Allman v. U.S.

Full title: TERRY ALLMAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: Nov 30, 2005

Case No. 2:05-cv-262, Crim. No. 2:03-cr-188 (S.D. Ohio Nov. 30, 2005)

Opinion

Case No. 2:05-cv-262, Crim. No. 2:03-cr-188.

November 30, 2005

ORDER AND REPORT AND RECOMMENDATION

TERENCE KEMP, Magistrate Judge

Petitioner, a federal prisoner, brings the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the instant petition, respondent's return of writ, and the exhibits of the parties. For the reasons that follow, petitioner's motion to strike the affidavit of defense counsel as barred by the attorney client privilege, Doc. No. 4, is DENIED; further, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

I. MOTION TO STRIKE ATTORNEY'S AFFIDAVIT

In his federal habeas corpus petition, petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to file an appeal, failed to object to petitioner's sentence as violating Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005), and because his attorney failed to object to restitution. In response to petitioner's allegations, respondent has submitted an affidavit from defense counsel. Petitioner has filed a motion to strike such affidavit from this Court's consideration as barred by his attorney-client privilege. Doc. No. 4.

However, because petitioner asserts that he was denied the effective assistance of counsel, he has implicitly waived his attorney-client privilege as it relates to this claim. See In re Lott, 424 F.3d 446, 452-454 (6^th Cir. 2005).

[I]n the habeas context, courts have found implied waiver of [the attorney-client privilege] when the petitioner "injects into [the] litigation an issue that requires testimony from its attorneys or testimony concerning the reasonableness of its attorneys' conduct." Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001). The implied waiver in habeas proceedings has typically been the result of a petitioner's assertion of his own counsel's ineffectiveness. See id. ("By alleging that his attorneys provided ineffective assistance of counsel in their choice of a defense strategy, [the petitioner] put at issue-and thereby waived-any privilege that might apply to the contents of his conversations with those attorneys to the extent those conversations bore on his attorneys' strategic choices."); Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003); see also Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) ("When a client calls into public question the competence of his attorney, the privilege is waived.").

* * *

To be sure, litigants cannot hide behind the privilege if they are relying upon privileged communications to make their case. "[T]he attorney-client privilege cannot at once be used as a shield and a sword." United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991).

Id.; see also Mason v. Mitchell, 293 F.Supp.2d 819, 823-24 (N.D. Ohio 2003). Petitioner's motion to strike, Doc. No. 4, therefore is DENIED.

II. PROCEDURAL HISTORY

On November 12, 2003, petitioner was charged by information with mail fraud, in violation of 18 U.S.C. § 1341. Doc. No. 1. Pursuant to a plea agreement signed on that same date, on December 5, 2003, petitioner pleaded guilty. Doc. No. 6. On May 14, 2004, petitioner was sentenced to thirty-seven months plus three years supervised release and restitution in the amount of $321,385.54. Doc. No. 16. Petitioner never filed an appeal.

On March 22, 2005, petitioner filed the instant pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He asserts as follows:

1. Petitioner is in the process of serving an illegal sentence that was enhanced on the basis of the use of mandatory enhancements that were applied in violation of the 6^th Amendment of the United States Constitution. Trial counsel was constitutionally ineffective for not objecting to the use of same in the P.S.I. and at the time of sentencing, depriving the defendant of his 6^th Amendment right to the effective assistance of counsel under Hill v. Lockhart, 474 U.S. 52, 56. Trial counsel was further constitutionally ineffective for not filing a notice of appeal as instructed to by the defendant denying him his 6^th Amendment right to the effective assistance of counsel, prejudicing the defendant since he is serving an illegal sentence under United States v. Booker.

2. Trial counsel was constitutionally ineffective when [he] did not object to the amount of restitution and/or present evidence that the appellant could not pay same in violation of the victims and witnesses protection act of 1982, as amended per crime control act of 1990, denying the appellant his 6^th Amendment right to the effective assistance of counsel, [and] right to due process under the 5^th Amendment. . . . Trial counsel should have objected to the failure of the trial court to comply with 18 U.S.C. §§ 3663- 3664, ". . . discretionary determination . . . that restitution should be ordered."

