Lerner v. United States Of America

Filing 18

ORDER granting 4 Motion to expand record ; denying 5 Motion for immediate release ; denying 13 Motion for immediate release. Signed by Magistrate Judge G. R. Smith on 8/21/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
GERALD LERNER,

)
)
Movant,
)
)

V.
)
)
UNITED STATES OF AMERICA, )
)

Respondent.
)

Case No. CV411-321
CR4 10-048

REPORT AND RECOMMENDATION
Gerald Lerner is a liar, a cheat, and a crook. So said the judge
who sentenced him to 37 months in prison for violating 18 U.S.C. §
1029(a)(2) (device fraud) after he opened an investment company
account on credit, then extracted cash from it using rubber checks and a
debit card. CR410-048, doc. 67 at 16-18, 20-22; doc. 68 at 9. He took no
appeal. But he does seek 28 U.S.C. § 2255 relief, in which he "expressly
waives his right to attack his conviction and instead, attacks his
sentencing enhancements and resulting sentence." Doc. 65 at 1. He also
raises an ineffective assistance of counsel (IAC) claim. Id.

On the sentencing claim he insists the "district court exceeded its
jurisdiction by enhancing the sentence by six levels from nine to 15 when
the defendant was factually innocent of the legal requirement for such an
enhancement." Doc. 65 at 4. He supports this by asserting facts to show
that he is "factually innocent" of the "intended loss" sentencing
enhancement that the sentencing judge used to determine his sentence.
Id. at 2. He argues that, he should have been sentenced based on his
victims' actual losses, not his intended losses. Id.
As the government correctly points out, Lerner's factual
assertions' contradict what he agreed to be the truth when he asked this
Court to accept his guilty plea -- one that resulted in a sentence far less,
the Court later reminded, than he deserved.' CR410-048, doc. 67 at 1618, 20-22; doc. 68 at 9. In any event, his sentencing error claim is
procedurally defaulted. Lerner cannot use a collateral attack as a
surrogate for a direct appeal. Lynn v. United States, 365 F.3d 1225, 1232
1 Lerner failed to use this Court's § 2255 form, which would otherwise prompt him

to affirm his factual assertions under penalty of perjury. However, he has made that
affirmation in an Addendum, which includes an affidavit from him. Doe. 70-1 at 6
("I, Gerald Lamer, certify under sworn oath penalties of perjury that my statements
in the 2255 motion and Addendum are true."); doe. 72 at 7-11 (his affidavit).
Unsurprisingly, the government says Lerner's § 2255 factual assertions should "be
seen in a disingenuous light." Doe. 77 at 13.

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(11th Cir. 2004). One must "advance an available challenge to a criminal
conviction or sentence On direct appeal or else [be] barred from
presenting the claim in a § 2255 proceeding." Id. at 1234.
Lerner can excuse that default by showing cause and prejudice or
actual innocence of the sentencing enhancement. Lynn, 365 F.3d at
1234; United States v. Nyhuis, 211 F.3d 1340 (11th Cir. 2000). While
ineffective assistance can support a cause showing, Eagle v. Linahan, 279
F.3d 926, 937 (11th Cir. 2001); Knight v. United States, 2012 WL
2862546, at * 8 (N.D. Ala. Jul. 6, 2012), Lerner does not argue that.
Instead, he invokes only the "exceedingly narrow," actual
innocence exception. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2007). For that "to apply in the noncapital sentencing context, a
movant must show that he is factually innocent of the conduct or
underlying crime that serves as the predicate for the enhanced
sentence." McKay v. United States, 657 F.3d 1190, 1198-99 (11th Cir.
2011); see also United States v. Allbritton, 2012 WL 1970256 at * 2 (M.D.
Fla. Jun. 1, 2012) (collecting cases). He must present "new reliable
evidence" establishing his innocence. House v. Bell, 547 U.S. 518, 53637; Green v. United States, 2011 WL 1897189 at * 6 (S.D. Ga. May 18,

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2011). Lerner has offered only his own spin on the record evidence.
That is not new, reliable evidence. Does. 72 & 81. Plus it contradicts
what he agreed was the truth during his guilty plea and sentencing
hearings.' Hence, his procedural default cannot be excused.
On top of that, Lerner was sentenced within the statutory
maximum, so his sentencing error claim is not cognizable under § 2255.
Ayuso v. United States, 361 F. App'x. 988, 991-92 (11th Cir. 2010) ( 2255

movant's claim that the calculation of his criminal points under the
guidelines was no longer correct because one of his state convictions was
vacated after he was sentenced did not constitute a constitutional error
and did not "implicate[ ] a fundamental defect in the validity of the
district court proceedings" so as to rise to the level of a "miscarriage of
justice."); Vallas v. United States, 2012 WL 2681398 at * 5 (S.D. Ala. Jun.
7 ) 2012).

