NORAH McCANN KING, Magistrate Judge.
Petitioner Donald H. Ayers, a federal prisoner, brings this action to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the Motion to Vacate, ECF No. 1252, Amendment Number One, ECF No. 1281, and Amendment Number Two, ECF No. 1315; Respondent's Answer and Motion to Dismiss, ECF No. 1282; Petitioner's Reply, ECF No. 1288, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
The United States Court of Appeals for the Sixth Circuit summarized the facts and procedural history of the case in relevant part as follows:
United States v. Ayers, 386 Fed.Appx. 558, 560-562, unpublished, 2010 WL 2925939 (6th Cir. July 28, 2010). The Sixth Circuit overturned Petitioner's conviction for conspiracy to commit money laundering, but otherwise affirmed this Court's Judgment, and remanded the case for resentencing. Id. On December 23, 2010, the District Court re-imposed an aggregate term of 180 months' imprisonment. ECF No. 1100. On March 15, 2012, the United States Court of Appeals for the Sixth Circuit affirmed that Judgment. ECF No. 1146. On June 29, 2012, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. ECF No. 1208.
On September 9, 2013, Petitioner filed the pro se Motion to Vacate pursuant to 28 U.S.C. § 2255. He asserts that he was denied the effective assistance of counsel because his attorney failed to disclose a plea opportunity, failed to present an adequate defense based on good faith reliance, failed to investigate the defense expert prior to calling him as a defense witness, failed to investigate the government's loss figures, and failed to "preserve new rule." Petitioner also asserts that he was denied a fair trial because of prosecutorial misconduct and alleges that his sentence was unconstitutionally imposed. Respondent contends that Petitioner's claims are procedurally defaulted and without merit.
To obtain relief under 28 U.S.C. § 2255, a petitioner must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States, when the trial court lacked jurisdiction, or when the sentence was in excess of the maximum sentence allowed by law or was "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6
It is well-established that a motion to vacate under § 2255 "is not a substitute for a direct appeal." Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained in a motion to vacate under § 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claims on direct appeal or (2) that he is "actually innocent" of the crime. Id. at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). "To obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." Frady, 456 U.S. at 166.
Petitioner alleges that his trial counsel were ineffective in a number of respects. The Sixth Amendment guarantees a criminal defendant the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). In order to establish the denial of the effective assistance of counsel, a defendant must demonstrate that his attorney performed in a constitutionally deficient manner. "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). Scrutiny of defense counsel's performance must be "highly deferential." Id. at 689. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
The defendant also must show that he was thereby prejudiced. This requires a showing that his attorney's errors were so serious as to deprive him of a fair trial, i.e., a trial whose result is reliable. Id. In order to establish the second prong of the Strickland test, i.e., prejudice, a petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Because a claim of ineffective assistance of counsel requires proof of both prongs of the Strickland test, should a court determine that a petitioner has failed to satisfy one prong, that court need not consider the other. Id. at 697.
Petitioner alleges that his counsel performed in a constitutionally ineffective manner during the plea negotiation phase. A criminal defendant is entitled to the effective assistance of counsel during the plea negotiation process. Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012).
Id. at 1385. The United States Court of Appeals for the Sixth Circuit has described the obligations of defense counsel as it relates to advice during the plea negotiation stage:
Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003) (citing United States v. Day, 969 F.2d 39, 43 (3d Cir.1992)).
"[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 1408 (2012). The failure to do so prior to the expiration of the terms of the offer is constitutionally unreasonable. Id. However, a petitioner who later complains of a lost plea bargain must also establish prejudice.
Id. at 1409. In this regard, a petitioner must show that, "if the prosecution had the discretion to cancel [the plea offer], or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented." Id. at 1410.
An attorney's failure to insist that his client accept a plea offer in light of overwhelming evidence of guilt does not amount to constitutionally ineffective assistance.
Smith, 148 F.3d at 552.
Petitioner alleges that his counsel failed to advise him that he could resolve the case by negotiating a plea bargain.
The following exchange occurred at the conclusion of voir dire:
Transcript, ECF No. 745, PageID# 15474-75.
The record belies Petitioner's allegation that he did not know that he could negotiate a plea agreement with the government. See, e.g., McGowan v. Burt, ___ F.3d ___, 2015 WL 3541201 (6
The record reflects that Petitioner had no interest in pursuing plea negotiations. Under these circumstances, Petitioner has failed to "demonstrate a reasonable probability" that he would have accepted a plea bargain. See Missouri v. Frye, 132 S.Ct. at 1409.
