Luczak v. United States of America
Filing
13
OPINION AND ORDER denying 1 Motion to vacate/set aside/correct sentence (2255); denying Motion to allow discovery and to expand record. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:07-cr-1-FTM-29DNF), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 9/30/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RONALD LUCZAK,
Petitioner,
v.
Case No. 2:11-cv-396-FtM-29DNF
Case No. 2:07-cr-1-FtM-29DNF
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#349) 1 filed on July 14, 2011 by attorney Stephen G. Murty.
The
government filed a Response in Opposition to Motion (Cv. Doc. #11)
on October 3, 2011, and petitioner filed a Notice of Supplemental
Authority (Cv. Doc. #12) on March 30, 2012.
For the reasons set
forth below, the motion is denied.
I.
For the most part, petitioner claims one or more of his former
attorneys
provided
ineffective
assistance
during
the
trial
preparation phase and the plea negotiation process, which resulted
1The
Court will make references to the dockets in the instant
action and in the related criminal case throughout this opinion.
The Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”
in a plea agreement and guilty pleas petitioner would not have
otherwise entered.
The sixteen grounds raised by petitioner are
summarized more specifically below.
1. Ground One:
Petitioner
assistance
argues
during
the
that
trial
counsel
provided
preparation
phase
ineffective
by
failing
to
interview and track down witnesses, failing to review evidence,
failing to research and understand the law and facts, and failing
to file appropriate pretrial motions.
Petitioner also argues that
counsel had him sign a plea agreement that he would never have
signed but for the ineffective assistance of his attorney, and
that he was further prejudiced because the Plea Agreement required
that he waive important constitutional rights that he would not
have otherwise waived.
2. Ground Two
Petitioner
argues
that
counsel
provided
ineffective
assistance during the plea process by providing improper and
incorrect information regarding the effect and nature of the plea
and
the
law
and
facts
surrounding
the
determination
of
the
sentence, by failing to explain the nature and effect of a plea on
sentencing, and by failing to investigate and research sentencing
issues,
including
petitioner’s
the
criminal
potential
history.
sentence
and
Petitioner
the
also
impact
argues
of
that
counsel had him sign a plea agreement that he would never have
signed but for the ineffective assistance of his attorney, and
- 2 -
that he was further prejudiced because the Plea Agreement required
that he waive important constitutional rights that he would not
have otherwise waived.
3. Ground Three
Petitioner
assistance
by
preparation
argues
his
and
that
“overall
all
and
counsel
pretrial
provided
cumulative”
aspects,
ineffective
failures
including
in
case
failure
to
adequately prepare for trial, and advise petitioner of strategies
and defenses free of conflicts of counsel.
was
deprived
of
a
fair
trial
due
to
Petitioner asserts he
this
ineffectiveness.
Petitioner also argues that counsel had him sign a plea agreement
that he would never have signed but for the ineffective assistance
of his attorney, and that he was further prejudiced because the
Plea Agreement required that he waive important constitutional
rights that he would not have otherwise waived.
4. Ground Four
Petitioner argues that counsel failed to hire or consult
witnesses or experts to educate himself on real estate and mortgage
transactions
in
order
to
supporting the Indictment.
understand
the
underlying
facts
Petitioner also argues that counsel
had him sign a plea agreement that he would never have signed but
for the ineffective assistance of his attorney, and that he was
further prejudiced because the Plea Agreement required that he
waive important constitutional rights that he would not have
otherwise waived.
- 3 -
5. Ground Five
Petitioner
argues
that
counsel
provided
ineffective
assistance because counsel induced petitioner into entering a plea
of guilty by threats and pressure, leaving him with no other
choice.
Petitioner
asserts
that
counsel
stated
that
he
was
unprepared, that they would lose at trial, and that he was not
competent to try a case in federal court.
Petitioner also argues
that counsel had him sign a plea agreement that he would never
have signed but for the ineffective assistance of his attorney,
and that he was further prejudiced because the Plea Agreement
required that he waive important constitutional rights that he
would not have otherwise waived.
6. Ground Six
Petitioner
argues
that
Mr.
Robert
Meadows
provided
ineffective assistance because he undertook representation even
though he should have known at the time of the conflict of interest
hearing that reliance on co-counsel’s assistance was misplaced,
and while knowing that he could not adequately represent petitioner
without Mr. Stone.
Petitioner also argues that counsel had him
sign a plea agreement that he would never have signed but for the
ineffective assistance of his attorney, and that he was further
prejudiced because the Plea Agreement required that he waive
important constitutional rights that he would not have otherwise
waived.
- 4 -
7. Ground Seven
Petitioner
assistance
of
argues
counsel
that
by
Mr.
Meadows
advising
provided
petitioner
to
ineffective
sign
a
plea
agreement that contained a waiver of his rights, including his
rights to make a collateral attack, which made the waiver unknowing
and involuntary.
Petitioner also argues that counsel had him sign
a plea agreement that he would never have signed but for the
ineffective assistance of his attorney, and that he was further
prejudiced because the Plea Agreement required that he waive
important constitutional rights that he would not have otherwise
waived.
