United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON McGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.
Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255. Defendant raises six Grounds for Relief. The Government filed a motion for summary judgment. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the summary judgment procedure and the consequences if he failed to respond. Defendant has responded to the Government’s motion and this matter is ripe for resolution.
In June 2013, Defendant was indicted in this District for mail fraud, a violation of 18 U.S.C. § 1341, and aiding and abetting, a violation of 18 U.S.C. § 2 (Counts 1 through 8); and making false statements in violation of 18 U.S.C. § 1001 (Count 9). Defendant was thereafter charged in a superseding indictment with an additional count of passing fictitious financial instruments in violation of 18 U.S.C. § 514 (Count 10).
Defendant, along with two co-defendants, proceeded to trial. Count 10 (passing fictitious financial instruments) was dismissed by the court prior to submission to the jury; Defendant was thereafter convicted of the remaining counts (Counts 1 through 9). The matter was then set for sentencing.
On March 24, 2014, Defendant’s counsel filed a motion for status of counsel hearing. On May 7, 2014, the court conducted a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), at which the court ruled that Defendant would be allowed to represent himself at sentencing. Sentencing was then rescheduled to allow additional time for Defendant to review and respond to the Presentence Report (PSR).
On July 15, 2014, Defendant appeared pro se for sentencing. After overruling in part and sustaining in part Defendant’s pro se objections to the PSR, the court sentenced Defendant to 120 months’ imprisonment, five years’ supervised release, a $900 special assessment, and ordered $681, 410 in restitution.
Defendant filed a Notice of Appeal. Appellate counsel was appointed by the Fourth Circuit Court of Appeals. On January 29, 2015, Defendant’s conviction and sentence were affirmed. United States v. Hartsoe, 591 F. App’x 216 (4th Cir. 2015). Defendant then timely filed the current motion for relief under 28 U.S.C. § 2255.
Defendant raises six Grounds for Relief. Ground One alleges counsel was ineffective in failing to review the contents of Defendants’ computer hard drive seized by the Government. Ground Two claims the Government committed prosecutorial misconduct in failing to turn over exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and/or in corrupting the above-noted computer hard drive so that it was inaccessible for review. Ground Three contends counsel was ineffective in failing to subpoena certain documents or witnesses. Ground Four asserts that the court denied Defendant’s right to self-representation under Faretta v. California, 422 U.S. 806 (1975). Ground Five asserts that counsel allegedly failed to raise a good faith defense at trial. Finally, Ground Six alleges appellate counsel was ineffective in failing to raise claims of prosecutorial misconduct and the court’s alleged violation of Faretta on direct appeal.
As to claims other than those alleging ineffective assistance of counsel, Defendant may not ordinarily bring claims in a §2255 motion that were not raised at trial or on direct appeal. “[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause’ excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 162 (1982). A post-conviction motion is not a direct appeal, and “[f]or this reason, [the Supreme Court has] long and consistently affirmed that a collateral challenge may not do service for an appeal.” Id. at 165; see also United States v. Pettiford, 612 F.3d 270, 279 n.7 (4th Cir. 2010). To pursue such a claim in a §2255 motion, Defendant must show either cause and actual prejudice or actual innocence. See Bousley v. United States, 523 U.S. 614, 622 (1998).
As to Defendant’s claims that he received ineffective assistance of counsel, the standard is found in Strickland v. Washington, 466 U.S. 668 (1984). In order to succeed on such a claim, Defendant must first show that his counsel’s performance was “deficient, ” Strickland, 466 U.S. at 687-88, and that such deficiency resulted in actual prejudice to Defendant. Id. As to the first prong of the Strickland test, a defense attorney’s conduct is deficient if it fails to meet a standard of “reasonably effective assistance.” Id. at 687. A reviewing court must “judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690. See also Lockhart v. Fretwell, 506 U.S. 364, 371-72 (1993).
