FREDDIE MARSHALL CARSON, ) Petitioner, ) v. ) Nos. 3:12-cr-17, 3:14-cv-10 ) J udge Varlan UNITED STATES OF AMERICA, ) Respondent. )
RESPONSE TO PETITIONERS MOTION FILED PURSUANT TO 28 U.S.C. 2255
The United States of America, by its counsel, J ennifer Kolman, Assistant United States Attorney for the Eastern District of Tennessee, hereby responds in opposition to petitioners motion to vacate, pursuant to 28 U.S.C. 2255. A federal grand jury charged petitioner with six counts of wire fraud, in violation of 18 U.S.C. 1343, and five counts of money laundering, in violation of 18 U.S.C. 1957. (R. 1, Indictment.) Based upon petitioners sworn declaration of indigency (R. 9, Financial Affidavit), a federal public defender was appointed to represent him. 1 (R. 10, Order (finding that petitioner does not have the funds to retain an attorney).) In August 2012, petitioner pleaded guilty, pursuant to a written plea agreement, to one count of wire fraud and one count of money laundering; the United States agreed to dismiss the other nine counts in the indictment. (R. 21, Plea Agreement.) Because the amount of loss resulting from petitioners conduct exceeded one million dollars, his base offense level was 23 but was increased to 24 because he was also convicted of violating 1957. (Presentence Report at 22, 23.) After a three-level acceptance-
1 Significantly, though he has been incarcerated for a year, petitioner has now apparently managed to amass sufficient financial resources to retain not one but two attorneys: one to draft his 2255 motion and one, who remains unnamed, to conduct additional investigation on his behalf. (See R. 41, 2255 Motion at 1, 14; see also R. 40, Motion at 2.) Petitioner also admits that he tried to retain private counsel even while represented by court-appointed (i.e., taxpayer- funded) counsel. (R. 41-1, Affidavit by Petitioner at 7.) Case 3:12-cr-00017-TAV-CCS Document 45 Filed 02/10/14 Page 1 of 10 PageID #: 375 2 of-responsibility reduction, the total offense level was 21. (Id. at 29-31; see also R. 32, J udgment with Statement of Reasons.) Petitioners criminal history category of I yielded an advisory Guidelines range of 37 to 46 months, and this Court sentenced petitioner to 46 months imprisonment, within and at the top of his Guidelines range. (R. 32, J udgment; R. 36, Sent. Tr. at 13-23.) Consistent with the terms of his plea agreement (R. 21, Plea Agreement at 15(a)), petitioner did not appeal. He has now filed a timely 2255 motion. (R. 41, 2255 Motion.) RELEVANT FACTS 1. Facts regarding petitioners offense conduct, as set forth in the plea agreement and stipulated by petitioner during his guilty plea
Petitioner ingratiated himself into religious communities and then used those affiliations to perpetrate a fraudulent scheme by lulling people into investing in or making loans to his company, Masterworks, without knowledge of how their money would actually be used. (R. 35, Plea Tr. at 12-14.) Petitioner informed some victims that, if they invested in securities in Masterworks, the money would be for business activities, but neither Masterworks nor petitioner were registered to sell securities. (Id.) To other victims, petitioner presented his scheme as an investment opportunity in the nature of a short-term loan; petitioner guaranteed a high rate of return as well as the initial investment. (Id. at 12-13.) Regardless of the manner in which petitioner presented his schemes, once victims wired money to a Masterworks account, petitioner immediately diverted those funds for his own personal use. (Id. at 13.) Petitioner scammed multiple victims in multiple states and fraudulently obtained a total in excess of one million dollars (specifically, $1.078,722.32); the parties stipulated that, for purposes of the Guidelines calculations, however, that he would only be held responsible for fewer than ten victims. (Id. at 13-14; but see also R. 32, J udgment at 6 (identifying twenty-five victims to whom petitioner needed to pay restitution).) For example, as to a victim identified Case 3:12-cr-00017-TAV-CCS Document 45 Filed 02/10/14 Page 2 of 10 PageID #: 376 3 as KA, petitioner claimed involvement in private banking and trade deals overseas and promised that, if KA invested $55,000 with Masterworks, she would receive her initial investment back in 30 days, along with a 50% return. (R. 35, Plea Tr. at 13.) On February 21, 2007, KA wired $55,000 from her account at Washington Mutual Bank in Colorado to a Masterworks account (ending in the numbers 648) at First Tennessee Bank in Tennessee. (Id.) On February 22, 2007, knowing that KAs money had been wired into the Masterworks account, petitioner issued check number 1073 from the Masterworks account for $55,962.30 to purchase a new Infiniti SUV for his own personal use. (Id.) By the time petitioner pleaded