8. Ground Eight
Petitioner
argues
that
attorney
Robert
Altchiler
ineffective based upon an actual conflict of interest.
was
While
representing petitioner, Mr. Altchiler was also counsel for the
company involved in the fraudulent activities.
Petitioner argues
that he was prejudiced with the delay in trial preparation when it
was determined that counsel could no longer proceed.
Petitioner
also argues that, but for counsel’s ineffective assistance, he
would not have ultimately entered a plea agreement that was not
negotiated and contained a waiver of his due process and collateral
attack rights.
9. Ground Nine
Petitioner argues that Mr. Meadows failed to obtain and use
co-counsel, who could have assisted in providing legal services.
- 5 -
Petitioner also argues that counsel had him sign a plea agreement
that he would never have signed but for the ineffective assistance
of his attorney, and that he was further prejudiced because the
Plea Agreement required that he waive important constitutional
rights that he would not have otherwise waived.
10. Ground Ten
Petitioner argues that Mr. Meadows failed to address or did
not
know
how
to
address
the
Motion
in
Limine
filed
by
the
government, and that this inability to assess the merits of the
motion led to Mr. Meadows advising petitioner to enter a guilty
plea without attempting to see if they could succeed on the merits
of the motion.
Petitioner also argues that counsel had him sign
a plea agreement that he would never have signed but for the
ineffective assistance of his attorney, and that he was further
prejudiced because the Plea Agreement required that he waive
important constitutional rights that he would not have otherwise
waived.
11. Ground Eleven
Petitioner argues that Mr. Meadows gave petitioner inaccurate
information with regard to the entry of the plea, the sentencing
guidelines, and any potential sentences that might be imposed,
including what enhancements might be applied.
Petitioner argues
that Mr. Meadows relied on the government agent’s advice rather
than his own research.
Petitioner also argues that counsel had
him sign a plea agreement that he would never have signed but for
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the ineffective assistance of his attorney, and that he was further
prejudiced because the Plea Agreement required that he waive
important constitutional rights that he would not have otherwise
waived.
12. Ground Twelve
Petitioner
confidentiality
argues
by
only
that
Mr.
Meadows
communicating
with
breached
client
petitioner
through
monitored jail phone calls because he would not drive to the jail
to see him in person.
Petitioner argues he was prejudiced by the
government monitoring the communications.
Petitioner also argues
that counsel had him sign a plea agreement that he would never
have signed but for the ineffective assistance of his attorney,
and that he was further prejudiced because the plea agreement
required that he waive important constitutional rights that he
would not have otherwise waived.
13. Ground Thirteen
Petitioner argues Mr. Meadows was ineffective in failing to
renew his Motion to Withdraw knowing that he was ineffective.
Petitioner
also
argues
that,
but
for
counsel’s
ineffective
assistance, he would not have ultimately entered into a plea
agreement that was not negotiated and contained a waiver of his
due process and collateral attack rights.
14. Ground Fourteen
Petitioner
Amendment’s
argues
[sic]
that
the
Procedural
and
- 7 -
Court
violated
Substantive
the
Due
“Sixth
Process
requirements” when it failed to adequately inquire as to the issues
underlying petitioner’s representations, and his satisfaction with
counsel.
Petitioner
also
argues
that,
but
for
counsel’s
ineffective assistance, he would not have ultimately entered into
a Plea Agreement that was not negotiated and contained a waiver of
his due process and collateral attack rights.
15. Ground Fifteen
Petitioner argues that his right to a fair trial was violated
due to counsel’s ineffectiveness, and the Court’s denial of the
motion to withdraw and appointment of new or co-CJA counsel.
Petitioner argues that the government was aware of Mr. Meadows’s
inadequacies, and should at least have advised him as to the plea
waiver.
Petitioner
also
argues
that,
but
for
counsel’s
ineffective assistance, he would not have ultimately entered into
a plea agreement that was not negotiated and contained a waiver of
his due process and collateral attack rights.
16. Ground Sixteen
Petitioner
failing
to
argues
take
that
advantage
Mr.
of
Meadows
available
was
ineffective
resources
like
for
an
investigator or expert in light of his appointment as CJA counsel
so that he could adequately prepare for trial.
Petitioner also
argues that, but for counsel’s ineffective assistance, he would
not have ultimately entered into a Plea Agreement that was not
negotiated and contained a waiver of his due process and collateral
attack rights.
- 8 -
For the reasons set forth below, none of these sixteen grounds
have merit, and the § 2255 motion is denied.
II.
The underlying criminal case was initiated on December 13,
2006, by the filing of a Complaint (Cr. Doc. #3) against Ronald
Luczak (petitioner or Luczak), Lisa Luczak, Nelson Alex Gonzalo,
Patricia Martin, and Sandra Mainardi.
On December 14, 2006,
attorney Robert Y. Altchiler of New York was granted pro hac vice
status for the initial appearance, and represented petitioner for
the initial hearing and a detention hearing.
39.)
(Cr. Docs. ## 5,
On December 21, 2006, Mr. Altchiler moved for admission as
pro hac vice counsel and designated Hugo A. Rodriquez as local
counsel for petitioner.
granted the same day.
