Opinion
8:98CR20
August 2, 2002
MEMORANDUM AND ORDER
Before the court are (1) Filing No. 107, the motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255; and (2) Filing No. 126, the amendment to the section 2255 motion, filed by the defendant, Calvin James. Upon initial review of the defendant's § 2255 motion, I conclude that the motion should be denied.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Court states the following regarding initial review:
(b) Initial consideration by judge. The motion, together with all the files, records, transcripts, and correspondence relating the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.
On March 2, 1999, the defendant entered a plea of guilty to Count I of the Superseding Indictment charging him with bank fraud in violation of 18 U.S.C. § 1344 and 2. After reviewing the Presentence Report and a Bureau of Prisons' (BOP) medical evaluation, I sentenced the defendant to the custody of the BOP for thirty months, to be followed by five years of supervised release and ordered restitution be paid in the amount of $103,727.00.
The defendant appealed his conviction to the Eighth Circuit, arguing that: (1) the Superseding Indictment failed to allege the elements of bank fraud; (2) the court improperly ordered restitution without regard to the defendant's ability to pay; (3) the defendant should not be responsible for restitution to certain financial institutions as ordered by the court; (4) the government engaged in prosecutorial misconduct and vindictive prosecution; and (5) the defendant's attorney rendered ineffective assistance of counsel. The Eighth Circuit affirmed the defendant's conviction on July 28, 2000. In the opinion, the Eighth Circuit held that the defendant had failed to show that the Superseding Indictment failed on its face to state the offense of bank fraud. The court rejected the defendant's claims regarding restitution. Finally, the court held that the defendant waived any claim of prosecutorial misconduct by pleading guilty. As for the ineffective assistance of counsel claim, the court noted that the claim should be raised in a postconviction motion pursuant to 28 U.S.C. § 2255.
On June 4, 2001, after he violated his terms of supervised release, I ordered the defendant to the custody of the Bureau of Prisons for a term of twenty-four months in case No. 8:98CR20 and ten months in case No. 8:95CR1, to run concurrently.
On May 24, 2001, the defendant filed the present section 2255 motion. In his motion, the defendant asserts the following claims:
The plea of not guilty in the above case was unlawfully induced;
The conviction was obtained by evidence seized during an unlawful search;
The conviction was obtained by the prosecution's failure to disclose evidence;
The Superseding Indictment failed to state an offense punishable by the government and/or lack of jurisdiction;
The government improperly used selective prosecution;
The denial of effective assistance of counsel prejudiced the defendant.
The defendant also filed an amendment to the section 2255 motion which includes the claim that if the exhibits in this case had not been destroyed, he would be able to prove the above claims.
DISCUSSION Procedural Default
Issues raised on direct appeal may not subsequently be used as a basis for collateral attack in the absence of newly discovered evidence or an intervening change in the law. See English v. United States, 998 F.2d 609, 612 (8th Cir. 1993) (section 2255 motion may not be used to collaterally attack the sufficiency of the evidence when the issue has previously been decided on direct appeal). Consequently, because the defendant may not, in his section 2255 motion, assert issues which he previously presented on direct appeal, the following claims in the defendant's section 2255 motion will be, and hereby are, dismissed: Claim No. 4 (the Superseding Indictment failed to state an offense punishable by the government and/or lack of jurisdiction); and Claim No. 5 (selective prosecution).
Voluntary Guilty Plea
The defendant argues that his attorney assured him that if he pled guilty to the offense charged, he would be sentenced to no more than fourteen months of imprisonment. For this reason, the defendant argues, his attorney unlawfully induced him to plead guilty. However, the record reflects the contrary.
Representations made at the plea hearing "carry a strong degree of verity and pose a `formidable barrier in any subsequent collateral proceeding.'" Ingrassia v. Armontrout, 902 F.2d 1368, 1370 (8th Cir. 1990), citing Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985). At the change of plea hearing in the present case, I asked the defendant "What is your understanding of how much time you're looking at incarceration-wise if you plead guilty?" The defendant responded, "Thirty months." Filing No. 67 at 9:9-11. I informed the defendant that the maximum could be more than thirty months depending on the presentence report and my final decision. The defendant indicated that he understood. Regarding the plea agreement, I asked the defendant if he understood "that what is written on that paper . . . is the entire agreement between you and the government and there is no other side deals or agreements between you and the government?" The defendant indicated that he understood. Id. at 14:13-27. Finally, I asked the defendant if anyone had made promises or inducements to get him to plead guilty. Again, the defendant indicated "No." Id. at 20:10-14. Based on the defendant's testimony, I conclude that the defendant voluntarily pled guilty to the charge of bank fraud. Accordingly, Claim No. 1 of the defendant's section 2255 motion (that his attorney unlawfully induced him to plead guilty) is dismissed.
