Opinion
Cr. File No. 3-96-126(MJD); Cv. File No. 99-30 (MJD)
October 30, 2001
Petitioner on his own behalf.
Michael W. Ward, Assistant United States Attorney for and on behalf of Respondent.
ORDER
The above-entitled matter came before the Honorable Michael J. Davis on a Petition to correct, set aside or vacate Petitioner's conviction and sentence pursuant to 28 U.S.C. § 2255. In addition, the Petitioner has filed a motion to disqualify this Court from determining his habeas petition.
Background
The Petitioner entered into a plea agreement, in which he agreed to plead guilty to Counts 1 and 15 of the Indictment, which charged him with devising and carrying out a scheme to defraud in violation of 18 U.S.C. § 1341, and with embezzlement in violation of 18 U.S.C. § 666. The Petitioner also pleaded guilty to a one count Information charging him with submitting a false tax return, in violation of 26 U.S.C. § 7206(1).
The Petitioner admitted that from April 1987 through February 1995, he defrauded the Carver County Sheriff's Department and numerous private persons, by using his position as Chief Deputy Sheriff to falsely solicit charitable contributions from area businesses who believed they were contributing to the Carver County Sheriff's Department and other law enforcement efforts. Instead, the Petitioner used the funds for his personal use. Plea Agreement, Background Facts, p. 2. He also embezzled funds in the possession of the Carver County Sheriff, and deposited them in bank accounts for his personal use. Id. He conceded that he took approximately $340,000 for his personal use that was not authorized. Id.
At sentencing, the Court determined that the applicable guideline range was 24-30 months. Petitioner had moved for a downward departure from the guideline range on the basis that he suffers from an extraordinary physical impairment. Because the Court found no evidence in the record to support this claim, the motion for a downward departure was denied. The Court granted the government's motion for an upward departure, however, based on its finding that Petitioner's conduct caused a loss of confidence in an important institution, and caused a significant disruption of important governmental functions and endangered the public welfare. Petitioner was then sentenced to a term of imprisonment of 60 months, and given 6 months credit for time served on a related state conviction. He was also sentenced to a term of supervised release for three years. Petitioner was further ordered to pay restitution in the approximate amount of $345,000.
The Petitioner appealed his sentence to the Eighth Circuit Court of Appeals. On appeal, Petitioner challenged this Court's upward departure, and the application of a two level enhancement pursuant to U.S.S.G. § 2F1.1(b)(3)(A) (1997). The Eighth Circuit rejected the Petitioner's argument, and affirmed the sentence.
Thereafter, Petitioner moved the Court to Correct Judgment pursuant to Rule 36 of the Federal Rules of Criminal Procedure. In this motion, Petitioner asked for a Court order amending the Judgment and Commitment to provide for the payment of Restitution in installments, rather than payable immediately. This motion was denied.
Petitioner is now seeking relief pursuant to 28 U.S.C. § 2255. The Petitioner asks that the Court vacate, set aside or correct his sentence on the basis that he received ineffective assistance of counsel.
Motion to Disqualify
Petitioner asks that this Court disqualify itself from ruling on his § 2255 petition because the Court showed bias against the Petitioner at sentencing, when he granted the government's motion for an upward departure, and when the Court ordered that he be taken into custody immediately after the sentencing hearing. He argues that by taking him into immediate custody, the Court did not take into consideration that he was a law enforcement officer that was subject to a highly publicized case. As a result, he had to be placed in protective custody. Petitioner further argues that his ex-wife made prejudicial comments about him, and that the Court repeated such comments at sentencing. Petitioner also asserts that comments made by this Court regarding his attire at sentencing evinced a prejudicial bias against him.
A Court should recuse itself from a matter if it is shown that the Court has a personal bias or prejudice arising from an extrajudicial source. Rossbach v. United States, 878 F.2d 1088, 1089 (8th Cir. 1989). "Decisions on recusal or disqualification motions are committed to the district court's sound discretion." Larson v. United States, 835 F.2d 169, 172 (8th Cir. 1987).
