KATHERINE P. NELSON, Magistrate Judge.
David Petersen ("Petersen" or "Petitioner"), a federal prisoner proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 237
The United States has timely filed a response (Doc. 238) in opposition to Petersen's § 2255 motion, and Petersen has filed a reply (Doc. 241)
Having reviewed the parties' submissions in accordance with Rule 8(a) of the Rules Governing Section 2255 Proceedings, the undersigned finds that neither expansion of the record nor an evidentiary hearing is not warranted and
On January 29, 2018, Petersen filed a motion labeled "Ex Parte Motion for Judgment on the Pleadings related to 2255 Motion before this Court" and later filed a Motion to Unseal the same (Docs. 247, 248). For the reasons discussed in more detail below, the undersigned also
On December 20, 2013, following a jury trial, David Petersen and two co-defendants were each convicted of conspiracy to commit securities and wire fraud, in violation of 18 U.S.C. § 371; aiding and abetting securities fraud, in violation of 15 U.S.C. § 77q; and 18 counts of wire fraud, in violation of 18 U.S.C. § 1343. (See Docs. 99 & 100.) As the Court of Appeals for the Eleventh Circuit observed, "Defendants operated a classic Ponzi scheme between 2009 and 2012." (Doc. 201, at 2.) All offenses of conviction related to Petersen's involvement in this scheme, which defrauded investors out of millions of dollars while enriching the defendants.
On May 29, 2014, this Court sentenced Petersen to a term of imprisonment of 60 months as to each of Counts One through Twenty, said terms to run concurrently. (Doc. 149.) On direct appeal, Petersen raised numerous assignments of error, including sufficiency of the evidence, material variance between the Indictment and the evidence at trial, prosecutorial misconduct, Brady
In a per curiam opinion dated October 23, 2015, the Court of Appeals affirmed Petersen's conviction and sentence. (Doc. 201.) Among other conclusions, the appeals court opined that (i) "these false financial statements [Petersen] prepared were crucial to recruiting investors and keeping them in the dark;" (ii) "Petersen was necessarily aware that the account statements he was creating contained false information" and "clearly knew that he had received a substantial sum of money skimmed from the investments;" (iii) any variance as to the role of a New York real estate mogul "could not have affected Petersen's ability to prepare an adequate defense" because evidence of Petersen's guilt did not stem from "anything specifically related to this investor;" (iv) the Government did not prove up a different conspiracy omitting the fugitive defendant, Tim Durkin, but rather "mentioned Durkin's participation in the scheme throughout the trial;" (v) there was "nothing improper" about the testimony or investigation of the lead investigative agent, whom defendants cross-examined vigorously; (vi) even if the Government had not zealously sought extradition of Durkin, "Petersen failed to articulate how the outcome of his trial would have been different absent this alleged misconduct, given the ample evidence supporting his conviction;" and (vii) "Petersen supplies no facts or legal arguments to support his Brady claim." (Doc. 201, at 9-14.)
Following the Court of Appeals' ruling, Petersen filed a number of unsuccessful motions in this District Court. First, he filed a Motion for Immediate Disclosure of Favorable Evidence (Doc. 202), which this Court denied via Order (Doc. 207) dated December 29, 2015 as an improper post-conviction fishing expedition. Second, Petersen filed a Motion for Reconsideration and Clarification (Doc. 209), which this Court denied via Order (Doc. 209) dated January 29, 2016 on the grounds that Petersen had failed to demonstrate the existence of the elements of a Brady violation with respect to the challenged Securities and Exchange Commission ("SEC") investigative records. Third, Petersen filed a Motion to Compel Production of Grand Jury Material (Doc. 210), which this Court denied via Order (Doc. 211) dated February 2, 2016 because Petersen had failed to meet his burden of showing a compelling and particularized need for disclosure, or otherwise to establish exceptional circumstances.
On May 23, 2016, Petersen filed a motion for a new trial pursuant to Fed. R. Crim. P. 60. (Doc. 218). On July 26, 2016, in a detailed order, the District Court denied the motion. (Doc. 224). Shortly thereafter, Petersen filed a Notice of Appeal. (Doc. 227).
