GRAY H. MILLER, District Judge.
Pending before the Court is a pro se motion filed by the Defendant to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Docket Entry No. 154.) The Government has filed a motion to dismiss (Docket Entry No. 167), to which Defendant has filed a response (Docket Entry No. 168).
Based on consideration of the motions and response, the record, and the applicable law, the Court GRANTS the motion to dismiss and DENIES the section 2255 motion, as follows.
Defendant pleaded guilty to bank fraud and engaging in monetary transactions in property derived from specified unlawful activity, and was sentenced to a term of 121 months' imprisonment, to be followed by five years of supervised release. The conviction and sentence were affirmed on appeal in an unpublished opinion, and the United States Supreme Court denied certiorari. United States v. Bell, 417 F. App'x 420 (5th Cir. 2011); Bell v. United States, 132 S.Ct. 308 (2011).
The Court's judgment of conviction was subsequently modified in May 2012 to incorporate restitution to certain named individuals and/or entities. Defendant again appealed, arguing that the Court lacked jurisdiction to add the restitution provisions, but the Fifth Circuit rejected his arguments and affirmed the modified judgment.
At Defendant's re-arraignment and in the written plea agreement, Defendant agreed that the following facts were correct:
(Docket Entries No. 67, 76.)
Defendant raises the following claims for ineffective assistance of counsel:
After a defendant has been convicted and exhausted his appeal rights, a court may presume that "he stands fairly and finally convicted." United States v. Frady, 456 U.S. 152, 164 (1982). He may challenge his conviction or sentence after it is final by moving to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Relief under section 2255 is reserved, however, for violations of "constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981). Section 2255 relief is available only in limited circumstances, and is not meant to substitute for an appeal. United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991). Issues raised and decided on appeal from the underlying conviction are not considered in section 2255 proceedings. "It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in section 2255 Motions." United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986).
Generally, a conviction will be overturned under section 2255 only if the defendant raises "issues of constitutional or jurisdictional magnitude" and demonstrates "cause and actual prejudice." Id. That is, section 2255 relief is not to be used for the routine correction of run-of-the-mill legal or factual errors, particularly if these issues could have been raised on appeal.
To prevail on his claims of ineffective assistance of counsel, Defendant must show that counsel's performance was so defective that it prejudicially violated his constitutional right to effective assistance of counsel. Defendant must satisfy a two-pronged test under the familiar Strickland standard, and the Court can consider the prongs in either order. Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong, Defendant must show that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. Defendant must overcome the strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. Under the second prong, 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. Id. The Fifth Circuit Court of Appeals has held that, under Strickland, "[a] conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." United States v. Jones, 287 F.3d 325, 331 (5th Cir. 2002).
Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. It is the defendant's burden to overcome the strong presumption of reasonableness. Id. In deciding a claim of ineffective assistance, the court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 690. Strickland demands that the likelihood of a different result must be substantial, not just conceivable. Harrington v. Richter, 562 U. S. ____, 131 S.Ct. 770, 792 (2011).
Persons convicted of a crime are entitled to effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387 (1985). This Court reviews counsel's appellate performance under the Strickland standards. See Goodwin v. Johnson, 132 F.3d 162, 170 (5th Cir. 1998). Defendant must allege and present facts showing that his appellate counsel's representation was deficient and that the deficient performance caused him prejudice. That is, Defendant must show that, but for appellate counsel's deficient performance, the outcome of the appeal would have been different. See Strickland, 466 U.S. at 687-88, 692; Jones v. Jones, 163 F.3d 285, 300 (5th Cir. 1998).
Effective assistance of appellate counsel does not mean that counsel will raise every available non-frivolous ground for appeal. Evitts, 469 U.S. at 394. Nor will counsel be deficient for failing to press a frivolous point. Rather, it means, as it does at trial, that counsel performs in a reasonably effective manner. Evitts, 469 U.S. at 394. A reasonable attorney has an obligation to research relevant facts and law and make informed decisions as to whether avenues will, or will not, prove fruitful. Strickland, 466 U.S. at 690-91.
Defendant raises the following claims for ineffective assistance of counsel.