(Cr. Docs. #43, 44, 98.)
The motion was
(Cr. Doc. #46.)
On January 3, 2007, a federal grand jury in Fort Myers,
Florida returned a four-count Indictment (Cr. Doc. #56) charging
Luczak and others with a fraud conspiracy and money laundering.
Mr. Altchiler continued to represent petitioner.
On May 23, 2007, both Mr. Altchiler and Mr. Rodriguez filed
an Unopposed Motion to Withdraw.
(Cr. Doc. #121.)
The motion
asserted that case developments and discovery revealed a serious
conflict in their continued representation of petitioner.
It was
represented that the government agreed that a conflict existed.
On May 25, 2007, the motion to withdraw was granted, and petitioner
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was directed to file a financial affidavit for appointment of
counsel.
(Cr. Doc. #123.)
On June 4, 2007, after review of petitioner’s financial
affidavit, the Court appointed attorney Scott Lyon Robbins as
counsel.
(Cr.
Appearance
(Cr.
Doc.
Doc.
#127.)
#129)
Mr.
and
Robbins
filed
a
Notice
of
of
began
his
representation
counsel,
and
on
petitioner.
Petitioner
then
retained
July
9,
2007,
attorney Robert E. Stone filed a Notice of Appearance as Counsel
(Cr. Doc. #141).
Mr. Stone spent considerable efforts attempting
to set aside petitioner’s detention order. (Cr. Docs. ## 152, 158,
161, 163.)
On February 6, 2008, attorney Robert Bruce Meadows filed a
notice of appearance as retained counsel on behalf of petitioner.
(Cr. Doc. #169.)
At a February 11, 2008 status conference, Mr.
Meadows and the prosecutor (and counsel for the co-defendants)
informed the Court that the parties anticipated the case being
ready for trial for the June 2008 trial term.
(Cr. Doc. #173.)
On March 5, 2008, Mr. Stone filed a Notice of Appearance as
Counsel (Cr. Doc. #176) on behalf of petitioner’s co-defendant and
wife, Lisa Luczak, and the government filed a Motion to Determine
Conflict
of
Interest
(Cr.
Doc.
177).
The
Magistrate
conducted a Garcia 1 hearing to address the matter.
Judge
(Cr. Doc.
United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), abrogated
in part by Flanagan v. United States, 465 U.S. 259, 263 (1984).
- 10 1
#186.)
Mr. Stone stated that he and Mr. Meadows had been in the
same law firm, but now had separate practices.
Mr. Stone stated
that he had never discussed any detailed facts about the case with
petitioner, and most of the meetings had been conducted by Mr.
Meadows.
(Cr. Doc. #186, pp. 9-10.)
Mr. Meadows agreed with
this, stating that he had been at every meeting with petitioner to
discuss possible defenses and that he, not Mr. Stone, had been
privy to the material information as to the evidence in the case.
(Id. at 11.)
Both Mr. Meadow and Mr. Stone stated that petitioner
was willing to sign a written waiver, and Mr. Stone stated that he
had
discussed
Petitioner
the
told
“completely”
and
matter
at
length
the
Magistrate
was
willing
with
Judge
to
waive
petitioner.
that
the
he
understood
attorney-client
privilege as to information shared with Mr. Stone.
12.)
(Id.)
(Id. at 11-
After the necessary waivers were filed, Mr. Stone was
permitted to withdraw as counsel for petitioner and to represent
Lisa Luczak.
(Cr. Docs. ## 186, 187-88, 190.)
Mr. Meadows
continued his representation of petitioner.
On May 7, 2008, a Superseding Indictment (Cr. Doc. #193) was
filed, and on July 25, 2008, it was amended without objection to
correct a Scrivener’s error.
(Cr. Doc. #227.)
The Amended
Superseding Indictment (Cr. Doc. #193-2) charged petitioner with:
wire fraud, in violation of 18 U.S.C. §§ 1343 and 2 (Counts One
through
Six);
money
laundering,
in
violation
of
18
U.S.C
§
1956(a)(1)(A)(i) (Counts Seven and Eight); and prohibited monetary
- 11 -
transactions, in violation of 18 U.S.C. §§ 1957 and 2 (Counts Nine
through Fifteen).
Petitioner, represented by Mr. Meadows, waived
his presence for arraignment on the Superseding Indictment and
entered a plea of not guilty.
(Cr. Docs. ## 205, 207.)
At a May
12, 2008, status conference, petitioner and other co-defendants
moved to continue the trial date, which motion was granted and the
case was placed on the September 2008 trial calendar.
(Cr. Doc.
#209.)
On July 10, 2008, Mr. Meadows filed a motion to withdraw as
counsel, asserting that did not have the financial resources
necessary to handle the case and did not think he could handle his
first federal case as lead counsel after the withdrawal of Mr.
Stone.
(Cr. Doc. #220.)
At an August 1, 2008 hearing, Mr. Meadows
expressed his concerns to the Magistrate Judge.
stated
that
“I
feel
unequivocally,
after
Petitioner then
dealing
with
this
situation for two years and dealing with lawyers for the past ten
years, that Mr. Meadows could represent me effectively.”
