Monsegue, Sr. v. United States of America

Filing 15

REPORT AND RECOMMENDATIONS denying 11 MOTION for Default Judgment, 1 Motion to Vacate/Set Aside/Correct Sentence (2255) 12 MOTION, 5 MOTION filed by Frank D. Monsegue, Sr. Objections to R&R due by 4/7/2017. Signed by Magistrate Judge G. R. Smith on 3/24/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
FRANK D. MONSEGUE, Sr.,

)

)

Movant,

)

)

V.

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)

UNITED STATES OF AMERICA,

CV416-021
CR414-019

)

)

Respondent.

)

REPORT AND RECOMMENDATION
Movant Frank Monsegue, proceeding pro

Se,

moves under 28

U.S.C. § 2255 to vacate the sentence this Court imposed following his
guilty plea to wire fraud conspiracy, theft of government property, and
aggravated identity theft. Doc. 116;' see docs. 3 (indictment), 29
(superseding indictment), 109 (minute entry), 110 (judgment for 87
months' imprisonment), 111 (signed post-conviction certification
declining to appeal conviction). He claims that numerous errors by the
Court, Government, and his attorney resulted in a significantly higher
sentence than he would have otherwise received. See doc. 116.

1

The Court is citing to the criminal docket in CR414-019 unless otherwise noted,
and all page numbers are those imprinted by the Court's docketing software.

I. BACKGROUND
Movant seeks, essentially, to relitigate the case that he nearly
took to trial. He argues, among other things, that his plea was made
unknowingly and involuntarily and that counsel was deficient. Though
he contends otherwise, the record shows that Monsegue was provided
with quite a bit of information prior to his conviction. At his initial
appearance hearing, movant affirmed he had received a copy of the
indictment, the Court reviewed the charges against him, and movant
represented that he understood the charges he was facing. Doc. 118 at
3-7. Although Monsegue initially chose to plead not guilty, does. 119 &
120, he changed his mind midway through voir dire of the jurors for his
trial. Doe. 121 at 17 (counsel gave a note to the Court indicating that
movant "now wishes to change his plea."). He then vacillated again, see
doe. 125 at 6 ("Your Honor, we do not have an agreement. The
defendant has changed his mind."), because he was "not prepared" to be
taken immediately into custody, Id. at 7, but after counsel conferred
again on the proposed plea agreement, Monsegue (again) elected to
enter a last-minute plea of guilt while the empaneled jury waited in the
wings. Doe. 75 (Rule 11 hearing) at 4.
2

At his plea hearing, the Court reviewed the charges in the initial
and superseding indictment, and confirmed Monsegue had reviewed the
charges with counsel and understood what the Government would have
to prove to convict him of those charges. Doe. 75 at 8, 13-17. The Court
then explained the rights he was giving up by pleading guilty, including
the rights to a trial, to put forth a defense, and to remain silent.
Movant swore that he understood. Id. at 10-11.
The Court also explained the possible sentences he could face for
pleading guilty and that he would be sentenced under the advisory
Sentencing Guidelines. Monsegue testified that counsel had gone over
the Guidelines information with him and that he understood. Doe. 75
at 17-19. He represented to the Court that he had not been forced or
pressured into pleading guilty (Id. at 21 & 24), that he was pleading
guilty because he was, in fact, guilty (Id. at 22), and that he was
satisfied with his attorney's representation (Id. at 13).
The Court concluded that Monsegue understood "the substance
and meaning of the charges, the consequences of his plea, and the facts
which the Government must prove and which, by his plea of guilty,
admits all the essential elements of the offense." Doe. 75 at 24. It
3

further concluded that he had "engaged in this proceeding with
intelligence and competence" and that he had "offered his plea of guilty
as a matter of his own free choice."

Id.; see also Id. at 5 (cautioning

Monsegue that "if you ever seek to undo or set aside what occurs here
today, you're going to be confronted by the answers you give me");

Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) ("Solemn declarations
in open court carry a strong presumption of verity."); United States v.