Defendant claims that counsel was ineffective in waiving or "waivering" on his request for an evidentiary hearing, as it was a specific provision for Defendant's plea agreement. Defendant argues that an evidentiary hearing would have resolved in his favor "important issues that severely [affected] sentencing calculations and departures."
To prevail under this claim, Defendant must establish that counsel was deficient in waiving the request and that, but for his deficient performance, there is a reasonable probability that the result of the proceeding would have been different. In context of error at sentencing, Defendant must show that he would have received a lesser sentence. See Glover v. United States, 531 U.S. 198, 203 (2001).
As an initial observation relevant to all of Defendant's claims, the Court notes that Defendant himself was afforded significant latitude at the sentencing hearing. Defendant personally spoke for over one hour and ten minutes in his allocution to the Court, during which time he addressed matters he felt were relevant and compelling. Although the focus of his allocution tended to wander and delve into matters not at issue, Defendant was allowed to proceed largely unfettered. Defendant fails to establish what more or else could have been argued or accomplished at an evidentiary hearing, and fails to show that, but for counsel's failure to demand an evidentiary hearing, he would have been given a lesser sentence. Defendant's conclusory assertions of deficient performance and prejudice are unsupported in the record and are insufficient to warrant habeas relief. The Government is entitled to dismissal of this claim.
Defendant argues that counsel failed to object to lack of notice for specific upward departure by the Court for criminal history, and failed to show that the misdemeanors were for non-sufficient checks, which could not be used for upward departure.
Defendant's complaints regarding alleged lack of notice and impropriety of the upward departure were raised on appeal. In rejecting Defendant's arguments, the Fifth Circuit Court of Appeals held as follows:
Bell, pp. 4-5 (citations deleted, original emphasis).
Accordingly, even assuming counsel were deficient in not objecting to a lack of notice for specific upward departure by the Court for criminal history, Defendant sustained no actual prejudice under Strickland. See United States v. Troutman, 16 F.3d 1215, 1994 WL 57398, at *4 (5th Cir. 1994) (unpublished) ("Our prior finding in Troutman's direct appeal constitutes `law of the case' and forecloses Troutman's current [§ 2255] challenge based on the same claim."); see also United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (holding that issues raised on direct appeal may not be re-litigated in a section 2255 proceeding).
Nor does Defendant establish that counsel was deficient in not objecting to the alleged improper use of misdemeanor non-sufficient check offenses for upward departure. His conclusory assertions are unsupported in the record, and are insufficient to demonstrate either deficient performance or actual prejudice. As noted by the Fifth Circuit on appeal, Defendant's under-represented criminal history was only one factor in this Court's upward departure. Bell, p. 5. Thus, even assuming counsel should have objected to use of the alleged misdemeanor offenses, Defendant fails to show that, but for counsel's failure to object, there is a reasonable probability that this Court would have imposed a lesser sentence. The Government is entitled to dismissal of this claim.
Defendant next contends that counsel failed to object to the Government's arguing against acceptance of responsibility, as it violated the plea agreement.
On direct appeal, the Fifth Circuit Court of Appeals expressly rejected Defendant's claim that the Government violated the plea agreement by arguing against acceptance of responsibility:
Bell, pp. 3-4.
The Fifth Circuit found that Defendant did not show acceptance of responsibility under the Guidelines, and the issue may not be reconsidered in context of this section 2255 motion. Kalish, 780 F.2d at 508. The Fifth Circuit further found that, because Defendant did not accept responsibility, the Government was not obligated to refrain from arguing against it. This issue, too, cannot be re-litigated at this juncture. Under these circumstances, Defendant cannot successfully argue that counsel was ineffective in failing to object to the Government's actions. Moreover, even assuming counsel should have objected, Defendant fails to establish that, but for counsel's failure to object, there is a reasonable probability that this Court would have granted Defendant a reduction for acceptance of responsibility. To the contrary, this Court would not have granted Defendant a reduction for acceptance of responsibility, even had the Government stood mute and counsel objected. Defendant fails to demonstrate either deficient performance or actual prejudice under Strickland, and the Government is entitled to dismissal of this claim.
