Opinion
Case No. 3:17-CR-00073-JGC
02-11-2022
UNITED STATES of America, Plaintiff v. Lawrence JONES, Defendant.
John F. Potts, Law Office of John F. Potts, Toledo, OH, for Defendant. Alissa M. Sterling, Tracey Ballard Tangeman, Office of the U.S. Attorney, Toledo, OH, Suzana Krstevski Koch, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.
John F. Potts, Law Office of John F. Potts, Toledo, OH, for Defendant.
Alissa M. Sterling, Tracey Ballard Tangeman, Office of the U.S. Attorney, Toledo, OH, Suzana Krstevski Koch, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.
ORDER
James G. Carr, Sr. United States District Judge
This is a proceeding under 28 U.S.C. § 2255. In an amended petition, the defendant alleges that his court-appointed attorneys failed to: 1) investigate and contact witnesses, and 2) inform him of how enhancements under the Sentencing Guidelines worked, thereby rendering his guilty plea involuntary. For the reasons that follow, I deny the defendant's motion to vacate, set aside, or correct his sentence. I decline to grant a Certificate of Appealability.
On June 28, 2021, the defendant sent a letter to the Court asking for an extension of time within which to procure counsel and file a § 2255 motion. (Doc. 78). I granted that request that day, setting an August 20, 2021 deadline for his § 2255 motion. I also set the timetable for the government's opposition and defendant's reply. (Doc. 79).
On August 20, 2021, attorney John Potts entered his appearance. (Doc. 80). He also requested an extension of time to file a § 2255 motion. (Doc. 81). On August 23, 2021, I granted an extension until October 1, 2021 and adjusted the schedule for other filings accordingly.
On October 1, 2021, Mr. Potts filed a motion requesting an extension of time in which to file the defendant's § 2255 motion. (Doc. 83). I granted the motion, giving him until November 8, 2021 to file the motion. He did as directed. The § 2255 motion filed that day contained a single claim alleging ineffective assistance of counsel due to a failure to investigate. (Doc. 83). Concurrently, Mr. Potts filed a motion for leave to file an amended § 2255 motion. He made that request to enable him to obtain the defendant's signature on the motion. (Doc. 84). I granted his request that day.
The next day, November 9, 2021, the government filed an opposition to the defendant's request for additional time to file his § 2255 motion. (Doc. 85). The government's motion also sought dismissal of the § 2255 motion on the basis of untimeliness. I ordered Mr. Potts to respond to the government's opposition (and dismissal argument) by November 30, 2021, with the government to reply by December 15, 2021.
Mr. Potts filed the amended § 2255 motion on November 19, 2021, adding the second count of ineffective assistance of counsel. (Doc. 86).
On November 30, 2021, Mr. Potts filed his response to the government's opposition to his motion for an extension of time and its motion to dismiss the § 2255 motion due to untimeliness. (Doc. 87). On December 15, 2021, the government filed its opposition to the defendant's amended § 2255 motion. (Doc. 90).
Thereafter, on December 21, 2021, Mr. Potts filed a motion for extension of time to file his reply to the government's opposition to the amended § 2255 motion. (Doc. 92). I granted leave to file that reply by January 5, 2022. On January 5, 2022, Mr. Potts filed a motion to extend the date for his reply by seven days – until January 12, 2022. (Doc. 93). That day I granted the one-week extension until January 12th – and stated that it was a final extension.
Despite that admonition, Mr. Potts, instead of filing his reply as directed, filed a further motion for an extension until January 22, 2022. In response, I directed him to file his reply on January 14, 2022. Thus prompted, he did so on that date. (Doc. 95).
For the reasons that follow, I conclude: 1) the defendant's § 2255 motion was timely, 2) the amended motion fails to conform with the pleading requirements of Fed. R. Civ P. 8 and 81, and 3) in any event, there is no merit to either of defendant's claims of ineffective assistance of counsel.
Those pleading inadequacies in his amended complaint being so manifest and his substantive claims being wholly without any merit whatsoever, I decline, as noted, to issue a Certificate of Appealability.
Background
On February 27, 2017, the grand jury charged the defendant in a two-count indictment that alleged: 1) sex trafficking of a minor; and 2) sexual exploitation of a minor in violation of 18 U.S.C. §§ 1591, 2251(a). (Doc. 7). The charges duplicated those in a criminal complaint dated February 1, 2017. (Doc. 1). At the defendant's initial appearance, the Magistrate Judge, giving due consideration to the seriousness of the charges and potential sentence, appointed attorney Ms. Jane Roman, well known for her skill and dedication, as defense counsel.
On September 27, 2017, Ms. Roman filed a motion for leave to withdraw as counsel. (Doc. 17). Though the grounds stated in the motion were customarily opaque, I learned during a sidebar that the defendant did not want her to represent him because she is a woman. Choice of an attorney based on gender is not, of course, a defendant's prerogative.