Title 28 U.S.C. § 2255 "permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence." Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). Specifically, § 2255 provides:
28 U.S.C. § 2255(a)-(b).
"Once the defendant's chance to appeal has been waived or exhausted," a court is "entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164 (1982). "[A] collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal." Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165 (collecting cases)). "Because collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a defendant must assert all available claims on direct appeal, and (2) relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice." Id. at 1232 (internal citations, quotations, and footnote omitted).
Winthrop-Redin, 767 F.3d at 1216 (footnote omitted). Accord, e.g., Diveroli v. United States, 803 F.3d 1258, 1263 (11th Cir. 2015). The Court must "liberally construe pro se filings, including pro se applications for relief pursuant to § 2255." Winthrop-Redin, 767 F.3d at 1215.
Petersen's grounds for relief fall into three categories: 1) prosecutorial misconduct, 2) ineffective assistance of counsel, and 3) failure of the district court to act properly. These categories of relief are addressed in turn.
Petersen's prosecutorial misconduct claims are procedurally barred. In his first appeal Petersen raised several claims of prosecutorial misconduct. All were rejected on the merits by the Court of Appeals for the Eleventh Circuit. Petersen later filed a Fed. R. Crim. P. 33 Motion for New Trial, raising additional claims of prosecutorial misconduct. In a detailed ruling, this Court denied the motion, rejecting Petersen's claims of misconduct. (Doc. 218). The Court of Appeals affirmed that ruling. (Doc. 247). When comparing the claims presented in the § 2255 motion, and those claims raised on direct appeal and in Petersen's Rule 33 motion, with the Court of Appeals' orders affirming the district court, it is clear that Petersen's arguments pertaining to prosecutorial misconduct have been raised and rejected.
To the extent some of his claims of prosecutorial misconduct are newly raised, the claims were available to be raised on appeal, but Petersen did not raise them. Thus, Petersen is also procedurally barred from raising them now.
The procedural default doctrine reflects the "general rule" that "claims not raised on direct appeal may not be raised on collateral review." Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Reed v. Fairley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) ("`[T]he general rule is that the writ of habeas corpus will not be allowed to do service for an appeal.'"). To adequately preserve a claim, a Defendant must raise it both before the trial court (whether by motion, objection, or otherwise) and also on direct appeal. See Murray v. Carrier, 477 U.S. 478, 490-92 (1986). United States v. Johnson, 988 F.2d 941, 945 (9th Cir.1993) (If a defendant "could have raised" the supposed constitutional violation previously, he defaults on the opportunity to pursue the claim for the first time pursuant to § 2255). The procedural bar applies to claims of prosecutorial misconduct, where the claims were available to be raised previously but were not. See Lynn v. United States, 365 F.3d 1225, 1234-37 (11th Cir.2004) (dismissing § 2255 allegations of prosecutorial misconduct and other violations on grounds of procedural default where claims were based in large part on facts previously in the record but were never raised below).
An exception to the procedural bar rule is where a petitioner can show "cause and actual prejudice." Lynn, 365 F.3d at 1234 (citing Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)) ("A defendant can avoid a procedural bar only by establishing one of the two exceptions to the procedural default rule. Under the first exception, a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error."). Alternatively, a petitioner can escape the procedural bar rule where he can show that he is actually innocent and that a failure to address the unpreserved claims would result in a fundamental miscarriage of justice. Lynn, 365 F.3d at 1234-35 (quoting Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.1994) ("Under the second exception, a court may allow a defendant to proceed with a § 2255 motion despite his failure to show cause for procedural default if `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'").
The Eleventh Circuit has stated that this standard requires a showing that the alleged errors "probably resulted in the conviction of one who is actually innocent." Mills, 36 F.3d at 1055-56 (citing Murray, 477 U.S. at 496). These exceptions do not apply. As the Court of Appeals observed, the evidence presented in support of Petersen's conviction was "more than adequate." (Doc. 201 at 7). As for "cause and actual prejudice," Petersen does not allege any cause at all for having failed to preserve his prosecutorial misconduct claims. Accordingly, the undersigned
Though he has re-categorized his claims as claims of ineffective assistance of counsel, Petersen raises nearly all of the same arguments this Court and the Court of Appeals have previously considered and rejected. In order to establish a claim of ineffective assistance of counsel, a petitioner is required to show (1) that his attorney's representation fell below "an objective standard of reasonableness" and (2) that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different.
