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United States v. Manuel

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

September 4, 2019

United States of America,
v.
Mark Shannon Manuel, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE.

         This 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[1] 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.

         BACKGROUND

         On June 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.

         Three 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. Id.

         At 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 No. 329.

         Defendant 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.

         STANDARDS

         As to 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).

         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).

         DISCUSSION

         Defendant 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. 479.

         The 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 ...


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