MICHAEL R. MERZ, Magistrate Judge.
This case is before the Court on Defendant's Amended Motion to Vacate pursuant to 28 U.S.C. § 2255 (Doc. No. 139). On the Court's Order for Amended Answer (Doc. No. 143), the United States has filed a Response (Doc. No. 144) and Riddle has filed a Reply (attached as Exhibit 1 to Doc. No. 149). As noted by Chief Judge Dlott, the Amended Motion to Vacate is now ripe for a report and recommendations (Order, Doc. No. 155).
In the Amended Motion, Riddle pleads the following Grounds for Relief:
(Amended Motion, Doc. No. 139, PageID 1041-42.)
Both of Riddle's claims are grounded in his right to effective assistance of counsel under the Sixth Amendment, both at the trial and appellate levels. The governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):
466 U.S. at 687.
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
466 U.S. at 689.
As to the second prong, the Supreme Court held:
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 313, 319 (6
A criminal defendant is entitled to effective assistance of counsel on appeal as well as at trial, counsel who acts as an advocate rather than merely as a friend of the court. Evitts v. Lucey, 469 U.S. 387 (1985); Penson v. Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 631, 636 (6
"To prevail on a claim of ineffective assistance of appellate counsel, a petitioner must show that appellate counsel ignored issues [which] are clearly stronger than those presented." Webb v. Mitchell, 586 F.3d 383, 399 (6
In Ground 1(A) Riddle claims he received ineffective assistance of trial counsel when his trial attorney did not object at the plea colloquy that the United States did not have subject matter jurisdiction over the wire fraud charge made in Count 3 of the Indictment, one of the counts to which Riddle pled guilty.
Riddle's trial attorney, Richard Smith-Monahan, made this argument about a month after the Indictment was returned when he moved to dismiss the wire fraud counts because "the indictment does not allege that the wire traveled in interstate commerce." (Motion, Doc. No. 13, PageID 69.) Chief Judge Dlott denied the Motion to Dismiss in an Order filed December 23, 2011 (Doc. No. 23, PageID 205). Thus Riddle's trial attorney did make the argument he is accused of omitting.
Riddle argues in his Reply that the subject matter jurisdiction argument should have been resurrected at the plea colloquy because only then did the defense have the facts of record that show there was no subject matter jurisdiction (Reply, Doc. No. 149-1, PageID 1122-25).
This argument is mis-cast as a lack of subject matter jurisdiction argument because the Court plainly has subject matter jurisdiction over wire fraud offenses under 18 U.S.C. § 1343. Riddle's real argument is that the Statement of Facts does not support a finding of a violation of that statute insofar as it requires an interstate transmission.
In part Riddle relies on asserted deficiencies in the Plea Agreement (Id. at PageID 1122). It does not, he says, make an assertion "that Riddle caused, directly or indirectly a wire transmission from one sovereign to another sovereign." Id. While that is correct, it is immaterial. The Plea Agreement says Riddle will plead guilty to Count Three of the Indictment charging him with wire fraud and that count of the Indictment includes the required allegation of transmission in interstate commerce.
In part Riddle relies on asserted deficiencies in the Elements of Offense (Doc. No. 28, PageID 251), noting that ¶ 4 says "That such act or acts occurred on or about the dates alleged in the Indictment in the Southern District of Ohio." Riddle ignores the language in ¶ 3 which says he made a transmission "in interstate commerce." That phrase was included in the recitation of elements by Assistant United States Attorney Berry (Tr. Doc. No. 35, PageID 308). Riddle is incorrect in stating that Postal inspector Lisa Fitzpatrick testified at the plea colloquy. In fact, she merely read the Statement of Facts into the record. Id. at PageID 310-12.
It is true that the Statement of Facts, both as printed and as read, does not include the proposition that a wire transmission was made in interstate commerce. But as documented in the Government's Response, the prosecutor had evidence which was produced in discovery which showed a transmission in interstate commerce from First Franklin in Minnesota to Jet Title in Ohio (Response, Doc. No. 144, PageID 1091). Those documents had not disappeared as of the time of the plea colloquy. Had Riddle's trial attorney stopped the plea colloquy and raised this point, the Government could readily have produced them.
Because there was proof of interstate transmission available, it was neither deficient performance nor prejudicial for trial counsel to fail to raise the subject matter jurisdiction claim. Ground for Relief 1(A) is without merit.