Doc. #309, p. 4.)
(Cr.
Petitioner went on to say that “Mr. Meadows
continued to do the job, continued to work with me, and from what
I’ve learned, being the main person in this case, I believe Mr.
Meadows can represent me properly.”
(Id. at 5.)
Petitioner
summed up by saying that “I do believe unequivocally, Mr. Meadows,
even though he may be unsure of himself, I’m sure that he can do
it.
I’ve dealt with a few attorneys on this now and I really - -
you know, I’d like to proceed this way, Your Honor.”
- 12 -
(Id.)
The
Magistrate Judge denied the motion to withdraw but appointed Mr.
Meadows as CJA counsel.
(Cr. Docs. ## 229, 231.)
Doc. #231) stated in part:
defendant.
The Order (Cr.
“The Court also heard from the
Mr. Luczak advised the Court that he did not want his
attorney to be relieved of representation and strongly felt the
Mr. Meadows would be able to adequately represent him.
The
defendant also expressed his desire for a trial in the near
future.”
(Cr. Doc. #231, p. 1.)
At an August 11, 2008 status conference, a jury trial was
scheduled for September 16, 2008.
(Cr. Doc. #236.)
On August 21,
2008, Mr. Meadows filed a Motion to Continue Trial (Cr. Doc. #244),
which motion was denied on August 27, 2008.
(Cr. Doc. #246.)
Also on August 27, 2008, petitioner filed a Motion for Extension
of Time to Enter Plea of Guilty (Cr. Doc. #247) seeking an
extension of the plea cutoff time until September 4, 2008.
This
motion was granted, although the plea cutoff was extended until
September 11, 2008.
(Cr. Doc. #249.)
On September 3, 2008, upon motion of the government, Count
Two of the Amended Superseding Indictment was dismissed as to all
defendants.
(Cr. Doc. #252.)
On September 10, 2008, petitioner signed a Plea Agreement
(Cr. Doc. #266) in which he agreed to plead guilty to Counts One,
Seven, and Nine, and to pay restitution.
The Plea Agreement
required that the government dismiss all other charges and the
underlying Indictment; not file further charges for any other
- 13 -
offenses known to the government at the time; recommend that
petitioner be sentenced within the sentencing guidelines range;
and recommend a two level downward adjustment for acceptance of
responsibility.
the
elements
The Plea Agreement, among other things, set forth
and
penalties
for
the
offenses,
provided
for
petitioner to provide substantial assistance to the government,
and contained a Waiver of Right to Appeal and Right to Collaterally
Challenge the Sentence provision, which stated in pertinent part:
The defendant agrees that this Court has
jurisdiction and authority to impose any
sentence up to the statutory maximum and
expressly
waives
the
right
to
appeal
defendant’s sentence or to challenge it
collaterally on any ground, including the
ground that the Court erred in determining the
applicable guidelines range pursuant to the
United States Sentencing Guidelines, except
(a) the ground that the sentence exceeds the
defendant’s applicable guidelines range as
determined by the Court pursuant to the United
States Sentencing Guidelines; (b) the ground
that the sentence exceeds the statutory
maximum penalty; or (c) the ground that the
sentence violates the Eighth Amendment to the
Constitution; provided, however, that if the
government exercises its right to appeal the
sentence imposed, as authorized by Title 18,
United States Code, Section 3742(b), then the
defendant is released from his waiver and may
appeal the sentence as authorized by Title 18,
United States Code, Section 3742(a).
(Cr. Doc. #266, p. 13) (emphasis in original).
The Plea Agreement
further provided that petitioner was entering into the agreement,
and pleading guilty, freely and voluntarily, and without threats,
force, intimidation, or coercion of any kind.
- 14 -
(Id. at 13-14.)
Petitioner admitted his guilt, and admitted four pages of facts.
(Id. at 15-19.)
On September 10, 2008, while represented by Mr. Meadows,
petitioner appeared before the Magistrate Judge for purposes of
entering his guilty pleas.
Petitioner took an oath to tell the
truth (Cr. Doc. #310, p. 2), and answered the court’s biographical
questions (id. at 3-4).
Petitioner stated that he had read the
Superseding Indictment, understood the charges in it, reviewed the
charges with his attorney, had had enough time to discuss the
charges with is attorney, and was “absolutely” satisfied with
counsel’s services.
(Id. at 4-5.)
The Magistrate Judge found no
issues as to petitioner’s competency to enter a plea, and found
him competent to do so.
(Id. at 5.)
Petitioner stated that
nothing wrong or unfair had been done to make him plead guilty,
that no threats, coercion, or improper pressure were applied to
make him plead guilty, and that he was pleading guilty because he
was guilty.
(Id. at 5.)
Petitioner
personally
examined
the
Plea
Agreement
and
affirmatively stated that he had initialed each page and signed
the end of the agreement. (Id. at 6.)
Petitioner acknowledged
that he had read the Plea Agreement and discussed it with his
attorney before signing it, and had authorized his attorney to
have
discussion
agreement.
with
the
(Id., pp. 6-7.)
government
attorney
to
seek
a
plea
Petitioner stated that he understood
the Plea Agreement and that the Court was not bound by any
- 15 -
recommendations as to the sentence or application of the sentencing
guidelines.
