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United States v. Sundblad

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

October 23, 2018

United States of America,
v.
Retta Helms Sundblad, Defendant.

          ORDER AND OPINION

         This matter is before the court on Defendant Retta H. Sundblad's (“Defendant”) Motion to Vacate, pursuant to 28 U.S.C. § 2255, filed on May 7, 2018. (ECF No. 172.) On June 12, 2018, the United States of America (“the Government”) filed its Response in Opposition to Defendant's Motion. (ECF No. 178.) For the reasons set forth below, the court DENIES Defendant's Motion to Vacate.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On January 12, 2016, a grand jury indicted Defendant for devising a scheme and artifice to defraud, in violation of 18 U.S.C. §§ 2 and 1341. (ECF Nos. 1-2.) On June 8, 2016, Defendant entered a guilty plea. (ECF No. 48.) On May 15, 2017, Defendant was sentenced to fifty-one (51) months of imprisonment, three (3) years of supervised release, a special assessment fee of $100.00, and restitution in the amount of $208, 548.96. (ECF No. 160.) There was no direct appeal following the sentence.

         On May 3, 2018, Defendant, proceeding pro se, filed her Motion to Vacate, pursuant to 28 U.S.C. § 2255, arguing ineffective assistance of counsel under the Sixth Amendment of the United States Constitution.[1] (ECF No. 172 at 4-9.) In her Motion, Defendant alleges that her counsel: (1) failed to advise her of the effect of a sentencing enhancement and did not disclose her true sentencing exposure; (2) committed various errors in regard to correcting, presenting, or supplementing evidence; and (3) failed to be an effective advocate. (Id.) On June 12, 2018, the Government filed its Response in Opposition to the Motion to Vacate. (ECF No. 178.) In essence, the Government argues that Defendant's counsel provided effective assistance when representing Defendant at her sentencing hearing. (ECF No. 178.) Specifically, among numerous other arguments, the Government maintains that Defendant's counsel presented extensive argument and evidence of mitigating circumstances, was a meaningful advocate, and did not fail to correct any misleading testimony. (Id. at 6-11.)

         II. STANDARD OF REVIEW

         A prisoner in federal custody may petition a federal court that imposed their sentence to vacate, set aside, or correct that same sentence. 28 U.S.C. § 2255. Pursuant to 28 U.S.C. § 2255, a prisoner may be entitled to relief upon showing: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) a federal court was without jurisdiction to impose a sentence; (3) a sentence was in excess of the maximum authorized by law; or (4) a sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A prisoner attacking a sentence, proceeding under § 2255, bears the burden of proving the grounds for attack by a preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (“Because proceeding under 28 U.S.C. § 2255 is a civil collateral attack upon the judgment of conviction, the burden of proof is upon petitioner to establish by a preponderance of evidence that he did not intelligently waive his right to assistance of counsel.” (citations omitted)). In ruling on a § 2255 motion, the court may dismiss the motion without a hearing when “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings, that the moving party is not entitled to relief . . . .” Rules Governing Section 2255 Proceedings 4(b). See also U.S.C. § 2255(b) (“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing there on . . . .”).

         Under the Sixth Amendment of the United States Constitution, a criminal defendant is guaranteed the assistance of counsel for his or her defense. U.S. Const. amend. VI. The purpose of the Sixth Amendment's guarantee of effective counsel is to ensure that a defendant has the necessary assistance to justify reliance on the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 691-92 (1984). When evaluating an ineffective assistance of counsel claim, there is a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance. Strickland, 466 U.S. at 689. In order to succeed on an ineffective assistance of counsel claim, “a defendant must show that: (1) counsel's performance fell below an objective standard of reasonableness (the performance prong); and (2) the deficient representation prejudiced the defendant (the prejudice prong).” United States v. Carthorne, 878 F.3d 458, 465 (4th Cir. 2017) (citing Strickland, 466 U.S. at 687-88). “A court need not address both components of this inquiry if [a] defendant makes an insufficient showing on one.” Furnace v. United States, No. 4:11-cr-00014-RBH, 2011 WL 13177178, at *2 (D.S.C. Dec. 1, 2011) (citing Strickland, 466 U.S. at 697).

         In regard to the performance prong, a defendant must identify specific acts or omissions of counsel that are not the result of reasonable, professional judgment. Strickland, 466 U.S. At 690. In light of all circumstances, keeping in mind that counsel's function is to advance the adversarial process, the court must determine whether the identified acts or omissions were outside the range of professional, competent assistance. Id. As such, a defendant must show that “counsel's performance ‘fell below an objective standard of reasonableness' under prevailing professional norms.” United States v. Brown, F. App'x, 250, 251 (2008) (quoting Strickland, 466 U.S. at 688). A court reviews “the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id.

         Concerning the prejudice prong, a defendant must show that “counsel's errors were so serious as to deprive [him or her] of a fair trial, a trial whose result is reliable.” Id. at 687. “[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Typically, “[a] defendant is not prejudiced if his counsel fails to make an objection that is ‘wholly meritless under current governing law[.]'” Rodriguez v. Bush, 842 F.3d 343, 346 (4th Cir. 2016) (quoting Lockhart v. Fretwell, 506 U.S. 364, 374 (1993)). The United States Supreme Court has noted that not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Strickland, 466 U.S. at 693. In addition to the foregoing, “[the] prejudice analysis contains another layer in the context of a guilty plea.” United States v. Santiago, 632 Fed.Appx. 769, 773 (4th Cir. 2015). “Because a guilty plea is a ‘solemn declaration[] in open court,' it has ‘strong presumption of verity' that [a court] will not set aside on ‘subsequent presentation of conclusory allegations unsupported by specifics.'” Id. (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). As such, “strict adherence to the Strickland standard [is] all the more essential when reviewing the choices an attorney made at the plea bargain stage.” Premo v. Moore, 562 U.S. 115, 125 (2011).

         The court is required to interpret pro se documents liberally and will hold those documents to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978); see also Hardin v. United States, C/A No. 7:12-cv-0118-GRA, 2012 WL 3945314, at *1 (D.S.C. Sept. 10, 2012). Additionally, pro se documents must be construed in a manner, “no matter how inartfully pleaded, to see whether they could provide a basis for relief.” Garrett v. Elko, No. 95-7939, 1997 WL 457667, at *1 (4th Cir. 1997).

         III. DISCUSSION

         As recounted above, Defendant asserts the following arguments, which address ineffective assistance of counsel, in support of her Motion: (1) counsel failed to advise Defendant of the sentencing enhancements and exposure; (2) counsel did not present mitigating evidence or correct false testimony; (3) counsel neglected to cite Nelson v. Colorado; and (4) counsel failed to act as a meaningful advocate. (ECF No. 172 at 5-9.) The court will address each assertion by Defendant in turn.

         A. Failure of Counsel to Advise Defendant of the Sentencing Enhancements and Exposure

         Defendant claims that her counsel failed to advise her on the effect of sentencing enhancements and exposure. (ECF No. 172 at 5-9.) Specifically, Defendant believes that her counsel was ineffective in challenging the loss amount at issue and that she should have only been subject to a loss amount for which she was responsible. (Id.) Additionally, Defendant argues that counsel failed to argue against the sentencing enhancements that resulted in Defendant's use of sophisticated means and abuse of a position of trust. (Id.) However, Defendant's counsel did object to these enhancements throughout the sentencing. (ECF No. 180 at 34-35.) Additionally, during the sentencing hearing, Defendant acknowledged that she discussed the guidelines with counsel and how the enhancements could alter her sentence. (Id. at 28-29.) ...


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