Opinion
3:98-CR-299-X(1), (3:01-CV-2583-X)
April 10, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a motion to vacate, set aside or correct sentence brought by a federal prisoner pursuant to 28 U.S.C. § 2255.
Parties: Movant Teddy Wayne Solomon is a federal prisoner presently confined at FCI McKean in Bradford, Pennsylvania. The court has not ordered the government to respond.
Statement of the Case: On September 10, 1998, Movant was charged by indictment with 13 counts of mail and wire fraud in violation of 18 U.S.C. § 1341 and 1343 (Counts 1-13), and one count of bank fraud in violation of 18 U.S.C. § 1344 (Count 14). United States v. Solomon, 3:98cr-299-X (N.D. Tex.). Following a plea of not guilty, a jury found Solomon guilty of the thirteen counts of mail and wire fraud. The District Court dismissed Count 14 of the indictment on the government's motion. The District Court then sentenced Movant to 293 months imprisonment, a five-year term of supervised release, $2,357,701.94 in restitution, and a fine of $150,000. Movant appealed. The Fifth Circuit Court of Appeals affirmed the conviction and sentence on September 21, 2001, and denied Movant's petition for rehearing on October 30, 2001.United States v. Solomon, No. 00-11210. Movant's petition for writ of certiorari, filed on December 17, 2001, is presently pending before the Supreme Court.
Prior to affirmance of his direct appeal, Movant filed a § 2255 motion. On November 27, 2000, the District Court adopted the recommendation of the magistrate judge and dismissed the motion without prejudice in light of the pending direct appeal.
Following affirmance of his direct appeal, Movant filed a petition for writ of error coram nobis. On December 11, 2001, the District Court adopted the recommendation of the magistrate judge and dismissed the coram nobis petition for want of jurisdiction, but without prejudice to Movant's right to file a § 2255 motion.
On December 6, 2001, Movant filed the present § 2255 motion. In six grounds for relief, he alleges (a) the district court lacked jurisdiction and the indictment should be dismissed (Grounds 1, 4 and 5); (b) FBI Agent Brian Hurst committed perjury before the grand jury, thus violating Movant's due process rights; (c) counsel's failure to investigate his case and raise the six grounds for relief alleged in this § 2255 motion amounted to ineffective assistance of counsel; and (d) the four-point enhancement for Movant's leadership role was unconstitutional and was not included in the indictment.
Solomon has also filed the following supplemental pleadings reiterating the lack of jurisdiction and seeking a dismissal of the indictment: (1) an amended memorandum in support of his § 2255 motion, filed on December 10, 2001, (2) a motion under Rule 60(b)(3)(6), Fed.R.Civ.P., to quash the indictment, filed February 14, 2002, and (3) a supplemental motion under Rule 60(b)(3)-(6) to quash the indictment, filed on February 22, 2002. Movant has also filed a motion to set bond pending appeal on December 10, 2001, a motion for writ of habeas corpus ad testificandum on January 2, 2002, and a motion for the court to take judicial notice of undisputed facts on January 23, 2002.
Findings and Conclusions: Rule 4(b), of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[i]f it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading . . . ." This § 2255 motion does not present any basis for collateral relief and should be summarily dismissed.
In support of his jurisdictional challenge and request for dismissal of the indictment, Movant claims that Congress never enacted 18 U.S.C. § 1341, et seq. (Memorandum in Support of § 2255 at ¶ 38). According to Movant, 18 U.S.C. § 1341 and 1343 are "commercial regulatory statutes[,] which have not been promulgated in the Federal Register or the Code of Federal Regulations, as required under 44 U.S.C. § 1505, et seq., and 5 U.S.C. § 601." (Id.). Even if properly enacted, Movant contends that §§ 1341 and 1343 do not apply to him because he is not a citizen of the United States. He asserts he is a "Common Law Citizen with all rights under the original jurisdiction, the Original Constitution of the United States of America and not jurisdiction under the second United States of America, as sworn and declared . . . [his] Uniform Commercial Code (UCC-1) Form 1 filing with the Licensing Division . . . ." (Id. ¶ 32). He also asserts that he is a "Sovereign Citizen of the State of Texas" subject only to the original jurisdiction and constitution of the United States. (Id. ¶ 57).
On September 10, 1998, a grand jury duly returned the indictment which granted the trial court's jurisdiction in this case. Movant's claims to the contrary that the District Court lacked jurisdiction and that the indictment should be dismissed (grounds 1, 4 and 5) are meritless and patently frivolous.