3. Trial counsel was constitutionally ineffective when [he] did not object to the P.S.I. and the subsequent imposition of restitution . . . when per 18 U.S.C. 3663A(a)(3) VWPA and MVPA ". . . have . . . required a direct nexus between the offense of conviction and the loss being remedi[ed] . . . Hughey v. United States, 109 L.Ed.2d 408 . . .", denying the petitioner his 6^th Amendment right to the effective assistance of counsel, 5^th Amendment right to due process and equal protection of the law, prejudicing the petitioner.

It is the position of the respondent that all of petitioner's claims are without merit.

III. CLAIM ONE

In claim one, petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to object to his sentence as violating Apprendi v. New Jersey, supra; Blakely v. Washington, supra; and United States v. Booker, supra; and because his attorney failed to file an appeal, despite petitioner's request that he do so. In support of this claim, petitioner has attached his own affidavit, in which he states that he

[t]old his attorney that he wanted to appeal his sentence and that the notice of appeal had to be filed in ten days.

Per Apprendi v. New Jersey, supra, there was a question as to the . . . constitutionality [of] the way the enhancements were being applied and told him to appeal same. . . .

The attorney did not explain, nor did the court explain that I was waiving my right to appeal my sentence, restitution, or the illegal application of same.

Affidavit in Support of § 2255 Petition.

In response to petitioner's allegations, respondent has attached an affidavit from attorney Robert J. Onda, defense counsel, which indicates:

On November 5, 2003, Defendant entered into a negotiated plea agreement wherein he agreed to make restitution to the victims of the mail fraud as outlined in Count One of the Information (Plea Agreement @ ¶ 9).

Counsel for Defendant advised Defendant of his right to object to the sentence, and Defendant declined to do so.

Defendant, as part of the negotiated Plea Agreement, agreed to the relevant conduct enhancement which increased the offensive level by 12 (Plea Agreement @ ¶ 7).

At no time has Defendant contacted counsel instructing counsel to file a Notice of Appeal. The victims to which Defendant is required to make restitution are based upon records prepared by Defendant, which resulted in substantially less restitution than previously calculated by the United States.

Affidavit of Robert J. Onda.

A prisoner may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). The two-part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984), applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks v. Sowders, 852 F.2d 882, 884 (6^th Cir. 1988). In order to obtain relief, a prisoner who is challenging the entry of his guilty plea on the basis of counsel ineffectiveness must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.

The second, or "prejudice" requirement on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.

With respect to petitioner's allegation that he instructed his attorney to file a notice of appeal and his attorney failed to do so,

every Court of Appeals that has addressed the issue has held that a lawyer's failure to appeal a judgment, in disregard of the defendant's request, is ineffective assistance of counsel regardless of whether the appeal would have been successful or not. See Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994); United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993); United States v. Horodner, 993 F.2d 191, 195 (9th Cir. 1993); Bonneau v. United States, 961 F.2d 17, 23 (1st Cir. 1992); United States v. Davis, 929 F.2d 554, 557 (10th Cir. 1991); Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir. 1988). . . . failure to perfect a direct appeal, in derogation of a defendant's actual request, is a per se violation of the Sixth Amendment. Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998); see also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).

However, petitioner's allegations are simply incredible in view of the record before this Court. Contrary to petitioner's allegations here, the transcript of petitioner's May 14, 2004, sentencing hearing reflects that petitioner was explicitly advised of his right to appeal, but indicated that he did not want a notice of appeal filed on his behalf:

COURT: You have the right to appeal this sentence, Mr. Allman. If you cannot afford the appeal, you have the right to apply for leave to file an appeal in forma pauperis, which means without the payment of any costs or expense to you. If that application is granted, the clerk of court will prepare or file a notice of appeal on your request. Any notice of appeal must be filed within 10 days of the time that I enter judgment on your sentence.

Do you wish the Court to direct the clerk's office to file a notice of appeal on your behalf at this time?

DEFENDANT: No, Your Honor.