(Id.
at
7.)
Petitioner
also
stated
that
he
understood he could not withdraw his plea of guilty if the Court
did not follow any sentencing recommendations or the sentencing
guidelines.
(Id., p. 7.)
Petitioner assured the court that the
Plea Agreement contained all the promises made in the case, and
that no other promises had been made to him.
(Id. at 8.)
The Magistrate Judge explained the counts to which petitioner
was pleading guilty, the maximum penalties each count carried, and
that restitution was applicable.
(Id. at 8-9.)
Petitioner told
the Magistrate Judge that he had discussed with his attorney how
the Sentencing Guidelines might apply to him and the various
considerations which go into determining the guideline range,
including his criminal history.
(Id. at 9-10.)
Petitioner stated
that he was aware that he could be facing anywhere between 0 and
50 years.
(Id., p. 11.)
The Magistrate Judge called petitioner’s
attention to the sentence waiver provision of the Plea Agreement,
and explained that it stated that he expressly waived the right to
appeal his sentence or to challenge it collaterally on any ground,
except in three circumstances.
(Id., pp. 11-12.)
Petitioner
stated he understood this, and had made the provision knowingly
and voluntarily.
(Id., p. 12.)
The Magistrate Judge went on further to explain to petitioner
his right not to plead and to proceed to trial before a jury, and
the other associated rights, including the right to testify or not
- 16 -
to testify, and the civil rights that would be lost as a result of
pleading guilty, all of which petitioner acknowledged.
(Id., pp.
13-15.) The Magistrate Judge further explained the counts, the
elements for each count, and the penalties.
(Id. at 15-17.)
Petitioner specifically admitted to the factual elements of each
count,
and
reiterated
that
he
was
would
like
to
freely
and
voluntarily plead guilty to Counts 1, 7, and 9. (Id. at 17-21.)
The Magistrate Judge asked petitioner “Is there anything you want
to tell me or ask me or your attorney that bears on your decision
to
plead
guilty
that
we
haven’t
already
covered
in
this
proceeding?”, to which petitioner responded “No, Your Honor.”
(Id., p. 21.)
intelligently,
The pleas were accepted and found to be knowingly,
and
voluntarily
made.
(Id.,
p.
22.)
The
Magistrate Judge filed a written recommendation that defendant’s
guilty pleas be accepted.
(Cr. Doc. #268.)
The Court accepted petitioner’s guilty plea on September 11,
2008, and scheduled sentencing.
(Cr. Doc. #273.)
Mr. Meadows’s
motion to continue sentencing (Cr. Doc. #279) was granted.
(Cr.
Doc. #280.)
On February 12, 2009, prior to sentencing, attorneys Stephen
G. Murty and Jack R. Maro filed a joint Notice of Appearance (Cr.
Doc. #285) and a Motion to Continue Sentencing (Cr. Doc. #286) on
behalf of petitioner.
The Court held a hearing on the request for
substitution of counsel, and thereafter permitted the substitution
of counsel (Cr. Docs. ## 288, 291) and continued the sentencing
- 17 -
(Cr. Doc. #292).
Mr. Maro filed an additional Notice of Appearance
as Co-Counsel for Ronald D. Luczak (Cr. Doc. #293) after the
appearance was permitted.
On March 13, 2009, the government filed a Motion for Downward
Departure Based Upon Substantial Assistance (Cr. Doc. #294) and on
April 6, 2009, an Amended Sentencing Memorandum (Cr. Doc. #300)
was filed.
On April 13, 2009, the day before sentencing, petitioner filed
a
Motion
to
Withdraw
Guilty
Plea
(Cr.
Doc.
#304)
arguing
ineffective assistance of counsel, that the guilty pleas were not
knowingly and voluntarily entered, and that he was innocent of the
charges.
The government filed a Response (Cr. Doc. #311).
On May
28, 2009, the Court issued an Opinion and Order (Cr. Doc. #314)
denying the motion.
of
the
case
and
After setting forth the procedural history
the
applicable
legal
principles,
the
Court
summarized the discussions from the prior motion to withdraw and
the detailed guilty plea colloquy between the Magistrate Judge and
petitioner.
The
Court
found
that
petitioner
had
the
close
assistance of counsel in deciding to enter his pleas and that the
record established the guilty pleas were knowing and voluntarily
entered.
On June 30, 2009, the Court sentenced petitioner to concurrent
terms of imprisonment of 212 months as to Counts One and Seven,
and fifty-two months as to Count Nine to be served consecutively
to the terms of imprisonment for Counts One and Seven, followed by
- 18 -
a concurrent term of supervised release of thirty-six months.
(Cr. Docs. ## 320, 323.)
Petitioner was ordered to pay the
standard special assessments and restitution in the amount of
$5,966,125.65
(jointly
(Cr. Doc. #323.)
and
severally
with
his
co-defendants).
Judgment (Cr. Doc. #323) was filed on July 2,
2009.
Petitioner filed a Notice of Appeal (Cr. Doc. #325) on July
15, 2009.
