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 pro se
motion for relief under 28 U.S.C. § 2255. ECF No. 479.
Defendant contends he received ineffective assistance of
counsel in that his trial counsel failed to call witnesses
requested, failed to present evidence, failed to withdraw due
to conflict, and failed to “present necessary law to
the judge.” Id. The court directed Defendant
to notify the court of his election regarding waiver of
attorney/client privilege. ECF No. 483. Defendant elected to
waive the privilege, limited to the § 2255 motion
proceedings only. ECF No. 485. The Government then filed a
motion for summary judgment and included an affidavit by
Defendant's trial counsel in support. ECF No. 489. 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. 490. Defendant filed two replies to former counsel's
affidavit as well as his response in opposition to the
Government's motion for summary judgment. ECF Nos. 488,
496, 500. This matter is ripe for resolution.
4, 2013, Defendant and others were 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.
Defendants proceeded to trial, and were found guilty on eight
counts of mail fraud. ECF No. 220. 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 court received a 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. 291.
These packages were reviewed but did not contain information
that could be considered an objection to the PSR.
See ECF No. 292. Therefore, it was determined
Defendant did not submit any objections to the PSR.
sentencing on July 15, 2014, the court overruled
Defendant's oral objections to the PSR but departed
downward from the guideline range by four levels. ECF No.
312. Defendant was sentenced to 120 months imprisonment. ECF
appealed his conviction, presenting seven issues centered on
admission of evidence and witness issues. United States
v. Dew, No. 14-4560 (4th Cir. 2014). On September 16,
2015, the Fourth Circuit issued an opinion affirming the
district court's judgments. No. 14-4560 at Doc. No. 34.
claims regarding 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).
alleges ineffective assistance of trial counsel, specifically
alleging defense counsel failed to: “call key witnesses
provided by petitioner, ” present certified documents
in rebuttal of the Government's evidence, make the court
aware Defendant had no association with Eden Gifted
Properties, disclose a conflict where the attorney had
represented an adverse party in another case against
Defendant, and “present necessary law.” ECF No.
Government, in its response in opposition, argues
Defendant's motion is untimely, as it was filed over two
years past the deadline, and Defendant did not establish the
statute of limitations should be tolled. ECF No. 463.
Further, the Government argues, the §2255 motion should
be dismissed ...