Defendant claims that counsel erroneously advised him that pleading guilty to a $676,000 money laundering count would have no effect on his sentence.
In responding to this claim, counsel submitted an affidavit in which he testifies, in relevant part, as follows:
(Docket Entry No. 166, p. 14.)
Moreover, the record shows that before he entered his plea of guilty, Defendant informed the Court under oath that he understood the penalty for the money laundering count (Count Nine) was imprisonment not to exceed ten years and/or a fine not to exceed $250,000 and that the penalty could be imposed either "on top of the 30 years [penalty] for bank fraud count or running at the same time." (Docket Entry No. 76, pp. 36-37.) Consequently, even assuming counsel told Defendant that the money laundering count would have no effect on his sentence, Defendant does not show that he was prejudiced, given the fact that the Court informed him clearly on the record that the penalty for the money laundering count could be imposed on top of the penalty for the bank fraud count. After explaining all the penalties the Court again asked Defendant, "All right. So you clearly understand the nature of the charges pending against you in the superseding indictment and the range of punishment that you face in this case? You understand that clearly?" Defendant responded, "Yes, sir." Id., p. 42. Defendant fails to meet his burden of proof under Strickland, and the Government is entitled to dismissal of this claim.
Defendant asserts that counsel misinformed him that, because the parties had agreed to a stipulated dollar loss of $1,602,926, his Federal Sentencing Guideline calculations would be based solely on that amount.
In responding to this claim, counsel submitted an affidavit in which he testifies, in relevant part, as follows:
Defendant does not establish that counsel's professional opinion and advice were unreasonable under the circumstances and at the time they were made, and no deficient performance is shown under Strickland. Moreover, Defendant does not show that he was prejudiced by counsel's opinion and advice, as this Court itself carefully explained to Defendant at the plea hearing that it was not bound by the Guidelines, that it could increase or decrease Defendant's punishment, and that any opinions or advice of counsel regarding sentencing was simply an educated guess or estimate:
(Docket Entry No. 76, pp. 50-52, emphasis added.)
Consequently, even assuming Defendant did not fully appreciate that counsel's statements were professional opinions based on his experience and knowledge of the case and law, this Court's admonishments, and Defendant's acknowledgments in open court, made it clear. Defendant establishes neither deficient performance nor actual prejudice under Strickland, and the Government is entitled to dismissal of this claim.
Defendant further asserts that counsel misinformed him that the first plea agreement had been accepted and agreed to by the Government and that no further action was necessary. Defendant argues that, "as a result of [counsel's] professionally deficient advice, the delay, the lack of a signature on both the Plea as well as the speedy trial waiver which was signed, resulted in the government `rescinding' their agreement and pursuing a superseding indictment, adding 15 counts of money laundering[.]"
It is undisputed that a preliminary plea agreement had been discussed by the parties; however, as noted by the Fifth Circuit in its opinion, the proposed agreement was neither executed by the parties nor accepted by this Court before being rescinded, and was not binding or enforceable. Bell, at *1.
In responding to Defendant's claim of ineffective assistance, counsel testifies in his affidavit as follows:
(Docket Entry No. 166, pp. 17-18, citation omitted.)
Even assuming counsel was deficient in not advising Defendant that the plea agreement was unenforceable until accepted by the Court at re-arraignment, Defendant fails to demonstrate actual prejudice. Defendant does not state that, had he known the plea agreement was not enforceable until accepted by the Court, he would have gone ahead with the arraignment and not requested a postponement. According to counsel's affidavit, Defendant had urgent personal business to finalize that required completion prior to his pleading guilty, and he asked that the re-arraignment be postponed. In the interim, the Government discovered evidence or the possibility of further criminal conduct by Defendant and notified counsel that a superseding indictment would be sought prior to the rearraignment.
Nothing in the record indicates that counsel was aware of a possible superseding indictment prior to that time, or that counsel's actions precipitated the Government's decision to seek a superseding indictment. Nor does Defendant establish that, under the circumstances as were known to counsel at the time, counsel was unreasonable in his opinion that a plea agreement binding on the Government had been negotiated. Even assuming his opinion was unreasonable, Defendant fails to demonstrate actual prejudice attributable to counsel's actions. The Government is entitled to dismissal of this claim.