The Court finds no basis to Petitioner's claims that it acted with bias when sentencing him. The Eighth Circuit scrutinized the Petitioner's sentence on appeal, and later affirmed the sentence completely. Further, Petitioner has made no showing that the Court was biased because of an extrajudicial source. Petitioner asserts that his ex-wife made prejudicial comments about him, but there is no indication that the Court relied on such statements in imposing the sentence. Accordingly, the Court will not disqualify itself from ruling on the § 2255 petition.
Analysis
A petition filed pursuant to 28 U.S.C. § 2255 is not a substitute for a direct appeal. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Collateral relief under § 2255 may be available for claims not raised on direct appeal, if: 1) such claims involve jurisdictional or constitutional issues, or involve a fundamental defect which inherently results in a complete miscarriage of justice; and 2) the Petitioner shows cause for the procedural default and resulting prejudice. Id. Although a nonconstitutional or nonjurisdictional claim is not subject to collateral attack if the claim could have been raised on appeal, the fact that such claims were not raised on appeal may be evidence of an independent claim of ineffective assistance of counsel. Id. An ineffective assistance of counsel claim is a constitutional claim that may serve as a basis for Section 2255 relief. Id.
A. Ineffective assistance of counsel
Because Petitioner's claim of ineffective assistance of counsel was not raised on direct appeal, Petitioner must show cause for the procedural default and prejudice before the Court can proceed to address the claim on its merits. To satisfy the cause and prejudice test, Petitioner must show that his counsel's performance constituted ineffective assistance of counsel under the test set out in Strickland v. Washington, 466 U.S. 668 (1984).
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 results is reliable.
Strickland, 466 U.S. at 687.
1. Counsel's Failure to Challenge the Claimed Loss Amount
Petitioner first alleges that counsel failed to refute the loss amount by failing to submit to the sentencing court an audit that was prepared in the state criminal proceedings. Petitioner alleges that this audit shows that $338,909.29 of the claimed loss amount were legitimate business expenditures.
This argument fails for two reasons. First, the Court was advised of the audit performed relevant to the state court matter, as the PSI specifically referenced material that Petitioner submitted in the state criminal matter. PSI at ¶¶ 21 and 22. And contrary to Petitioner's assertion, this material does not support his position with respect to the amount of loss. The IRS CID agent that analyzed this report found that only $33,441.91 constituted possibly legitimate business expenses made by Petitioner. PSI ¶ 22. This amount was not included in the final loss amount figure. Id. ¶ 23. Petitioner has not provided the Court any evidence which substantiates his claim that $338,909.29 of the claimed loss represents legitimate expenses. In fact, the only evidence he presented were self-serving reports and memoranda that he prepared. Petitioner's Ex. 4.
Second, as is evidenced in the Plea Agreement, the Petitioner conceded that he received approximately $340,000 in excess of business expenses he paid. Plea Agreement, p. 2. He also stipulated that the amount of loss was approximately $340,000 for sentencing purposes. Id. p. 5, ¶ 11(b). Given the information contained in the audits, together with Petitioner's concession that he received approximately $340,000 in excess of expenses paid, that counsel failed to challenge the claimed loss amount at sentencing was not unreasonable.
2. Counsel's Failure to Advise the Court of a Special Audit
Petitioner further argues that counsel failed to advise the Court of a special audit conducted by the Minnesota State Auditor's Office. Again, the record does not support Petitioner's argument. The Court was advised of the State Auditor's Report, and said Report is discussed in the PSI. PSI at ¶ 24. In addition, at sentencing, the Court allowed counsel the opportunity to make this report a part of the record. Sentencing Tr. p. 22-23.
Even if counsel had failed to advise the Court of the State Auditor's Report, such failure did not prejudice Petitioner. This Report details additional financial mismanagement at the sheriff's office, which was not attributable to Petitioner. The Report also addresses Petitioner's criminal conduct, and acknowledges that Petitioner made deposits in an unauthorized checking account referred to as the Crime Check account in the amount of $212,395, and that disbursements of $212,204 were made from this account predominantly to Petitioner's personal accounts. State Auditor's Report, p. 20. The Report further acknowledges that Petitioner opened up a Prevention Checking account, and that deposits and disbursements totaling $28,562 were made predominantly to Petitioner's personal accounts. Id. Finally, the Report acknowledges that $34,381 designated as D.A.R.E. money was deposited in Petitioner's personal accounts. Id. While the Sheriff and employees were cited for financial mismanagement, the State Auditor's Report in no way holds them responsible for Petitioner's criminal conduct.