Despite the utter inadequacy of the basis for Ms. Roman's motion, I opted to grant it. In her place I appointed John McMahon. Like Ms. Roman, Mr. McMahon is an experienced, skilled, and dedicated defense attorney.
On March 6, 2018, I held a telephonic scheduling conference. I set May 22, 2018 as the trial date. I set April 12, 2018 as the date for defendant's notification of intent to change his plea.
Before the April 12th plea notification deadline, the defendant notified the court that he was dissatisfied with Mr. McMahon and wanted to retain private counsel.
On April 12, 2018, I held a hearing to determine the circumstances. That hearing included, in part, an in camera session with Mr. McMahon and the defendant. (Doc. 44-1, pgID #383-412). I decided to conduct further inquiry into the defendant's complaints about Mr. McMahon in camera.
In that session, I confirmed that Mr. McMahon had, as is customary in our Court, received full and complete discovery from the government. That is, he had come to know as much as the prosecutor knew about the case, the witnesses, and the evidence. (Doc. 44-1, pgID #372, l. 19-25).
In conclusory terms, the defendant told me that there was a lot going on in the case and he wanted to sit down and talk with the Agents about his case. I made clear that what he wanted, as I understood it, could not occur. That was so, I explained, even if I were to order them to sit for a deposition. (Id. , pgID #389, l. 3-14) .
From this response, Mr. Potts concocts a misguided contention that I somehow was infringing his right to interview witnesses. (Doc. 95, pgID #807). Not so: I understood from the defendant's request that he wanted, in effect, a personal sit-down with the Agents. Read in context, my statements could not have discouraged Mr. McMahon from reaching out to the Agents if he wanted to do so. In any event, had he undertaken that rather unusual and unlikely step, they probably would have declined to speak with him.
When I asked the defendant, "tell me what else ... he's done or failed to do that you're not happy with," the defendant responded, "My thing is just me and my family have been talking. I just wanted to hire my own attorney. That's all I was trying to do." (Id. , pgID #392, l. 7-15).
I told the defendant that it was his right to hire retained counsel. But I also made clear that the case was going to go to trial on the scheduled date, and that it would do so, regardless of when the attorney appeared. (Id. pgID #393 l. 24 - pgID #394 l. 1).
I then asked the defendant whether there is "[a]ny other factual basis that you wish to call to my attention that in any way Mr. McMahon has given you fair and just cause to doubt his dedication, his diligence, his skill, or his willingness to represent you, just like he's represented every other defendant in every other case in front of me." (Id., pgID #400 l. 14-20).
To which the defendant replied, "Everything all right ... Everything's all right." (Id. , l. 23-25).
It being clear that the defendant had not offered any reason to discharge Mr. McMahon, I indicated I was denying his request to do so. (Id. , pgID #401, l. 1-7). It was also clear that he understood he could hire a private attorney but that the trial would go forward as scheduled. (Id. , pgID #398 l. 11-21).
That concluded the in camera session. On resuming the open session, I confirmed my finding that there was no cause to dismiss Mr. McMahon. (Doc. 44, pgID #371 l. 13-25) I also confirmed that I had made the defendant aware that it was his choice to proceed with or without an attorney. (Id. , pgID #372, l. 1-10). I also reported that the defendant had continued to express a desire to obtain private counsel, but that the case was going ahead as scheduled. (Id., l. 11-18).
At my urging, the parties agreed to move the notice of intent to plead guilty to a new deadline of April 23, 2018. (Id. , pgID #377, l. 6-18). There was no notice of intent to change plea before the deadline for such notice. When, however, the case was called for trial on May 18, 2018, the defendant indicated that he wanted to change his plea to guilty. (Doc. 47, pgID #423, l. 13-22). Choosing to ignore the defendant's failure to provide timely notice of that desire, I proceeded to accept the defendant's pleas of guilty. In doing so, I found the defendant competent to plead (Id. , pgID #431, l. 10-13), that there was a factual basis for the plea (Id., pgID #456, l. 10-14), and that the defendant had entered the plea knowingly, intelligently, and voluntarily. (Id. , pgID #449, l. 20-25).
During that proceeding, there were some particularly important statements that bear on the defendant's pending amended motion.
First, the Clerk placed him under oath. After which, I asked: "Do you understand that your responses to the questions that I will be asking have to be truthful to the best of your ability? Do you understand you have to tell me the truth?" To which the defendant replied, "Yes, sir." (Id. , pgID #426, l. 19-23).
I then explained, "[I]t's a federal crime to make any false statements to a federal official, and certainly it is even worse to do so when you are under oath. Do you understand that?" The defendant again answered, "Yes, sir." (Id., pgID #426 l. 24 - pgID #427, l. 4).