The Court of Appeals for the Eleventh Circuit has observed:
Means v. Secretary, Department of Corrections, 433 F. App'x. 852, 855 (11th Cir. 2011) (internal quotation marks and citations omitted; footnote added), cert. denied sub nom. Means v. Tucker, 565 U.S. 1217 (2012) see also Pair v. Cummins, 373 F. App'x. 979, 981-82 (11th Cir. 2010).
Given the two-prong nature of the test for adjudicating ineffective-assistance-of-counsel claims, it can come as no surprise that "`the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.'" Johnson, supra, 256 F.3d at 1176 (citation omitted). When applying the Strickland standard, it is clear that courts "are free to dispose of ineffectiveness claims on either of its two grounds." Oats v. Singletary, 141 F.3d 1018, 1023 (11th Cir.1998) (citation omitted), cert. denied, 527 U.S. 1008 (1999); see also Adamson v. United States, 288 F. App'x. 591, 594 (11th Cir. 2008) ("The defendant must satisfy both prongs of this test to show a Sixth Amendment violation; if the defendant fails to demonstrate one of these prongs sufficiently, we do not need to address the other."), cert. denied, 555 U.S. 1010 (2008); Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir.2004) ("[O]nce a court decides that one of the requisite showings has not been made it need not decide whether the other one has been.").
Finally, "vague, conclusory, speculative, or unsupported claims cannot support an ineffective assistance of counsel claim." Rosado v. Secretary, Dep't of Corrections, 2010 WL 2976886, *4 (M.D.Fla. Jul. 20, 2010), citing Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir.1991). With these principles in mind, the undersigned now considers Petersen's claims of alleged ineffective assistance of counsel.
Petersen's first four claims of ineffective assistance of counsel are based on many of the same arguments raised in his motion for new trial. Though those claims were rejected on the merits in the Court of Appeals' order affirming the district court's denial of Petersen's motion for a new trial, Petersen re-characterizes the claims as those of ineffective assistance of counsel in the instant § 2255 proceeding. As discussed below, for the same reasons the claims were denied on their merits, the claims fail to meet the Strickland prejudice prong.
In Claim II.A.i., Petersen claims counsel was ineffective as follows: "The lack of finding by counsel and using the [Securities and Exchange Commission ("SEC")] final agency determination and enforcement actions in SEC v. Kirkland a case that the Government says mirrors this case." (Doc. 237 at 12). Petersen appears to be referencing a SEC investigation that he claims counsel was ineffective for failing to investigate further and to introduce evidence from at trial. In its order affirming the district court's denial of Petersen's Rule 33 motion, the Court of Appeals for the Eleventh Circuit addressed this investigation as follows:
(Doc. 242 at 7). For the same reasons, Petersen fails to satisfy the Strickland prejudice prong and this claim of ineffective assistance is without merit.
In Claim II.A.ii, Petersen claims counsel was ineffective as follows: "The lack of investigation, confirmation and obtaining the FBI's Investigative file by counsel related to unindicted Westover Managing Member Arthur G. Cohen the information likely in this file would have exposed Cohen's prior bad acts that were identical to the fraud in the present case yet not presented to the jury due to the lack of `reasonable diligence' of counsel." (Doc. 237 at 12). The Court of Appeals held:
(Doc. 242 at 9-10). For the same reasons, Petersen fails to satisfy the Strickland prejudice prong and this claim of ineffective assistance is without merit.
In Claim II.A.iii, Petersen claims that counsel was ineffective as follows:
(Doc. 237 at 12). The Court of Appeals rejected similar claims holding:
(Doc. 242 at 10-11). For the same reasons, Petersen fails to satisfy the Strickland prejudice prong and this claim of ineffective assistance is without merit.
In Claim II.A.iv, Petersen claims that counsel was ineffective as follows:
(Doc. 237 at 12). In essence, Petersen argues that counsel was ineffective for failing to pursue a theory that Trial Exhibit 200 was manipulated in some way. With regard to Trial Exhibit 200, the Court of Appeals held:
(Doc 242 at 7-8). For the same reasons, Petersen fails to satisfy the Strickland prejudice prong and this claim of ineffective assistance is without merit.