On March 9, 2010, the Eleventh Circuit Court of Appeals
affirmed the convictions and sentences.
United States v. Luczak,
370 F. App’x 3 (11th Cir. 2010)(per curiam); (Cr. Doc. #343).
Petitioner did not file a petition for Writ of certiorari with the
United States Supreme Court.
The Court agrees with the government
that the § 2255 petition was timely filed.
(Cv. Doc. #11, p. 8.)
III.
A.
Evidentiary Hearing
A district court shall hold an evidentiary hearing on a habeas
petition “unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief. . .
. ” 28 U.S.C. § 2255(b).
“[I]f the petitioner alleges facts that,
if true, would entitle him to relief, then the district court
should order an evidentiary hearing and rule on the merits of his
claim.”
Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.
2002) (internal quotation marks and citation omitted).
Winthrop-Redin v. United States,
*4 (11th Cir. Sept. 23, 2014).
F.3d
See also
, 2014 WL 4699391,
However, a “district court is not
- 19 -
required to hold an evidentiary hearing where the petitioner’s
allegations are affirmatively contradicted by the record, or the
claims are patently frivolous.”
Aron, 291 F.3d at 715.
See also
Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008).
Here, even when the facts are viewed in the light most favorable
to petitioner, the record establishes that petitioner received
effective assistance of counsel and that none of his sixteen
grounds
have
merit.
Therefore,
the
Court
finds
that
an
evidentiary hearing is not warranted in this case.
B.
Ineffective Assistance of Counsel Principles
The legal standard for ineffective assistance of counsel
claims in a habeas proceeding is well established.
To prevail on
a claim of ineffective assistance of counsel, a habeas petitioner
must demonstrate both that (1) counsel's performance was deficient
because it fell below an objective standard of reasonableness, and
(2) prejudice resulted because there is a reasonable probability
that,
but
for
the
deficient
performance,
proceeding would have been different.
the
result
of
the
Hinton v. Alabama, 134 S.
Ct. 1081, 1087-88 (2014) (citing Strickland v. Washington, 466
U.S. 668, 687, 694 (1984); Padilla v. Kentucky, 559 U.S. 356, 366
(2010)).
The
proper
measure
of
attorney
performance
is
simply
reasonableness under prevailing professional norms considering all
the
circumstances.
Id.
at
1088.
A
court
must
“judge
the
reasonableness of counsel’s conduct on the facts of the particular
- 20 -
case, viewed as of the time of counsel’s conduct.”
Roe v. Flores-
Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at
690).
This judicial scrutiny is highly deferential, and the Court
adheres to a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. Strickland,
466
U.S.
at
689-90.
To
be
objectively
unreasonable,
the
performance must be such that no competent counsel would have taken
the action.
Rose v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011);
Hall v. Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010).
To establish prejudice under Strickland, petitioner must show
more than that the error had “some conceivable effect on the
outcome of the proceeding.”
Marquard v. Sec'y for the Dep’t of
Corr., 429 F.3d 1278, 1305 (11th Cir. 2005) (quotation marks
omitted).
reasonable
Rather, the petitioner must show that there is a
probability
that,
but
for
counsel’s
unprofessional
errors, the result of the proceeding would have been different.
Hinton, 134 S. Ct. at 1089.
“A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
and citations omitted).
These legal principles apply not only in a trial context, but
also when the case is resolved by a guilty plea.
474 U.S. 52, 58 (1985).
is
entitled
negotiations.
to
Hill v. Lockhart,
Further, a defendant in a criminal case
effective
assistance
of
counsel
during
plea
Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012).
- 21 -
In
the context of guilty pleas, petitioner must show “that there is
a reasonable probability that, but for counsel's errors, [the
defendant] would not have pleaded guilty and would have insisted
on going to trial.”
Lafler, 132 S. Ct. at 1384-1385 (quoting
Hill, 474 U.S. at 59).
Petitioner “must show both deficient
performance by counsel and prejudice.”
Premo v. Moore, 131 S. Ct.
733, 739 (2011)(quoting Knowles v. Mirzayance, 129 S. Ct. 1411,
1419 (2009)).
If petitioner makes an insufficient showing on the
either prong, the court need not address the other prong. Holladay
v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
IV.
For
each
ground
of
ineffective
assistance
of
counsel,
petitioner argues that he suffered prejudice by being virtually
compelled to plead guilty pursuant to a Plea Agreement containing
an invalid provision that waived his right to appeal, and to
collaterally challenge certain matters, when he would not have
entered a guilty plea if his attorney had provided effective
assistance.
The government, on the other hand, asserts that all
the issues raised in the § 2255 petition have been waived by the
appeal waiver provision of the Plea Agreement.
8-10.)
(Cv. Doc. #11, pp.
Although the waiver provision is valid and does waive
certain issues, the Court concludes that it does not waive most of
the issues raised in this § 2255 motion.
are
procedurally
defaulted,
however,
Most of the other issues
and
the
record
also
establishes that petitioner was not prejudiced by any of the
- 22 -
conduct of which he now complains.
Therefore petitioner’s claims
of ineffective assistance of counsel are without merit.