Second, shortly after the defendant gave those responses to my warnings about the need to tell the truth, I asked, "[A]re you confident you've understood everything that I've just been talking about with you?" To which the defendant again responded, "Yes." (Id., pgID #430, l. 10-12).
Third, before I advised the defendant of the trial-related rights that his plea would waive, I asked, "[Y]ou are satisfied with the work that Mr. McMahon has done with you?" The defendant answered, "Yes." I continued, "And any earlier difficulties that you had, you've gotten past that and have been able to work with each other?" The defendant responded, "Yes. Made it work." (Id., pgID #432, l. 5-11).
Fourth, to determine whether the defendant knew the government's evidence against him, I turned to the issue of pretrial discovery and what Mr. McMahon had shared with him. I began by asking, "And are you confident that he has obtained from the government and shared with you basically the evidence that he understands and the Government has represented to him that the Government would introduce in this case?" The defendant answered, "Yes." (Id. , l. 12-17).
Fifth, I then asked, "And he's explained your options to you as he saw them in his best judgment as an experienced attorney?" Again, the defendant answered, "Yes." (Id. , l. 18-21).
Sixth, I asked a set of questions that, for me in plea proceedings is customary: "Is there anything that he has done while representing you and since you've been working together with each other that you told him not to do? Do you understand what I'm saying?" The defendant responded, "No, he ain't done nothing I told him not to do." (Id., pgID #432, l. 22 - pgID #433, l. 2).
I continued, "Okay. And has he done -- if he told him to do something, has he done everything you asked or told him to do?" In response, the defendant stated, "That I've requested, yes." (Id., pgID #433, l. 3-6).
Seventh, after I informed the defendant that, at sentencing, I'd have to take the Sentencing Guidelines into account, I asked, "Mr. McMahon and you have had a chance to discuss the guidelines and, at least, in general their operation?" The defendant answered, "Yes. I'm familiar with them." After which, I asked "And, Mr. McMahon, have you undertaken that conversation with your client?" Mr. McMahon answered, "Yes, Your Honor, many times." (Id. , pgID #441, l. 7-12).
After the plea proceeding, the Clerk scheduled sentencing for October 22, 2018.
Sentencing did not occur on that date. That was so because the defendant had again notified the Court that he wanted to discharge Mr. McMahon and obtain successor counsel. Shortly after the Clerk called the case, I confirmed that fact and withdrew with Mr. McMahon and the defendant to chambers to conduct an in camera session. (Doc. 51, pgID #467, l. 11-17).
After the defendant stated that he did not want Mr. McMahon to represent him, I asked, "Why not?" In response, he stated, "I feel he's not been in my best interest with my case ... A lot of things in my case that I'm innocent of and he was encouraging me to plead guilty -- he's been encouraging me to plead guilty, that I'm not guilty of to lie in the courtroom ... I don't go [sic] no understanding of a lot of stuff going on in the courtroom. He don't break everything down to me." (Id., pgID #469, l. 22 - pgID #470 l. 11).
I reminded the defendant that he was under oath and that he had also been under oath at the in camera session on April 12, 2018. (Id., pgID #471, l. 5-12). I also told him about the risks of committing perjury. (Id., pgID #471, l. 13-20).
I then told the defendant that he had not shown me any grounds to discharge Mr. McMahon (Id., l. 22-23). I further told him that he could represent himself and that sentencing would be next. (Id. , pgID #472, l. 15-16). Before then, I would grant leave to file a sworn affidavit reciting all the things that he claimed Mr. McMahon failed to do. (Id. , l. 16-20). I also repeated the warning about the possible consequence of contradicting under oath his sworn testimony in open court. I noted the burden he would have to bear in seeking to withdraw his plea. (Id., l. 20-24).
After I told the defendant I was not going to give him a new lawyer, he said he wanted to represent himself. (Id. , pgID #473, l. 25 - pgID #474, l. 5).
I asked, "[W]hy -- tell me again why is it that you think Mr. McMahon hasn't done the job. Be precise." (Id., pgID# 474, l. 6-8).
Rather than heeding my request to be precise, the defendant claimed that he had not done the things of which the government had accused him – in direct contradiction to his sworn statements at the plea proceeding. (Id. , l. 19-23). His statement amounted, essentially, to his contention that he did "nothing of that I'm been accused, told [by Mr. McMahon] to just plead out ... you're going to go to trial, you're going to get found guilty ... don't do this, don't do that. I was scared ... I can't plead guilty and just run with something my conscious telling me not going to plead guilty of -- a lot of things I'm not guilty of." (Id., pgID #474, l. 23 - pgID #475, l. 7). In response to my further question as to whether Mr. McMahon had shared the government's evidence with him, the defendant replied, "I'm not sure if it was everything or what was what." (Id., pgID #476, l. 12-13). Then I asked further, "[A]re you telling me that you have a -- some reason to believe that he is not telling the truth about the government's evidence and sharing with you?" The defendant replied, "I couldn't say that. I don't -- I don't -- I don't know." (Id., pgID #476, l. 24 - pgID #477, l. 4).