Petersen's next claims of ineffective assistance all pertain to his allegations that counsel was ineffective for failing to investigate and object to the "perjury" of government witnesses Wesley McCain, FBI Agent Kennedy and FBI witness Kathryn Scott. (Doc. 237 at 12-13, Section II. B., generally). First, other than conclusory statements conveying his belief that the testimony was perjured, Petersen has presented no evidence of perjury. Second, Petersen has failed to present evidence that had his counsel been able to impeach the testimony, that Petersen would have been acquitted. That is mere speculation on Petersen's part. Furthermore, Petersen's counsel could not have stopped the witnesses from testifying. The witnesses were called by the prosecution during its case in chief to present the facts as alleged in the indictment. As a result, Petersen has failed to satisfy the Strickland prejudice prong, and this claim of ineffective assistance fails.
In Section II. C., Petersen claims that counsel was ineffective for failing to object to "unauthenticated co-investment agreements." (Doc. 237 at 13-14). Petersen's conclusory argument is without merit as he has failed to establish how the absence of this evidence would have affected the outcome of his case.
In Section II, D., Petersen argues that counsel was ineffective for failing to object to the "defective" Indictment. (Doc. 237 at 14). Petersen argues that counsel should have objected to the Indictment because "The Indictment in this case did not allege Petersen as having committed `any, not one' overt act. The claim that Petersen somehow `aided and abetted' was not ever described or defined." (Id.). The general principles governing the sufficiency of an indictment are well established.
United States v. McGarity, 669 F.3d 1218, 1235-36 (11th Cir. 2012) (internal citations and punctuation omitted).
After considering the general principles regarding the sufficiency of an indictment discussed above, the undersigned concludes that a reasonable attorney would not have filed a motion to dismiss the indictment. Additionally, since any deficiency could have been easily cured by obtaining a superseding indictment after a motion to dismiss was filed, there can no prejudice from counsel's failure to challenge the sufficiency of the indictment. Accordingly, this claim of ineffective assistance fails.
In Section II. E., Petersen alleges counsel was ineffective based on "the failure of counsel to investigate the requirements of the charges that a security was engaged in this case, there is not one engaged security on record, thus no privity could have been obtained by any party in this case purported to be an investor." (Doc. 237 at 14). The undersigned is unable to make sense of this argument but it appears to be based on Petersen's contention that Trial Exhibit 200 was manipulated. (See Doc. 238 at 18, n. 4). As discussed above, the arguments pertaining to Trial Exhibit 200 are without merit. Thus, any perceived failure of counsel to challenge Trial Exhibit 200 fails to meet the Strickland prejudice prong.
In Section II, F. Petersen appears to raise several claims of ineffective assistance: 1) counsel should have asserted a good faith defense; 2) counsel should have raised an argument regarding an incorrect reference to Petersen as a trustee of Ramco; and 3) counsel should have moved to sever. First, Petersen's general reference to a good faith defense is unclear. Second, each of these arguments is vague, and fails to indicate how the outcome of the trial would have been different (other than in a conclusory manner). Accordingly, each claim contained in Section II, F. fails to satisfy the Strickland prejudice prong.
In Section II. G., Petersen argues that counsel was ineffective for failing to request Daubert
In Section II. H., Petersen makes yet another attempt to raise a prosecutorial misconduct argument by arguing that counsel was ineffective for failing to object to the United States' statements during closing arguments. Petersen's prosecutorial misconduct arguments have been repeatedly rejected by this court and the Court of Appeals. Accordingly, any alleged failure of counsel to object to prosecutorial misconduct is without merit, and this claim fails to meet the Strickland prejudice prong.
In Section II. I., Petersen alleges that counsel should have investigated the ownership of Westover and Ramco and Associates and should have called certain witnesses. (Doc. 237 at 17-18). Other than making a conclusory, general allegation that his rights were harmed by this failure, Petersen fails to and this claim fails show how he was prejudiced by these alleged failures. Thus, he fails to meet the Strickland prejudice prong.