Petitioner also alleges that his counsel failed to raise a defense based on good faith reliance. Memorandum in Support, ECF No. 1252-2, PageID# 26343; see also id. at PageID# 26344-51. Petitioner specifically complains that his attorneys failed to call defense witnesses who could have assisted in establishing that he acted in good faith and had no criminal intent. Id. at PageID# 26353. Petitioner also complains of his attorneys' failure to request a specific jury instruction on the issue. Id. at PageID# 26353-54.
Defense counsel's "failure to investigate and call a witness who can provide testimony favorable to the defense can be ineffective assistance, if the offering of such testimony results in a reasonable probability of an acquittal." Troglin v. Westbrooks, No. 1:12-cv-41, 2014 WL 5810312, at *8 (E.D. Tenn. Nov. 7, 2014)(citing Towns v. Smith, 395 F.3d 251, 258-60 (6th Cir. 2005)). However, an attorney "`has no obligation to call or even interview a witness whose testimony would not have exculpated the defendant.'" Millender v. Adams, 376 F.3d 520, 527 (6th Cir. 2004) (quotation omitted). "Nor must an attorney `interview every possible witness to have performed proficiently.'" Troglin, 2014 WL 5810312, at *8 (quoting Riley v. Payne, 352 F.3d 1313, 1318 (9th Cir. 2003). "Complaints about uncalled witnesses are not favored because the presentation of testimonial evidence is a matter of trial strategy." Id. (citing Coble v. Dretke, 444 F.3d 345, 350 (5th Cir. 2006)).
Once again, Petitioner has failed to establish Strickland's prejudice component, which requires evidence that establishes "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Defense counsel in fact argued, inter alia, that the government could not carry its burden of proof and that Petitioner lacked the requisite criminal intent. For example, in opening statement, Petitioner's counsel reminded the jury that the government bore the burden of proof and that Petitioner had pledged 2 million dollars of his own money to help start NCFE, which grew over time to a staff of 350 persons and three operational divisions which had little interaction with each other. Trial Transcript, Vol 1, ECF No. 549, PageID# 6382-84. Counsel urged the jury not to rely on the testimony of prosecution witnesses, who would testify pursuant to the terms of negotiated plea agreements and who had made prior inconsistent statements. Counsel specifically argued that Petitioner had reasonably relied on the advice and expertise of attorneys from three law firms who were actively involved in company operations and who had drafted confusing and complex legal documents "advising corporate investors on the ability and requirement to read all the documents." Id. at PageID# 6386-87; 6390. Petitioner's counsel argued that the "sophisticated" investors in NCFE had also relied on the experts, and not on the representations of Petitioner or anyone else from NCFE. Id. at PageID# 6390. Petitioner was portrayed as having based his presentations to investors on documents created by lawyers and other experts, id. at PageID# 6390-91, and as having no prior experience in this type of company operation. Id. at PageID# 6393-94.
During the course of the trial, Petitioner's counsel vigorously cross-examined prosecution witnesses, including William Parizek, Jon Beacham, Bryan Weiss, Stanley Haines, Jessica Bily, Amy Boothe, Donna Talbot, Sherry Gibson, and Terrence Glomski, all of whom provided testimony relevant to Petitioner's theory of defense. See Answer and Motion to Dismiss, ECF No. 1282, PageID# 26616-26624. Petitioner's counsel also called three defense experts to establish that Petitioner lacked knowledge of criminal wrongdoing and reasonably relied on others involved in the company operations. Petitioner also acknowledges that the testimony of some prosecution witnesses supported his good faith defense. See Traverse, ECF No. 1288, PageID# 26733-34. Petitioner has provided no affidavits or statements from any additional witnesses who might have offered further support for this defense. Under these circumstances, Petitioner has not established that his attorney performed in a constitutionally ineffective manner in failing to call additional defense witnesses. "`Generally, a petition for habeas corpus relief based on counsel's failure to call witnesses must present this evidence in the form of the actual testimony by the witness or affidavits.'" Williams v. Stovall, No. 06-15386, 2009 WL 1212980, at *17 (E.D. Mich. April 29, 2009)(quoting United States ex rel. Townsend v. Young, No. 01 C 0800, 2001 WL 910387, at *5 (N.D.Ill. Aug. 8, 2001)(internal citation omitted)(also citing Pittman v. Florida, No. 8:05-cv-1700, 2008 WL 2414027, at *12 (M.D.Fla. June 11, 2008)); see also Caudill v. Conover, No. 5:10-84-DCR, 2014 WL 349300, at *55 (E.D. Ky. Jan. 31, 2014)(citing Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002)("[A]bsent record evidence of counsel's reasons for not calling a witness, the court must presume that the decision was based upon trial strategy"). "Trial counsel's `failure to call witnesses is presumed to be trial strategy.'" English v. Romanowski, 602 F.3d 714, 720 (6
The trial in this case lasted six weeks. It appears from the record that defense counsel engaged in a reasonable trial strategy by choosing not to call additional defense witnesses to provide what would have amounted to cumulative evidence. Judicial scrutiny of defense counsel's performance "must be highly deferential." Strickland, 466 U.S. at 689.