Riddle's second claim is that his trial attorney provided ineffective assistance by not raising at the plea hearing the claim that conviction on Count Three was barred by the statute of limitations "because there was no evidence that the alleged fraud against First Franklin has an `affect' [sic] on National City Bank, its parent company, within the meaning of § 3293 governing statute of limitations on wire fraud." (Reply, Doc. No. 149-1, PageID 1125.)
Riddle makes a long argument that National City Bank just owned First Franklin's stock and stock ownership alone is insufficient to prove an effect. The argument contains a long recitation of facts about the relationship between First Franklin and National City Bank which is not supported in any way by reference to the record in this case or indeed by reference to any evidence at all (Reply, Doc. No. 149-1, PageID 1126-30.)
As to the law, Riddle relies on several lengthy quotations from United States v. White, 882 F.2d 250 (7
As the Government points out in its Response, Riddle's trial attorney made the statute of limitations argument in an initial motion to dismiss (Doc. No. 12). After that motion was denied, he negotiated to preserve Riddle's right to raise the claim on direct appeal (See Plea Agreement, Doc. No. 26, PageID 245). Despite that reservation, Riddle voluntarily dismissed his appeal and thus has procedurally defaulted on the underlying claim that the indictment was barred by the statute of limitations.
Moreover, the admitted facts at the time of plea negate the statute of limitations defense. Riddle admitted that his wire fraud affected a financial institution insured by the FDIC. The Statement of Facts expressly says so and Riddle admitted that the Statement of Facts was true.
It cannot be ineffective assistance of trial counsel to fail to raise an argument which has already been rejected by the Court and which is negated by the negotiated Statement of Facts. Riddle Grounds 1(B) is without merit.
Riddle claims he is actually innocent of bank fraud and his attorney failed to obtain the documentation to prove his innocence (Reply, Doc. No. 149-1, PageID 1130-41). He bases his claim on many pages of documentation attached to the Reply. Id. at 1152-97. In addition to the facts derivable from the documents, there are numerous factual assertions made in the body of this argument which have no evidentiary foundation in the record at all. Riddle has made no request to expand the record under Rule 7 of the Rules Governing § 2255 Motions nor has he tendered any affidavit of his own as to the facts he recites.
The documents that are attached, assuming they could show Riddle was actually innocent, are not newly discovered; they all appear to be documents which were in Riddle's possession in 2005 and up to the time he pleaded guilty. Thus he could have given his attorney the documents, persisted in his not guilty plea, and gone to trial. His attorney cannot credibly be accused of ineffective assistance for not discovering and using documents of which Riddle knew at the time he decided to waive his right to trial and plead guilty.
Riddle seems to view his Plea Agreement as a one-way ratchet: once he had gotten the Government to agree to dismiss most of the charges, he seems to think his attorney could then have proven him not guilty of the charges to which he had agreed to plead guilty. Federal criminal litigation does not work that way. A guilty plea bars a defendant from raising in federal habeas corpus such claims as the defendant's right to trial and the right to test the state's case against him. McMann v. Richardson, 397 U.S. 759 (1970); McCarthy v. United States, 394 U.S. 459, 466 (1969). Ground for Relief 1(C) is without merit.
Riddle asserts his counsel was ineffective for not holding the United States to the plea agreement it made with Riddle in 2007 (Reply, Doc. No. 149-1, PageID 1141-47.) Riddle ignores the fact that Chief Judge Dlott expressly held that the 2007 agreement was not enforceable (Order, Doc. No. 23, PageID 215-16.) It cannot have been ineffective assistance of trial counsel to have failed to argue at the plea colloquy that the 2007 agreement was enforceable when the Court had already ruled it was not. Ground for Relief 1(D) is without merit.
Riddle argues he received ineffective assistance of appellate counsel because his appellate attorney dismissed his appeal "without advising Riddle that the issues of subject matter jurisdiction, statute of limitations, and actual innocence are properly brought on direct appeal."
As noted above, the Strickland standard applies to claims of ineffective assistance of appellate counsel. Under Strickland, it is appropriate for the Court to decide the prejudice prong of Strickland first if that is dispositive. In this case it is. In the Plea Agreement, Riddle waived his right to appeal except for the statute of limitations issue and other possible claims not now in issue (Plea Agreement, Doc. No. 26, PageID 245) In particular, Riddle did not reserve the right to appeal on the question whether the Statement of Facts included that he had made or caused to be made an interstate wire transmission or his purported actual innocence. And, as shown above, the statute of limitations argument is without merit, so it could not have resulted in a reversal on appeal. Ground Two is without merit.
Based on the foregoing analysis, it is respectfully recommended that Defendant's Amended Motion to Vacate be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous.