For the reasons discussed herein, the undersigned
In his final claim, Petersen alleges that the district court failed to uphold its gatekeeping function with regard to permitting expert testimony of FBI agents without holding a Daubert hearing. This claim is procedurally defaulted as Petersen could have raised it on direct appeal but failed to do so. His reference to "newly discovered evidence" is not persuasive as the alleged "newly discovered evidence" was contained in a December 29, 2015 order of the district court. (Doc. 237 at 18-19). Thus, the undersigned
On January 29, 2018, Petersen filed a motion labeled "Ex Parte Motion for Judgment on the Pleadings related to 2255 Motion before this Court" and later filed a Motion to Unseal the same (Docs. 247, 248).
In the Motion for Judgment on the Pleadings, Petersen argues that the United States did not specifically respond to each of his arguments and that his § 2255 motion should be granted as a result. Even if this were accurate, any failure to address a ground by the Government does not entitle Petersen to relief. See Aziz v. Leferve, 830 F.2d 184, 187 (11th Cir.1987) ("[A] default judgment is not contemplated in habeas corpus cases. . . ."). Accordingly, the undersigned
Petersen also filed a Motion to Unseal his Ex Parte Motion for Judgment on the Pleadings. (Doc. 248). As Petersen is proceeding pro se he may not have realized that, generally, a motion styled as "ex parte" is filed under seal in this Court.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned recommends that a certificate of appealability in this case be denied. 18 U.S.C. foll. § 2255, Rule 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may only issue where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2243(c)(2).
When a habeas petition is dismissed on procedural grounds, such as in the instant case, without reaching the merits of any underlying constitutional claim, "a COA should issue [only] when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000); Miller-EL v. Cockrell, 537 U.S. 322, 336 (2003)("Under the controlling standard, a petitioner must `show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'").
Under the facts of this case, a reasonable jurist could not conclude either that this Court is in error in dismissing the instant petition or that Petitioner should be allowed to proceed further. Slack, 529 U.S. at 484 ("Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further."). Accordingly, the undersigned recommends that the court conclude that no reasonable jurist could find it debatable whether the Petitioner's petition should be dismissed; thus, he is not entitled to a certificate of appealability.
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C.A. § 1915(a)(3). A district court's finding "that an appeal would not be in good faith because no certificate of appealability had been issued . . . is not enough to explain why the appeal on the merits would not be in good faith, because the standard governing the issuance of a certificate of appealability is not the same as the standard for determining whether an appeal is in good faith. It is more demanding . . . [T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). See also Weaver v. Patterson, Civ. A. No. 11-00152-WS-N, 2012 WL 2568218, at *7 (S.D. Ala. June 19, 2012) (Nelson, M.J.), report and recommendation adopted, Civ. A. No. 11-00152-WS-N, 2012 WL 2568093 (S.D. Ala. July 3, 2012) (Steele, C.J.) ("An appeal may not be taken in forma pauperis if the trial court certifies in writing that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); see Fed. R. App. P. 24(a)(3)(A); Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000) (concluding that `good faith' is `an objective concept' and that `not taken in good faith' is `a synonym for frivolous'); DeSantis v. United Techs, Corp., 15 F.Supp.2d 1285, 1288-89 (M.D. Fla. 1998) (stating that good faith `must be judged by an objective, not a subjective, standard' and that an appellant `demonstrates good faith when he seeks appellate review of any issue that is not frivolous'). An appeal filed in forma pauperis is frivolous if `it appears that the Plaintiff has little to no chance of success,' meaning that the `factual allegations are clearly baseless or that the legal theories are indisputably meritless.' Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)."). But see, e.g., United States v. McCray, No. 4:07CR20-RH, 2012 WL 1155471, at *2 (N.D. Fla. Apr. 5, 2012) ("Because the defendant has not obtained—and is not entitled to— a certificate of appealability, any appeal by the defendant will not be taken in good faith. I certify under Federal Rule of Appellate Procedure 24(a) that any appeal will not be taken in good faith and that the defendant is not otherwise entitled to proceed in forma pauperis on appeal.").
Considering the foregoing analysis, the undersigned recommends the Court certify that any appeal by Petitioner in this action would be without merit and therefore not taken in good faith and, accordingly, find that Petitioner is not entitled to appeal in forma pauperis.
For the reasons set forth herein above, it is
Additionally, the undersigned
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