I then stated that I was making certain findings of fact, namely that: 1) Mr. McMahon had shared the government's evidence with the defendant; and 2) "there's nothing that Mr. McMahon did or did not do that in any way failed to represent you competently and adequately." (Id. , pgID #477, l. 5-12).
I followed these findings with a reminder that I'd asked him during the plea hearing whether there was "anything that he didn't do that you told him to do and you said no. Are you now telling me you asked him specific things to do that he didn't do?" To which the defendant responded, "There was a couple things." (Id. , l. 13-16).
"Like what," I inquired, and then I put him under oath, and repeated, "Okay. What did you tell him to do that he didn't do?" (Id. , l. 17-21).
"Talk to my brothers, talk to my brothers, my mothers, get some statements from them." (Id. , l. 22-23).
In response to which, I asked Mr. McMahon, "[D]o you recall him instructing you to talk to his brothers and his mother?" Mr. McMahon said, "Yes ... I talked to both ... I don't think the evidence provided by either of those people would have been favorable to Lawrence. There were specific government reports. 302s from the mother where the mother indicated to the agents when the agents interviewed her that she knew what Lawrence was doing, and that Laurence shouldn't have been doing it. And I've actually had face-to-face meetings with brother Marcus. He's been in my office. Marcus -- I've passed letters between Marcus and Lawrence and Lawrence and Marcus where Marcus was advising Lawrence to actually plead guilty and take the best deal he could get because Marcus himself felt he was guilty. And I don't think they were willing to come in and testify because I don't think they had any evidence that would have been favorable to Lawrence. In fact, they were -- made it known that they didn't have anything that would help Lawrence in the determination of guilt." (Id., pgID #477, l. 24 - pgID #478, l. 21).
I then asked the defendant, "Do you have any specific reason to believe that Mr. McMahon didn't do exactly as he told me?" The defendant replied, "Unless they lying to me." (Id. , pgID #478, l. 22-24). I continued, "What else didn't he do?" To which the defendant responded, "There's some paperwork, something to do -- he went over something with me, evidence from [a friend] who actually took the photographs of [M] and was at my house and I told him about her being there, and she told the FBI Agents that she never been over there before, that she never been to my house before." (Id. , pgID #479, l. 1-7).
"I told [Mr. McMahon], like, she has just -- just came over here, she always comes over here to deal with [M], like she the one that took the pictures. She set all that stuff up. They were the one doing everything. They were actual -- but they went over some more paperwork about [M] saying that [C] used to come over there, [C] sent her friends to come over there, or [M] sent [C] to come over there, and [C] was saying she never been over there, and I ran that across to him. He just overlooked it, just said never mind it. And that's -- that's a big part of my case right there for [C] saying she never used to come over there, and [M] saying she used to come over there. And I got a lot of -- about them taking the pictures and setting all the accounts up." (Id. , l. 7-21).
I asked Mr. McMahon to respond. He said, "Lawrence has been pretty consistent with maintaining he didn't actually take the pictures ... at the plea hearing though where we touched on the elements of the production, that it was more if he directed them to be taken he was also guilty. The victim statements in the case are -- contradict that. I mean, the victim statements said that Lawrence took the pictures. The third girl or the friend of the victim ... If my recollection of the evidence is correct, there were contradictory statements if she had actually been to the residence on Coventry Avenue or if she hadn't been there. I don't know if she actually had, like, an interview by the agents or not." (Id., pgID #479, l. 23 - pgID #480, l. 12).
In light of the foregoing, the defendant had failed to show good cause to discharge Mr. McMahon. But I decided to excuse him and appoint another attorney for the sole purpose of preparing and presenting a motion to withdraw the defendant's guilty plea, including sworn affidavits from the defendant and other people whom the defendant designated. (Id., pgID #481, l. 15-21).
I made clear that I was appointing the additional attorney for the limited purpose of preparing and presenting a motion to withdraw the plea. (Id. , l. 22-24). If I granted the motion, I would appoint another lawyer or have interim counsel represent him or if I denied the motion, the defendant could either have him as his attorney for sentencing or proceed on his own. I also stated that, were I to grant the motion to vacate, I would permit him either to keep the interim lawyer or appoint another attorney for further proceedings. (Id., pgID #481, l. 1-13).
I appointed the late Jack Brady as interim/possible successor counsel. I set December 3, 2018 as the date for a hearing on the motion.