As to the second prong of the Strickland test, Defendant must establish that he experienced prejudice as a result of counsel’s ineffectiveness, meaning that there exists “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” United States v. Fugit, 703 F.3d 248, 259 (4th Cir. 2012) (internal quotation marks and citation omitted). A defendant must affirmatively prove prejudice that is “so serious as to deprive the defendant of a fair trial.” Strickland, 466 U.S. at 687. Because “[t]he defendant bears the burden of proving Strickland prejudice, ” if a defendant fails to meet this burden, “a reviewing court need not consider the performance prong.” Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 (4th Cir. 1992) (citing Strickland, 466 U.S. at 697).
Counsel has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. However, Strickland does not require counsel to investigate every conceivable line of mitigating evidence, and “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. at 521-22 (quoting Strickland, 466 U.S. at 690-91). See also Buckner v. Polk, 453 F.3d 195, 201 (4th Cir. 2006) (explaining that counsel’s conduct is generally presumed to be a reasonable strategic choice). The Fourth Circuit has held that “an allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence . . . would have been produced.” Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996).
A criminal defendant’s right to effective assistance of counsel extends to the direct appeal of a criminal conviction and requires the same showing of deficient performance and prejudice. See Evitts v. Lucey, 469 U.S. 387, 396 (1985); Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc). In applying Strickland to claims of ineffective assistance of appellate counsel, this court accords appellate counsel the “presumption that he decided which issues were most likely to afford relief on appeal.” Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993). “‘Winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)); see also Smith v. South Carolina, 882 F.2d 895, 899 (4th Cir. 1989) (counsel’s failure to raise a weak constitutional claim may constitute an acceptable strategic decision designed “to avoid diverting the appellate court’s attention from what [counsel] felt were stronger claims”). Although it is possible to bring a successful ineffective assistance of appellate counsel claim based on failure to raise a particular issue on direct appeal, the Supreme Court has reiterated that it is “difficult to demonstrate that counsel was incompetent.” Smith v. Robbins, 528 U.S. 259, 288 (2000).
When a defendant alleges appellate counsel failed to include an issue on direct appeal, the merits of the omitted issue must first be evaluated. United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). “‘Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.’” Smith, 528 U.S. at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)). To establish prejudice relating to the actions of appellate counsel, Defendant must establish a reasonable probability that, but for his counsel’s unreasonable failure to include a particular issue on appeal, he would have prevailed on his appeal. See Smith, 528 U.S. at 285-86. That is, Defendant must demonstrate that had counsel included the arguments Defendant contends should have been raised on appeal, the court of appeals would have found error and remanded Defendant’s case to this court.
As to prosecutorial misconduct, “[t]he test for reversible prosecutorial misconduct generally has two components: that (1) the prosecutor’s remarks or conduct must in fact have been improper, and (2) such remarks or conduct must have prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a fair trial.” United States v. Chorman, 910 F.2d 102, 113 (4th Cir. 1990). Relatedly, a defendant’s right to due process is violated when the prosecution suppresses evidence that is both favorable to the accused and material either to guilt or innocence. Brady v. Maryland, 373 U.S. 83, 87 (1963). There are three components to a Brady violation: (1) the evidence at issue must be favorable to the accused; (2) that evidence must have been suppressed by the Government; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
A. Defaulted Grounds
Defendant presents two grounds for relief that could have been, but were not, raised on direct appeal. Ground Two contends that the Government committed prosecutorial misconduct and a violation of Brady v. Maryland, 373 U.S. 83 (1963), when it “caused the corruption and inaccessibility of exculpatory evidence contained on a computer hard drive . . . .” Mem. Supp. Mot. (hereinafter “Memo.”) at 17, ECF No. 422-1. Ground Four contends this court denied Defendant his right to self-representation at trial under Faretta v. California, 422 U.S. 806 (1975).
These claims are procedurally defaulted. To bring a defaulted claim in a §2255 motion, Defendant must show either cause and actual prejudice or actual innocence. See Bousley v. United States, 523 U.S. 614, 622 (1998). Defendant has made no showing of cause and prejudice, nor has he provided evidence that he is actually innocent of his convictions. Therefore, the Government is ...