Id. at 689-90. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Id. at 690-91.
Petitioner also complains that his counsel failed to request a jury instruction on his good faith defense. However, the record establishes that the Court instructed the jury on good faith reliance:
Trial Transcript, Vol. XXI, ECF No. 569, PageID# 10628-29. The fact that the jury chose not to credit that defense does not mean that Petitioner's counsel was constitutionally ineffective.
Petitioner has failed to establish the denial of the effective assistance of counsel under the two-prong Strickland test based on counsel's failure to present a good faith reliance defense.
Petitioner alleges that his counsel performed in a constitutionally ineffective manner by failing to properly investigate defense expert Jon Bryant. According to Petitioner, he expected his attorneys to take extra precautions before calling Bryant as a witness, since Bryant had previously made statements to the authorities. Memorandum in Support, ECF No. 1252, PageID# 26357.
Petitioner describes Bryant as the "securitization" expert who supported Petitioner's claim that he lacked criminal intent. Id. at PageID# 26357. Bryant operated the "AS400," Trial Transcript, Vol. XVI, ECF No. 564, PageID# 9668-9671, which assisted the company in maintaining large volumes of data central to the collateralization of funds. The defense posited that NCFE had lost data relating to millions of dollars of accounts receivable as a result of the government's seizure of the system, and "Bryant testified [to] the impact of the government's careless handling of the system resulting in the crash of numerous data fields representing millions of dollars of collateral," and thereby rendering it impossible to determine whether NCFE had maintained sufficient collateralization. Memorandum in Support, ECF No. 1252-2, PageID# 26358.
Petitioner complains that his attorneys did not learn until the cross-examination of Bryant of an "FBI-302 Report" memorializing "extensive conversations between Bryant and the F.B.I." that conflicted with Bryant's testimony on direct. Petitioner claims that he was thereby prejudiced because otherwise inadmissible hearsay evidence was then permitted. Petitioner characterizes the presentation of Bryant's testimony as reflective of an unreasonable trial strategy. Id. at PageID# 26359.
The United States Court of Appeals for the Sixth Circuit, in considering the appeal of one of Petitioner's co-defendants, held that the government had no obligation to disclose, prior to trial, the F.B.I. report referred to by Petitioner. United States v. Faulkenberry, 614 F.3d 573, 590 (6
Id.
As noted supra, an attorney's decision regarding a defense witness is presumed to be a matter of trial strategy. See Davis v. Ludwick, 2015 WL 871211, at *9. The decision of Petitioner's counsel in this regard does not appear to have been so unreasonable as to amount to constitutionally ineffective assistance. It is significant, moreover, that the attorneys for Petitioner's co-defendants also decided to call Bryant to testify for the defense; Bryant's testimony would therefore have been presented, presumably, even if Petitioner's counsel had not called him.
Petitioner alleges that he was denied the effective assistance of counsel because his attorneys failed to investigate the amount of investor loss. He specifically alleges that his counsel failed to request the basis for the government's calculation of loss, and that the government presented invalid loss figures. Memorandum in Support, ECF No. 1252-2, PageID# 26364-65. In this regard, Petitioner complains that the government failed to offset the loss calculation by amounts recovered in settlements with or other recoveries by the alleged victims, in either ongoing or future civil litigation. See Amendment One, ECF No. 1281; Amendment Number Two, ECF No. 1315. According to Petitioner, these unreliable loss estimates tainted the jury's consideration of the case against him.
