United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON McGOWAN CURRIE, Senior United States District Judge
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 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
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.
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.
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.
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.
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).
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).
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).
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).
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.
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.
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.
presents five grounds for relief that could have been, but
were not, raised at sentencing 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).
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 ...