Unconstitutional Search and Seizure
"A voluntary plea of guilty waives all nonjurisdictional defects." United States v. Petrngelo, 599 F.2d 261 (8th Cir. 1979). For the reasons stated above, the defendant's plea of guilty was voluntary and he is therefore barred from challenging the validity of the search and seizure. See Johnson v. Petrovsky, 626 F.2d 72, 73 (8th Cir. 1980) (a voluntary guilty plea precludes a petitioner from challenging the constitutionality of a search and seizure). I informed the defendant of this waiver during the change of plea hearing. Filing No. 67 at 18:19-25. Accordingly, Claim Nos. 2 (conviction obtained by use of evidence unlawfully gained) and 3 (conviction obtained by the government's failure to disclose evidence relevant to suppression hearing) of the defendant's section 2255 motion are dismissed.
Ineffective Assistance of Counsel
The defendant argues that he received ineffective assistance of counsel because of his attorney's failure to subpoena various witnesses for the suppression hearing and because the attorney ignored the defendant's request for a bench trial.
The United States Supreme Court has instructed that there exists a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland v. Washington, 466 U.S. 668, 689-90 (1984):
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."466 U.S. at 689.
A defendant bears the burden of proving both that counsel's performance was deficient and that the defendant suffered prejudice as the result of counsel's ineffective assistance. To establish prejudice, a defendant must demonstrate that absent counsel's errors, there exists a reasonable probability that the result of the proceeding would have been different. See Evans v. United States, 200 F.3d 549, 550 (8th Cir. 2000), citing Strickland. Accord Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000). "The Strickland test has two parts: whether counsel's performance was in fact deficient and, if so, whether the defendant was prejudiced by the inadequate representation. If we can answer `no' to either question, then we need not address the other part of the test. . . . Under the first part of the Strickland test, we consider counsel's performance objectively and gauge whether it was reasonable `under prevailing professional norms' and `considering all the circumstances'. . . . We look at counsel's challenged conduct at the time of his representation of the defendant and we avoid making judgments based on hindsight." Id. at 1027.
Where a conviction was entered on the basis of a guilty plea, the second part of the Strickland test is slightly modified. In the context of a guilty plea, a convicted defendant must demonstrate 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." Mathews v. United States, 114 F.3d 112, 114 (8th Cir. 1997) (citations omitted).
For the reasons noted above in the discussion of the suppression hearing, the defendant's objections to counsel's failure to subpoena witnesses at the suppression hearing were waived by his plea of guilty. Also, as noted above, I informed the defendant of the waiver of his right to appeal issues surrounding the denial of the motion to suppress evidence. At that time, the defendant agreed to the waiver.
The defendant argues that a Horizon Airlines ticket agent would have established that the Spokane Airport Police did not have probable cause for the arrest. However, it is undisputed that the airport police arrested the defendant because of the outstanding warrants. Filing No. 23 at 8:20. Thus, there is no evidence that trial counsel's decision not to subpoena the ticket agent for Horizon Airlines at the suppression hearing constituted a deficient performance or resulted in prejudice to the defendant. As for the other witnesses not called, none of the alleged information regarding the defendant's requests for his luggage and the refusal of the requests would have sufficed as a basis to deny the defendant's motion to suppress.
The defendant also claims that his attorney ignored his request for a bench trial. While this is a serious allegation, the record from the change of plea hearing contradicts that allegation. At the hearing, I informed the defendant that he was foregoing his right to a jury trial. The defendant acknowledged that he understood. I also informed the defendant of the rights associated with a jury trial, namely, the right to have an attorney at trial, the right to confront witnesses, the right to remain silent, the right to testify in his own defense, and the right to subpoena witnesses. Filing No. 67 at 16:22-18:2. At no time during the proceeding did the defendant indicate that he wanted a bench trial on the charge of bank fraud.
