Burgess v. United States of America

Filing 14

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk shall enter judgment accordingly and close this case. Certificate of Appealability is Denied in this case. Signed by Chief Judge Anne C. Conway on 4/20/2015. (GJS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
MICHAEL FRANK BURGESS,
Petitioner,
v.

CASE NO. 6:13-cv-1439-Orl-22GJK
(6:10-cr-161-Orl-22GJK)

UNITED STATES OF AMERICA,
Respondent.
__________________________________
ORDER
This case involves a motion to vacate, set aside, or correct an illegal sentence
pursuant to 28 U.S.C. ' 2255 (Doc. No. 1) filed by Michael Frank Burgess.

The

Government filed a response (Doc. No. 4) to the section 2255 motion in compliance with
this Court’s instructions.

Petitioner filed a reply to the Government’s response (Doc.

No. 9).
Petitioner alleges eight claims for relief.

For the following reasons, Petitioner’s '

2255 motion is denied.
I.

Procedural History
Petitioner was charged by superseding information with conspiracy to commit

wire fraud in violation of 18 U.S.C. § 371 (count one) and money laundering in violation
of 18 U.S.C. §§ 2 and 1957 (count two).
No. 61.)1

(Criminal Case No. 6:10-cr-161-Orl-22GJK, Doc.

Pursuant to a plea agreement, Petitioner entered a plea of guilty to both counts

1Criminal

Case No. 6:10-cr-161-Orl-22GJK will be referred to as “Criminal Case.”

before Magistrate Judge Gregory J. Kelly. Id. at Doc. No. 63. Magistrate Judge Kelly
filed a Report and Recommendation, recommending that the plea be accepted and that
Petitioner be adjudicated guilty.
adjudicated Petitioner guilty.

Id. at Doc. No. 68.

This Court accepted the plea and

Id. at Doc. No. 74. The Court sentenced Petitioner to a

60-month term of imprisonment for count one and to a 120-month term of imprisonment
for count two with the sentences to run consecutively.

Id. at Doc. No. 112. Petitioner

appealed, and the Eleventh Circuit Court of Appeals affirmed his convictions and
sentences.
II.

Id. at Doc. No. 126.

Legal Standard
The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668

(1984), established a two-part test for determining whether a convicted person is entitled
to relief on the ground that his counsel rendered ineffective assistance: (1) whether
counsel’s performance was deficient and “fell below an objective standard of
reasonableness”; and (2) whether the deficient performance prejudiced the defense. Id.
at 687-88.

The prejudice requirement of the Strickland inquiry is modified when the

claim is a challenge to a guilty plea based on ineffective assistance. See Hill v. Lockhart,
474 U.S. 52, 58-59 (1985).

To satisfy the prejudice requirement in such claims, “the

defendant must show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.”

Id. at 59.

A court must adhere to a strong presumption that counsel’s conduct falls within

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the wide range of reasonable professional assistance. Strickland, 466 at 689-90.

“Thus,

a court deciding an actual ineffectiveness claim must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the time of
counsel’s conduct.” Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective
assistance of counsel:
has nothing to do with what the best lawyers would have done. Nor is the
test even what most good lawyers would have done. We ask only whether
some reasonable lawyer at the trial could have acted, in the circumstances,
as defense counsel acted at trial. Courts also should at the start presume
effectiveness and should always avoid second guessing with the benefit of
hindsight. Strickland encourages reviewing courts to allow lawyers broad
discretion to represent their clients by pursuing their own strategy. We
are not interested in grading lawyers’ performances; we are interested in
whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted).

Under

those rules and presumptions, “the cases in which habeas petitioners can properly prevail
on the ground of ineffective assistance of counsel are few and far between.”

Rogers v.

Zant, 13 F.3d 384, 386 (11th Cir. 1994).
III.

Analysis
A.

Claims One, Two, Three, and Four

In claims one and two, Petitioner asserts that counsel rendered ineffective
assistance by (1) causing him to forego his claim of actual innocence by failing to believe
his contention that the indictments were “fatally flawed,” (2) failing to prepare for trial,
and (3) refusing to believe that Petitioner had engaged in a legitimate business strategy.
3

(Doc. No. 1 at 8-21.)

