Opinion
CASE NO. 2:08-cv-336, CRIM. NO. 2:03-cr-70.
July 2, 2009
REPORT AND RECOMMENDATION
Petitioner, a federal prisoner, brings the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the instant petition as supplemented, respondent's return of writ and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
PROCEDURAL HISTORY
The United States Court of Appeals for the Sixth Circuit summarized the facts of this case as follows:
On March 8, 2002, a fire destroyed the Millersport, Ohio, lakeside residence of defendant-appellant Don S. McAuliffe, a duly-elected sitting judge of the Fairfield County Municipal Court, Lancaster, Ohio. At the time of the fire, defendant wasvacationing in the Virgin Islands. Defendant twice sent verified proof of loss claim forms to his insurer, Grange Mutual Casualty Company ("Grange"), via United States mail, representing in the forms that "the cause and origin of the said loss were: UNKNOWN TO CLAIMANT." Defendant eventually settled his claim for $235,000. He used the insurance proceeds to pay off the mortgage on the destroyed property and a car loan, and to make a down payment on another parcel of real estate. Federal, state, and local authorities, however, became suspicious that the fire had been purposefully set by defendant and a business partner, Darrell Faller, as part of a scheme to defraud the insurance company.
On April 23, 2003, following an investigation into the matter, a federal grand jury in the Southern District of Ohio indicted defendant on charges of mail fraud, in violation of 18 U.S.C. § 1341 (Counts One and Two); using fire to commit mail fraud, in violation of 18 U.S.C. § 844(h)(1) (Count Three); conspiring to use fire to commit mail fraud, contrary to 18 U.S.C. § 844(m) (Count Four);FN1 and money-laundering, in violation of 18 U.S.C. § 1957 (Counts Five and Six). The indictment sought forfeiture of the insurance proceeds, as well as the real and personal property acquired with those proceeds.
FN1. Count Four inadvertently referenced 18 U.S.C. § 844(n); the district court allowed the Government to amend the indictment to substitute subsection (m) for (n).
Following a nearly three-week jury trial, defendant was convicted as charged on all counts. The district court originally sentenced defendant to 207 months of imprisonment; specifically, 60 months on Counts One and Two; 87 months on Counts Four, Five, and Six, to run concurrently to each other and to the sentences on Counts One and Two; and 120 months on Count Three, to be served consecutively. Defendant filed a timely notice of appeal and, while the appeal was pending, this court remanded for re-sentencing in light of the newly issued decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Defendant was re-sentenced to a total of 156 months of imprisonment: concurrent sentences of 36 months on Counts One, Two, Four, Five, and Six, and a consecutive sentence of 120 months on Count Three. A final order of forfeiture was entered by the court. The amended judgment of conviction and sentence was entered on December 20, 2005, the same date on which defendant filed the present appeal.FN2
FN2. A corrected amended judgment of conviction was later entered on January 11, 2006, modifying only the portion of the judgment pertaining to restitution. Pursuant to the amendment, defendant was ordered to pay immediately a fine of $150,000, make restitution of $235,000, and forfeit two pieces of real estate, along with a vehicle. Defendant was ordered to liquidate his accounts in order to satisfy these obligations.
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[T]here was ample evidence on which to convict defendant. At trial, Faller testified as a witness for the government that he and defendant conspired to burn down defendant's house so that defendant could obtain the insurance proceeds and use the proceeds to demolish the house and rebuild it. They arranged for defendant to be out of town when Faller started the fire. Defendant's former girlfriend, Beth Westminster, also testified as a government witness, corroborating that Faller and defendant conspired to burn down the house with the ultimate purpose of rebuilding it. In their first attempt, defendant and Faller tried to rupture a gas line in the house; however, this attempt failed. Faller testified that he and defendant then made a second attempt to burn down the residence by placing a halogen lamp against a wall that they believed would ignite. This attempt was successful and, during the early morning hours of March 8, 2002, the house caught fire.