The Pre-sentence Investigation Report indicates that investigation had disclosed losses totaling $2,894,150.00. That amount was offset by recovery totaling $504,500,714.32, resulting in a balance of $2,389,649,785.68. Pre-sentence Investigation Report, ¶ 54. The Pre-sentence Investigation Report specifically listed the alleged victims in the case and the itemized amounts of restitution due each of them. Id. at ¶ 126.
Id. at PageID# 16392-94. Petitioner's counsel also argued that
Donald H.Ayers' Sentencing Memorandum, ECF No. 728, PageID# 14485 (filed under seal).
The arguments made by Petitioner's counsel in connection with the calculation of loss at sentencing were unsuccessful, and Petitioner points to no additional evidence that would have affected the sentence imposed. Moreover, Petitioner's base offense level under the advisory United States Sentencing Guidelines would have been increased by thirty points for any loss of more than $400,000,000. U.S.S.G. § 2B1.1(b)(1)(P). Thus, figures even far greater than $400,000,000 did not affect Petitioner's recommended guideline sentence. Additionally, only loss recovered "from the disposition of the collateral or. . . the fair market value of the collateral at the time of sentencing" could properly be used in reducing the loss calculation. U.S.S.G. § 2B1.1, Application Note 2(E)(ii).
United States v. Erpenbeck, 532 F.3d 423, 433-34 (6th Cir. 2008). Thus, potential recovery expected after sentencing or anticipated from ongoing civil litigation would not have served to reduce Petitioner's recommended sentence. In any event, Petitioner's counsel argued that the government's estimate of loss far overstated the gravity of the offense and should not be used in determining an appropriate sentence. The Court essentially agreed with that contention. Recognizing that Petitioner's particularly harsh recommended sentence under the advisory sentencing guidelines was driven primarily by the loss calculation, which served to significantly increase his base offense level, the Court "decline[d] to impose a within-guideline sentence." Re-Sentencing Transcript (Dec. 3, 2010), ECF No. 1099, PageID# 23315.
At the re-sentencing hearing, the government argued that the same loss figures applied, despite the reversal of Petitioner's money laundering conspiracy conviction, because the amount of loss also related to Petitioner's fraud convictions. Re-Sentencing Transcript (Dec. 3, 2010), ECF 1099, PageID# 23284-85. Defense counsel argued to the contrary:
Id. at PageID# 23283. The Court rejected the argument. Id. at PageID# 23286.
Notwithstanding the sentence imposed and the Court's rejection of the arguments of Petitioner's counsel, Petitioner has failed to establish that his counsel were constitutionally ineffective because they failed to investigate the government's calculation of loss.
Petitioner alleges that his counsel performed in a constitutionally ineffective manner by failing to preserve for appeal a claim under United States v. Pepper, 562 U.S. 476 (2011). Pepper, decided on March 2, 2011, or approximately three months after Petitioner's December 3, 2010, re-sentencing hearing, stands for the proposition that, where a case is remanded for resentencing, a court may consider evidence of a defendant's rehabilitation since the time of the prior sentencing hearing. Such evidence may support a downward variance from the advisory sentence under the United States Sentencing Guidelines. Id. at 490.
On remand from the Sixth Circuit, the Court conducted a de novo sentencing. Resentencing Transcript (Dec. 3, 2010), ECF No. 1099, PageID# 23276-77; 23281. Defense counsel argued that Petitioner's incarceration since the original sentencing had positively affected his attitude. Id. at PageID# 23288. According to Petitioner's counsel, Petitioner was deeply regretful, had attempted to assist the government in locating a co-defendant who had absconded, and was very much a different person. Id. at PageID# 23313.
Id. at PageID# 23314-15. Counsel argued for a term of five years' imprisonment, taking particular note of Petitioner's age and of sentences imposed on certain co-defendants and in other cases of a similar nature. Id. at PageID# 23290-93. The Court rejected these arguments, however.
Petitioner complains that he provided his counsel with "a plethora" of post-conviction rehabilitation activities but that his counsel refused to present that information at the resentencing hearing. Memorandum in Support, ECF No. 1252-2 PageID# 26370. To the contrary, the record indicates that counsel submitted many letters from Petitioner's family and friends indicating that "he is a man of considerable integrity. . . and generosity." Re-sentencing Transcript (Dec. 3, 2010), ECF No. 1099, PageID# 23307. Petitioner has pointed to no additional evidence that would have resulted in a lower sentence than the aggregate term of fifteen years actually imposed — which, as was noted supra, was substantially below the sentence recommended by the advisory sentencing guidelines and well below the statutory maximum of 35 years' imprisonment. See Re-sentencing Transcript (Dec. 3, 2010), ECF No. 1099, PageID# 23287; Judgment, ECF No. 1100.