guilty in August 2012, KA had not yet received back her initial investment nor the promised return. (Id.) 2. Facts regarding petitioners plea colloquy At the start of the plea colloquy, petitioner stated under oath that he had a college education, that he had no difficulty reading or writing, that he had no history of mental illness or drug addiction, and that he had not taken any drugs, medicine, pills, or alcoholic beverage of any kind within the last 24 hours. (R. 35, Plea Tr. at 3-4.) Petitioner then confirmed that he understood the purpose of the hearing and had received ample opportunity to discuss the case with counsel. (Id. at 4-5.) The Court then referenced the written plea agreement, and petitioner affirmed that his attorney had explained the terms of that agreement to him. (Id. at 5.) When asked if he was satisfied with his attorneys representation, petitioner replied, Yes, sir. (Id.) The Court recited the legal rights petitioner was giving up by pleading guilty, and petitioner swore that he understood. (Id. at 6-7.) Petitioner also swore that he had not been coerced to plead guilty, nor induced by any promises of leniency (other than a reduction for acceptance of responsibility). (Id. at 7.) Petitioner stipulated that he was responsible for losses totaling $1,145,254.32 and would be ordered to pay restitution in that amount. (Id. at 8; but see id. at 14 (stating that the stipulated amount of loss was actually $1,078,722.32).) The Court also Case 3:12-cr-00017-TAV-CCS Document 45 Filed 02/10/14 Page 3 of 10 PageID #: 377 4 explained that, with very few exceptions, petitioner was waiving his rights to direct appeal and collateral review, and petitioner again stated that he understood. (Id. at 9-10.) After being advised of the elements of the offenses and the maximum penalty for those offenses, petitioner affirmed the factual basis set forth in the plea agreement and stated that he was pleading guilty because he was, in fact, guilty. (Id. at 10-16.) When specifically asked whether he agree[d] with the governments summary of his offense conduct, petitioner said, Yes. (Id. at 14.) The Court concluded that petitioners plea was knowing and voluntary, accepted his plea, and adjudged him guilty. (Id. at 18-20.) STANDARD OF REVIEW To obtain relief pursuant to 28 U.S.C. 2255, a petitioner must establish (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid. Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003); see also United States v. Addonizio, 442 U.S. 178, 185 (1979) (emphasizing that the relief authorized by 28 U.S.C. 2255 does not encompass all claimed errors in conviction and sentencing). He must clear a significantly higher hurdle than would exist on direct appeal and demonstrate a fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process. Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998). Moreover, a petitioner alleging ineffective assistance of counsel must satisfy a two-part test. Strickland v. Washington, 466 U.S. 668, 687 (1987). First, he must prove, by identifying specific acts or omissions, that counsels performance was deficient and that counsel did not provide reasonably effective assistance, id., as measured by prevailing professional norms. Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to have provided effective assistance, and petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d Case 3:12-cr-00017-TAV-CCS Document 45 Filed 02/10/14 Page 4 of 10 PageID #: 378 5 604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a reviewing court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action might be considered sound trial strategy) (internal citation omitted). Second, petitioner must demonstrate a reasonable probability that, but for [counsels acts or omissions], the result of the proceedings would have been different. Strickland, 466 U.S. at 694. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Id. at 691. Petitioner pleaded guilty, so he must show a reasonable probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). Because a petitioner must satisfy both prongs [of Strickland to obtain relief on an ineffectiveness claim], the inability to prove either one of the prongs regardless of which one relieves the reviewing court of any duty to consider the other. Nichols v. United States, 563 F.3d 240, 249 (6th Cir. 2009) (en banc) (emphasis in original). Indeed, the Supreme Court recommended that, [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed. Strickland, 466 U.S. at 697. ARGUMENT Petitioner alleges that counsel was constitutionally ineffective for not conducting further investigation before allowing petitioner to plead guilty; petitioner claims that such investigation would have established his innocence and that he would not have pleaded guilty had counsel conducted such investigation. (See R. 