Seaborne v. USA

Filing 19

ORDER denying 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER A JUDGMENT against Seaborne and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/6/2016. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ARTHUR R. SEABORNE
v.

CASE NO. 8:12-cr-229-T-23TGW
8:13-cv-2819-T-23TGW

UNITED STATES
/

ORDER
Seaborne’s motion to vacate under 28 U.S.C. § 2255 (Doc. 1) challenges the
validity of his 2012 conviction for conspiring to commit bank fraud, for which he
serves five years imprisonment followed by three years of supervised release. Seaborne
pleaded guilty and was sentenced under the terms of the plea agreement. He presents
eleven grounds alleging ineffective assistance of trial counsel and one ground
challenging the length of his sentence.
I. FACTS1
At times material to the Superseding Information, the defendant
was a resident of Sarasota, Florida, and a licensed mortgage
broker in the State of Florida. The defendant served as President,
Director and Registered Agent of Southeast Capital Investors,
Inc. (“SC Investors”); Manager and Registered Agent of
Southeast Capital Advisors, LLC (“SC Advisors”); Manager,
Director and Registered Agent of Southeast Capital Properties,
LLC (“SC Properties”); and President of Zip Line Properties,
Inc. (“Zip Line”).

1

This factual summary is from the plea agreement. (Doc. 25 in 8:12-cr-229)