Sentencing Transcript, May 14, 2004, at 30-31. Further, petitioner thereafter waited until March 22, 2005, before raising any allegation that he had requested his attorney to file an appeal, which delay further undercuts petitioner's credibility here. Additionally, the record does not reflect that petitioner's sentence violated Apprendi v. New Jersey, supra, as that case had been interpreted at the time petitioner was sentenced, since petitioner's sentence did not exceed the statutory maximum under 18 U.S.C. § 1341 of five years incarceration.

In Blakely, the Supreme Court reversed a sentence imposed under the State of Washington's determinate sentencing scheme after finding the trial judge had enhanced the defendant's kidnaping sentence beyond the statutory maximum based upon his own finding, by a preponderance of the evidence, the defendant had acted with "deliberate cruelty." 124 S.Ct. at 2537-38. In doing so, the Supreme Court reiterated its previous holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), but clarified that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 124 S.Ct. at 2537 (emphasis in original).

United States v. Bucheit, 134 Fed.Appx. 842, unpublished, 2005 Fed.App. 0431N (6^th Cir. May 23, 2005). Although the United States Court of Appeals for the Sixth Circuit subsequently held that Blakely did not compel the conclusion that the United States Sentencing Guidelines violated the 6^th Amendment, see United States v. Koch, 383 F.3d 436, 438 (6^th Cir. 2004), that decision was overturned in United States v. Booker, supra, 125 S.Ct. At 767-68, wherein the Supreme Court invalidated the mandatory nature of the sentencing guidelines.

However, petitioner cannot establish the ineffective assistance of counsel due to his attorney's failure to predict the Supreme Court's decisions in Blakely or Booker. See United States v. Burgess, 142 Fed.Appx. 232, unpublished 2005 Fed.App. 0531N (6^th Cir. June 22, 2005) (no ineffective assistance for failing to anticipate Blakely or Booker).

Competence, not prescience, is what the constitution requires. See United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005) ("[W]here developments in the law later expand a right that a defendant has waived in a plea agreement, the change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature. A valid plea agreement, after all, requires knowledge of existing rights, not clairvoyance."); Green v. United States, 65 F.3d 546, 551 (6th Cir. 1995) (lawyer's failure to predict Sixth Circuit's approach to law did not constitute ineffective assistance of counsel); United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th Cir. 1995) ("Defendant faults his former counsel not for failing to find existing law, but for failing to predict future law. We agree . . . that clairvoyance is not a required attribute of effective representation."); Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. 1981) (holding that "counsel is normally not expected to foresee future new developments in the law").

Conley v. United States, 2005 WL 1420843 (W.D. Mich. June 15, 2005).

Further, petitioner has failed to establish that counsel's performance was inadequate or that but for counsel's errors, he would have insisted on going to trial. See Hill v. Lockhart, supra. As discussed, petitioner faced a maximum sentence of five years incarceration. See Guilty Plea Agreement, Doc. No. 2. He was sentenced to 37 months. Doc. No. 16. It does not appear from the record that the government would have been unable to prove the charges. Pursuant to the terms of his guilty plea, petitioner obtained a three-level reduction in his recommended sentencing guidelines pursuant to U.S.S.G. § 3E1.1¹ for his acceptance of responsibility. See PreSentence Investigation Report, ¶ 70-71. Also, trial counsel objected to the PreSentence Investigation Report in an attempt to obtain further downward departures in petitioner's total offense level and criminal history category, although such objections were overruled. See id.; Sentencing Transcript, at 8, 13. Joanne Gemmell, a chemical dependency counselor, testified on petitioner's behalf at his sentencing hearing. Sentencing Transcript, at 18-19. Petitioner stated:

1 U.S.S.G. § 3E1.1 provides:

(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

I just want to say I am truly very sorry and ashamed of what I've done. The harm to them I can only imagine and, you know, I'm just truly sorry about that.

Id., at 14-15.

The Court notes that petitioner's sentence became final on May 24, 2004, when the time period expired to file an appeal. See United States v. Cottage, 307 F.3d 494, 499 (6^th Cir. 2002) (citations omitted); Fed.R.App.P. 4(b)(1)(A). Neither Blakely nor Booker are retroactively applicable to cases on collateral review. Humphress v. United States, 398 F.3d 855, 860 (6^th Cir. 2005); United States v. Saikaly, 424 F.3d 514 (6^th Cir. 2005). Therefore, to the extent that petitioner now asserts that his sentence violates Blakely, or Booker, such cases do not provide him the relief he seeks.