41, 2255 Motion at 6 (accusing counsel of not showing petitioner even one page of discovery), 6-7 (insinuating that counsel failed to use information provided by petitioner), and 7 (faulting counsel for not interviewing or deposing petitioners Case 3:12-cr-00017-TAV-CCS Document 45 Filed 02/10/14 Page 5 of 10 PageID #: 379 6 business partner SA nor the victims identified as MA and KA).) But petitioner has not shown that he is entitled to any relief. As a preliminary matter, petitioner explicitly waived his right to file a 2255 motion, except for claims of ineffective assistance of counsel (or prosecutorial misconduct) not known to him by the time of the entry of judgment (R. 21, Plea Agreement at 10(b)), and petitioners current claim involves conduct unquestionably known to him before the entry of judgment. It is well-settled that a defendant may waive any right, even a constitutional right, so long as he does so knowingly and voluntarily, and that a waiver provision in a plea agreement is enforceable. See United States v. Fleming, 239 F.3d 761, 263-64 (6th Cir. 2001); United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995). The Sixth Circuit Court of Appeals has held that a defendants informed and voluntary waiver of the right to collaterally attack a conviction and sentence is enforceable. In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007); accord Davila v. United States, 258 F.3d 448, 450-52 (6th Cir. 2001); Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999). Because petitioner waived his right to file a 2255 motion (except under conditions not present here), his motion should be summarily denied. 2
Moreover, a petitioner must set forth adequate facts which entitle him to relief, and the omission of factual support here is fatal to petitioners claims. See, e.g., Short v. United States, 504 F.2d 63, 65 (6th Cir. 1974) (deeming a 2255 motion legally insufficient to sustain review where stated as conclusions without supporting facts); OMalley v. United States, 285 F.2d 733, 735 (6th Cir. 1961) (Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing, much less relief); accord United
2 In an attempt to avoid that conclusion, petitioner asserts that a 2255 waiver provision is unenforceable where a defendant challenges the voluntariness of his plea due to ineffective assistance of counsel. (R. 41, 2255 Motion at 3.) Yet petitioner has not alleged that his plea was involuntary and any such claim would be refuted by the plea colloquy, in which this Court painstakingly complied with Rule 11 to ensure that petitioners plea was knowing and voluntary. Case 3:12-cr-00017-TAV-CCS Document 45 Filed 02/10/14 Page 6 of 10 PageID #: 380 7 States v. Roach, 502 F.3d 425, 442 (6th Cir. 2007) (deeming undeveloped claims unreviewable). Although petitioner claims to have provided significant documentation to his prior counsel, he has not set forth the substance of that documentation nor explained how it would entitle him to relief. And although petitioner names three individuals he allegedly asked prior counsel to interview (SA, KA, and MA) and asserts that deposing them would have yielded evidence to directly refute the governments allegations (R. 41, 2255 Motion at 7), petitioner has not identified the allegedly exculpatory information the individuals ostensibly could have provided, 3
and he only supplied this Court with affidavits from his business partner SA. 4 (R. 41-29, 41-30, 41-31, 41-32, Affidavits.) After all, petitioner does not even mention the other nine counts of the indictment, and SA, KA, and MA who lack knowledge of the facts underlying those counts would have been unable to provide petitioner with any defense for those counts, had petitioner proceeded to trial as charged instead of pleading guilty to two of the eleven counts. Petitioner has thus failed to satisfy the threshold requirement of providing adequate factual support for his claim that, had counsel conducted further investigation, petitioner would have been acquitted had he proceeded to trial. Accordingly, petitioners 2255 motion should be denied. Petitioners reliance upon Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006), is misplaced. Dando participated in a crime spree with her boyfriend, admitted her role in the offenses once arrested, and, upon advice of counsel, ultimately pleaded no contest to eight separate offenses.
3 Interestingly, by petitioners own account, he only asked counsel to interview SA, KA, and MA to help him evaluate the strength of the governments case; petitioner has not claimed to have asked counsel to interview all of the victims or witnesses involved in the other counts. Moreover, all of the charges against petitioner could have been easily proven with bank records, which, by definition, have no interest in the outcome of any criminal prosecution.