Petitioner further argues that he was prejudiced because he was held responsible for funds in slush accounts dating back to 1987, yet he did not become signatories on such accounts until 1990 and 1991. However, as noted in the PSI, the Court was aware of the dates Petitioner became a signatory on the relevant accounts. PSI at ¶¶ 11-13. Petitioner has made no showing that the loss amount is based on funds that passed through such funds prior to the dates he became a signatory.
3. Counsel's Failure to Advise of Upward Departure
Petitioner argues that counsel led him to believe that the government was satisfied with the guideline range of 18-24 months, and that the government would not seek an upward departure. Because of this failure, Petitioner argues that the evidence of the lower loss amount gains new significance. As discussed above, however, Petitioner has failed to put forth any evidence to support the assertion that he is, in fact, responsible for a lower loss amount.
Nonetheless, the record shows that with respect to the upward departure, counsel's performance was not so deficient as to deprive him of effective assistance of counsel. Petitioner was put on notice that the government may seek an upward departure by the terms of the Plea Agreement. Plea Agreement ¶ 15. In addition, the PSI provided that many factors existed to support an upward departure. PSI ¶¶ 145-150. At the sentencing hearing, counsel for Petitioner vigorously argued against the application of an upward departure. Sentencing Tr. 18-22.
4. Counsel's Failure to Raise on Appeal that the Court Ordered Restitution without Considering Petitioner's Ability to Pay.
Petitioner argues that this Court failed to make findings as to Petitioner's ability to pay restitution, and that such failure was plain error. Yet, counsel did not appeal this issue to the Eighth Circuit, causing him prejudice.
The Petitioner's financial status at the time of sentencing was provided in detail in the PSI. PSI ¶¶ 120-122. The Court specifically adopted the findings of fact set forth in the PSI, as its findings of fact with respect to sentencing. Sentencing Tr. p. 24. The Court was also made aware of Petitioner's outstanding restitution from the state court in the amount of $68,759.67. PSI ¶ 144. Petitioner is therefore incorrect in his assertion that the Court did not consider his ability to pay when ordering him to pay restitution.
Initially, the Court notes that it can order restitution even if the defendant is indigent at the time of sentencing. United States v. Riebold, 135 F.3d 1226 (8th Cir. 1998). Nonetheless, the Court is encouraged to make specific findings regarding ability to pay. Id. Failure to do so, however, does not warrant remand. Id.
We remind [petitioner] that he may assert his indigency in any future proceeding to enforce the restitution order. 'Constitutional safeguards come into play at the time of enforcement, because a defendant cannot be punished by incarceration (or reincarceration) if his failure to pay restitution occurred through no fault of his own and there are alternatives to incarceration available.
Id. (citation omitted).
Because there exists safeguards to protect Petitioner in the event future proceedings come about because of his failure to pay restitution, Petitioner cannot show that he was prejudiced by a lack of specific findings regarding ability to pay.
5. Counsel failed to challenge legal sufficiency of theft counts.
Petitioner argues that counsel was ineffective because she failed to challenge the legal sufficiency of the theft counts. This argument is based on his assertion that the claimed loss amount constitutes valid business expenses. As discussed above, however, Petitioner has failed to present any evidence to support his assertion that the claimed loss amount constitutes legitimate business expenses. Accordingly, counsel's failure to challenge the sufficiency of the theft counts was not unreasonable.
6. Counsel's Failure to object to unresolved factual issues in the PSI.
Petitioner argues that counsel failed to object to certain factual statements in the PSI: that he absconded with his children's savings accounts; that he was dishonorably discharged from the National Guard; and failure to advise the Court of the State Auditor's Report.
As discussed above, however, the Court was made aware of the State Auditor's Report. The remaining factual issues mentioned had no bearing on the imposition of his sentence, therefore Petitioner has failed to show that a failure to raise such objections caused him prejudice.
IT IS HEREBY ORDERED that the Petition filed pursuant to 28 U.S.C. § 2255 [Docket No. 65] is DISMISSED WITH PREJUDICE. Petitioner's Motion for Disqualification [Docket No. 64] is denied.