An insurance adjuster investigated the fire damage and observed fire damage on the lower level, but also noticed more extensive fire damage on the upper level of the home. Due to suspicions about the cause and origin of the fire, she then referred the matter to a consulting firm. Richard Marzola, an electrical engineer, took photos and collected debris from the site. He observed the burn patterns near the lamp, but also noticed a second set of burn patterns at the base of the stairs to the upper level. At his request, two experienced arson investigators were sent to the residence for further investigation. The final report issued by Marzola's firm found neither evidence of a "foreign ignitable liquid" nor "an electrical malfunction or abnormality," but concluded, based on the two unrelated points of origination, that the "cause of this fire loss was an intentional human action." The report indicated that the burn patterns associated with the first point of origin (the lamp) on the lower level of the house indicated that the fire traveled up the wall and into the ceiling joists, but eventually self-extinguished and did not penetrate the second floor sub-floor. The patterns associated with the second point of origin (base of the stairs) indicated that the resultant fire "progressed up the stairs" and caused "extensive direct flame damage . . . throughout the second floor."
Grange Insurance sent defendant a reservation-of-rights letter stating in part that the fire at defendant's Northbank Road residence "has been determined to have been deliberately set." Two days later, the claims adjuster sent defendant a claim form entitled "Property Sworn Statement in Proof of Loss." It is undisputed that defendant returned the completed and notarized form to Miller via fax, with the original being sent by United States mail. In signing the form, defendant agreed "that the loss did not occur because of any act or design on [his] part" and that "[n]othing has been done to conceal or misrepresent any material facts concerning this claim, nor to deceive the company." In response to the first question on the form, defendant replied that "the cause and origin of the said loss were: UNKNOWN TO CLAIMANT." Defendant sought $361,925 for damages to the real and personal property.
On April 9, 2002, the claims adjuster sent a letter to defendant rejecting his claim for failure to provide sufficient detail and documentation. Defendant responded by letter, disputing her assertions and requesting a new adjuster. The successor adjuster who was assigned to defendant's claim settled defendant's claim in April of 2002 for $235,000. Pursuant to this settlement, defendant again was required to submit a signed and notarized "Property Sworn Statement in Proof of Loss (Revised)," which reiterated that the origin of the fire loss was "unknown to claimant." Defendant mailed this revised form to Grange via U.S. mail. Defendant thereafter received two settlement checks from Grange-one in the amount of $95,000 for the personal property claim, and the other for $140,000 for the real property loss. Defendant used the proceeds to pay off his mortgage on the residence, to pay off a loan on a vehicle, and to purchase another real estate parcel.
The business relationship between defendant and Faller thereafter soured, and Faller contacted an attorney, who in turn contacted an agent with the Bureau of Alcohol, Tobacco and Firearms ("ATF"). In exchange for his cooperation, Faller was granted immunity from prosecution. He described to authorities his role and defendant's involvement in the planning and execution of the fire for the purpose of obtaining insurance proceeds. Over the next two months, authorities recorded several conversations between defendant and Faller or Westminster.United States v. McAuliffe, 490 F.3d 526 (6th Cir. 2007). Petitioner timely appealed his convictions and sentence to the United States Court of Appeals for the Sixth Circuit.
In his appeal, defendant challenges the sufficiency of the evidence and alleges, inter alia, that defects in the indictment and improper constructive amendments to it mandate reversal of his convictions.See id. On June 22, 2007, the United States Court of Appeals affirmed petitioner's convictions and sentence. Id. On October 15, 2007, the United States Supreme Court denied petitioner's petition for a writ of certiorari. McAuliffe v. United States, 128 S.Ct. 442 (2007).
On April 1, 2008, petitioner filed the instant pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He asserts the following claims:
1. McAuliffe's attorneys (sic) failure to inquire into and analyze the factual components of his case constituted ineffective assistance of counsel. Their failure had a substantial and injurious effect on the process.
2. McAuliffe's attorneys committed numerous substantive legal errors because of their lack of analysis of McAuliffe's case.
3. The government's acts mandates habeas corpus relief.
Petitioner has filed a supplemental memorandum in support of these claims. Doc. No. 174. It is the position of the respondent that petitioner's claims are without merit.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner asserts the ineffective assistance of counsel. Respondent contends that this claim is waived because petitioner failed to raise the issue on direct appeal; however, the United States Court of Appeals for the Sixth Circuit has held that claims of ineffective assistance of counsel are properly addressed in a motion under 28 U.S.C. § 2255. See United States v. Jackson, 181 F.3d 740, 747 (6th Cir. 1999), citing United States v. Tucker, 90 F.3d 1135, 1143 (6th Cir. 1996); United States v. Seymour, 38 F.3d 261, 263 (6th Cir. 1994). This Court therefore will address the merits of petitioner's claim of ineffective assistance of counsel.