On November 20, 2018 Mr. Brady filed a Motion to Vacate Plea (Doc. 40), to which he attached the defendant's affidavit. (Doc. 40-1). The affidavit averred: 1) he didn't get along with Mr. McMahon; 2) he felt Mr. McMahon was "trying to ‘speed’ " his case and to get him to plead; 3) he told Mr. McMahon he wasn't interested in a plea and wanted to go to trial; 4) he pled guilty because he was scared and Mr. McMahon told him he'd get life in prison if he went to trial; 5) he had a verbal confrontation with Mr. McMahon that had almost turned physical; 6) he was always on bad terms with Mr. McMahon; they didn't like each other; 7) Mr. McMahon "did not do what I asked of him; he did not provide me the evidence; and he and he did not investigate the witnesses;" 8) Mr. McMahon told him to accept a plea offer of twenty-four years; 9) Mr. McMahon told him to lie [about his guilt] so he could get an offense level reduction [for acceptance of responsibility]; 11) Mr. McMahon told his family to get him to plead guilty to twenty years or get life; and 10) he's always maintained his innocence. (Doc. 40-1)
This affidavit is false in at least two material respects. First, the defendant has not "always" maintained his innocence: under oath he admitted the facts that the prosecutor related at the plea hearing. Those facts, which the defendant acknowledged as true, clearly established his guilt of the two counts to which he pled guilty.
Second, Mr. McMahon stated, and the defendant did not refute, that he had done as the defendant desired with regard to reaching out to his family. Most telling in that regard is that the defendant's motion did not include affidavits from his mother or brother, much less affidavits that disputed Mr. McMahon's account of his conversations with them. Sometimes what remains unspoken matters most. Cf. Okros v. Angelo Iafrate Const. Co. , 298 F. App'x 419, 430 (6th Cir. 2008) (inferring that counsel had not served certain subpoenas because he failed to produce documentation of them despite several opportunities to do so).
Moreover, when I told the defendant to be "precise" in telling me what Mr. McMahon had failed to do that he had wanted him to do, he only told me that Mr. McMahon had not reached out to his mother and brothers. Which he had. The defendant has not, at any time during the proceedings before me, identified anyone else to whom he directed Mr. McMahon.
At the outset of the December 3, 2018 pretrial conference, I pointed out the glaring, irreconcilable inconsistency between his statement during the plea hearing that there was nothing Mr. McMahon had failed to do that he'd asked him to do and his claims in his affidavit. I also noted the utter discrepancy between his acknowledgement of the factual basis for his plea and his affidavit's claim of innocence. I made clear the consequences of potential perjurious or false statements. I told him I'd set a briefing schedule and the burden would be his to prove cause for granting his motion. But I also told him, "If you want to roll those dice, go right ahead." (Doc. 69, pgID #657, l.1).
Thereafter, I gave the defendant the opportunity to talk with Mr. Brady. After they had done so, Mr. Brady told me, "Mr. Jones states to me that the statements in his affidavit are true ... That he was told to appease you at the plea hearing and he did." I said I would set the matter for a hearing (i.e., an evidentiary hearing). (Id., l.4-18).
I confirmed that I would permit Mr. Brady to continue to represent the defendant and, if desired to do so, could file a brief on his behalf and an appearance – i.e., to replace Mr. McMahon as the defendant's attorney. (Id., pgID #660, l. 12-20).
Having put the evidentiary hearing on the defendant's motion to withdraw his plea for the previously set sentencing date, December 3, 2018, I reset sentencing for February 7, 2019.
After the Clerk had called the case on February 7, I confirmed that both parties were prepared to proceed and then directed Mr. Brady to call his first witness. Then I reminded the defendant of the possible consequences of contradicting, via testimony under oath, his prior sworn statements at the plea hearing. I then told Mr. Brady he could proceed. (Doc. 70, pgID #666, l. 13-25).
Rather than calling his first witness, Mr. Brady related that he had reviewed the transcripts of the prior proceedings, including the plea hearing, and met with the defendant. He further said that he had told the defendant that he thought he was making a mistake and that he should withdraw his motion to withdraw his plea. But the defendant had told him no, "[H]e still does not want to." (Id., pgID #669 l. 5). Mr. Brady, continuing, said that he'd just received the files from Mr. McMahon, but based on his partial review of the two full flexible files, he had "indicated to Mr. Jones this morning that he should still reconsider and not shoot himself in the foot." Whereupon, the defendant concurred that that was fine. (Id., l. 12-19).
Those files are not currently part of the record. If the government is able to procure them, I grant leave to it, in the interest of completing the record, to file those files under seal. Alternatively, if Mr. Potts has possession of those files, he shall forthwith file them under seal.
Then, however, Mr. Brady asked, "May I have a moment with him?" I said, "absolutely." (Id. , l. 21-22).
