Opinion
Nos.: 3:01-CV-141-H, 3:98-CR-107-H
January 11, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States District Court for the Northern District of Texas, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS:
Type case:
Bernard Joseph Dolenz, Movant, seeks to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255.
Parties:
Movant is a federal prisoner currently incarcerated in a federal correctional facility at F.C.I. Forrest City, Arkansas. Respondent is the United States of America.
STATEMENT OF THE CASE
A jury convicted Movant of Mail Fraud and Aiding and Abetting, in violation of 18 U.S.C. § 1341 and 2. Punishment was assessed at 90 months of confinement, followed by supervised release for a period of three years, restitution, and special assessments. (Sent.Tr. at 6-7.) Movant appealed his conviction and sentence. United States v. Dolenz, No. 99-10032 (5th Cir. Aug. 4, 2000) (unpublished). Movant, a licensed attorney, represented himself on appeal. He raised seventeen issues which the appellate court found to be without merit or waived due to inadequate briefing: (1) the mail fraud statute requires a connection with interstate commerce; (2) there was no evidence to show he was engaged in a scheme or artifice to deprive another of the intangible right of honest services; (3) his indictment was defective and duplicitous; (4) Movant's daughter's testimony should have been suppressed; (5) the order prohibiting Movant to contact his daughter during his criminal proceedings was a violation of the Constitution; (6) the trial court improperly split Movant's term of imprisonment; (7) his Sixth Amendment right to trial by a jury selected from a fair cross-section of the community was violated; (8) the trial court erred in failing to instruct the jury on materiality; (9) the trial court erred in refusing to consider Movant's pro se post-judgment motions; (10) the trial court erred in imposing more than $1.6 million restitution; (11) the trial court erred in denying his motion for judgment of acquittal based on insufficient evidence; (12) the Sentencing Reform Act of 1984 is unconstitutional; (13) trial counsel provided constitutionally ineffective assistance by failing to request a jury instruction on materiality; (14) his federal conviction violated the Tenth Amendment by usurping the criminal jurisdiction of the State of Texas; (15) the trial court erred in admitting business records from his clinic based upon his daughter's testimony; (16) the government knowingly presented materially false evidence to the jury during its case-in-chief; and (17) the prosecutor's comments during closing arguments that Movant testified untruthfully did not constitute plain error. Movant filed a petition for a writ of certiorari which the United States Supreme Court denied on February 26, 2001. The United States Supreme Court denied Movant's motion for rehearing on April 23, 2001. Movant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The Government filed a response, and Movant filed a reply. The Court has considered the pleadings, the record, the transcripts of the plea and sentencing hearings, the presentence investigation report, and the appellate court's decision.
If a movant bases his § 2255 motion on alleged occurrences outside the record, no hearing is required if the allegations, "viewed against the record, either fail to state a claim for relief or are `so palpably incredible or patently frivolous as to warrant summary dismissal.'" Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert denied, 470 U.S. 1058 (1985)). Movant's conclusory allegations do not provide a reason to stray from the settled record in this matter. Most of Movant's grounds for relief are legal claims, and the record is complete on the claims which require a factual determination. See United States v. Tubwell, 37 F.3d 175, 179 (5th Cir. 1994). The motions, files, and records of this case conclusively show that the petitioner is not entitled to relief. United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). Accordingly, an evidentiary hearing is not required.
ISSUES PRESENTED
Movant attacks his conviction and sentence on the following grounds:
1. The trial court's calculations of the loss amount for sentencing purposes and of the amount of restitution were fatally flawed, and trial counsel provided ineffective assistance with respect to these sentencing issues;
2. Trial counsel provided ineffective assistance at sentencing by failing to prevent a four-level enhancement for offense characteristics as "otherwise extensive;"
3. The indictment is fatally defective because the issue of materiality is missing from the indictment and was not decided by the jury; and