The Sixth Amendment guarantees the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for reviewing a claim of ineffective assistance of counsel is twofold:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689.
To establish prejudice, it must be shown that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id., at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 697. Because the petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, if the Court determines that petitioner has failed to satisfy one prong, it need not consider the other. Strickland, 466 U.S. at 697.
Petitioner asserts that his attorneys failed properly to investigate the case. According to petitioner, fire damage to the ground floor of his house occurred long before he owned the property; however, Faller discovered the evidence of old fire damage while renovating petitioner's home, and then attempted to get petitioner to participate in Faller's scheme to set the house on fire to avoid paying back a debt he owed petitioner arising out of their business venture ("Judge-R-Work") when it turned sour. Petition, at 9-14. Petitioner maintains, as he did at trial, that Faller went to the authorities and falsely accused him of these crimes after petitioner refused to participate in Faller's scheme. Id., at 14-15, 19. Petitioner also argues at length that proof that the halogen lamp ignited a fire was critical in establishing his guilt, and but for his attorneys' failure to argue the halogen lamp could not have caused any fire damage to his house, he would have been exonerated. Id., at 18-20.
Review of the record fails to support petitioner's argument. The record does not indicate inadequate investigation or performance by defense counsel. Petitioner's attorneys conducted extensive cross examination of the prosecution's witnesses and called numerous defense witnesses on petitioner's behalf to call into question the reliability of the government's case, including presentation of evidence that juveniles had been starting fires in the area and Faller was an untruthful and unreliable witness who had a motive to incriminate petitioner in these crimes. Counsel cross-examined prosecution witness Shane Skeen, of the Fairfield County Sheriff's Office, regarding the reliability of his opinion that the halogen lamp had caused a fire in view of the lack of fire destruction around the site of the halogen lamp and the inverted V pattern around the lamp. Transcript, Vol. II, at 157-162. Skeen acknowledged on cross examination that he had initially noted in his report that the cause of the fire was accidental. Id., at 165-66. The fire had two points of origin, on the first floor and the second floor. Id., at 164-65. Defense counsel also cross-examined the prosecution's expert witness, Richard Marzola, on his opinion that the halogen lamp had started a fire. See Transcript, Vol. III, at 34-92. Marzola had examined the halogen lamp that purportedly caused the fire. He "had it on for somewhere between four and six hours and all that it did was kind of discolored" paper backing. Id., at 50. "It did not actually start smoldering or have a flame." Id. Paper ignites at between 300 and 350 degrees; wood ignites at between 350 and 400 degrees; however, the most amount of heat he could get from the lamp was around 280 degrees. Id., at 54-55. Most of the first floor had no fire damage. Id., at 61. Marzola's conclusion that the fire had been intentionally set was based on his determination that the fire had two points of origin, and nothing else. Id., at 67. No testing had been done to determine if any accelerants had been used to start the fire from the outside of the house. Id., at 90-94. Defense expert Larry Pfeiffer "spent hours" reviewing the photographs of the house. He testified at length regarding his analysis of numerous photographs of the fire scene and his conclusions from examinations of these photographs, the house, and speaking with fire personnel who had been at the scene of the fire. See Transcript, Vol. X, at 70; Vols. IX, at 129-186; Vol. X, at 2-199. It was his expert opinion, "based on analyzing the fire patterns from the pictures" that the fire originated from outside of the house, on the north side. Id., Vol. X, at 81-82. According to Pfeiffer, based on a reasonable degree of scientific certainty, the fire had originated neither from the halogen lamp nor the foot of the stairs. Id., at 82.
In any event, as discussed in this Court's order denying petitioner's motion for judgment of acquittal, and contrary to petitioner's argument here, regardless of whether the jury believed that petitioner had no involvement in the second floor fire or that the halogen lamp started the fire, these facts would not necessarily have exonerated petitioner. Testimony by Faller and Westminster indicating that petitioner was involved in a scheme to burn down his home to obtain insurance proceeds, evidence that the fire had been set intentionally, and other circumstantial evidence of guilt sufficiently established petitioner's guilt as an aider and abettor. As previously discussed, see Order, Doc. No. 70, under the Pinkerton Rule of Liability, petitioner is responsible for the reasonably foreseeable acts of a his co-conspirator:
[t]he jury could have found that conspiring to commit arson to burn down his house and causing some fire damage, was a "material fact," given that the home ultimately was destroyed by fire. . . . [B]ased on Defendant's failure to disclose such information in the Sworn Proof of Loss forms, which he mailed to Grange, a rational trier of fact could find that Defendant used fire to commit mail fraud. . . .
