mortgages obtained by James were financed by a mortgage-backed security pool agreements with insurance for loss and fraud; and (5) information that WMC and Guaranteed Rate were not the real lenders and did not suffer any real losses.
As with the prior claims of a defective indictment, none of those alleged Brady violations were raised on direct appeal and thus are procedurally defaulted absent cause and actual prejudice, which have not been shown. Nonetheless, upon consideration on the merits, the Court concludes that none of the arguments entitle James to relief under § 2255.
James contends that the Government did not disclose Logan, 410 B.R. 270, in violation of Brady. In Logan, a bankruptcy judge disallowed WMC's mortgage on a debtor's property because the notary public omitted the debtor's name on a certificate of acknowledgement and then later recertified it without obtaining the debtor's re-acknowledgement. James argues that the same thing happened in his case and the Government was obligated to disclose the decision under Brady. The Court disagrees.
A successful Brady claim requires that evidence "favorable to the accused, either because it is exculpatory, or because it is impeaching . . . must have been suppressed by the State, either willfully or inadvertently, and prejudice must have ensued." Cauthern v. Colson, 736 F.3d 465, 481 (6th Cir. 2013). Here, Logan did not involve the same notary public or witnesses as James's case. For that reason, Logan does not constitute Brady evidence.
Further, "`Brady is concerned only with cases in which the government possesses information which the defendant does not.'" Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2001) (citing United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994)). "[T]here is no Brady violation if the defendant knew or should have known the essential facts permitting him to take advantage of the information in question, or if the information was available to him from another source." Carter, 218 F.3d at 601 (citing Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998); United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991)). Here, James has not shown that the Government was aware of the Logan decision or that the Logan decision was not equally available for the defense to obtain from a source other than the Government.
Accordingly, James may not obtain relief under § 2255 on this ground.
James argues that Guaranteed Rate was found guilty of conspiracy to commit mortgage fraud by an Illinois court in 2010. It appears that James is referring to Edalatdju v. Guaranteed Rate, Inc., 748 F.Supp.2d 860 (N.D. Ill. 2010), a decision issued a few months prior to James's trial in the Southern District of Ohio. This argument suffers from the same flaws as the first alleged violation.
The circumstances presented in Edalatdju are different than those in James's case. Edalatdju was a civil case in which a plaintiff sued an appraiser and Guaranteed Rate alleging fraud and civil conspiracy under state law. Guaranteed Rate filed a motion to dismiss under Civil Rule 12. The district court granted Guarantee Rate's motion as to the fraud claim but denied the motion as to the conspiracy. The ruling addressed only whether the complaint stated a cause of action upon which relief could be granted and did not reach a final determination on the merits of the case. For that reason, disclosure was not required under Brady. Further, similar to the first alleged violation, James has not shown that the Government was aware of the Edalatdju decision or that the Edalatdju decision was not equally available for the defense to obtain from a source other than the Government. See Carter, 218 F.3d at 601.
Accordingly, James may not obtain relief under § 2255 on this ground.
The third, fourth, and fifth alleged violations essentially raise the same arguments that Defendant raised prior to trial in his pro se Motion for Dismissal of the Indictment. (Doc. 33). In that motion, he argues that Guaranteed Rate and WMC did not own the notes or mortgages, that the lenders were not the actual holders of the loans, that the lenders falsified James's signatures, that the lenders did not have an office in Ohio, and that the notarized signatures violated state law. (Doc. 33).
Brady applies only when there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. Carter, 218 F.3d at 601 (citing Brady, 373 U.S. at 87). As stated above, "there is no Brady violation if the defendant knew or should have known the essential facts permitting him to take advantage of the information in question. . . ." Carter, 218 F.3d at 601 (citing Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998); United States v. Clark, 928 F.2d 733, 738 (6th Cir. 1991)). James's arguments demonstrate that he knew of the information and issues prior to trial and could have used that information in his defense. The Court is not persuaded that the result of the proceeding would have been different but for any alleged failure to disclose that information.
Accordingly, James may not obtain relief under § 2255 on any of these three grounds.