SC Investors was a Florida corporation, headquartered in
Sarasota, and it was purportedly engaged in the business of a real
estate investment trust. In fact, SC Investors marketed and sold
unregistered securities in the form of Real Estate Investment
Trust Note Agreements to individual investors. The defendant
used SC Investors to raise funds, which were subsequently
loaned to clients of SC Advisors for said clients to use to make
down payments in connection with their purchases of residential
properties.
Southeast Capital Realty, LLC (“SC Realty”) was a Florida
limited liability company, headquartered in Sarasota, and it was
engaged in the business of facilitating the purchase and sale of
real estate. SC Realty identified and negotiated the purchase of
residential properties, intended for subsequent sale to clients of
SC Advisors, which residential properties were titled in the
names of Florida limited liability companies. Zip Line was a
Florida corporation headquartered in Sarasota and it was
engaged in the business of forming Florida limited liability
companies, which held title to residential properties, the purchase
of which was handled by SC Realty.
SC Advisors was a Florida limited liability company,
headquartered in Sarasota, and it was licensed to engage in the
mortgage brokerage business. SC Advisors marketed a “no
money down” residential purchase program, using funds raised
via SC Investors to make loans to clients of SC Advisors for said
clients to use to make down payments in connection with their
purchases of residential properties. Through SC Advisors, the
defendant and co-conspirators prepared and submitted loan
applications to lenders for purchase money mortgage loans and
home equity loans on the properties purchased by clients of
SC Advisors.
SC Properties was a Florida limited liability company,
headquartered in Sarasota, and it was engaged in the business of
property management. SC Properties identified and arranged for
people to rent residential properties purchased by clients of
SC Advisors. Although SC Properties also was to maintain the
residential properties, collect rental payments made on the
residential properties, and pay all expenses associated with the
residential properties, including, but not limited to, loan
payments and tax payments due, it failed to do so as to some
properties.
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Also at times material to the Superseding Information, World
Savings Bank, FSB, and First National Bank of Arizona were
federally-insured financial institutions in that their deposits were
insured by the Federal Deposit Insurance Corporation.
Beginning on an unknown date, but at least as early as in or
about March 2003, and continuing through in or about July
2008, in the Middle District of Florida, and elsewhere, the
defendant and others conspired to commit bank fraud.
Specifically, the defendant and co-conspirators carried out a
scheme to defraud World Savings Bank and First National
Bank of Arizona, among other lenders, by preparing and
submitting, and causing to be prepared and submitted, to said
federally-insured financial institutions applications for purchase
money mortgages, which applications omitted material
information and which included other material information that
was false and fraudulent, for the purpose of defrauding said
financial institutions.
As a part of this conspiracy, the defendant formed SC Investors
and used it to raise funds via the sale of promissory notes. The
defendant caused SC Realty to identify and negotiate the
purchase of residential properties, which he intended to resell
to clients of SC Advisors, and he used Zip Line to form limited
liability companies (LLCs) to hold title to the residential
properties purchased. The defendant titled the residential
properties purchased in the names of the LLCs he had formed.
The defendant and co-conspirators used SC Advisors to market
a “no money down” residential purchase program to individual
clients. The program involved the defendant reselling the
residential properties purchased via SC Realty and titled in the
names of the LLCs formed by Zip Line to individual clients of
SC Advisors. The program also involved using the funds raised
via SC Investors’ sale of 12-month promissory notes to make
loans to individual clients of SC Advisors for said clients to use
to make down payments on the residential properties they
purchased. The defendant caused the creation of promissory
notes to evidence the loans of down payments made to clients of
SC Advisors, but he purposefully failed to record the promissory
notes so that the notes would not appear on the clients’ loan
applications or credit histories.
As a further part of the program, the defendant and
co-conspirators prepared and caused to be prepared, and
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submitted and caused to be submitted, loan applications to
lenders for purchase money mortgage loans on the residential
properties purchased by individual clients of SC Advisors. The
defendant and coconspirators concealed and omitted, and caused
to be concealed and omitted, from these loan applications the
material fact that the clients’ down payments were borrowed and
required to be repaid. In addition, they usually overstated, or
caused to be overstated, the assets and understated, or caused to
be understated, the liabilities of the clients on these loan
applications.
Shortly after lenders approved the loan applications for purchase
money mortgage loans and disbursed the loan proceeds, the
defendant prepared and submitted, or caused to be prepared and
submitted, loan applications to different lenders for home equity
loans on the same properties for the same clients with the
understanding that the clients would use the proceeds of the
home equity loans to repay the down payments loaned to them,
plus interest. As he did with the purchase money mortgage loan
applications, the defendant concealed and omitted, and caused to
be concealed and omitted, from these home equity loan
applications the material fact that the clients’ down payments
were borrowed and required to be re-paid, and that the home
equity loans were being sought in order to pay off the loans of
down payments. Further, he usually overstated, or caused to be
overstated, the assets and understated, or caused to be
understated, the liabilities of clients on these loan applications,
too.
The program also involved SC Properties identifying and
arranging for people to rent the residential properties purchased
by, and to provide property management services to, individual
clients of SC Advisors, sometimes in exchange for a monthly
property management fee. In some instances, the defendant
failed to pay all expenses associated with the residential
properties managed, including, but not limited to, loan payments
and tax payments due, as promised. As a result, some of the
loans on the properties went into default.
In or about June 2005, Tami Wescott became a client of
SC Advisors. Ms. Wescott learned about the “no money down”
program through a sales seminar the defendant presented.
Consistent with the program, the defendant loaned Ms. Wescott
$63,888.65 to be used to make a down payment on the property
she was to purchase. Ms. Wescott executed a promissory note,
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agreeing to repay SC Advisors the full amount of the down
payment plus interest. The defendant did not record the
promissory note. On or about June 30, 2005, the defendant
caused the preparation and submission to First National Bank of
Arizona of an application for a purchase money mortgage loan in
the amount of $201,750 on behalf of Ms. Wescott in connection
with her purchase of the property located at 3983 Coleridge
Lane, Sarasota, Florida 34241. Unbeknownst to Ms. Wescott,
the loan application omitted the material fact that Ms. Wescott’s
down payment had been loaned to her and was required to be
repaid, and it contained material information that was false and
fraudulent in that it represented that the home was to be Ms.
Wescott's primary residence, when it was actually an investment
property, and Ms. Wescott’s income and assets were inflated.
Shortly after First National Bank of Arizona approved the loan
application and disbursed the loan proceeds, the defendant
caused the preparation and submission of another false and
fraudulent loan application on behalf of Ms. Wescott, this time
to Regions Bank for a home equity loan, the proceeds of which
were used to reimburse the defendant for the amount of the down
payment he had loaned to Ms. Wescott, plus interest. Ultimately,
the residential property was the subject of a short sale, which
resulted in a net loss to the lender of $93,750.
As of October 24, 2012, the losses incurred by the victim lenders
in connection with 49 residential properties amount to
$6,817,821.55.

Absent extraordinary circumstances, the above facts bind Seaborne.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Seaborne claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas [applicant]s can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d
1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386

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(11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective
assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of ineffectiveness claims on either of its two
grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690. “[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.” 466 U.S. at 690. Strickland requires

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that “in light of all the circumstances, the identified acts or omissions were outside the
wide range of professionally competent assistance.” 466 U.S. at 690.
Seaborne must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” 466 U.S. at 691–92. To meet this burden, Seaborne must show “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.” 466 U.S. at 694.
Although the Strickland standard controls a claim that counsel was ineffective
for recommending that a client plead guilty, Hill v. Lockhart, 474 U.S. 52, (1985), Agan
v. Singletary, 12 F.3d 1012 (11th Cir. 1994), the quantum of evidence needed to prove
both deficient performance and prejudice is different. “[C]ounsel owes a lesser duty to
a client who pleads guilty than to one who decided to go to trial, and in the former
case counsel need only provide his client with an understanding of the law in relation
to the facts, so that the accused may make an informed and conscious choice between
accepting the prosecution’s offer and going to trial.” Wofford v. Wainwright, 748 F.2d
1505, 1508 (11th Cir. 1984). To prove prejudice, “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.” Hill, 474 U.S. at 59.

