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United States v. Dew

United States District Court, D. South Carolina, Columbia Division

February 5, 2018

United States of America,
James Chappell Dew, Defendant.


          CAMERON McGOWAN CURRIE, Senior United States District Judge

         This matter is before the court on Defendant's motion for relief under 28 U.S.C. § 2255. ECF No. 453. Defendant presents six grounds for relief. The first five grounds concern the loss amount attributed to him, which he believes was incorrectly calculated, increasing his sentence. His final ground contends he received ineffective assistance of counsel in myriad ways. The court directed Defendant to notify the court of his election regarding waiver of attorney/client privilege. ECF No. 457. Defendant elected to waive the privilege, limited to the § 2255 motion proceedings only. ECF No. 459. The Government then responded in opposition to Defendant's motion to vacate, and filed an affidavit by Defendant's trial counsel[1] in support. ECF No. 463. The Government also filed a motion for summary judgment. ECF No. 464. 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. ECF No. 465. Defendant filed his response in opposition to the Government's motion for summary judgment. ECF No. 467. This matter is ripe for resolution.


         On June 4, 2013, Defendant was indicted on eight counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2. ECF No. 2. Defendant and his co-defendants were charged with making multiple mailings in furtherance of a fraudulent “debt elimination system.” Customers allegedly paid fees associated with this debt elimination system, which Defendant and his co-defendants then used for their own personal expenses. In December 2013, the defendants were charged in a Superseding Indictment, which added an additional count of passing fictitious financial instruments, in violation of 18 U.S.C. § 514. ECF No. 134.

         Defendant proceeded to trial, and was found guilty on eight counts of mail fraud. ECF No. 222. The court dismissed count 10, passing fictitious financial instruments. ECF No. 212. After trial, Defendant indicated he wished to represent himself at sentencing and waived his right to counsel for the remainder of the proceedings. ECF No. 277. Counsel was relieved, and Defendant proceeded pro se at sentencing. Defendant was advised to submit any objections to his PreSentence Report (“PSR”) by June 4, 2014. ECF No. 288. The Probation Officer received a certified mail package from Defendant including the PSR and attachments provided to Defendant by the Probation Officer, now stamped on both sides with red and brown stamps containing nonsensical language. ECF No. 292. These packages were reviewed but did not contain information that could be considered an objection to the PSR. Therefore, it was determined Defendant did not submit any objections to the PSR. Id.

         At sentencing on July 15, 2014, Defendant raised a jurisdictional question regarding a purported international contract and objected to an FBI form 302 being admitted at sentencing - both related to determination of loss amount. ECF No. 381 at 57-59. To the extent these could be considered objections, the court explained the calculation of the loss amount and overruled Defendant's objections. Id. Defendant did not object to the guideline calculation. Id. at 61-62. Defendant was sentenced to 120 months imprisonment. ECF No. 333.

         Defendant appealed his conviction, presenting ten issues centered on admission of evidence and witness issues, many regarding the dismissed count ten. United States v. Dew, No. 14-4561 (4th Cir. 2014). Defendant also argued he should have been afforded a jurisdictional hearing and that defense counsel failed to bring witnesses from out of state because there was “no money” to do so. Id. On September 16, 2015, the Fourth Circuit issued an opinion affirming the conviction and sentence. No. 14-4561 at Doc. No. 54. Defendant sought certiorari, but that was denied by the Supreme Court on April 18, 2016.


         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. To pursue 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).

         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).

         Under 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 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).


         Defendant first alleges five grounds related to the loss amount attributed to him. Specifically, he argues in ground one the court failed to correctly calculate intended loss amount; ground two alleges there was no intent to inflict intended loss, and that amount was overstated; ground three contends the court's alternative 10% calculation was improper because it was not in the PSR; ground four argues a violation of “Rule 32(h)” in that there was no prior notice of an upward departure from the actual loss calculation; and ground five asserts the court failed to properly review evidence, leading to an incorrect guideline calculation. ECF No. 435. Defendant's sixth ground alleges ineffective assistance of trial counsel, alleging “defense counsel acted outside the realm of reasonable professional judgment by” failing to: properly prepare a defense, view electronic discovery prior to trial, call witnesses, subpoena original instruments, subpoena witnesses and evidence regarding four of Defendant's clients, move for extension of time for electronic discovery, object to trial ruling regarding evidence admitted after delay, and file a timely Rule 29 motion. Id. at 35.

         The Government, in its response in opposition, argues Defendant's first five grounds should be dismissed due to procedural default, as Defendant failed to raise the issues at sentencing and on direct appeal. ECF No. 463. Regarding ground six, the Government contends Defendant did not receive ineffective assistance of trial counsel and was not prejudiced by any supposed failings of counsel. Id.

         In his reply, Defendant argues his attorney was ineffective for failing to contact witnesses or examine documents in advance of trial, and for failing to have certain witnesses testify at trial. ECF No. 467. He also argues his first five grounds should not be dismissed due to procedural default because he overcomes the default due to “actual innocence of the sentence, because he was sentenced under an enhancement of which he is innocent, and actual innocence of the crime for which he was convicted, because but for the ineffectiveness of counsel, he would have been found not guilty.” Id. at 11-12. He contends a procedural default would be a “complete miscarriage of justice” and cites United States v. Mikalajunas, 186 F.3d 490 (4th Cir. 1999) “for the court's consideration of the basis for denying” procedural default. Id. at 12.

         1. Defaulted Grounds

         Defendant presents five grounds for relief that could have been, but were not, raised at sentencing[2] or on direct appeal. Defendant concedes these claims are procedurally defaulted. ECF No. 467 at 11; see United States v. Pettiford, 612 F.3d at 280 (holding claims not raised at sentencing or on direct appeal are barred on collateral review); United States v. Emanuel, 869 F.2d 795, 796 (4th Cir. 1989) (non-constitutional issues are deemed waived in a § 2255 motion if they were not raised on direct appeal).

         To bring a defaulted claim in a §2255 motion, Defendant must show either cause and actual prejudice or actual innocence. See Bousley, 523 U.S. at 622; Pettiford, 612 F.3d at 280. “To succeed on actual innocence grounds, however, a petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent.” Pettiford, 612 F.3d ...

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