4. The trial court lacked subject matter and in personam jurisdiction.
Scope of Review
The scope of post-conviction relief pursuant to 28 U.S.C. § 2255 is limited. Issues raised and decided on appeal from a judgment of conviction are not considered in § 2255 motions. United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980); Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). The statute affords judicial review only for constitutional errors and other issues that (1) could not have been raised on direct appeal and (2) will result in a miscarriage of justice if left unaddressed. See United States v. Faubion, 19 F.3d 226, 233 (5th Cir. 1994). Misapplications of the Sentencing Guidelines do not fall into either category and hence are not cognizable in § 2255 motions. See United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994); Faubion, 19 F.3d at 233. Before a petitioner may raise an issue for the first time in a § 2255 proceeding, he must show "cause" for his procedural default in failing to raise the issue on appeal and "actual prejudice" resulting from the error. United States v. Frady, 456 U.S. 152, 168 (1982); United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992). This high hurdle ensures that final judgments command respect and that their binding effect is not disturbed by an endless series of post-conviction collateral attacks. Frady, 102 S.Ct. at 1593. The cause and prejudice test may be satisfied if it appears that counsel was ineffective. See United States v. A Acklen, 47 F.3d 739, 742 (5th Cir. 1995); see also United States v. Patten, 40 F.3d 774, 775 (5th Cir. 1994), cert. denied, 515 U.S. 1132 (1995). Moreover, ineffective assistance of counsel may constitute an independent basis for post-conviction relief. See United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992); see also Shaid, 937 F.2d at 232.INEFFECTIVE ASSISTANCE OF COUNSEL WITH RESPECT TO THE TRIAL COURT'S CALCULATIONS OF THE LOSS AMOUNT AND THE AMOUNT OF RESTITUTION
Movant contends the trial court sentenced him using an incorrect and assumed loss amount and incorrectly calculated the amount of restitution. Movant raises these claims under the guise that his trial counsel provided ineffective assistance at sentencing, however, his petition and reply are no more than an attempt to convince the Court that the trial court erred in the calculations. The District Court's technical application of the sentencing guidelines does not give rise to a constitutional issue cognizable under 28 U.S.C. § 2255. Segler, 37 F.3d at 1134; United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998). Accordingly, Petitioner's claim the trial court erred in calculating the loss under the sentencing guidelines is not cognizable under § 2255.
A petitioner may not use a § 2255 motion to attack fines and orders of restitution. United States v. Hatten, 167 F.3d 884, 887 (5th Cir. 1999); Segler, 37 F.3d at 1136-37. In Segler, the appellate court concluded that "§ 2255's limitation on who may seek release from federal custody also implies a limitation on the claims they may assert to obtain a release." Segler, 37 F.3d at 1137. Specifically, the court held that the types of claims cognizable under § 2255 were limited to "claims relating to unlawful custody," not those relating "only to the imposition of a fine." Segler, 37 F.3d at 1137. Movant's release is not conditioned upon the payment of restitution. His claim that the restitution amount is erroneous falls squarely within the United States Court of Appeals for the Fifth Circuit's prohibition of claims which relate solely to the trial court's imposition of a fine or restitution.
Accordingly, to prevail on this claim, Movant must prove that trial counsel provided constitutionally ineffective assistance either with respect to the trial court's calculation of the loss or the restitution amount. The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. U.S. CONST., art. VI. To merit relief pursuant to § 2255 on a claim of ineffective assistance of counsel, a petitioner must demonstrate that his trial counsel's performance fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 691 (1984). In assessing whether a particular counsel's performance was constitutionally deficient, courts indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance, or that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689.
A petitioner's failure to establish either prong of the Strickland test requires the court to find that counsel's performance was not constitutionally ineffective; hence, courts are free to review ineffective assistance claims in any order and need not address both the "deficient" and "prejudice" prong if one component is found lacking. Strickland, 466 U.S. at 697. The prejudice prong of the Strickland test requires a petitioner to 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 694.
Trial counsel lodged four objections to the government's calculation of the loss set out in the presentence investigation report. ("Exh. 2 at 3-4); (Exh. 3) at ¶ V.). At the sentencing hearing, trial counsel objected to the calculation and thoroughly cross-examined and recross-examined the government's witness. (Sent. Tr. at 20-44.) Similarly, trial counsel objected to the government's calculation of the amount of restitution, claiming the amount should be between $990 and $3,300 rather than $1,680,000. (Exh. 2 at 6; Exh. 3 at ¶ XIII; Sent. Tr. at 54-57.) Counsel continued to press Movant's objections, even after the trial court overruled them. (Sent. Tr. at 52-57.)
The exhibit numbers refer to the exhibits to Respondent's answer.