Spitzer, 785 F.2d 1506, 1514 n. 4 (11th Cir. 1986) ("[If the Rule 11 pleataking procedure is careful and detailed, the defendant will not later be
heard to contend that he swore falsely.").
Vacillating yet again, Monsegue unsuccessfully attempted to
withdraw his guilty plea several times. He also missed his sentencing
hearing (apparently due to counsel's failure to notify him), and fled to
New York when a bench warrant was issued for his arrest. See doe. 122
at 7-10, 19-20. The Court sentenced him to 87 months, with credit for
time served, and ordered $432,583.86 in restitution to the Internal
Revenue Service, to be paid jointly and severally with his codefendant.

Id. at 24.

In

II. ANALYSIS
Monsegue presents three categories of claims: (1) pre-plea claims,
(2) post-plea and sentencing errors, and (3) ineffective assistance of
counsel. Doc. 116.2 All of them fail.
Four sets of governing principles must be applied here. First,
Monsegue "bears the burden of establishing the need for § 2255 relief,
as well as that of showing the need for an evidentiary hearing." Mike]]

v. United States, 2011 WL 830095 at * 2 (S.D. Ga. Jan. 26, 2011); see
also Williams v. Allen, 598 F.3d 778, 788 (11th Cir. 2010). He thus

2

In order (and as best the Court can discern) Monsegue presents 20 claims for
relief: (1) that no arrest warrant was presented at the time of arrest or since; (2) the
arraignment proceedings were improper; (3) the summons used to obtain his bank
records was invalid; (4) he was not given a copy of the indictment when he was taken
into custody; (5) counsel failed to challenge "any" of the governments allegations; (6)
his guilty plea was the result of coercion; (7) the probation office "knowingly"
inserted "false statements and lies" on his PSR; (8) the Court erred in issuing a
bench warrant after Monsegue failed to appear for his sentencing hearing; (9) counsel
failed to challenge the government's use of "sophisticated tracking software on [his]
banking activities without legal authority or court approval"; (10) an unidentified
Brady violation; (11) charges were brought outside the 5-year limitations period set
forth in 18 U.S.C. § 3282; (12) sentence calculation errors; (13) that movant only
failed to object on the record at sentencing due to "time" pressures; (14) the Court
erred by considering "participants" in his tax fraud scheme as "victims" for
enhancement purposes; (15) counsel failed to submit a motion for withdrawal of
Monsegue's guilty plea post-sentencing; (16) counsel failed to argue that his initial
appearance should have been in (or adjacent to) the (unnamed) district where he was
arrested; (17) more sentence calculation errors; (18) that the indictment and
sentence named the same statute, 18 U.S.C. § 641, but called it slightly different
names; (19) the Court erred in its restitution and victim enhancement calculations;
(20) he was denied his right to a Speedy Trial. Doc. 116.
5

must demonstrate that any claimed error constitutes "a fundamental
defect which inherently results in a complete miscarriage of justice."

United States v. Addonizio, 442 U.S. 178, 185 (1979) (quotes and cite
omitted).
Second, any claims not raised on direct appeal are procedurally
defaulted, Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004),
though claims of ineffective assistance of counsel (IAC) 3 generally are
not. Massaro v. United States,

538 U.S. 500, 504 (2003). Third, "the

two-part Strickland v. Washington test applies to challenges to guilty
pleas based on ineffective assistance of counsel."
U.S. 52 9 58 (1985); Lalani v. United States,

Hill v. Lockhart 474

315 F. App'x 858, 860-61

(11th Cir. 2009).
And fourth, a defendant who enters an unconditional plea of guilty
"may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry of

In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court created
a two-part test for determining whether counsel's assistance was ineffective. First,
the movant must demonstrate that his attorney's performance was deficient, which
requires a showing that "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. Second, he
must demonstrate that the defective performance prejudiced the defense to such a
degree that the results of the trial cannot be trusted. Id.
6

the guilty plea."

Tollett v. Henderson,

411 U.S. 258, 267 (1973)

(emphasis added). That is, "[a] defendant's plea of guilty, made
knowingly, voluntarily, and with the benefit of competent counsel,
waives all non-jurisdictional defects in that defendant's court
proceedings."