Next, Mr. Brady said that Mr. Jones wanted to have his "mental health history to be present for the Court at this hearing ... I contacted his uncle over a month ago and discussed acquiring those records. I called him back a week later and that number was disconnected and I've had no contact with him since. At Mr. Jones’ request I did call his sister and his brother. His sister originally obviously didn't recognize my number and hung up the phone. I called back and left a message. She returned the call. She didn't know why I was contacting her. I asked her to get ahold of her brother and have him call me. I left a message on his phone machine as well and have had no contact with him. (Id. , pgID #669, l. 25 - pgID #670, l. 11). Mr. Brady indicated he didn't know if I would grant more time for that purpose. (Id., pgID #670, l. 12-14).
I responded that, after two or three hearings with the defendant (and a finding of competency during the plea hearing), "there's nothing that leads me in any way to believe that he has any mental incapacity that prevented him or precluded him in any way whatsoever in participating fully, capably, and competently in the proceedings that I've had with him." (Id. , pgID #671, l. 12-17). Moreover, I continued, given the family's lack of cooperation, "I basically don't see what use any medical records might be. Is there any indication that he's ever been committed voluntarily or involuntarily to a mental institution for health purposes?" (Id., l. 22-25).
Mr. Brady acknowledged that "the record is quite clear that you did an extensive questioning and determined his mental capacity to enter the plea. And I've indicated to him that I'm not sure his mental capacity has anything to do with the guilt phase of this proceeding, that it may have relevance at sentencing ... but not for whether or not he's guilty of what he's charged with." (Id., pgID #672 l. 18-25).
At this point there was a brief discussion off the record at the bench. When I told Mr. Brady he could proceed, he stated that "Mr. Jones has requested an opportunity to speak with me in private." (Id., pgID #673 l. 3-8). So I took a recess.
Mr. Brady and the defendant returned to the courtroom after a recess of 29 minutes (Id. , pgID #673 l. 25 - pgID #674, l. 2). Mr. Brady then stated, "After further consultation with Mr. Jones, he has directed me to ask you for permission to withdraw his motion to withdraw his plea and seal his affidavit that was attached to that motion." (Id., pgID #674, l. 5-8). I asked, "Mr. Jones, what do you want to do?" To which he answered, "I would like to do what the lawyer just said." To clarify, I said, "Well, you tell me. What do you want to do?" Mr. Jones said, "I want you to withdraw the motion and seal the affidavit involved with it, that's what I want you to do." (Id., l. 12-23).
I thereupon asked Mr. Brady if we could proceed with sentencing. He indicated that, among other things, he had only recently received the file and needed to review the PSR and discuss it with the defendant – so he asked for sixty days in which to do those things. Sentencing was set for April 1, 2019 at 8:30 a.m. (Id., pgID #675, l. 17-22).
I then granted the defendant's motion to withdraw the motion to withdraw his plea. (Id. , pgID #676, l. 2-6).
Sentencing did not occur then. Because on March 1, 2019, the defendant filed a Motion for a Mental Health Assessment, which I granted. (Docs. 52, 53). The Psychiatric Report came back on June 3, 2019. (Doc. 55). It provided no basis for finding that the defendant's mental faculties were in any way impaired. (Id. ).
Sentencing occurred, at long last, on August 28, 2019. Shortly after the hearing began, I concluded that the defendant's criminal history category was overstated. (Doc. 67, pgID #536, l. 2-17). I also determined, despite the defendant's perjurious statements about Mr. McMahon's lack of investigation, to give him undeserved acceptance of responsibility credit. (Id. , pgID #539, l. 15-24). I confirmed that the AUSA and Mr. Brady had received and reviewed the PSR. (Id. , pgID #538, l. 19-22).
I asked the defendant, "[D]id you read the Presentence Report?" He answered, "Yes, sir." I then asked, "And did you understand what it says and what it means?" Again, he answered, "Yes." (Id. , pgID #538, l. 23 - pgID #539, l. 5).
Next, I asked, "[D]id [Mr. Brady] go over it with you and help explain it to you and answer any questions you may have had?" To which the defendant responded, "Yes, he went over it." (Id., pgID #539, l. 6-10). Then I asked, "And are you satisfied that he's given you and your case enough time and attention to prepare you for today's proceeding?" The defendant said, "Yes." (Id., l. 11-14).
Allocution, mitigation, and the defendant's opportunity to mitigate took place.
I imposed a less than Guideline sentence of 420 months – thirty-five years. (Id. , pgID #618, l. 10-12).
Court-appointed successor counsel filed a Notice of Appeal. He also filed an Anders brief and was granted leave to withdraw. The Court of Appeals affirmed in all respects. United States v. Jones , No. 19-3857 (6th Cir. June 5, 2020).
