J. RONNIE GREER, District Judge.
Tommy Blair ("Petitioner") has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, [Doc. 205], and a proposed amendment thereto, [Doc. 207]. For the reasons discussed in this Memorandum and Order, both his motion and the proposed amendment are DENIED.
Petitioner, Samuel Clark, and Christina Rogers were indicted for their respective roles in defrauding TruPoint Bank ("Bank") so that Clark could obtain a loan to finance his purchase of several business properties from Blair. Rogers was Clark's mortgage broker whose responsibility was to find a bank willing to make a loan to Clark. The facts are set out in the opinion of the Sixth Circuit Court of Appeals:
This Court must vacate and set aside petitioner's sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . ." 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4.
When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). "Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing." O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).
To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).
When a § 2255 Petitioner claims he was denied his sixth amendment right to effective assistance of counsel, it is noted that an attorney is presumed to have provided effective assistance, and the Petitioner bears the burden of showing that the attorney did not, Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003). Petitioner must prove that specific acts or omissions by his attorney were deficient and that the attorney failed to provide "reasonably effective assistance," Strickland v. Washington, 466 U.S. 668, 687 (1987), which is measured by "prevailing professional norms," Rompilla v. Beard, 545 U.S. 374, 380 (2005). "[T]he constitutional right at issue here is ultimately the right to a fair trial, not to perfect representation." Smith v. Mitchell, 348 F.3d. 177, 201 (6th. Cir, 2003 (citing Strickland). If Petitioner crosses this evidentiary hurdle, he must then show "a reasonable probability that, but for [the attorney's acts or omissions], the result of the proceedings would have been different." Strickland, 466 U.S. at 694. In other words, he must show that he was actually prejudiced by the attorney's deficient representation:
Docherty v. United States, 536 Fed. Appx. 547, 551 (6th. Cir. —).
Petitioner claims that his lawyers provided ineffective assistance by refusing to obtain a handwriting analysis to show that his signatures on three documents submitted to the bank in support of the loan application—two offers to purchase and a lease agreement with a business tenant—were forged by either Daniel Mitchell, whom petitioner retained to find a buyer for his businesses, or Sam Clark.
Petitioner's attorneys did well to refrain from hiring a handwriting expert in an attempt to show that someone other than petitioner signed his name to the three documents; it would have been a waste of time and very likely counter-productive. Regardless of who signed his name to the offers to purchase, petitioner never repudiated them, choosing rather to allow the documents to be furnished to the bank as part of Clark's application for a loan. Similarly, he never repudiated the lease agreement with his tenant.
For the same reason, the court cannot second-guess petitioner's attorneys for failing to call Mitchell or Pollito as witnesses. Nothing of any evidentiary value would have been accomplished in light of the fact that petitioner never disowned the documents and allowed them to be submitted to the bank. The same can be said for counsel's failure to quiz Clark during cross-examination about who actually signed petitioner's name to the documents.
Failure to obtain an analysis of the handwriting on the documents, failure to call Mitchell or Pollito as witnesses, and failure to cross-examine Clark about the signatures, was not prejudicial.
Petitioner next faults his attorneys for failing "to inform the Districk Attorney (sic)" before David Harris, the appraiser retained by the bank to evaluate the properties to be purchased from petitioner by Clark, was to testify. Whatever petitioner intends to convey by this sentence is unclear. The sentences which follow suggest that Harris' testimony regarding certain events would have contradicted Cameron Forrester's testimony.
If he is claiming that his attorneys were ineffective for failing to notify the Assistant United States Attorney (of something) before Harris was called as a witness, petitioner's claim is without merit. There is no legal requirement that they should have done so, and it would have accomplished nothing. If he is claiming that they should have called Harris as a witness but failed to do so, he misstates the facts. His attorneys called Harris as a witness and elicited testimony from him that contradicted Forrester is some respects.
Neither interpretation of petitioner's claim regarding Harris provides a basis to find that his attorneys were ineffective.
Petitioner claims that his attorneys were ineffective because they failed to question his co-conspirator, Tina Rogers, about the first time they met, apparently arguing that the timing of that first meeting negated any possible conspiracy between them. The problem with this claim is that his attorneys did cross-examine Rogers and questioned her regarding the date of their first and subsequent meetings.
As he recites in his motion, when petitioner talked to the FBI agents, he told them that he scanned a copy of Schedule C to his 2005 income tax return and then created another version of it that reflected a higher (and quite false) gross income generated by the properties he was selling to Clark. The bank, it will be recalled, had requested a copy of the 2005 Schedule C in support of the loan application. He now says that his statement to the FBI agents that he created the fake Schedule C was a lie; that the fake version of the document was created by an "aide" to his CPA; and that he lied to protect his CPA. He says that his statement to the FBI was the "key evidence" used to convict him of bank fraud, and admitting it into evidence was a violation of his constitutional right against self-incrimination.
Putting aside the almost-total absence of logic to petitioner's assertion that he falsely implicated himself to protect his CPA, there was no constitutional violation. A potential Fifth Amendment privilege against self-incrimination would have been triggered only if petitioner had been in custody or its functional equivalent, Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980). It was petitioner who contacted the FBI, appearing unannounced at its offices in Johnson City on September 18, 2006,
Petitioner's third ground makes two different claims. In the first sentence he accuses the government of failing to disclose evidence favorable to him. He fails to recite, however, what exculpatory or impeachment evidence the government failed to disclose to him. He simply makes a bald conclusory allegation without supporting facts, and such which will not support a § 2255 claim, O'Malley, supra. Further, in its response the government unequivocally stated that it disclosed all Brady and impeachment evidence far in advance of trial.
Petitioner next asserts his lawyers were ineffective for failing to use certain evidence: "This evidence was in my case file but not used because my attorneys did not study my case file that was given to them by my former attorney. . . ." By "this evidence," petitioner suggests that "others were involved in this bank scam. . . ."