In the alternative, the defendant's assertion that his actions did not constitute bank fraud as a matter of law, but instead amounted to deceptive acts towards his girlfriend, is without merit. At the change of plea hearing, the defendant admitted to the following factual basis for the bank fraud:
MR. SEMISCH: Your Honor, the defendant opened a checking account at the Washington Mutual Bank in Salt Lake City with an initial and only deposit of $20.
Shortly after opening that account, the defendant took counter checks and other checks for that account and opened some accounts in other banks across the country, attempting to get immediate money for those deposits and to obtain funds.
His travels brought him to Omaha, Nebraska, where he had befriended a woman by the name of Connie Stallworth.
He was able to obtain from Connie Stallworth deposit tickets so that he would have access to her account.
And over the course of approximately a one month time period made several deposits into her account.
Another was off a closed account from an individual by the name of Paul Rosser.
He would Fed Ex those deposit slips with these Washington Mutual checks to her account at Norwest Bank.
He would then contact Connie Stallworth, asking her to check to see if the deposit had been received by the bank.
And as soon as he got verification that the deposit had been received he asked her to immediately withdraw funds before Norwest could learn that the check had been dishonored, and that as stated in the indictment, on the date stated in the indictment, three thousand dollars was withdrawn by Connie Stallworth at the request of the defendant, and those monies were wired him out in California.
THE COURT: How did he get $108,000? How does that work?
MR. SEMISCH: This was just in Nebraska. With respect to Norwest Bank there was only nineteen thousand dollars that was involved.
But in other banks across the county, it was the same scenario.
There would be a Washington Mutual check. In some instances, not all, but in some instances there would be a Washington Mutual check that would be presented.
Then checks would be written of that account in an attempt to obtain immediate credit. So that happened at a number of banks.
There were also some credit card issues involved here where there was a separate investigation ongoing by the United States Secret Service and that credit card numbers were used for the purpose of obtaining airline tickets for his travels around the country and things of that nature.
All totaled, all of his activity added up to $108,000.
. . .
THE COURT: Mr. James, do you have any doubt that the government would be able to prove what they have just told us?
THE DEFENDANT: No, I have no doubt.
THE COURT: Did you defraud Norwest Bank?
THE DEFENDANT: Yes.
THE COURT: Can you tell me in your own words how you did that, why you think you defrauded them?
THE DEFENDANT: I gave Connie Stallworth a bad check for three thousand dollars.
THE COURT: You knew it was no good?
THE DEFENDANT: Yes.
THE COURT: By that I mean you knew that there was no money in the bank and that she would cash the check and then she would give the proceeds to you?
THE DEFENDANT: Yes, sir.
Filing No. 67 at 21:3-23:18. Based on this factual basis, there was sufficient evidence that the defendant knowingly, and with the intent to defraud, executed a scheme to defraud a financial institution to obtain money under the control of a financial institution by means of material false representations. See 18 U.S.C. § 1344.
The defendant also argues that his attorney violated the attorney-client privilege by putting him on the stand at the suppression hearing. The defendant did not include any additional facts in support of this claim. At the suppression hearing the magistrate judge informed the defendant of his right under the Fifth Amendment not to testify. The defendant indicated that he understood. Thus, because the allegation is so lacking in substance and in light of the admonition by the magistrate judge, the defendant's allegation does not support a finding of deficient performance on the part of his attorney or prejudice resulting from the alleged conduct.
Therefore, the defendant cannot prove that counsel's performance was deficient, or that, but for counsel's alleged errors, he would have pled not guilty to the charge of bank fraud. Accordingly, Claim No. 6 of the defendant's section 2255 motion is dismissed.
THEREFORE, IT IS ORDERED:
(1) That Filing No. 107, Calvin James's motion to vacate sentence and conviction pursuant to Title 28 U.S.C. § 2255, is denied;
(2) That Filing No. 126, Calvin James's amendment to his section 2255 motion, is denied;
(3) That this action is summarily dismissed with prejudice pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts;
(4) That Filing No. 116, the defendant's request for discovery, is denied as moot; and
(5) That a separate judgment of dismissal with prejudice will be entered in accordance with this Memorandum and Order.