MAX O. COGBURN, Jr., District Judge.
On June 27, 2013, petitioner was the lone defendant charged in a bill of information with one count of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371. That same day, petitioner filed a plea agreement in which he admitted he was in fact guilty of the securities fraud conspiracy. Petitioner further agreed, pursuant Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure, that the amount of loss to his victims that was known to or reasonably foreseeable to him was more than $400,000, but less than $1,000,000. Petitioner also stipulated that he understood that "loss" as that term is defined under § 2B1.1 of the
Prior to his Plea and Rule 11 hearing, Petitioner filed written notice of waiver of indictment and his plea hearing was conducted on September 6, 2013, where petitioner was present with counsel and placed under oath. In responding to the magistrate judge's questions, Petitioner acknowledged that he had reviewed the one count charged in the bill of information with his counsel, and he acknowledged that he understood the elements of the offense and the potential penalties he faced upon conviction. Petitioner also acknowledged that he had discussed any possible defenses with counsel and he knew he could plead not guilty and contest the charges at trial before a jury, summon witnesses, and cross-examine the government's witnesses. Petitioner then acknowledged that he understood and agreed with the terms of his plea agreement; that he was satisfied with the services of his counsel; and that he was pleading guilty because was in fact guilty of the conduct charged in the bill of information. The court recorded petitioner's answers in writing and presented them to petitioner and counsel to review, and they agreed that the answers that petitioner had given under oath were true and they signed the Acceptance of Plea form. The court then accepted the guilty plea after finding that it was knowing and voluntary and petitioner's case was then referred to the U.S. Probation Office for preparation of a presentence report (PSR). (
In the PSR, the probation officer included a detailed summary of petitioner's offense conduct to support the calculation of the Guidelines Range which included verbatim language from the Factual Basis noted above and is set forth as follows:
(
The probation officer calculated a base offense level of 24 and after adjusting for acceptance of responsibility, petitioner's Guidelines range was 46-57 months based on a total offense level of 21 and a criminal history category of IV. However, because the authorized statutory maximum was five years, the Guidelines range was adjusted to a term of 57-60 months.
Petitioner filed objections to the PSR contending that the loss amount sustained by the victims as detailed in paragraphs 11 and 81 of the PSR was too high, and he contended that some of the listed victims were not even affected by the conspiracy to defraud. Petitioner also complained that some of the alleged conduct occurred outside the relevant time frame of the conspiracy, and Petitioner challenged the amount of restitution and a two-level enhancement for employing sophisticated means in the conspiracy. The probation officer recommended no changes to the final PSR.
On February 9, 2015, petitioner appeared for his sentencing hearing and at the outset, the Court confirmed with petitioner that the answers he had given under oath before the magistrate judge were true, that he would give those same answers if they were posed again during sentencing, and his counsel affirmed that he was satisfied petitioner understood the Rule 11 proceedings. Based on these representations, the Court found that petitioner's guilty plea was knowing and voluntary and that he understood the consequences of his plea and his guilty plea was reaffirmed. Next, the government presented the offense conduct as contained in the PSR and petitioner stipulated that the Court could rely on this conduct and the factual basis to support his entry of a guilty plea. The Court found that based on the stipulations of the parties, the voluntary nature of the plea and the offense conduct, that there was a factual basis for the plea and it was accepted and a verdict of guilty entered in the record. After hearing from the parties, the Court sustained Petitioner's objection to the two-level enhancement for employing sophisticated means which reduced his Guidelines range to 46-57 months. Petitioner was sentenced to a term of 50-months and ordered to pay the victims $805,150.00 in restitution, jointly and severally with a fellow participant in the conspiracy, Terry Wayne Gandy. (
In this collateral proceeding, petitioner raises claims of ineffective assistance of trial counsel and challenges to the fairness of his prosecution, and he contends his sentence should be set aside.
Summary judgment is appropriate in cases where there is no genuine dispute as to a material fact and it appears that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A court is bound to enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the effective assistance of counsel to assist in his defense. U.S. Const. amend. VI. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that: (1) "counsel's representation fell below an objective standard of reasonableness," and (2) the deficient performance was prejudicial to the defense.
To demonstrate prejudice in the context of a guilty plea, a petitioner must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
Petitioner first contends, murkily, that Liberty Bell Law Group and his trial counsel, Brian Aus failed to present all of the evidence related to his criminal case. Petitioner continues by alleging a victim in his scheme to defraud investors "harassed, extorted, and blackmailed" him. (3:15-cv-00568, Doc. No. 1: Motion to Vacate at 4). Petitioner's contentions here are simply conclusory and in no way alert this Court as to how he suffered prejudice, much less deficient performance of counsel. In sum, petitioner bears the burden of demonstrating a right to collateral relief and he has simply failed to meet that burden here.
Next, petitioner contends that Liberty Bell Law Group labored under a conflict of interest in allowing petitioner's former girlfriend, Ms. Locklear, to hire the group to represent him. (Motion to Vacate at 5). It is not the province of the habeas court to fashion meaningful arguments on behalf of a petitioner; but rather it is a petitioner's burden to present a reasonable argument as to how he was prejudiced and that the conduct fell below a reasonable standard for an attorney. This claim will be denied as without foundation and meritless.
Here, petitioner again complains about Ms. Locklear's alleged behavior in blackmailing him, among other things, and harassing him by informing the U.S. Marshals Service that he was an escape risk. (Motion to Vacate at 7).
Section 2255 collateral proceedings are limited to the determination of whether a "sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . ." 28 U.S.C. § 2255(a).
To the extent petitioner may contend that her conduct rendered the validity of his guilty plea invalid, this argument must fail as he swore that no one had threatened, coerced, or forced him into pleading guilty. (3:13-cr-00187, Doc. No. 9: Acceptance and Entry of Guilt Plea ¶ 29). It is well-settled that a petitioner is bound by the sworn statements that he makes during a properly conducted Rule 11 hearing and as this Court found during sentencing, and reaffirms herein, Petitioner's Rule 11 hearing was properly conducted.
In his final claim for relief, petitioner maintains that he signed the bill of information based on his belief (mistaken), that in so doing he would receive a departure based on substantial assistance. (Motion to Vacate at 8). This argument will be rejected for two reasons.
First, as noted herein, petitioner averred during his Rule 11 hearing, and reaffirmed during his sentencing hearing, that no one had promised him anything in exchange for pleading guilty to the one count in his bill of information.
Second, petitioner does not contend, nor can he, that the government made a promise in his plea agreement with regard to filing a motion for downward departure based on substantial assistance.
For these reasons, this claim for relief will be dismissed.
Based on the foregoing, the Court finds that Petitioner's § 2255 motion to vacate is without merit and it will be dismissed.
The Clerk is respectfully directed to close this civil case.
DECISION BY COURT. This action having come before the Court on Motion and a decision having been rendered;
IT IS ORDERED AND ADJUDGED that Judgment is hereby entered in accordance with the Court's February 22, 2017 Order.