In claim three, Petitioner contends that counsel rendered ineffective

assistance by failing to request the Grand Jury minutes, conduct an independent
investigation, file a Bill of Particulars, “challenge withheld Brady material evidence both
exculpatory and impeachment in nature regarding 12 Credit Suisse frozen accounts,” and
prepare for trial. Id. at 21-24. Petitioner further maintains in claim four that counsel
rendered ineffective assistance by failing to alert the Court at the plea hearing of
Petitioner’s diminished mental capacity resulting from the use of pain medication.

Id.

at 25-29.
Claims one, two, and three are conclusory and vague.
established that he is actually innocent of the offenses.

Petitioner has not

Furthermore, Petitioner’s

contentions that counsel failed to request the Grand Jury minutes, conduct an
independent investigation, file a Bill of Particulars, “challenge withheld Brady material
evidence both exculpatory and impeachment in nature regarding 12 Credit Suisse frozen
accounts,” and prepare for trial are vague. It is not clear why counsel was deficient for
failing to take such action or how prejudice resulted therefrom.
Moreover, at the plea hearing, Petitioner affirmed that he understood the charges
against him and that the Government would have to prove each element of the offenses
if he proceeded to trial. (Criminal Case Doc. No. 72 at 9-12.)

Petitioner acknowledged

that he had “considerable discussion with counsel” about the potential defenses to the
charges, as well as, the evidence the Government had. Id. at 12. Counsel advised the

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Court that there was nothing that the Government had failed to disclose or that was
denied to the defense. Id. at 13. Petitioner said that he had sufficient opportunity to
discuss with counsel whether to enter a guilty plea and the consequences of doing so,
and he affirmed he was completely satisfied with counsel.

Id. at 12-13.

Petitioner affirmed that he had read the plea agreement very carefully, had
discussed it with his attorney, and understood it.

Id. at 14-15.

Petitioner indicated that

the statement of facts set forth in the plea agreement was true and accurate.

Id. at 22-23.

Petitioner affirmed that he knew he did not have to enter a guilty plea and acknowledged
he understood the rights he would forego by entering the plea.

Id. at 26-27. Petitioner

told the Court he wanted to plead guilty because he was guilty and for no other reason.
Id. at 34. Finally, Petitioner told the Court that although he was using medication, he
was clear minded and his medication did not affect his ability to understand or
communicate.

(Criminal Case Doc. No. 72 at 4, 35-36.)

Petitioner’s representations constitute “a formidable barrier in any subsequent
collateral proceedings.

Solemn declarations in open court carry a strong presumption

of verity.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).

Petitioner clearly was aware

of the consequences of entering a plea and chose to do so because he was guilty of the
offenses.

Contrary to his current contention that counsel failed to prepare for trial,

Petitioner did not express any dissatisfaction or concern about counsel when he entered
his plea.

Furthermore, Petitioner stated unequivocally that his medication did not

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impact his cognitive function.

Consequently, for all these reasons, Petitioner has failed

to demonstrate that counsel’s performance was deficient or that a reasonable probability
exists that he would not have entered a plea and would have proceeded to trial absent
counsel’s purported deficiencies.

Therefore, claims one through four are denied

pursuant to Strickland.
B.

Claim Five

Petitioner asserts that counsel rendered ineffective assistance at sentencing by
failing to object to the Pre-Sentence Investigation Report (“PSR”) or to file a timely
objections to the PSR.

He further contends that counsel should have presented

mitigating evidence at the sentencing hearing to refute the number of victims and loss
amount.
Pursuant to the plea agreement, Petitioner agreed:
this Court has jurisdiction and authority to impose any sentence up to the
statutory maximum and [Petitioner] expressly waives the right to appeal
[his] 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 . . . [his] 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 18
U.S.C. § 3742(b), then. . . [Petitioner] is released from his waiver and may
appeal the sentence as authorized by 18 U.S.C. § 3742(a).
(Criminal Case Doc. No. 63 at 14-15) (emphasis in original). During his change of plea

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hearing, Petitioner affirmed that he understood the appeal waiver and acknowledged
that he understood that by pleading guilty, he was waiving his right to collaterally attack
his sentence based on a claim of ineffective assistance of counsel.

(Criminal Case Doc.