Movant's contention that FBI Agent Brian Hurst committed perjury before the grand jury is likewise frivolous. Movant cannot collaterally challenge this alleged non-jurisdictional defect in the indictment because he did not raise the issue before trial. In federal criminal cases, all defenses and objections based on defects in the institution of the prosecution or nonjurisdictional defects in the indictment or information must be raised before trial, or else are waived (although "the court for cause shown may grant relief from the waiver"). See Fed.R.Crim.P. 12(a)(1)-(2) and (f); Davis v. United States, 411 U.S. 233, 242 (1973) (a waived challenge of the grand jury cannot be litigated collaterally); see also United States v. Dyer, 136 F.3d 417, 425 (5th Cir. 1998) (sufficiency of indictment is not open to collateral attack unless the circumstances are exceptional, the questions raised are of 'large importance,' the need for the remedy sought is apparent, and the offense charged was one of which the sentencing court manifestly had no jurisdiction).
Next Movant challenges the legality of his sentence on the ground that his sentence was enhanced by four-point for his leadership role, and that such enhancement was not included in the indictment as required by the Sixth Amendment. Insofar as Movant contends the District Court misapplied the Sentencing Guidelines, his claim is meritless. A district court's technical application of the Guidelines does not give rise to a constitutional issue cognizable under § 2255. United States v. Vauahn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam). Determining whether Movant maintained a leadership role does not implicate a constitutional issue. United States v. Faubion, 19 F.3d 226, 233 (5th Cir. 1994). Moreover, this claim could have been raised on direct appeal. See Vaughn, 955 F.2d at 368 (a nonconstitutional claim that could have been raised on direct appeal, but was not, may not be raised in a collateral proceeding). Accordingly, Movant is not entitled to § 2255 relief.
Lastly Movant alleges that he received ineffective assistance of counsel. When a convicted defendant seeks habeas corpus relief on the ground of ineffective assistance of trial counsel, he must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984);see also Williams v. Taylor, 529 U.S. 362, 390-91 (2000).
Movant's conclusory allegations do not demonstrate either deficient performance or prejudice on the part of his trial counsel. Movant generally alleges that "counsel failed to do any investigation" and "failed ab initio to raise or challenge any of the issues presented herein." (§ 2255 motion at 4). Movant does not allege any details in support of his claim that counsel failed to investigate his case. To establish that counsel was ineffective due to failure to investigate the case or discover evidence, a movant must do more than merely allege a failure to investigate. A movant must state with specificity what the investigation would have revealed, what specific evidence would have been disclosed, and how the evidence would have been disclosed, and how the evidence would have altered the trial. See Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994); Nelson v. Hargett, 989 F.2d 847. 850 (5th Cir. 1993). Movant's conclusory allegations that his counsel was ineffective for failure to investigate do not meet his burden of specificity. Moreover, while the court must construe a pro se § 2255 motion liberally, conclusory allegations are insufficient to raise cognizable claims of ineffective assistance of counsel. Miller v. Johnson, 200 F.31d 274, 282 (5th Cir. 2000), cert. denied, 531 U.S. 849 (2000) (conclusory allegations are insufficient to raise cognizable claims of ineffective assistance of counsel); United States v. Jones, 614 F.2d 80, 81 (5th Cir. 1980) (same); Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983) (same).
Likewise, Movant's claims that his counsel should have challenged FBI Agent Hurst's perjured testimony before the grand jury and the trial court's finding at sentencing that he was a leader are also conclusory. Movant does not indicate what, if any, perjured testimony FBI Agent Hurst presented to the grand jury. Nor does he indicate any basis for finding that he should not have been classified as a leader under the Sentencing Guidelines. Counsel is not required to file meritless motions. See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995).
Movant's contention that counsel was ineffective because he failed to object to the court's jurisdiction fares no better. Movant's jurisdictional challenge is not only meritless, but also patently frivolous. Counsel is not required to raise such a frivolous argument.Id.
Counsel's performance was not outside the wide range of professional competent assistance. No relief is warranted based upon ineffective assistance of counsel with respect to any of the issues raised by Movant in this § 2255 motion.
RECOMMENDATION:
For the foregoing reasons it is recommended that the District Court enter an order summarily dismissing Movant's motion pursuant to 28 U.S.C. § 2255. See Rule 4(b), of the Rules Governing § 2255 Proceedings.
It is further recommended that Movant's original and supplemental motions under Rule 60(b) and Movant's motions to set bond pending appeal, for writ of habeas corpus ad testificandum, and for the court to take judicial notice of undisputed facts be denied as moot.
A copy of this recommendation will be mailed to Movant Teddy Wayne Solomon.