Whether anyone beyond the three defendants was involved in the fraudulent scheme would have had no bearing on petitioner's guilt or innocence. Similarly, whether any bank official was negligent in approving the loan to Clark (which petitioner suggests in several of his exhibits to his motion) was irrelevant to the question of petitioner's guilt or innocence. Even if it be assumed others were involved in the scam or that the bank was negligent, and that his attorneys failed to attempt to so demonstrate, petitioner suffered no prejudice; indeed, if such evidence had been offered, this court would have sustained any objection thereto.
First, Petitioner argues that he is actually innocent of the conspiracy charge because he was taken advantage of by others (presumably Clark, Rogers, and perhaps Forrester) whom he trusted, and he didn't read the various documents to which "swindlers" had signed his name. Other than his ipse dixit and claims of attorney ineffectiveness, he offers no evidence of his innocence.
Petitioner is asking this court to do what the district court mistakenly did in Hodgson v. Warren, 622 F.3d. 591 (6th. Cir. 2010):
Id. at 621.
Since petitioner is not raising a claim that is otherwise barred, his claim of actual innocence is "freestanding." If such a claim exists in habeas or § 2255 jurisprudence, the burden of proof is extraordinarily high, House v. Bell, 547 U.S. 518 (2006), and petitioner has presented no evidence at all beyond his own assertion.
Second, Petitioner contends that his attorneys were ineffective for failing to object to the presentence report, and for failing to file a suppression motion. He does not recite what evidence was potentially subject to suppression, and this court can think of none. Failing to file meaningless objections or motions does not constitute ineffective representation since they could not have affected the outcome of the trial or petitioner's sentence, Strickland, supra. As for the claimed failure to object to the presentence report, his attorneys did so; they objected to the 14-level enhancement under USSG § 2B1.1(b)(1)(H) based on the bank's loss, and to the 2-level enhancement under § 2B1.1(b)(10)(C) for employing sophisticated means to defraud the bank. Those objections were the subject of a lengthy hearing on June 12, 2012.
Finally, Petitioner's motion and the exhibits attached to it contain other arguments and claims which concern the weight and sufficiency of the evidence. Such claims are not reviewable in a § 2255 motion, Osborn v. United States, 415 F.3d. 1021 (6th Cir. 1969), and there is no need to address them further.
In a motion to amend his original motion, petitioner asks to raise an additional claim of ineffectiveness of counsel. To understand the motion, some additional background information is needed. The point of the fraudulently-inflated sales price for the properties sold by petitioner to Clark was to enable Clark to get some cash back at the loan closing so that he would have some "operating money" to get his newly-purchased businesses up and running. Understandably, the excess money privately earmarked for Clark's cash-back, $124,977, was included at closing in the bank's check to petitioner, much to Clark's chagrin. With the assistance of Rogers, Clark showed petitioner that he had received too much of the loan proceeds (as between them, of course), and Clark persuaded petitioner to repay $124,977 to him on the spot.
Clark ultimately filed for bankruptcy, and petitioner filed an adversary proceeding in which he claimed that Clark basically cheated him out of the $124,977 which should not be discharged. After the hearing, United States Bankruptcy Judge Marcia Parsons found that Clark made misrepresentations to petitioner and therefore the $124,977 was non-dischargeable.
In his motion to amend, petitioner refers to the transcript of the hearing before Bankruptcy Judge Parsons
The Bankruptcy Court judgment was the result of a proceeding that employed a lesser standard of proof, as well as being based upon far less evidence than that presented at the subsequent criminal trial. Introduction of the judgment could have had only one purpose: since Judge Parsons found that Clark deceived petitioner when he inveigled him to repay $124,977 of the loan proceeds to Clark, the jury should infer from that finding that Clark was not part of the underlying conspiracy to defraud the bank. Such an inference simply could not be drawn from Judge Parson's decision. Evidence of the bankruptcy judgment was not relevant and, even it was, its infinitesimally small probative value would have been far outweighed by the extreme likelihood of misleading and confusing the jury, Fed. Rule Evid. 403. Judge Parson's decision would not have been admissible in the criminal trial. Thus, petitioner's attorneys were not ineffective for failing to attempt to put the judgment into evidence.
The transcript of Clarks' testimony in the bankruptcy proceeding is another matter. Using it would have been proper if needed to impeach Clark during his testimony in the subsequent criminal proceeding. The court has read the transcript. Its potential use would have been more to show what Clark did not say as opposed to what he did say. Moreover, Clark testified that the second mortgage was a "dummy second mortgage that [petitioner] agreed to." He also described, albeit somewhat inartfully (he was not represented by an attorney), that the sales price was inflated. When petitioner testified before Judge Parsons, he, too, discussed the inflated sales price.
The transcript perhaps would have had some marginal value for impeachment, but not so much that it can be said that counsel's failure probably affected the outcome of the trial in light of all the evidence, including that supplied by petitioner himself.
Petitioner's § 2255 motion does not warrant an evidentiary hearing; the records of this case are sufficient to decide all claims he has raised. His motion for an evidentiary hearing, [Doc. 223], is DENIED.
Petitioner's motion to amend, [Doc. 207], is DENIED for the reasons earlier discussed.
Petitioner's claims are meritless and his motion to vacate, set aside or correct his sentence, [Doc. 205], is DENIED.
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals disapproves of the issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). The District Court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standard set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595 (2000). Id.
Under Slack, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." After reviewing Petitioner's claim, the Court finds that reasonable jurists could not conclude that petitioner's claim is adequate to deserve further review. Because petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue.
A separate judgment will be filed in accordance with this Memorandum and Order.
SO ORDERED.