United States v. Pierre,

120 F.3d 1153, 1155 (11th Cir.

1997); see also United States v. Patti

337 F.3c1 1317, 1320 (11th Cir.

2003). The bar applies both on appeal and on collateral attack.
United States v. Broce,

See

488 U.S. 563, 569 (1989). "A defendant who

wishes to preserve appellate review of a non-jurisdictional defect while
at the same time pleading guilty can do so only by entering a
'conditional guilty plea' in accordance with Federal Rule of Criminal
Procedure 11(a)(2)." Pierre, 120 F.3d at 1155.
Defendants who have entered an unconditional guilty plea
therefore may challenge their pre-plea constitutional claims only by
showing that the advice they received from counsel undermined "the
voluntary and intelligent character of the plea."

Tollett, 411 U.S. at

267. This includes
defects in the procedure by which the plea was received or
circumstances which make the plea other than voluntary,
knowing and intelligent. It also includes cases where the guilty
plea was induced through threats, misrepresentations, or
7

improper promises, such that the defendant cannot be said to have
been fully apprised of the consequences of the guilty plea..

Mike]], 2011 WL 830095 at *2 (cites and quotes omitted). Otherwise, all
substantive claims that could have been raised before the plea, such as
suppression-based claims, are waived.

Franklin v. United States, 589

F.2d 192, 194-95 (5th Cir. 1979) ("By entering a knowing, voluntary,
intelligent guilty plea on the advice of competent counsel, [petitioner]
has waived all nonjurisdictional complaints . . . [such as] claims
regarding Miranda warnings, coerced confessions, perjury and illegal
searches and seizures. . . ."); Washington v. United States, 2010 WL
3338867 at * 15 (S.D. Ala. Aug.5, 2010) (collecting Eleventh Circuit
cases denying habeas relief on suppression-based JAC claims and
concluding that, "[b]ecause all of Washington's asserted claims of
ineffective assistance of counsel relate to the suppression issue, the
denial of which has been waived . . . they have been waived by
petitioner's entry of a knowing and voluntary plea. . . .").
A. Pre-Plea Claims
Monsegue's various challenges to the Government's evidence,
warrants, and indictments were all waived by the entry of his guilty
plea. Haring v. Prosise, 462 U.S. 306, 321 (1983) ("[A] counseled plea of
[SJ

guilty is an admission of factual guilt so reliable that, where voluntary
and intelligent, it quite validly removes the issue of factual guilt from
the case."). Monsegue, who pled guilty unconditionally, cannot litigate
his pre-plea, non-jurisdictional claims masquerading as an JAC claim,
since he gave up that right in return for the Government's agreement to
drop the remaining counts against him. See Mike]], 2011 WL 830095 at
*3 So, he has instead attacked his guilty plea, doe. 116, by alleging
that the advice counsel gave him undermined "the voluntary and
intelligent character of [his] plea."

Tollett, 411 U.S. at 267; Hill v.

Lockhart, 474 U.S. 52, 59 (1985).
Movant, however, is bound by his sworn testimony. Doc. 75 at 5
(cautioning Monsegue he would be held to his word); Blackledge, 431
U.S. at 73-74 ("Solemn declarations in open court carry a strong
presumption of verity."). He swore under oath that no one, including
his attorney,

had made him any promises not contained in that

agreement. Doc. 75 at 22. He also swore that he fully understood the
rights he was giving up by entering a guilty plea, the possible sentence
he faced, and was fully satisfied with counsel's performance.

Id. at 11,

13 & 17-18. When asked whether he was pleading guilty to the reduced

counts, because he was "in fact, guilty," Monsegue answered yes.

Id. at

22.
Though he may have harbored doubts about just how much the
Government could actually prove against him or whether its case was
vulnerable to attack, his solemn declarations before the Court carry a
presumption of verity and rightly constitute a formidable barrier for
him to overcome in these collateral proceedings.

Blackledge, 431 U.S.

at 74; Rasco v. United States, 2014 WL 10754131 at * 1-2 (S.D. Ga.
Sept. 3, 2014) (Rasco's guilty-plea transcript "negates [his] claim that
counsel 'coerced' him and 'altered' the plea agreement that he signed.").
Monsegue falls far short of overcoming that barrier.
A " 2255 action is not designed to account for buyer's remorse."