A.
Waiver-of-Collateral-Review Provision
An appeal waiver provision in a plea agreement is valid if
made knowingly and voluntarily.
United States v. Weaver, 275 F.3d
1320, 1333 (11th Cir. 2001) (citing United States v. Bushert, 997
F.2d 1343, 1350-51 (11th Cir. 1993)).
To establish that the waiver
was made knowingly and voluntarily, the government must show that
either
(1)
the
district
court
specifically
questioned
the
defendant about the waiver during the plea colloquy, or (2) the
record makes clear that the defendant otherwise understood the
full significance of the waiver.
United States v. Johnson, 541
F.3d 1064, 1066 (11th Cir. 2008).
The Eleventh Circuit has
“consistently
voluntary
enforced
knowing
and
appeal
waivers
according to their terms.”
United States v. Bascomb, 451 F.3d
1292, 1294 (11th Cir. 2006).
A valid sentence-appeal waiver will
also preclude a collateral attack of a sentence on the basis of
ineffective assistance of counsel during the sentencing process.
Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005).
As set forth above, the Waiver of Right to Appeal and Right
to Collaterally Challenge the Sentence provision of the Plea
Agreement stated in pertinent part:
The defendant agrees that this Court has
jurisdiction and authority to impose any
sentence up to the statutory maximum and
expressly
waives
the
right
to
appeal
defendant’s sentence or to challenge it
- 23 -
collaterally on any ground, including the
ground that the Court erred in determining the
applicable guidelines range pursuant to the
United States Sentencing Guidelines, except
(a) the ground that the sentence exceeds the
defendant’s applicable guidelines range as
determined by the Court pursuant to the United
States Sentencing Guidelines; (b) the ground
that the sentence exceeds the statutory
maximum penalty; or (c) the ground that the
sentence violates the Eighth Amendment to the
Constitution; provided, however, that if the
government exercises its right to appeal the
sentence imposed, as authorized by Title 18,
United States Code, Section 3742(b), then the
defendant is released from his waiver and may
appeal the sentence as authorized by Title 18,
United States Code, Section 3742(a).
(Cr. Doc. #266, p. 13) (emphasis in original).
The Magistrate
Judge specifically called this provision to petitioner’s attention
during the guilty plea colloquy, explained the provision, asked
petitioner if he understood it, and elicited that petitioner had
made this provision knowingly and voluntarily.
The record clearly
establishes that the waiver of the right to collaterally challenge
petitioner’s sentence was entered knowingly and voluntarily, and
is thus valid and enforceable.
Such a waiver provision, however, is only enforced according
to its terms.
in
this
case
Bascomb, 451 F.3d at 1294.
precludes
“defendant’s sentence”.
an
appeal
or
The waiver provision
collateral
challenge
to
Since by law this includes ineffective
assistance of counsel claims relating to the sentence, petitioner
has waived those portions of Grounds Seven and Eleven.
The other issues in this § 2255 motion do not relate to
petitioner’s sentence, and therefore do not fall within the scope
- 24 -
of the waiver provision.
The Court is persuaded by Cowart v.
United States, 139 F. App’x 206 (11th Cir. 2005) and Patel v.
United States, 252 F. App’x 970 (11th Cir. 2007), both of which
held that a valid sentence appeal waiver provision does not waive
a defendant’s ability to challenge the validity of the guilty plea
or ineffective assistance of counsel in connection with a plea
agreement and guilty plea.
B.
Procedural Default to Challenge to Guilty Pleas
On direct appeal, petitioner argued that the district court
abused its discretion by denying a motion to continue trial to
allow counsel to adequately prepare, and abused its discretion by
denying
his
motion
evidentiary hearing.
to
withdraw
his
guilty
plea
without
an
The Eleventh Circuit stated:
The Magistrate Judge conducted an extensive Rule 11
hearing to ensure that Luczak's guilty plea was
knowing and voluntary. At that hearing, Luczak
pronounced himself “absolutely” satisfied with his
attorney's representation. He acknowledged that
counsel had explained the sentencing guidelines to
him, that he was aware that the court could impose
any sentence up to the statutory maximum, and that
he would not be allowed to withdraw his plea if his
attorney's predictions about the sentencing range
proved inaccurate. He also admitted that he was in
fact guilty of the offenses to which he pleaded.
United States v. Luczak, 370 F. App'x 3, 4 (11th Cir. 2010).
The
Eleventh Circuit went on to find that the district court was
entitled to presume that petitioner’s earlier statements under
oath were true, that there was no abuse in discretion in finding
that petitioner “was competently represented and that his plea was
knowing and voluntary,” and there was no need for the district
- 25 -
court to hold an evidentiary hearing after the Magistrate Judge’s
inquiries.
Luczak, 370 F. App'x at 5.
Petitioner is procedurally
barred from re-litigating the validity of his guilty plea in this
§2255 proceeding because he already raised that issue in his direct
appeal.
Stoufflet v. United States, 757 F.3d 1236 (11th Cir.
2014).
C.
Lack of Prejudice
Petitioner argues in most of his other grounds that various
actions or inactions by his attorney caused him prejudice because
his guilty pleas were not made knowingly and voluntarily.