Petitioner has failed to establish the denial of the effective assistance of counsel based on his attorney's failure to raise a claim under Pepper.
Petitioner alleges that he was denied a fair trial because of prosecutorial misconduct. According to Petitioner, the prosecution falsified facts, presented perjured testimony, and distorted and mislead the jury, in part, in order to legitimize their closure of a legitimate business. Memorandum in Support, ECF No. 1252-2, PageID# 26375-76; 26381; 26384. The scope of federal habeas corpus review of a claim of prosecutorial misconduct is narrow. A federal court does not sit as an appellate court employing supervisory powers to rectify ordinary trial error in cases before it for habeas review. Donnelly v. DeChristoforo, 416 U.S. 637 (1974). Rather, a court must consider only whether the prosecutor's conduct was so egregious as to deny the petitioner fundamental fairness. Id., at 642-43; Martin v. Foltz, 773 F.2d 711, 716-17 (6th Cir. 1985); Angel v. Overberg, 682 F.2dd 605, 607 (6th Cir. 1982) (en banc).
Anderson v. United States, 246 F.Supp.2d 758, 760-61 (E.D. Michigan 2003).
In support of his claim of prosecutorial misconduct, Petitioner insists that he is innocent of the charges upon which he stands convicted. Memorandum in Support, ECF No. 1252-2, PageID# 26374-84. The record, however, reflects substantial evidence of guilt. See Opinion and Order on Defendants' Post-Trial Motions, ECF No. 758. Moreover, the Sixth Circuit rejected Petitioner's claim that the evidence was constitutionally insufficient to sustain his convictions. United States v. Ayers, 386 Fed.Appx. 558, 562-64. The Court will not again address that issue here. Simply put, Petitioner has failed to establish that the government acted improperly in instituting the criminal prosecution against him.
Petitioner also argues that the government used false and misleading figures in its calculation of victim loss in order to "prop up" the case against him. Memorandum in Support, ECF No. 1252-2, PageID# 26377. Petitioner specifically contends that investors abandoned collateral, chose not to enforce the trustee's obligation to collect on available collateral, and strategically pursued recovery through civil litigation. Amendment One, ECF No. 1281, PageID# 26587-95. Even assuming this contention, however, the loss suffered is not thereby reduced.
Petitioner also contends that the government adopted inconsistent positions on the amount of loss. In this regard, Petitioner specifically refers to proceedings against another NCFE-related defendant, Sherry Gibson, who plead guilty pursuant to a plea agreement to a charge of conspiracy to use interstate commerce for the purpose of fraud or deceit in the sale of securities in violation of 18 U.S.C. § 371. United States v. Gibson, 2:03-cr-119 (S.D. Ohio). According to Petitioner, the government agreed in that case, see id., Statement of Facts, ECF No. 4, that "$1.4 billion of
In summary, Petitioner has failed to establish his claim of prosecutorial misconduct.
Petitioner makes various arguments in support of his claim that the Court imposed an unconstitutional sentence. Citing Peugh v. United States, — U.S. —, 133 S.Ct. 2072 (2013), Petitioner first alleges that his sentence violated the Ex Post Facto Clause because the Court used the 2007 version of the advisory United States Sentencing Guidelines rather than the 2002 version in effect at the time of the commission of the alleged offenses. Had the Court used the 2002 version of the sentencing guidelines, Petitioner contends, a reduced sentence would have been imposed. Petitioner also alleges that the Court improperly determined his sentence prior to the re-sentencing hearing.
In Peugh, the Supreme Court held that a violation of the Ex Post Facto Clause occurs "when a defendant is sentenced under Guidelines promulgated after he committed his criminal acts and the new version provides a higher applicable Guidelines range than the version in place at the time of the offense." Peugh, — U.S. —, —, 133 S.Ct. at 2078. "If the defendant's sentencing range is greater under the Guidelines in effect on the date of sentencing, the district court must apply the Guidelines in effect at the time of the offense to avoid an ex post facto violation." Huff v. United States, 734 F.3d 600, 608 (6th Cir. 2013)(citation omitted). However, the United States Court of Appeals for the Sixth Circuit has held that Peugh is not retroactively applicable to cases that had become final prior to Peugh. Rogers v. United States, 561 F. App'x 440, 443-44 (6th Cir. 2014)(citing Teague v. Lane, 489 U.S. 288, 310-11 (1989)). See also Herrera-Gomez v. United States, 755 F.3d 142, 147 (2d Cir. 2014); Hawkins v. United States, 724 F.3d 915, 917-18 (7th Cir. 2013). Petitioner's convictions became final on October 1, 2012, when the United States Supreme Court denied Petitioner's petition for a writ of certiorari. ECF No. 1208. Therefore, Peugh — which was decided in 2013 — has no application to this case. See Norman v. United States, 1:12cr252, 1:13cv2661, 2014 WL 7409954, at *3 (N.D. Ohio Dec. 31, 2014).