James argues that the witnesses on behalf of Guaranteed Rate and WMC committed perjury at trial by stating that they were the true lenders of the funds. Defendant also specifically points to Guaranteed Rate's response to James' Motion for Summary Judgment in Case No. 1:09-cv-0067 at the top of page 9 wherein he contends there is an admission of perjury. James's arguments essentially are a rehash of several of his Brady claims.
First, James's claim is improperly raised in this § 2255 motion. A § 2255 motion may not be used to relitigate an issue raised and considered on direct appeal absent highly exceptional circumstances, and when the claim is not raised on direct appeal it generally is procedurally defaulted. Wright, 182 F.3d at 467; Bousely, 523 U.S. at 622-23; Peveler, 269 F.3d at 698. Nothing in James's arguments indicates any circumstances that would permit consideration of this claim in a § 2255 motion.
Second, the claim would fail on the merits because James has not met his burden under the requisite § 2255 standards. As explained previously, both lenders testified at trial that they provided the funding for the subject loans and suffered a loss. (Doc. 115, PageId 1406-08, 1424, 1544-55, 1574-75). James has presented no evidence to contradict that testimony presented at trial.
As for James's additional contention that the government witnesses falsely testified as to James's signing of the loan documents, the portion of the document referenced by James does not contradict the evidence presented at trial. The government witnesses had documents in their file for all of the loans containing James's signature and they produced copies of James's driver's license and Social Security card that he provided as identification at the closings. (See Doc. 115, PageId 1414-15, 1571-72).
Accordingly, James may not obtain relief under § 2255 on these grounds.
James argues that his answer of "N/A" in response to the question about prior bankruptcy petitions is explainable and does not equate to the answer "no." Further, James contends that the "N/A" statement demonstrates that he did not knowingly mislead the bankruptcy court. The arguments are not well taken.
Absent highly exceptional circumstances, a § 2255 motion may not be used to relitigate issues raised on direct appeal. Wright, 182 F.3d at 467. On appeal, James argued that the Government failed to present sufficient evidence to convict him of the bankruptcy charge under 18 U.S.C. § 152(3). The Sixth Circuit rejected James's argument, stating, in pertinent part:
James, 496 F. App'x at 550-51; see also (Doc. 128, PageId 2327-29). As James's argument here is nothing more than a rehash of the argument previously raised and rejected by the Sixth Circuit, there are no highly exceptional circumstances that permit James to relitigate the issue in a § 2255 motion.
Accordingly, James may not obtain relief under § 2255 on this ground.
James argues that the "telex" records of the bank transactions used at trial were inadmissible hearsay. This claim is procedurally defaulted because it was not raised at the district court or the appellate court level and James has not met his burden of showing the procedural defaults should be excused.
In any event, James's claim as to admission of alleged hearsay is insufficient to satisfy the requisite standards for a claim brought pursuant to § 2255. The exhibits referring to the wire transmissions were admitted at trial as business records under Fed. R. Evid. 803(6) without objection from the defense. (Doc. 115, PageId 1478-79; Doc. 116, PageId 1624-25). A review of the testimony and exhibits further demonstrates that the documents indeed satisfied the business records exception in Rule 803(6).
Accordingly, James may not obtain relief under § 2255 on this ground.
Consistent with the foregoing, James is
However, pursuant to 28 U.S.C. § 2255(b), the Court determines that the instant motion and the files and records of this case conclusively show that James is not entitled to relief, and therefore, a hearing is not necessary to determine the issues and make the findings of fact and conclusions of law with respect thereto. Smith v. United States, 348 F.3d 545, 550-51 (6th Cir. 2003). The claims raised are conclusively contradicted by the record and the law of the Sixth Circuit and the United States Supreme Court. Accordingly, James's Motions under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 109) and Supplemental Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 129) are
Further, the Court will not issue a certificate of appealability. The Court concludes that none of the claims raised by James in his § 2255 motions are debatable among reasonable jurists, could be resolved differently on appeal, or are adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In addition, Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c); see also Fed. R. App. P. 22(b).