Even
if his challenge to the guilty pleas is not procedurally barred,
the record establishes that his guilty pleas were validly entered.
The legal principles applicable to a guilty plea are well
established.
“A guilty plea is more than a confession which admits
that the accused did various acts. [ ] It is an admission that he
committed the crime charged against him. [ ] By entering a plea of
guilty, the accused is not simply stating that he did the discrete
acts described in the indictment; he is admitting guilt of a
substantive crime.”
United States v. Broce, 488 U.S. 563, 570
(1989) (internal quotation marks and citations omitted).
For this
reason, the United States Constitution requires that a guilty plea
must be voluntary, and a defendant must make the related waivers
knowingly, intelligently, and with sufficient awareness of the
relevant circumstances and likely consequences.
United States v.
Ruiz, 536 U.S. 622, 629 (2002); Hill v. Lockhart, 474 U.S. at 56;
- 26 -
Henderson
v.
Morgan,
426
U.S.
637,
645
(1976).
A
criminal
defendant who pleads guilty waives all non-jurisdictional defects
in the proceedings, but may nonetheless attack the voluntary and
knowing nature of the guilty plea, which may include ineffective
assistance of counsel claims which go to the knowing and voluntary
nature of the plea.
Tollett v. Henderson, 411 U.S. 258, 267
(1973); Wilson v. United States, 962 F.2d 996, 997 (11th Cir.
1992); United States v. Fairchild, 803 F.2d 1121, 1123 (11th Cir.
1986).
To be voluntary and knowing, (1) the guilty plea must be free
from coercion; (2) the defendant must understand the nature of the
charges;
and
(3)
the
defendant
must
know
and
understand
the
consequences of his guilty plea.
United States v. Mosley, 173
F.3d 1318, 1322 (11th Cir. 1999).
Rule 11 explicitly directs the
court
not
to
concerns.”
accept
a
plea
without
determining
these
“core
Therefore, on review, the court is “warranted in
regarding the court’s acceptance of the plea as a positive finding
on each [component of the Rule].”
United States v. Buckles, 843
F.2d 469, 473 (11th Cir. 1988).
The Court applies a strong presumption that statements made
under oath during a plea colloquy are truthful. United States v.
Medlock,
12
F.3d
185,
187
(11th
Cir.
1994).
Consequently,
petitioner bears a heavy burden to show a statement made under
oath at a plea colloquy was false. United States v. Rogers, 848
F.2d 166, 168 (11th Cir. 1988).
Petitioner simply has not done
- 27 -
so.
Petitioner’s representations continue to be at odds with his
prior representations and his prior testimony under oath.
The
Court finds that petitioner freely, voluntarily, knowingly, and
intelligently entered his guilty pleas, and has not established
any prejudice in connection with the entry of his guilty pleas.
Additionally,
the
Court
finds
that
petitioner
failed
to
establish prejudice in connection with his claims in Ground Eight
regarding attorney Robert Altchiler.
Petitioner asserts that Mr.
Atchiler had a conflict of interest due to the fact that he was an
advisor to the petitioner and the company involved in this case.
Mr. Altchiler was allowed to withdraw almost a year before the
Superseding Indictment was even filed, and had nothing to do with
petitioner’s decision to plead guilty.
Defendant suffered no
prejudice from his brief representation by Mr. Altchiler.
V.
In his only claim not based on ineffective assistance of
counsel, petitioner claims that the Court did not adequately
question petitioner as to his satisfaction with counsel.
Doc. #1.)
(Cv.
The record establishes that this claim is without merit,
as the Eleventh Circuit has already determined.
As discussed
above, the record contains a long history of discussion between
the Court and petitioner regarding the attorneys he hired after
the Court had appointed counsel.
Petitioner repeatedly stated he
was satisfied with counsel and wanted him to continue to represent
him.
This culminated in the question at the change of plea, “Are
- 28 -
you satisfied with your attorney’s services for you,” to which
petitioner answered “‘Absolutely, Your Honor.’”
19.)
(Cv. Doc. #1, p.
The Eleventh Circuit quoted the same discussion and found
the inquiry sufficient.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Petitioner’s Motion Under 28 U.S.C. Section 2255 to
Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1; Cr. Doc. #349) is DENIED.
2.
Petitioner’s Motion to Allow Discovery and Motion for
Order to Expand Record, embedded in his §2255 motion, are
DENIED.
3.
The Clerk of the Court shall enter judgment accordingly
and close the civil file.
The Clerk is further directed to place
a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s
denial of his petition.
28 U.S.C. § 2253(c)(1); Harbison v. Bell,
556 U.S. 180, 183 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
showing, petitioner
28 U.S.C. § 2253(c)(2).
“must
demonstrate
that
To make such a
reasonable
jurists
would find the district court’s assessment of the constitutional
- 29 -
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (citations and internal quotation marks omitted).
Petitioner
has
not
made
the
requisite
showing
in
these
circumstances.
Finally, because petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
of September, 2014.
Copies:
Petitioner
Counsel of Record
- 30 -
30th
day
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