Discussion
1. The Motion Was Timely
The parties agree that under 28 U.S.C. § 22255(f)(1), there is a one-year limitations period for filing a § 2255 motion. The limitations period begins once a defendant's judgment of conviction is final.
They disagree, however, as to when the one-year period expired. The government argues that date was June 5, 2020, the date when the Sixth Circuit affirmed the defendant's conviction and sentence. That, according to the government, made the deadline September 4, 2021.
The defendant contends that his conviction only became final when, the ninety-day deadline for seeking certiorari had passed. If so, that extended the deadline until November 10, 2021. Defendant is correct. See Alexander v. United States , No. 1:04 CR 529, 2013 WL 773751, at *2 (N.D. Ohio) (Polster, J.) (citing Bronaugh v. Ohio , 235 F.3d 280, 284 (6th Cir. 2000) ) ("The Sixth Circuit has held ... that the one-year statute of limitations does not begin to run until the deadline for filing a cert petition for direct review in the U.S. Supreme Court expires").
Mr. Potts met that deadline when he filed the defendant's motion on that day.
2. Failure to Meet Minimal Pleading Standards
Rule 12 of the Rules Governing § 2255 Cases provides: "The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules." Notably, that includes basic pleading requirements. A counseled petition "must provide some factual description of events or occurrences that give rise to a plausible inference that [the petitioner's] claim is warranted and can later be supported by evidence." Turner v. United States , No. 5:13-CR-047-GFVT-REW, 2017 WL 2705964, at *2 (E.D. Ky.) (citing Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). " ‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." Mayle v. Felix , 545 U.S. 644, 655, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). "A motion under § 2255 must consist of something more than legal conclusions unsupported by factual allegations." Robinson v. United States , 582 F. Supp. 2d 919, 925 (N.D. Ohio 2008) (Wells, J.) (citing Short v. United States, 504 F.2d 63 (6th Cir. 1974) ).
The amended petition fails entirely to meet the requirements of Rule 11. It simply asserts ineffective assistance of counsel in totally conclusory terms. The closest it comes to an allegation of fact is a failure to contact witnesses. But even there, the petition fails to indicate which witnesses should have been, but were not, contacted.
In addition, he did not specify any particular enhancement as to which the defendant was so completely uninformed that it would have rendered his plea involuntary.
3. Ineffective Assistance of Counsel
Though I am dismissing the amended motion for its noncompliance with basic pleading requirements, I will, nonetheless address the claims it asserts on the merits. I have read the court proceeding transcripts. There is nothing, except for the defendant's untrustworthy, implausible, and self-serving statements, that in any way supports his claims of ineffective assistance of counsel.
Turning to the law to apply to that record, I apply Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , " ‘[t]o demonstrate that counsel was constitutionally ineffective, a defendant must show that counsel's representation ‘fell below an objective standard of reasonableness’ and that he was prejudiced as a result." Lee v. United States , ––– U.S. ––––, 137 S. Ct. 1958, 1964, 198 L.Ed.2d 476, (2017) (quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). To meet that standard:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, supra , 466 U.S. at 687, 104 S.Ct. 2052.
To demonstrate prejudice in the course of a conviction entered on a guilty plea, a movant must "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Applying these standards, I find nothing deficient in either attorney's performance, much less a deficiency of constitutional magnitude. Even if it were otherwise, the defendant cannot show any resulting prejudice.
A. Failure to Investigate
The defendant alleges that his attorney, i.e. Mr. McMahon, failed to conduct an adequate investigation.
As detailed in the Background section, the record belies this conclusory and fact-barren claim.
First, with regard to what the defendant claims his attorneys failed to do – contact witnesses – I start with the observation that the government's comprehensive disclosure of its evidence revealed that there were no likely favorable witnesses among the dramatis personae , who were few in number. Aside from the defendant, there was, M., the victim, C., a friend with some apparently likewise complicit involvement in illegal activities (taking illicit photos), another of defendant's prostitutes, apparently also complicit in the defendant's crimes, and a customer, "Pfunky."
Even assuming any of those individuals could be located, there was no reason to believe any of them would provide helpful information – even if they were willing to talk with the defendant's attorneys. Which would be highly unlikely under the circumstances. It is, in any event, noteworthy, that, when the defendant did point to potential witnesses whom he claims counsel did not contact, his only suggestions were members of his family. Not others with firsthand knowledge about him and his activities. He knew those persons; he knew how to reach them; he could have directed his attorneys to them.
There is nothing to suggest that he pointed counsel in that direction. Instead, he claims that his attorneys failed to contact his family. Which is untrue: both attorneys followed his directions and reached out to his mother, a brother, and a sister. When Mr. McMahon talked with the mother, she said she knew what the defendant was doing and she clearly didn't approve. The brother related that he thought the defendant was guilty and that he should get the best deal that he could. His letters to the defendant expressed those views.