Alternatively or in addition, a rational trier of fact also could have found McAuliffe guilty of using fire to commit a felony under the Pinkerton Rule of Liability, which was provided in the jury instructions. Under the Pinkerton Rule of Liability:
There are two ways that the Government can prove the Defendant guilty of this crime. The first is by convincing you that he personally committed or participated in this crime. The second is based on the legal rule that all members of a conspiracy are responsible for acts committed by the other members, as long as those acts are committed to help advance the conspiracy, and are within the reasonably foreseeable scope of the agreement. In other words, under certain circumstances, the act of one conspirator may be treated as the act of all. This means that all the conspirators may be convicted of a crime committed by only one of them, even though they did not all personally participate in that crime themselves.
Even assuming that McAuliffe did not participate directly in the fire, based upon Faller's testimony, a reasonable jury could have believed that he and Defendant engaged in a conspiracy to commit arson, in planning to burn down McAuliffe's house and obtain the insurance proceeds. It was not necessary that the jury find that McAuliffe himself set the fire, because the jury could have believed that Faller set "the fire" to "advance the conspiracy" and it was within the "Reasonably foreseeable scope of the agreement."
There was substantial circumstantial evidence from which a rationale trier of fact could have believed that Faller set the fire (i.e., the fire that caused the extensive damage to the second floor of Defendant's home). There was testimony from Faller, himself, and others that he was at the scene of the fire as the house was burning. Although Faller denied reentering the home to "finish the job," the jury was free to disbelieve his testimony on this point. . . .
It would not have been unreasonable for the jury to conclude . . . that although Defendant was out of the country when the fire occurred, he was responsible for the reasonably foreseeable acts of a co-conspirator, such as Faller, and that Faller reentered the house and finished the job, even if the jury believed that the halogen lamp fire did not cause the majority of the damage to the home.Opinion and Order, May 24, Doc. No. 70. Therefore, petitioner has failed to establish the ineffective assistance of counsel under the two-prong test of Strickland.
Petitioner asserts that he was denied the effective assistance of counsel because his attorneys failed to obtain his pre-trial release on bond at his bond reconsideration hearing. Specifically, petitioner contends that defense counsel improperly failed to contest the government's contention that Count Three of the indictment involved a crime of violence and thus warranted a presumption against his pre-trial release on bond, and failed to rebut evidence that he had admitted in a tape-recorded conversation with Faller his involvement in submitting a false insurance claim to Grange, had a contact who would murder for hire, or had physically abused Patty Wilson, his former wife, and therefore posed a potential threat to prosecution witness Beth Westminster. Petitioner also complains that his attorneys failed to call Agent David Meyers to testify he believed petitioner was innocent and "the feds [had been] duped by Faller." Id., at 26-27. Petitioner further asserts that he was prejudiced by counsels' failure to obtain his pre-trial release on bond, because he thereafter was unable adequately to assist in preparing his defense while incarcerated. He complains that his corrections to transcripts of tape recorded conversations between himself, Faller and Westminster, introduced against him at trial, were ignored in the stipulated transcription of his recorded conversations, and that he was unable effectively to review color photographs provided in discovery, although his attorneys provided him with black and white copies. Finally, petitioner complains that he was unable to obtain adequate access to the law library and therefore did not learn of "jurisdictional errors" in Counts Three and Four of the Indictment, and in the forfeiture count against him. Petition, at 34-35.
On June 30, 2003, Attorneys Larry Thomas and Samuel Bernard Weiner replaced former counsel and filed a request for reconsideration of the pretrial detention order. See Doc. Nos. 12-15.