Similarly unpersuasive is Petitioner's claim that the Court determined his sentence prior to the re-sentencing hearing. As noted supra, Petitioner's original conviction on the money laundering conspiracy count was reversed and the matter was remanded for sentencing. The resentencing hearing was originally scheduled for October 13, 2010. Notice of Hearing, ECF No. 1059. At that hearing, the Court requested further briefing on the issue of the impact of the Double Jeopardy Clause and the sentencing package doctrine. Re-sentencing Transcript (Oct. 13, 2010), ECF No. 1092, PageID# 23193. At the October 22, 2010 re-sentencing hearing, the Court noted that the parties' "briefs were thorough and comprehensive," Re-sentencing Transcript (Oct. 22, 2010), ECF No. 1093, PageID# 23200, but that counsel would nevertheless have the "opportunity to be heard if there is anything further counsel wishes to put on the record." Id. Petitioner's request to continue the re-sentencing, made by his counsel, was granted. Id. at PageID# 23253. Petitioner's re-sentencing hearing went forward on December 3, 2010. Re-sentencing Transcript (Dec. 3, 2010), ECF No. 1099. Petitioner's counsel "s[tood] on the sentencing memorandum and the previous arguments that we made on October 22nd," id. at PageID 23267, but presented additional, lengthy, argument to the Court. See generally id. This record simply offers no support for Petitioner's claim that the Court had determined his sentence before the sentencing hearing or that his sentence was unconstitutionally imposed.
Petitioner also alleges that his sentence was improperly enhanced pursuant to U.S.S.G. § 2B1.1(b)(1) by the amount of loss suffered by alleged victims.
At the December 3, 2010 re-sentencing hearing, the Court agreed with the government and the probation officer that the loss attributable to Petitioner's money laundering conspiracy conviction applied equally to Petitioner's fraud related convictions. Re-sentencing Transcript (Dec. 3, 2010), ECF No. 1099, PageID# 23286. Therefore, the Court did not reduce the loss figure at re-sentencing following the reversal of Petitioner's money laundering conspiracy conviction. Although Petitioner's counsel objected to that finding, id., there is no support in the record for Petitioner's allegation that the government possessed and yet failed to disclose documents that would have reduced the loss figures that were used to increase Petitioner's recommended sentence under the advisory sentencing guidelines. See also United States v. Poulsen, 655 F.3d 492, 514 (6
Finally, Petitioner alleges that his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), because his recommended sentence under the advisory United States Sentencing Guidelines was increased, pursuant U.S.S.G. § 2B1.1(b)(1),
Petitioner has procedurally defaulted this claim because he failed to raise it on direct appeal. Further, Petitioner has failed to establish cause and prejudice for this procedural default. See Massaro v. United States, 538 U.S. 500, 504 (2003)(citing United States v. Frady, 456 U.S. at 167-68)). In any event, however, the claim is without merit.
Apprendi held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In Blakely, the Supreme Court explained that the "`statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Thompson v. Warden, Belmont Correctional Inst., 598 F.3d 281, 286 (6th Cir.2010)(citing Blakely, 542 U.S. at 303). In Alleyne, the Supreme Court extended Apprendi to mandatory minimum sentences, holding that any fact that serves to increase a mandatory minimum term must be considered an "element" of the offense and must be submitted to the jury and proven beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2158 (Thomas, J., plurality opinion).
Here, the determination of the amount of loss resulted in neither the imposition of a sentence greater than the prescribed statutory maximum nor the statutory minimum term. Consequently, there was no violation of Apprendi, Blakely, or Alleyne.
Alleyne, 133 S.Ct. at 2163-64 (footnote omitted).
Petitioner has failed to establish that his sentence was unconstitutionally imposed.
For all the foregoing reasons, the Magistrate Judge
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