Solemn declarations made under oath in open court carry a strong presumption of
verity. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); United States v. Medlock, 12
F.3d 185, 187 (11th Cir. 1994).
This argument pivots off what grounds for relief are obtainable under § 2255: (1)
constitutional issues; 2) challenges to the district courts jurisdiction to impose the
sentence; (3) challenges to the length of a sentence in excess of the statutory
maximum; and (4) claims that the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a).

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Finally, Lerner accuses his lawyer, Judson Hill, of providing him
with ineffective assistance' "because [Hill] neither researched the facts
in his case, permitting an illegal enhancement, nor interviewed witnesses
that would have mitigated his sentence." Doc. 65 at 0 In a later brief
he complains that Lerner could have put a couple of "brokers" on the
stand, plus documents he cites, to support his "sentencing innocence."
Doc. 72 at 5; see also doc. 81.
Hill was not ineffective. He submitted a comprehensive objection
to the Presentence Investigation Report (PSI) on which the sentencing

In determining whether Hill provided Lerner with ineffective assistance of counsel
this Court asks "whether [Hill's] conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having produced a just
result." Strickland v. Washington, 466 U.S. 668, 686 (1984). Lerner must
demonstrate both that Hill's performance was below an objective and reasonable
professional norm and that he was prejudiced by this inadequacy. On "alleged
sentencing errors, a defendant must demonstrate that there is a reasonable
probability that, but for counsel's errors, the result of the proceeding would have
been less harsh due to a reduction in the defendant's offense level. Glover v. United
States, 531 U.S. 198, 203-04,121 S. Ct. 696, 148 L.Ed.2d 604 (2001). A significant
increase in sentence is not required to establish prejudice, as any amount of actual
jail time has Sixth Amendment significance Id." United States v. Berger, 2012 WL
3240655 at * 2 (N.D. Fla. Jun. 12, 2012) (quotes omitted). But Lerner also must
provide factual support; conclusory allegations will not suffice. Id.
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Hill, he explains, should have "investigated all the evidence well before the
sentencing hearing," doc. 72 at 5, and he failed to meet with and "prep Lerner for the
sentencing hearing." Id. Had Hill done his job, Lerner contends, he would have
convinced the sentencing judge that Lerner had no intent to defraud the brokerage.
Id. Actual losses, he figures, were only $3,800, not the $230,000 on which the judge
based his sentence. Id.

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judge relied, and renewed it at sentencing, arguing in both instances for
a downward variance while raising the same, actual-versus-intended loss
argument Lerner reiterates here. Doc. 68 at 4-5. Just because he failed
to convince the sentencing judge does not mean he was ineffective.
Hensley v. United States, 2010 WL 1837547 at * 4 (S.D. Ga. Apr. 14,

2010). One of the chief reasons why Hill was not convincing had to be
Lerner's own guilty plea, where he admitted the facts supporting his
intended losses. CR4 10-048, doc. 67 at 16-18, 20-22.
For that matter, Lerner never objected to the PSI's factual
showing -- detailing his conduct and the dollar losses caused by it. In
fact, he stood mute, as noted by the sentencing judge: "There being no
objections to the factual statements contained in the [PSI], the Court

adopts those statements as [its] findings of [flact." Doc. 68 at 6
(emphasis added). It thus made sense for Lerner not to appeal.
Tellingly, he does not fault Hill for failing to do so. And he fails to
tender, for example, affidavits from the two brokers he claims would
have neutralized his "sentencing guilt" evidence had Hill "properly"
investigated Lerner's defense. All of these points, in turn, negate his IAC
claim.

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Gerald Lerner's

§1

2255 motion thus must be DENIED. The

Court GRANTS, however, his motion to expand the record (he basically
added and affidavit and other materials to support his claims, and 28
U.S.C. § 2255, Rule 7 authorizes same). Doc. 70. His "immediate
release" motions, in contrast, are DENIED. Docs. 71 & 80. Applying
the Certificate of Appealability (COA) standards set forth in Brown V.
United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the
Court discerns no COA-worthy issues at this stage of the litigation, so no
COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211
F.3d 895 1 898 (5th Cir. 2000) (approving sua sponte denial of COA before
movant filed a notice of appeal). And, as there are no non-frivolous
issues to raise on appeal, an appeal would not be taken in good faith.
Thus, in forma pauperis status on appeal should likewise be DENIED.
28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED this

day of

August, 2012.
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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