Claim one is without merit.

IV. CLAIMS TWO AND THREE

In claims two and three, petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to object to the $321,385.54 in restitution that was ordered as violating 18 U.S.C. § 3663- 3664, and improper on the basis that petitioner is unable to pay the amount of restitution ordered. Such claims are without merit.

Under the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. §§ 3663A- 3664. . . . "restitution is mandatory-regardless of a defendant's financial situation-when a defendant is convicted of a crime of violence, an offense against property, or an offense related to tampering with consumer products." United States v. Vandeberg, 201 F.3d 805, 812 (6th Cir. 2000); see also 18 U.S.C. § 3664(f)(1)(B) (explaining that court shall order restitution in full without consideration of defendant's financial circumstances). Therefore, despite Defendant's arguments to the contrary, in imposing restitution, the district court was precluded from considering Defendant's indigence or obligations to his children.

United States v. Davis, 306 F.3d 398, 424-25 (6^th Cir. 2002); see also United States v. Yaker, unpublished, 87 Fed.Appx. 532, 533 (6^th Cir. February 4, 2004) (restitution mandatory under MVRA on mail fraud conviction). Further, petitioner agreed to pay restitution as a part of his plea agreement. See Doc. No. 2. At sentencing, petitioner stated that he wanted to make restitution:

I am now employed and ready to pay restitution to these victims if it takes the rest of my life.

Sentencing Transcript, at 15.

Nonetheless, petitioner appears to now argue that the restitution ordered was improper as unrelated to victims affected by his criminal convictions because the charging document failed to specify the names of any victims. Petition, at 24. This Court is not persuaded by petitioner's argument.

Both the VWPA and the MVRA define a "victim" either as "a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered" or "in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern." 18 U.S.C. §§ 3663(a)(2) 3663A(a)(2). . . .

Court decisions reviewing awards of restitution to "victims" under the VWPA and MVRA have generally required a direct nexus between the offense of conviction and the loss being remedied. In Hughey v. United States, the Supreme Court interpreted the VWPA to authorize a restitution award only with respect to that loss caused by "the specific conduct that is the basis of the offense of conviction." 495 U.S. 411, 413, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990).[FN3] Thus, under Hughey, both the amount of the restitution award and the persons to whom such an award may be directed are limited by the circumstances of the offense for which the defendant has been convicted.

FN3. Because of the similarity of the statutory language in the VWPA and MVRA, court decisions interpreting the language of the VWPA are helpful in construing the language of the MVRA.

In United States v. Braslawsky, this Court applied the rule of Hughey and reversed a restitution order under the VWPA that included an amount of loss not directly attributable to the conduct for which the defendant was convicted. 951 F.2d 149, 152 (7th Cir. 1991). Under this interpretation, charged but unconvicted conduct cannot form the basis for an award of restitution. In fact, in United States v. Menza, we noted that, under the VWPA, "Congress intended restitution to be precisely tied to the loss caused by the offence of conviction. Examination of the conduct constituting the commission of a crime only involves consideration of the conduct to which the defendant pled guilty and nothing else." 137 F.3d 533, 537 (7th Cir. 1998) (citations omitted); see also United States v. Scott, 250 F.3d 550, 553 (7th Cir. 2001) (noting that "relevant conduct" may not be the basis of a restitution award under the MVRA unless it is also "charged [convicted] conduct" or covered in a plea agreement).

United States v. Randle, 324 F.3d 550, 556-57 (6^th Cir. 2003). Nothing in the record supports petitioner's allegation that the amount of restitution was not directly related to the monetary losses suffered by the victims of his criminal conviction. See PreSentence Investigation Report, at ¶¶ 26-29, 144.

In view of all of the foregoing, petitioner has failed to establish the ineffective assistance of counsel under Strickland due to his attorney's failure to object to restitution.

V.

For all of the foregoing reasons, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).