Opinion
No. 3-99-CR-98-T, (3-02-CV-1658-D)
January 30, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief brought by a federal inmate pursuant to 28 U.S.C. § 2255.
Statement of the Case: Upon his plea of not guilty to the charges alleged in the indictment filed in the above styled and numbered criminal action Daniels was tried by a jury which returned verdicts of guilty on Counts 2 through 15. Thereafter he was assessed a term of 96 months imprisonment followed by a three-year period of supervised release and an order of restitution. He appealed his conviction which was affirmed by the Fifth Circuit, and his subsequently filed petition for certiorari was denied by the United States Supreme Court initially and upon rehearing. United States v. Daniels, 247 F.3d 598 (5th Cir.) cert. denied 534 U.S. 928, 122 S.Ct. 288 (2001), reh. denied 534 U.S. 1158, 122 S.Ct. 1136 (2002). Thereafter Daniels filed his § 2255 motion.
Findings and Conclusions: Prefatory to considering the 28 separately enumerated grounds for relief alleged in Daniels' § 2255 motion it is pertinent to observe certain well-established principles which inform the scope of review in collateral attacks brought under the statute.
Grounds previously litigated and rejected on direct appeal cannot be re-urged in a postconviction motion under § 2255. United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994); United States v. Kalish, 780 F.2d 506, 508 (5th Cir.) cert. denied 476 U.S. 1118 (1986).
Non-constitutional claims that could have been raised on direct appeal, but were not, may not be raised in a collateral proceeding. See e.g., United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992); see also United States v. Hatten, 167 F.3d 884, 887, n. 5 (5th Cir. 1999) wherein the court opined that: ". . . Relief under § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal, and would, if condoned, result in a complete miscarriage of justice. (citing United States v. Vauhn, supra) . . ." (Emphasis added).
A district court's technical application of the Sentencing Guidelines does not give rise to a constitutional issue cognizable under § 2255 absent a fundamental defect resulting in a complete miscarriage of justice. United States v. Vaughn, supra; see also United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998).
The sufficiency of an indictment is not open to collateral attack unless exceptional circumstances are presented, which raise questions of "large importance" which call for an apparent remedy and when the charges alleged are ones over which the sentencing court manifestly had no jurisdiction. United States v. Dyer, 136 F.3d 417, 425 (5th Cir. 1998). In Dyer the court reiterated that "delay in seeking a remedy weighed heavily against [a habeas applicant]", stating that the "tardier the challenge, the more liberally and aggressively have indictments been construed so as to save them". Id. at 425 quoting United States v. Prince, 868 F.2d 1379, 1384 (5th Cir. 1989).
Finally, in federal criminal cases, all defenses and objections based on defects in the institution of the prosecution or non-jurisdiction defects in the indictment must be raised before trial. See Federal Rule of Criminal Procedure 12(a)(1)-(2) and (f); Davis v. United States, 411 U.S. 233, 242, 93 S.Ct. 1577 (1973).
In his direct appeal Daniels attacked the sufficiency of the evidence to convict him. Relief on the claim was denied. 247 F.3d at 600-01. Daniels' first, fourth, fifth, sixth, eighth, ninth, tenth, eleventh and twelfth grounds for relief in his § 2255 motion are merely variations of his insufficiency of the evidence claims asserted in his direct appeal. Relief is barred under the Segler case, supra. Moreover, he could have raised these claims in his direct appeal and he has failed to demonstrate that his convictions and sentence resulted in a complete miscarriage of justice.
His second ground for relief could have been raised in his direct appeal. Moreover, it is settled law that an acquittal on a conspiracy count does not absolve a defendant of criminal liability on substantive charges. United States v. Scurlock, 52 F.3d 531, 537 (5th Cir. 1995).
In his third and ninth grounds for relief and to some extent in his first, fourth and twelfth grounds as well, Daniels attacks the constitutionality of 18 U.S.C. § 157, arguing that his conduct raised at most issues of civil liability only. He also argues that certain aspects of his conduct were beyond the purview of § 157's reach. He advanced the claim that the statute was unconstitutional in his direct appeal which the Circuit Court rejected. To the extent that the grounds raise variations on those advanced in his direct appeal relief is foreclosed under the Seglar case as well as the fact that he has not shown they could not have been raised in his direct appeal. Further, the course of conduct in which he engaged, briefly summarized at 247 F.3d 599, shows that no complete miscarriage of justice occurred in his convictions and sentence. Daniels relies on the district court's opinion in United States v. Lee, 82 F. Supp.2d 384, reconsideration denied 82 F. Supp.2d 389 (E.D. Pa. 2000). Aside from the factual differences described in the Lee opinion from those in Daniels' case, this court is bound by the Fifth Circuit's decision in Daniels' direct appeal rejecting his attack on the statute's constitutionality.
In his seventh and fourteenth grounds for relief Daniels attacks the sufficiency of the indictment. These claims could have been raised in his direct appeal. In addition such claim is procedurally barred, Rule 12, Federal Rules of Criminal Procedure, supra and Davis v. United States, supra. Further this claim is not cognizable in a § 2255 motion. See United States v. Dyer, supra. Likewise his attack on the grand jury proceedings, asserted in his twenty-third ground is procedurally barred.