4 SA was instrumental in furthering petitioners scheme in that he vouched for petitioner to his sister-in-law KA and her husband MA, who were victimized by petitioners conduct. As such, the reliability of SAs latest affidavits which contradict his earlier statements to federal investigators is necessarily suspect. Case 3:12-cr-00017-TAV-CCS Document 45 Filed 02/10/14 Page 7 of 10 PageID #: 381 8 Id. at 794. Dando later sought to withdraw her plea, arguing that counsel was ineffective for not investigating the possibility of a duress defense based on Battered Womans Syndrome, where Dando had told counsel that she was a victim of physical and sexual abuse, that her boyfriend had beat her and threatened to kill her immediately before their joint crime spree, and that she wanted counsel to consult with a mental health expert before she entered any plea. Id. at 794-98. Counsel had declined to obtain an expert because, in his view, doing so would be too expensive. Id. at 798. The Sixth Circuit granted habeas relief, finding that, based on the information Dando had provided to counsel and the probable availability of state funding for an expert under those circumstances, counsel had acted unreasonably by urging Dando to plead no contest. Id. at 799 (the attorneys decision was not [a reasonable] exercise in professional judgment because it reflected a misunderstanding of the law regarding the availability of a mental health expert). The Sixth Circuit explained that, if an expert had concluded that Dando had Battered Womans Syndrome and if counsel had pursued such a defense at trial, Dando could have been acquitted. Id. at 800. As such, Dando could establish a likelihood that she would not have pleaded guilty had counsel thoroughly investigated all possible defenses on her behalf. Id. There are three key differences between Dando and the instant case. Dandos counsel misunderstood the relevant law as it applied to the information provided by Dando, whereas petitioner only alleges that counsel failed to fully investigate the facts of his offense conduct. 5
See Tollett v. Henderson, 411 U.S. 258, 267-68 (1973) (stating, once a defendant pleads guilty, he cannot set aside his plea by merely showing that if counsel had pursued a certain factual inquiry such a pursuit would have uncovered a possible constitutional infirmity in the proceedings) (emphasis added). Second, the Sixth Circuit found prejudice in Dando because
5 All three of the individuals petitioner now claims counsel should have interviewed had already been interviewed by federal investigators, and counsel had already received copies of their statements via discovery. Case 3:12-cr-00017-TAV-CCS Document 45 Filed 02/10/14 Page 8 of 10 PageID #: 382 9 the defense that Dandos counsel failed to investigate, if proven, could have resulted in her acquittal; here, for the reasons discussed above, petitioner cannot show that he would have been acquitted if counsel had interviewed three individuals whose prior statements had already been provided in discovery. Finally, because Dando entered a no contest plea, she did not necessarily admit any specific facts to support her plea; petitioner, by contrast, swore that he had committed the criminal acts set forth in the plea agreement and that he was pleading guilty because he was, in fact, guilty. The decision to plead guilty first, last, and always rests with the defendant, Smith v. United States, 348 F.3d 545, 552 (6th Cir. 2003), and this Court conducted a thorough colloquy, consistent with Fed. R. Crim. P. 11, to ensure that petitioners guilty plea was knowing and voluntary. (See generally R. 35, Plea Tr.) Solemn declarations in open court carry a strong presumption of verity, Blackledge v. Allison, 431 U.S. 63, 74 (1977), and a petitioner is bound by his statements where the court has followed the require procedure under Rule 11. Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986) (internal citation and quotation marks omitted); accord United States v. Rennick, 219 F. Appx 486, 488-89 (6th Cir. 2007). Here, petitioner specifically stated during the plea colloquy that he was satisfied with counsels representation, that no one had put any pressure upon him to plead guilty, that he agreed with the factual basis set forth in the plea agreement and recited by the undersigned prosecutor during the plea hearing, and that he was pleading guilty because he was actually guilty. (R. 35, Plea Tr. at 5, 7, 14, 16.) Petitioners current claim that counsel urged [him] to enter a plea to facts which were clearly untrue (R. 41, 2255 Motion at 13) is contradicted by petitioners prior sworn statements in open court. Although the government was likely in the best position to evaluate provable offenses, petitioner had superior knowledge regarding his actual offenses. See United States v. Socolovitch, 340 F. Appx 291, 296 (6th Cir. 2009) (reasoning that if the government alleged that Case 3:12-cr-00017-TAV-CCS Document 45 Filed 02/10/14 Page 9 of 10 PageID #: 383 10 a defendant was responsible for a certain amount of loss, the defendant would not sign a plea agreement stipulating that amount if he were not guilty of at least that amount of loss). Petitioner has not even alleged nor could he plausibly show that his plea was involuntary or unknowing, and he has not satisfied either prong of Strickland. His 2255 motion should thus be denied. Respectfully submitted,
William C. Killian United States Attorney
By: s/ Jennifer Kolman J ennifer Kolman Assistant United States Attorney 800 Market Street, Suite 211 Knoxville, Tennessee 37902 (865) 545-4167
CERTIFICATE OF SERVICE I certify that on February 10, 2014, the foregoing response was filed electronically and a true and accurate copy was sent to petitioner by regular United States mail, postage prepaid, addressed as follows: Freddie Marshall Carson No. 10495-028 F.M.C. Lexington Federal Medical Center P.O. Box 14500 Lexington, KY 40512 s/ Jennifer Kolman J ennifer Kolman Assistant United States Attorney Case 3:12-cr-00017-TAV-CCS Document 45 Filed 02/10/14 Page 10 of 10 PageID #: 384