Movant failed to show his trial counsel's performance fell below an objective standard of reasonableness and that deficient performance prejudiced his defense. In fact, Movant fails to set forth any deficiency on counsel's part. He simply alleges that the calculations are erroneous; therefore, counsel provided ineffective assistance. A counsel's failure to raise every non-frivolous argument does not deny a defendant the effective assistance of counsel. See Smith v. Collins, 977 F.2d 951, 960 (5th Cir. 1993). Movant failed to overcome the presumption that trial counsel's objections at sentencing were based upon sound trial strategy. Considering all the facts and circumstances, counsel's performance was not outside the wide range of professional competent assistance. The record shows that trial counsel actively advocated his client's defense throughout the trial and sentencing. No relief is warranted based upon ineffective assistance of counsel with respect to the calculations of the loss and restitution amounts.
INEFFECTIVE ASSISTANCE OF COUNSEL WITH RESPECT TO THE FOUR-LEVEL ENHANCEMENT
Movant argues that he received ineffective assistance of counsel because counsel failed to prevent the trial court's four-level enhancement for organizer or leader of a criminal activity which involved five or more participants and was otherwise extensive. Trial counsel objected to the enhancement in writing and at the sentencing hearing. (Exh. 2 at 5; Exh. 3 at ¶ 7; Sent. Tr. at 46.) The trial court overruled the objection and applied the enhancement. Movant claims counsel was ineffective because the trial court should not have applied the four-level enhancement in his case. Movants allegation of ineffective assistance of counsel with respect to the trial court's application of the four-level enhancement is wholly conclusory and without merit.
"MATERIALITY"
Movant asserts that the indictment is fatally defective because the issue of "materiality" is missing and the jury failed to consider it. Movant raised the issue of a fatally defective indictment on appeal. The Fifth Circuit Court of Appeals reviewed the indictment and found that it was not defective. (Slip Op. at 4.) Additionally, the appellate court held that counsel was not ineffective for failing to request a jury instruction on materiality, and the trial court did not err by failing to give such an instruction. (Slip Op. at 2-3, 4.) A claim which has been decided on direct appeal need not be reconsidered on collateral review. Vernell v. United States, 559 F.2d 963, 964 (5th Cir. 1977). These issues were adjudicated adversely to Movant on direct appeal and the Court need not consider them.
To the extent Movant is attempting to claim a fatal defect in the indictment that is different from the defect he raised on appeal, he has procedurally defaulted any new claim. Moreover, he has failed to show cause for failing to bring such a claim in his appeal. If a petitioner fails to show cause for his procedural default, the court need not address the prejudice prong of the test. See Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982). Movant's claims with respect to materiality do not entitle him to relief.
LACK OF JURISDICTION
Movant claims the judgment is invalid because the trial court lacked case matter and in personam jurisdiction. Movant bases this claim on the contention that his conviction was based upon tainted testimony from his daughter and false premises and misrepresentations regarding the billing codes. These matters were considered on appeal. The appellate court held that his claim that his daughter was inherently untrustworthy and that the trial court abused its discretion in admitting business records from his clinic based on her testimony to be without merit. (Slip Op. at 3.) Additionally, the appellate court held Movant failed to show that the government knowingly presented materially false evidence to the jury during its case-in-chief. (Slip Op. at 3.) Movant has maintained throughout these proceedings that the premises for the AMA CPT codes were false and that he is actually innocent. (Sent. Tr. at 73.) These issues have been decided adversely to Movant and need not be reconsidered. In support of Movant's quest for reconsideration he presents a letter from the AMA regarding certain CPT codes. The letter contains information that was available at the time of the trial. Hence, it does not qualify as "newly discovered evidence." Moreover, the letter states that it is being provided specifically in response to facts and details Movant provided to the writer. The letter provides no basis for reconsideration of Movant's attempt to reassert his actual innocence claim.
Additionally, Movant again attempts to raise his claim of multiplicity and his claim that there is no nexus to the Interstate Commerce Clause. These claims were denied on appeal and cannot be redecided. Moreover, Movant's claim that this is not a "District Court of the United States" is frivolous, if not delusional. In sum, Movant's claims that the trial court lacked jurisdiction should be summarily denied.
RECOMMENDATION
Movant's motion to vacate, set aside or modify his conviction and sentence pursuant to 28 U.S.C. § 2255 should be DENIED. All pending motions should be DENIED.