Falgout v. United States, 2013 WL 3712336 at * 6 (N.D. Ala. July 12,
2013). And that is all that is at issue here.

Nelson v. United States,

2015 WL 4756975 at * 1 (S.D. Ga. Aug. 11, 2015) ("Nelson has wasted
this Court's time with a 'buyer's remorse' filing. He chose to plead
guilty with full knowledge of the consequences. Now he must live with
those consequences."). Monsegue's plea was knowingly and voluntarily
made, and part of that plea agreement included the waiver of all pre10

plea claims, including claims 1-4, 8-11, 4 and his Speedy Trial Act claim.
Doc. 75 at 12; see Tollett, 411 U.S. at 267 ("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."); United States v.

Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997) (the right to a speedy trial
is non-jurisdictional and is waived by the entry of a guilty plea).

' Monsegue's allegations also fail on the merits. For example, his claim that counsel
failed to send him a copy of the PSR is contradicted by the record. See doe. 122 at 5
(affirming that he had an opportunity to read and discuss the PSR and addendums
with counsel prior to sentencing, and that he had no objections to the facts set forth
in the PSR or application of the sentencing guidelines). His claim that the subpoena
for his bank records violated his privacy rights fails as a matter of law. See United
States v. Centennial Builders, Inc., 747 F.2d 678, 683 (11th Cir. 1984 ("An Internal
Revenue summons directed to a third party bank or accountant does not violate the
Fourth Amendment rights of a taxpayer under investigation since the records belong
to the summoned party and not the taxpayer: the taxpayer has no privacy interest in
the documents."); see also United States v. Winfield, 960 F.2d 970, 974 (11th Cir.
1992) (counsel is not ineffective for failing to raise meritless arguments). And his
allegation that the charges exceeded the 5-year statute of limitations is hogwash. See
doe. 3 (original indictment returned February 6, 2014, alleging wire fraud conspiracy
and aggravated identify theft beginning (less than five years before on) February 25,
2009 and continuing through June 23, 2011); doe. 29 (superseding indictment
returned March 5, 2014); see also United States v. Harrison, 329 F.3d 779, 783 (11th
Cir. 2003) (the Government need only prove that the conspiracy continued into the
limitations period); United States v. Ratcliff, 245 F.3d 1246, 1253 (11th Cir. 200 1) (a
superseding indictment brought after the limitations period has expired is valid
where the original indictment was timely, is still pending, and is not substantially
narrower than the superseding indictment).
11

B. Plea Proceeding and Sentencing Claims
Movant's post-plea claims are procedurally defaulted because he
did not raise them on direct appeal. Lynn, 365 F.3d at 1234 (a movant
may not use his collateral attack as "a surrogate for a direct appeal.").
He has also not shown cause and prejudice sufficient to defeat this
procedural bar.

See United States v. Montano, 398 F.3c1 1276, 1280

(11th Cir. 2005) (to excuse the procedural bar, a § 2255 movant must
"demonstrate a cause for [her] default and show actual prejudice
suffered as a result of the alleged error.").
They also fail on the merits. Monsegue first contends that the
PSR contained false statements about his codefendant, who pled guilty
to an information in May 2014 and was sentenced to seven months'
imprisonment and one year of supervised release on March 18, 2015.
PSR at 2. He argues that the fact that his codefendant was in state
custody in August 2014 and had a baby in November 2014 somehow
renders these dates impossible. Doe. 116 at 16 ("Defendant believes
that her activities could not have been done while in custody. Either
the government lied, or a baby wasn't born."). The claim is nonsensical:
the fact that Campbell was in state custody in the fall of 2014 does not
12