No. 72 at 25-26.)
In Williams v. United States, 396 F.3d 1340 (11th Cir. 2005), the Eleventh Circuit
Court of Appeals determined that a valid sentence-appeal waiver, entered into
voluntarily and knowingly pursuant to a plea agreement, precludes the defendant from
attempting to attack, in a collateral proceeding, the sentence through a claim of ineffective
assistance of counsel during sentencing. Id. at 1342. The Eleventh Circuit, however,
has indicated that a valid sentence-appeal waiver does not bar a claim that the plea was
invalid due to ineffective assistance of counsel. Patel v. United States, 252 F. App=x 970,
974-75 (11th Cir. 2007).

Therefore, a defendant’s knowing and voluntary waiver

pursuant to a plea agreement generally bars him from pursuing collateral relief under '
2255, including any ineffective assistance of counsel claim that does not directly affect the
validity of the waiver or the plea itself.
The Court concludes that the plea agreement and waiver were knowingly and
voluntarily entered.

As set forth above, the Court addressed the appeal waiver

provision during the change of plea hearing.

Moreover, the record reveals that

Petitioner understood the full significance of his waiver of collateral relief. See United
States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001) (“To establish the waiver’s validity,
the government must show either that (1) the district court specifically questioned the
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defendant about the provision during the plea colloquy, or (2) it is manifestly clear from
the record that the defendant fully understood the significance of the waiver.”); United
States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993) (“[F]or a sentence appeal waiver to
be knowing and voluntary, the district court must have engaged the defendant about the
sentence appeal waiver during the Rule 11 hearing.”).
Furthermore, the record demonstrates that Petitioner’s plea of guilty was
knowingly and voluntarily entered.

The three primary requirements imposed by

Federal Rule of Criminal Procedure 11 before the Court may accept a plea of guilty are:
“’(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. Garcia, 322 F. App’x 918, 919 n.2 (11th Cir. 2009)

(quoting United States v. Siegel, 102 F.3d 477, 480 (11th Cir. 1996)). As discussed by the
Fifth Circuit in United States v. Gaitan, 954 F.2d 1005 (5th Cir. 1992):
The consequences of a guilty plea, with respect to sentencing, mean only
that the defendant must know the maximum prison term and fine for the
offense charged. As long as [the defendant] understood the length of the
time he might possibly receive, he was fully aware of his plea’s
consequences.
Id. at 1012 (quotation omitted) (citations omitted).
The Court conducted a thorough and comprehensive plea colloquy. Petitioner
stated under oath that he was not pressured to plead guilty. (Criminal Case Doc. No.
72 at 13.) Petitioner acknowledged that he understood the charges against him and was
satisfied with his attorney’s services. Id. at 9-12.
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Petitioner also affirmed that he had

read the plea agreement, had discussed it with his attorney, and understood the plea
agreement.

Id. at 14-15.

Petitioner was advised that he was subject to a maximum

sentence of five years of imprisonment for count one and to a maximum sentence of ten
years of imprisonment for count two, which could run consecutively.

Id. at 16-17. The

Court asked Petitioner if he had any questions regarding the penalties he faced if he pled
guilty, and he responded negatively.

Id. at 21.

Petitioner affirmed he understood that

the Court could sentence him to the maximum penalty for each of the two offenses. Id.
Petitioner acknowledged he understood that if the Court imposed the maximum
penalties or imposed a sentence more severe than the sentencing guidelines calculation,
he would not be permitted to withdraw his guilty plea.

Id. at 24-25.

Based on the plea

agreement and Petitioner’s representations during the plea hearing, the Court concludes
that claim five is barred from consideration by the sentence-appeal waiver provision.
C.

Claim Six

Petitioner asserts that appellate counsel rendered ineffective assistance by failing
to meet with him, respond to written correspondence, challenge his conviction and
sentence, and advise him of his right to file a motion for rehearing. In support of this
claim, Petitioner complains that counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967),2 without his consent.

In Anders v. California, 386 U.S. 738 (1967), the Supreme Court of the United States
established a procedure for appellate counsel when counsel believes there is no merit to
the appeal.
2

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Appellate counsel need not raise issues that he reasonably concludes will not be
considered on the merits by the appellate court. Francois v. Wainwright, 741 F.2d 1275,
1285 (11th Cir. 1984).

Likewise, appellate counsel need not brief issues reasonably

considered to be without merit.
1984).

Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.

Appellate counsel must be allowed to exercise his reasonable professional

judgment in selecting those issues most promising for review, and “[a] brief that raises
every colorable issue runs the risk of burying good arguments . . . .”