Grounds 13, 19, 20, 21, 25 and 26 allege purported errors which occurred in the course of his criminal trial. All could have been raised as points of error, but none was presented in his appeal. Further in light of the Fifth Circuit's affirmance of his conviction, he cannot establish that any of these grounds constituted a fundamental defect resulting in a complete miscarriage of justice. Therefore these grounds are not cognizable in a collateral proceeding. See United States v. Hatten, supra. In a similar vein, Daniels alleges in his twenty-seventh ground that witnesses called by the government committed perjury. This ground is premised on alleged inconsistencies between the witnesses' testimony on direct examination and cross-examination and Daniels' contention that the companies which he formed were not shells for the purpose of filing documents with bankruptcy petitions, a contention which was squarely rejected by the appellate court. 247 F.3d at 601. This conclusory claim fails to establish that false testimony was presented by the government or to make a colorable showing that the government knew that testimony of these witnesses was false when presented. Nor was this a claim asserted on direct appeal.
In his fourteenth ground Daniels contends that the District Court was without jurisdiction to sentence him on January 13, 2000, by reason of his two notices of appeal filed in June and September 1999, respectively. This claim is patently frivolous.
Grounds 15, 16, 17, 18 and 22 all relate to alleged errors in the sentencing proceeding. None was asserted as a point of error on appeal and none presents a fundamental defect which resulted in a complete miscarriage of justice. Therefore these grounds cannot be grounds for collateral relief
In his twenty-fourth ground for relief Daniels claims that he was the victim of selective prosecution. The mere fact that he is an African-American is insufficient to present a cognizable basis for relief. See United States v. Rice, 659 F.2d 524, 526 (5th Cir. 1981); United States v. Tibbetts, 646 F.2d 193, 195 (5th Cir. 1981). Therefore, relief on this conclusory claim should be denied.
In his twenty-eighth and final ground for relief Movant claims that he was denied the effective assistance of counsel by his trial attorney and by his counsel on appeal. These claims are governed by the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052 (1984), i.e. a habeas petitioner must establish that counsel's performance was deficient and that such deficient performance prejudiced the defense.
Daniels identifies three instances of constitutionally infirm representation, which are addressed seritatim:
1. Failure to call Tronnald Dunaway as a witness. Dunaway, Daniels's co-defendant, pleaded guilty to both bankruptcy fraud and conspiracy. See 247 F.3d at 599. Complaints based upon an attorney's failure to call witnesses are not favored because the presentation of witness testimony is essentially a matter of trial strategy. In order to make a colorable showing of prejudice, a habeas petitioner must not only show that the uncalled person's testimony would have been favorable but also that the person would have testified at trial. Daniels only speculates as to what Dunaway might have stated and he makes no showing that Dunaway would have been willing to testify in his behalf Absent an affidavit from Dunaway stating facts on which he would have been competent to testify as well as Dunaway's statement that he would have been willing to testify, this aspect of Movant's final ground is wholly conclusory and thus no prejudice is shown. See Alexander v. McCotter, 775 F.2d 595, 602-03 (5th Cir. 1985).
2. Appellate counsel's failure to present all possible grounds for reversal of Daniels' conviction. Although the Strickland standard applies to both trial and appellate counsel, See e.g. United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000), it is well established that an appellate attorney is not required to raise every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312 (1983). The record shows that Movant's appellate counsel filed a brief which presented non-frivolous points of error. Therefore Daniels cannot establish that appellate counsel's representation was constitutionally infirm.
3. Trial counsel's "refusal" to permit Daniels to testify in his own behalf For the purposes of this recommendation the magistrate judge assumes that Movant's trial attorney did not allow him to testify.
A habeas petitioner's claim that he followed his attorney's advice in deciding not to testify is not grounds for habeas corpus relief when counsel's advice constitutes a sound matter of trial strategy. E.g. see Hollenbeck v. Estelle, 672 F.2d 451, 454 (5th Cir. 1982). Here Daniels' own statements in his memorandum brief demonstrate that his trial attorney's advice was consistent with Sixth Amendment standards. See brief at page 54; see also Presentence Report at pages 6-7, attached to the government's response.
An attorney's refusal to permit a defendant to testify is substantively different from a situation where a defendant elects not to testify based upon his attorney's advice. E.g. see United States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992).
Rule 4(b) of the Rules Governing § 2255 Proceedings precludes summary disposition if it does not plainly appear from the motion and prior proceedings that the movant is not entitled to relief Further a controverting affidavit from Daniels' counsel cannot be used to foreclose an evidentiary hearing. However, since Strickland applies, relief may be denied if no prejudice is shown based on counsel's conduct. E.g. see United States v. Mullins, No. 01-10524, 2002 WL 3181288, ___ F.3d ___ (5th Cir. 2002). Arguably this assumption need not be made. See n. 2 infra.
Under the assumption made by the magistrate judge, Daniels has satisfied the deficiency prong of the Strickland test. However, to satisfy the prejudice prong of the test, it requires "`. . . a reasonable probability that absent the [error], the fact finder would have had a reasonable doubt respecting guilt' and that the [error] was `so serious as to deprive the defendant of a fair trial, a trial whose result is reliable'." United States v. Mullins, See n. 1 (quoting from Strickland v. Washington).
Failure to make the required showing of either deficient performance or sufficient prejudice forecloses relief on an ineffective assistance of counsel claim. Strickland v. Washington, at 701, 104 S.Ct. 2071.
Daniels cannot satisfy this requirement. He does not identify any exculpatory testimony which he would have given had counsel permitted him to testify. Further, even had he related such proposed testimony in his § 2255 motion, absent some corroboration of the same from an independent source, his two prior convictions, both involving fraud, would have totally impeached any unsupported exculpatory explanation. Finally, he provides no explanation as to how he would have "legitimized" the "flipping of interests" in the subject houses from one company to another or why there was nothing wrong in convincing residents to vacate their houses so that he and Dunaway could live in them rent-free — questions the prosecution would have surely asked on cross-examination. Therefore relief on this ground should also be denied.
RECOMMENDATION:
For the foregoing reasons it is recommended that Daniels' § 2255 motion be denied and dismissed.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.