contradict her entry of a guilty plea in May 2014 or sentencing in March
2015. See United States v. Campbell, No. CR414-123 (S.D. Ga. Mar. 18,
2015). The information was not erroneous, so counsel had no reason to
object to its inclusion in the PSR.
Monsegue next claims that he was sentenced under duress,
coercion, and other pressure from the Government and his attorney. He
was given the opportunity to air his objections and report any alleged
coercion at sentencing, however, and he didn't. Doc. 122 at 5 (admitting
the factual accuracy of the PSR and application of the Sentencing
Guidelines), 15-21 (movant's personal statement to the Court). More to
the point, he contends that the coercion (and IAC) is somehow proven
by the absence of a written plea agreement -- there was no written plea
agreement because Monsegue waited until the 11th hour, with jurors
selected and counsel for both sides ready to try his case, to accept, then
reject, then accept the Government's offered plea. He was not entitled
to a copy of a plea agreement that didn't exist (until he changed his
mind, yet again) before he changed his mind to plead guilty.
Monsegue also contends that counsel was deficient for failing to
move to withdraw his guilty plea. This claim, too, is contradicted by the
13

record.

See doe. 77 (motion to withdraw guilty plea) & 78 (order

denying motion on the merits); see also doc. 116 at 42 (admitting
counsel filed the motion). Counsel filed the motion pursuant to
Monsegue's wishes; that the Court disagreed does not render her
performance deficient.
Finally, movant contends a variety of sentencing errors occurred:
he should have received a 2-level decrease for acceptance of
responsibility; counsel failed to contest the 14-level enhancement for the
loss amount, the 2-level enhancement for the number of victims, and
the 2-level enhancement for obstruction; he was sentenced under the
wrong Sentencing Guideline; and the amount of restitution and number
of victims are far higher than they should be. Doc. 116 at 17, 21-25.
These claims are procedurally defaulted, Lynn, 365 F.3d at 1234 (a
collateral attack is not "a surrogate for a direct appeal."), and are not
cognizable in a § 2255 motion, Martin v. United States, 81 F.3d 1083,
1084 (11th Cir.1996) ("Because a defendant has the right to directly
appeal a sentence pursuant to the Sentencing Guidelines, the defendant
is precluded from raising Guidelines issues in collateral proceedings
under § 2255."); Marnone v. United States,
14

559 F.3d 1209, 1211 (11th

Cir. 2009) (restitution cannot be challenged in a § 2255 motion). His
challenge to his bail forfeiture, too, is not cognizable in a § 2255 motion.
Doc. 116 at 37-38. See United States v. Harris, 546 F. App'x 898, 901
(11th Cir. 2013) (2255 claims do "not offer relief from the non-custodial
features of a criminal sentence.").
In sum, all of Monsegue's claims fail.
III. CONCLUSION
Frank Monsegue, Sr.'s 28 U.S.C. § 2255 motion (doe. 116)
therefore should be DENIED. 5 His various motions demanding release
under 18 U.S.C. § 3145(B) 6 (does. 126, 132 & 133), are plainly frivolous
and are DENIED. For the reasons set forth above, it is plain that he
raises no substantial claim of deprivation of a constitutional right.
Accordingly, no certificate of appealability should issue. 28 U.S.C.

Because Monsegue's motion is entirely without merit and his contentions are
unambiguously contradicted by the record, his request for an evidentiary hearing is
DENIED. Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (a
hearing is unnecessary "if the allegations are 'patently frivolous,' 'based upon
unsupported generalizations,' or 'affirmatively contradicted by the record."); Holmes
v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (same); Lynn v. United States,
365 F.3d 1225, 1239 (11th Cir. 2004) (where the motion "ainount[ed] to nothing more
than mere conclusory allegations, the district court was not required to hold an
evidentiary hearing on the issues and correctly denied Lynn's § 2255 motion.").
6

18 U.S.C. § 3145(b) concerns detainment of a person pursuant to Court order. It
has nothing to do with a convicted, incarcerated felon seeking habeas relief.
15

§ 2253; Fed. R. App. P. 22(b); Rule 11(a) of the Rules Governing Habeas
Corpus Cases Under 28 U.S.C. § 2255 ("The district court must issue or
deny a certificate of appealability when it enters a final order adverse to
the applicant."). Any motion for leave to appeal in forma pauperis
therefore is moot.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned "Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge's findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
16

rights on appeal. 11th Cir. R. 3-1; see Symonett v. VA. Leasing Corp.,
648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F.
App'x 542, 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED, this 24th day of
March, 2017.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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