Defendant further claims that counsel failed to inform the Court that there were unresolved objections to the PSR regarding the disputed $1.2 million money laundering figure.
The record in this case shows that counsel raised numerous objections to the PSR regarding the disputed money laundering calculations, both in written pleadings and in open court. Moreover, Defendant personally spoke to the Court for over an hour during his allocution, addressing his disagreements with the Government's case and the related dollar figures. Defendant fails to set forth any relevant information or objections that he or counsel left untouched, and fails to show that, but for counsel's failure to raise such objections or issues, there is a reasonable probability that he would have received a lesser sentence. The Government is entitled to dismissal of this claim.
Defendant also argues that counsel misinformed him that he would be preparing and filing a pre-sentencing memorandum and downward departure motion "detailing the issues that [Defendant] felt strongly about." In particular, he complains that counsel did not detail the Government's "exaggerations," including its "false murder for hire accusation" and "errors" in the PSR, and that he failed to paint Defendant in the best possible light.
In responding to this claim, counsel testifies in his affidavit as follows:
(Docket Entry No. 166, p. 20.)
Although counsel did not file pleadings expressly titled, "sentencing memorandum" or "motion for downward departure," the record shows that counsel filed or made equivalent pleadings and arguments. For example, these objections and arguments appear in "Defendant Bell's Reply to the Sealed United States' Objections to the Pre-sentence Investigation Report" (Docket Entry No. 90), and in "Defendant Bell's Objections to the Pre-sentence Investigation Report" (Docket Entry No. 85). And, as stated earlier, counsel presented arguments at the sentencing hearing, and Defendant himself presented an extensive, detailed allocution of his own objections and arguments. Defendant fails to show that, but for counsel's failure to raise a certain objection or make a certain argument, there is a reasonable probability that he would have received a lesser sentence. Defendant establishes neither deficient performance nor actual prejudice, and the Government is entitled to dismissal of this claim.
Defendant next claims that counsel failed to inform him that the partners in Defendant's development projects could be considered additional victims, thus increasing Defendant's sentence and restitution. He further complains that counsel failed to argue that the bank was the only direct victim of bank fraud.
In responding to these allegations, counsel testifies in his affidavit as follows:
Id., p. 21.
As correctly noted by the Government in its motion to dismiss, Defendant fails to show that counsel's efforts to reduce the loss amount as set out in the PSR and as ultimately found by this Court, in fact caused an increase in his sentence. Consequently, he can show no actual prejudice by any alleged deficient conduct on counsel's part. Petitioner establishes neither deficient performance nor actual prejudice, and the Government is entitled to dismissal of this claim.
Defendant argues that counsel failed to investigate properly the Government's allegations or file briefs to include certain evidence. Although Defendant's lengthy and unfocused argument in his response lacks clarity, he appears to complain that counsel failed to investigate and negate adequately the Government's accusation that he had hired someone to murder his wife and the prosecutor. Defendant further appears to claim that counsel's ineffectiveness in this regard extended over the entire prosecution and appeal.
In responding to these claims, counsel testifies in his affidavit as follows:
Id., pp. 21-22.
Defendant fails to state what investigation counsel failed to undertake, fails to present probative evidence of what the further investigation would have shown, and fails to show that the anticipated evidence would have been material and beneficial to his defense. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994). No deficient performance is shown. Moreover, inasmuch as the damaging allegations were not included in the PSR, were not pursued at sentencing, and played no role in Defendant's sentence, Defendant shows no actual prejudice. The Government is entitled to dismissal of this claim.
The Government's motion to dismiss (Docket Entry No. 167) is GRANTED and Defendant's section 2255 motion (Docket Entry No. 154) is DENIED. A certificate of appealability is DENIED.
The Clerk of Court is ORDERED to ADMINISTRATIVELY CLOSE and TERMINATE all pending motions in the corresponding civil case, C.A. No. H-14-0500.