Jones v. Barnes, 463

U.S. 745, 753 (1983).
“The filing of an Anders brief does not in itself constitute ineffective assistance of
counsel.” Jorge v. United States, 818 F. Supp. 55, 57 (S.D.N.Y. 1993). Petitioner simply
has not shown that appellate counsel’s filing of an Anders brief rendered his performance
inadequate.

In affirming Petitioner’s convictions and sentences, the Eleventh Circuit

Court of Appeals concluded “review of the entire record reveal’s that counsel’s
assessment of the relative merit of the appeal is correct.

[I]ndependent examination of

the entire record reveals no arguable issues of merit. . . .”

(Criminal Case Doc. No. 127.)

Moreover, as discussed supra, the plea agreement contained a valid sentence-appeal
waiver. Hence, Petitioner has made no showing that appellate counsel’s performance
was in any manner deficient.
Moreover, Petitioner has not demonstrated that he was prejudiced.

Petitioner

has not alleged any meritorious issues that appellate counsel failed to raise.
Consequently, Petitioner has not demonstrated either deficient performance or prejudice.
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Accordingly, claim six is denied.
D.

Claims Seven and Eight

In claim seven, Petitioner contends that the cumulative effect of the trial and
appellate counsels’ errors resulted in a manifest miscarriage of justice because he is
actually innocent. Similarly, in claim eight, Petitioner contends that newly presented
evidence establishes that he is actually innocent of the offenses.
As explained by the Eleventh Circuit Court of Appeals, “[w]hile the prejudice
inquiry should be a cumulative one as to the effect of all of the failures of counsel that
meet the performance deficiency requirement, only the effect of counsel’s actions or
inactions that do meet that deficiency requirement are considered in determining
prejudice.”

Evans v. Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1269 (11th Cir. 2012).

Consequently, because Petitioner has failed to demonstrate any deficiency in either trial
or appellate counsel’s performance or prejudice resulting therefrom, his claim of
cumulative error fails.

See Borden v. Allen, 646 F.3d 785, 823 (11th Cir. 2011) (“Because

Borden has not sufficiently pled facts that would establish prejudice—cumulative or
otherwise—we decline to elaborate further on [a cumulative-effect ineffective assistance
of counsel claim] for fear of issuing an advisory opinion on a hypothetical issue.”).
Furthermore, to the extent Petitioner contends that he is actually innocent, “[a]
free-standing claim of actual innocence cannot be brought as a substantive claim for relief
in a federal habeas action.”

Smith v. United States, No. 8:09-cv-70-T-27MAP, 2010 WL

2613321, at *4 (M.D. Fla. 2010) (citing Schlup v. Delo, 513 U.S. 298, 315 (1995) for the
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proposition that “[A] claim of innocence is . . . ‘not itself a constitutional claim, but instead
a gateway through which a habeas petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.’”); see also United States v. Montano, 398 F.3d
1276, 1284 (11th Cir. 2005) (“Actual innocence is not itself a substantive claim, but rather
serves only to lift [a] procedural bar caused by a [petitioner]’s failure to timely file his §
2255 motion.).

Additionally, this claim is refuted by the plea agreement and Petitioner’s

statements during the plea hearing. Accordingly, claims seven and eight are denied.
Any of Petitioner’s allegations not specifically addressed herein have been found
to be without merit.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Petitioner’s motion to vacate, set aside, or correct an illegal sentence

pursuant to 28 U.S.C. ' 2255 (Doc. No. 1) is DENIED.
2.

The Clerk of the Court shall enter judgment accordingly and is directed to

close this case.
3.

The Clerk of the Court is directed to file a copy of this Order in criminal

case number 6:10-cr-115-Orl-22GJK and to terminate the motion to vacate, set aside, or
correct an illegal sentence pursuant to 28 U.S.C. ' 2255 (Criminal Case Doc. No. 139)
pending in that case.
4.

This Court should grant an application for certificate of appealability only

if the Petitioner makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. ' 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of
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a constitutional right.3

Accordingly, a Certificate of Appealability is DENIED in this

case.
DONE AND ORDERED in Orlando, Florida, this 20th day of April, 2015.

Copies to:
OrlP-1 4/20
Counsel of Record
Michael Frank Burgess

3 Pursuant

to the Rules Governing Section 2255 Proceedings for the United States
District Court, “[t]he district court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” Rules Governing ' 2255 Proceedings,
Rule 11, 28 U.S.C. foll. ' 2255.

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