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III. VALIDITY OF GUILTY PLEA
Ground One
Seaborne alleges that he “signed [his] plea agreement without understanding it
fully and without properly being advised of the validity of the plea or its charges.”
(Doc. 1, p. 4) Seaborne asserts that he understood when he pleaded guilty that counsel
“was supposedly acting in the interest of the defense . . . when [counsel] stated that
[the plea] was a good deal and everything was correct,” but that counsel’s ineffective
assistance “caused [Seaborne] to receive a greater sentence from the court.” (Doc. 1,
p. 4) To the extent that Seaborne challenges the validity of his guilty plea based on
trial counsel’s alleged ineffective assistance, he cannot obtain relief.
“For a guilty plea to be entered knowingly and intelligently, ‘the defendant must
have not only the mental competence to understand and appreciate the nature and
consequences of his plea but he also must be reasonably informed of the nature of the
charges against him, the factual basis underlying those charges, and the legal options
and alternatives that are available.’” Finch v. Vaughan, 67 F.3d 909, 914 (11th Cir.
1995) (quoting Stano v. Dugger, 921 F.2d 1125, 1142 (11th Cir. 1991)). See also United
States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005) (“A court accepting a guilty
plea must comply with Rule 11 and specifically address three ‘core principles,’
ensuring that a defendant (1) enters his guilty plea free from coercion, (2) understands
the nature of the charges, and (3) understands the consequences of his plea.”). “[T]he
representations of the defendant [at a Rule 11 plea hearing], as well as any findings
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made by the judge accepting the plea, 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). Such representations are
presumptively trustworthy and considered conclusive absent compelling evidence to
the contrary.
During the plea colloquy Seaborne was advised of (1) the nature and elements
of the charged offense, (2) the factual basis for the plea, (3) the terms of the plea
agreement, (4) the rights he forfeited by pleading guilty, (5) the possible five-year
sentence he faced, and (6) the consequence of the appellate waiver included in the
written plea agreement. (Doc. 43 in 8:12-cr-229, pp. 9–18, 21–30) Seaborne affirmed
under oath that he understood each of these provisions. Additionally, Seaborne
admitted his guilt, affirmed that he chose to plead guilty without threat or coercion,
and expressed his satisfaction with counsel’s representation. (Doc. 43 in 8:12-cr-229,
pp. 31–33) The written plea agreement (Doc. 25, p. 1 in 8:12-cr-229), which Seaborne
affirmed he read word for word and reviewed page by page with counsel, clearly states
the maximum sentence Seaborne faced.
Aside from his own self-serving allegation, Seaborne produces no evidence
substantiating his allegation that he involuntarily pleaded guilty. Although afforded
the opportunity, Seaborne during the plea colloquy expressed neither a
misunderstanding of the maximum sentence he faced nor dissatisfaction with counsel.
Seaborne’s sworn statements at the plea colloquy, as well as his signature on the plea
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form, demonstrate the knowing and voluntary nature of his plea. Seaborne’s
unsubstantiated allegations to the contrary fail to overcome the strong presumption of
verity afforded his sworn statements during the plea colloquy. Blackledge, 431 U.S.
at 73–74. Because Seaborne “knew that there was a possibility that he could receive
the sentence that was imposed, his disappointment with the result is not grounds to set
aside the guilty plea.” Tahamtani v. Lankford, 846 F.2d 712, 714 (11th Cir. 1988). No
evidence supports Seaborne’s argument that an error by counsel resulted in a greater
sentence than Seaborne would have otherwise received. Seaborne neither establishes
the invalidity of his plea nor satisfies Strickland’s requirements. Hill, 474 U.S. at 59;
Strickland, 466 U.S. at 690. Ground one warrants no relief.
IV. APPEAL WAIVER AND PRE-PLEA INEFFECTIVENESS
A valid plea waives both known and unknown challenges to the proceedings.
Brady v. United States, 397 U.S. 742, 757 (1970) (“A defendant is not entitled to
withdraw his plea merely because he discovers long after the plea has been accepted
that his calculus misapprehended the quality of the State’s case or the likely penalties
attached to alternative courses of action. More particularly, absent misrepresentation
or other impermissible conduct by state agents . . . a voluntary plea of guilty
intelligently made in the light of the then applicable law does not become vulnerable
because later judicial decisions indicate that the plea rested on a faulty premise.”).
Tollett v. Henderson, 411 U.S. 258, 267 (1973), holds that a valid guilty plea waives a
non-jurisdictional defect:
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[A] guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant
has solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.