Mr. Brady's efforts to contact family members also did not work out well. None whom he reached out to was cooperative. All were unresponsive.
So, in the end, it is clear that what shreds of leads the defendant gave his attorneys resulted in the contacts that he had asked them to make.
The defendant has pointed to no one else. When he signed, under penalty of perjury, the amended § 2255 motion, he no doubt knew that both attorneys had contacted his family, or attempted to do so – to no avail.
Finally, he never complained in any specific way, though he had ample opportunity during two in camera sessions with me and Mr. McMahon, about failings on his attorney's part to do his bidding. At one point, I asked him to be precise. He wasn't. In the end, his complaints about Mr. McMahon reflected frustration and concerns about his circumstances. That is not a basis for relief under § 2255.
Finally, when I asked him directly during the plea colloquy whether there was anything that he had told Mr. McMahon to do that he had not done. He said, unequivocally, that there was not.
There was nothing deficient in the work that either attorney did on the defendant's behalf when it came to investigating the facts and circumstances. Though the defendant faults them for allegedly not looking beyond the extensive discovery materials, the record shows that they went beyond what was there. Mr. McMahon filled up two flexible files. Mr. Brady quite properly asked for additional time to prepare for sentencing – and the record shows he did.
In any event, the defendant has failed utterly with regard to his burden of showing prejudice. He offers nothing that could in any way have affected the outcome, even if the case had gone to trial. His only potential witness would have been himself. To provide favorable testimony, in light of what Mr. McMahon had learned from his mother and brother, would probably have been the result of easily penetrable perjury on their part.
There is no merit to the defendant's spurious claim that his attorneys failed to investigate, or, by implication, failed to prepare to represent him adequately at all stages of the proceeding.
Which they did.
B. Advice Regarding Enhancements
The defendant claims that his plea was not voluntary because he did not understand how the enhancements worked. In that regard, he points to the two-level enhancement for obstruction of justice. That enhancement resulted from the discovery, during the execution by FBI Agents, of the defendant's partially broken cell phone in the pocket of a coat in his closet. (See Doc. 38, pgID #311, ¶ 36; pgID #309, ¶ 14). His objection is not well-taken.
The phone contained a substantial amount of incriminating evidence about the defendant and his operations, especially with regard to the Victim, M. (See id., pgID #307-310, ¶¶ 6–20). Given that fact, coupled with the fact that the victim had alerted him that the FBI was on to him, (Doc. 38, pgID #308), the defendant had every reason to try to render his phone inoperable and its data inaccessible. That some third party, without the defendant knowing it, entered his house, went into his closet, found the phone in his jacket, unsuccessfully tried to break it, and put it back into the jacket pocket is implausible in the extreme.
In any event, I find that defendant's contention that his plea was involuntary due to lack of information about the Guidelines and the enhancements not worthy of credence for two reasons.
First, Mr. McMahon stated that he had gone over the Guidelines with the defendant "Many times." Not only did the defendant not dispute this statement at the time, but he also reassuringly told me that he was "familiar" with them.
He confirmed his understanding of the Guidelines and their effect during sentencing. When I asked him if he'd read and understood the PSR, he acknowledged that he had and did. He replied in the same way when I asked him if Mr. Brady had answered any questions about it.
The time to speak up was then. It is too late to backtrack now. Especially when the defendant now finds himself in the quagmire of his prior perjury.
The other reason is that the defendant has shown himself to be willing to lie under oath when it seemed to suit his purpose. Under such circumstances, no rational trier of fact could find him truthful, no matter what he said.
In any event, the defendant cannot show prejudice. After I gave him his undeserved two-level reduction for acceptance of responsibility, his base offense level was 43. But I increased his Criminal History to a V. That resulted in a Guideline of life imprisonment.
That is not what he got. Thus, any lack of understanding, if it existed, about the enhancements did not prejudice the outcome.
Conclusion
There is no merit to the amended motion. To begin with, it fails utterly to comply with Fed. R. Civ. P. 8 and 81. Even if somehow it did, it would not matter. The defendant's own acknowledgements and failure to specify any actions his attorneys did not take belie entirely his claims of failures to investigate, prepare, and advise. His claims of failures to investigate and advise adequately lack any merit whatsoever. In any event, he has made absolutely no showing of prejudice.
Given those indisputable conclusions as to the merits, though not essential to this Order, any proposed amendment to the already once amended motion would be futile.
It is, accordingly, hereby
ORDERED THAT
1. The government's motion in opposition to the defendant's request for an extension of time (Doc. 85), be, and the same hereby is, denied; and
2. The amended motion to correct, amend, or vacate sentence (Doc. 86) be, and the same hereby is denied and dismissed.
3. I decline to issue a Certificate of Appealability.
So ordered.