Again, and contrary to petitioner's argument here, review of the record fails to reflect that defense counsel performed in a constitutionally inadequate manner during petitioner's bond reconsideration hearing. Count three of the indictment charged petitioner with knowingly using fire to commit mail fraud, in violation of 18 U.S.C. §§ 1341; 844(h), and 2. Doc. No. 1. Such charge involves a crime of violence, as defined by 18 U.S.C. § 3156(a)(4)(A), as "an offense that has an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another" warranting a presumption against petitioner's release. Further, the Court denied petitioner's pre-trial release on bond upon concluding that evidence was compelling that the safety of two government witnesses — Ms. Wesminister and Mr. Faller — may have been imperiled by petitioner's release pending trial coupled with the rebuttable presumption in favor of detention of persons accused of a crime of violence, see Order, August 21, 2003, Doc. No. 22, as follows:
[T]he Court considered evidence that Defendant has threatened his close romantic friend, Beth Westminister. Ms. Westminister has agreed to testify against Defendant, and has cooperated with the government in collecting evidence against him. The Government presented a tape recording of a conversation between Defendant and Ms. Westminister in which Defendant tells her that if she ever leaves him, he will kill her. The Government also presented a letter from Defendant to Ms. Westminister in which Defendant explains that he is concerned for her physical safety because she "frustrate[s] [him] more than [she] can imagine."
The Court continued the detention hearing until August 14 so Ms. Westminister could appear and testify in person about her concerns for her safety if Defendant were released pending trial. The testimony of Ms. Westminister did not quell the Court's concern about her safety. Ms. Westminister admitted that she still loves Defendant, but she nevertheless fears him because he can easily become angered. . . . [T]he Court finds that Defendant's promise to kill her if she ever left him poses serious concerns now that she has agreed to testify against Defendant and has actively cooperated with the Government to collect evidence against him. Ms. Westminister also testified that Defendant had recently frightened her because he provided her name and address to another inmate so that he could contact her as a pen pal. Although this act could be viewed as an innocent attempt to establish a correspondence relationship between the inmate and Ms. Westminister, such act can also be viewed through the lens of intimidation. Indeed, Ms. Westminister could have been put on notice that Defendant was willing to provide her address to criminals with violent propensities if she crosses him.
The government also presented a tape-recorded conversation between D.J. Faller and Defendant. Faller has agreed to testify for the Government and has cooperated with the government in collecting evidence against Defendant. Faller was allegedly involved in committing the arson for which Defendant has now been indicted. The tape-recorded conversation between Faller and Defendant occurred after the alleged arson, and the two discussed the fire, although Defendant denied committing arson. During the conversation, Faller told Defendant that he was scared of him because as a judge, Defendant has enormous power and could order the sheriff to arrest Faller. Defendant responded that he, too, was scared, and that he had begun carrying a derringer on his person. Defendant told Faller that it was good that they were scared of each other. This conversation confirms that Defendant might attempt physically to injure Faller now that Faller has turned on Defendant by cooperating with the Government. Furthermore, Ms. Westminister testified that Defendant told her that he would kill or have Faller killed if he ever turned on him.Order, August 21, 2003, Doc. No. 22. Therefore, the record indicates that the Court denied petitioner's request for reconsideration of bond based on the tape recordings submitted by the government, and the testimony of Beth Westminister — not on his purported contact who would kill for hire or on the testimony of his ex-wife, although it is not clear how defense counsel could have further disputed such testimony. The Court acknowledged that petitioner denied being involved in the arson on the taped conversation with Faller. Additionally, the record is without support for petitioner's allegation that Agent Myers would have been helpful in obtaining petitioner's release on bond.
The record likewise reflects that petitioner has failed to establish prejudice under the second prong of Strickland.
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.
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The 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Strickland, 466 U.S. at 693.
By his own account, petitioner was provided with a copy of the transcripts of the tape recorded conversations, to which he provided his notes to his attorneys regarding his "corrections." Petition, at 34. The Court conducted an in camera review of disputed portions of the transcripts of those tapes to make a determination of these portions of the transcripts. See Doc. No. 33. The record does not indicate that petitioner was prejudiced by this Court's resolution of any of the disputed portions of the transcripts of tape recordings. See id. Further, the tape recordings themselves were played for the jury at trial, and the Court instructed the jury that the transcripts were only to be used as an aid. See, infra. Petitioner also acknowledges that his attorneys provided him with copies of the photographs being used against him. He reviewed the color photographs at trial, at which time he conveyed to his attorneys that the photographs indicated that there was no halogen lamp fire. Additionally, the Court granted petitioner's August 10, 2004, motion to use law library (prior to the date of the forfeiture of property hearing), see Doc. Nos. 72, 73, 78, and the record is without support for petitioner's contention that he was unable otherwise to obtain access to legal material or denied access to the law library, or that he was prejudiced thereby. For reasons discussed, infra, the record fails to support petitioner's claim that the indictment was inadequate or defective.