This waiver of rights precludes most challenges to the conviction. “[W]hen the
judgment of conviction upon a guilty plea has become final and the offender seeks to
reopen the proceeding, the inquiry is ordinarily confined to whether the underlying
plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569.
See also United States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003) (“Generally, a
voluntary, unconditional guilty plea waives all non-jurisdictional defects in the
proceedings.”).
This waiver of rights also includes a claim of ineffective assistance of counsel
based on a pre-plea event. Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992).
Hutchins v. Sec’y, Dep’t of Corr., 273 Fed. App’x 777, 778 (11th Cir.), cert. denied, 555
U.S. 857 (2008), explains:
In his habeas petition, Hutchins alleges that his trial counsel was
ineffective for failing to explicitly define and advise him of a
statute of limitations defense prior to advising him to waive that
defense and plead guilty. Hutchins’s voluntary guilty plea,
however, waived any ineffective assistance of counsel claim.

Consequently, Seaborne’s guilty plea waives both a substantive claim (other than a
jurisdictional challenge) and a purported failing of counsel that occurred before entry
of the plea.

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In grounds two through ten and ground twelve Seaborne challenges counsel’s
pre-plea performance.2 Although he now complains that counsel’s performance was
deficient, when Seaborne pleaded guilty he expressly stated his satisfaction with
counsel’s representation. (Doc. 43, p. 33 in 8:12-cr-229) Seaborne also stated that he
pleaded guilty only because he is, in fact, guilty. (Doc. 43, p. 35 in 8:12-cr-229) Even

2

Seaborne alleges that counsel rendered ineffective assistance by:
Ground Two: not investigating or interviewing both government
witnesses and defense witnesses
Ground Three: refusing to provide effective assistance during “the
plea agreement stage” and by not investigating the accuracy of both
the charges and monetary damages
Ground Four: not reviewing and challenging the accuracy of the
government’s evidence of the damages owed to victim Gerald
Abraham
Ground Five: not reviewing and challenging the accuracy of the
government’s evidence of the damages owed to victim Al Lawrence
Ground Six: not reviewing and challenging the accuracy of the
government’s evidence of the damages owed to victim Jessica Leis
Ground Seven: not verifying the amount of money that the
government alleges Seaborne owes Wells Fargo Bank
Ground Eight: not verifying the amount of money that the
government alleges Seaborne owes Bank of America
Ground Nine: not verifying the amount of money that the
government alleges Seaborne owes Deutche Bank
Ground Ten: not fully investigating or breaking down “the specific
details of the 49 mortgages that presumably added [a] significant
amount of restitution well into the millions of dollars”
Ground Twelve: refusing to argue that “[t]here exists no element of
conspiracy as there are no other conspirators nor ha[s] there ever
been during the course of this case”
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if counsel’s performance was deficient, Seaborne cannot prove prejudice because he
does not contend that he would not have pleaded guilty. Hill, 474 U.S. at 59 (“[T]he
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.”).
Grounds two through ten and ground twelve warrant no relief.
Ground Eleven
Seaborne also includes in his motion ground eleven (Doc. 1, p. 13) which states:
The sentence imposed for a first time offender, 70 years of age,
and who[se] conviction was based on false and fabricated
evidence is substantial [a]s is more fully outlined in the § 2255.

This allegation presents no constitutional claim or basis for relief. To the extent that
Seaborne challenges the calculation of his sentence he cannot obtain relief because the
challenge is barred by both the appeal waiver and entry of his voluntary guilty plea.
Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is DENIED.
The clerk shall enter a judgment against Seaborne and close this case.
DENIAL OF BOTH CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Seaborne is not entitled to a certificate of appealability. A prisoner moving
under Section 2255 has no absolute entitlement to appeal a district court’s denial of his
motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of
appealability (COA). Section 2253(c)(2) permits issuing a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” To merit a

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certificate of appealability, Seaborne must show that reasonable jurists would find
debatable both (1) the merits of the underlying claims and (2) the procedural issues he
seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000);
Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Because he fails to show that
reasonable jurists would debate either the merits of the claims or the procedural issues,
Seaborne is entitled to neither a certificate of appealability nor an appeal in forma
pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma
pauperis is DENIED. Seaborne must obtain permission from the circuit court to appeal
in forma pauperis.
ORDERED in Tampa, Florida, on September 6, 2016.

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