Essel v. USA - 2255

Filing 2

MEMORANDUM OPINION AND ORDER denying 81 Motion to Vacate (2255) as to Paul Kobina Essel (1); denying 86 Motion to Vacate as to Paul Kobina Essel (1); denying 90 PETITION/MOTION for Relief of Restitution as to Paul Kobina Essel IN CRIMINAL CASE NO. 13-259. The Clerk SHALL CLOSE Civil Case No. PWG-15-1392. Signed by Judge Paul W. Grimm on 4/13/2016. (kw2s, Deputy Clerk) (c/m 4.13.16)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
UNITED STATES OF AMERICA

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v.

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CRIMINAL CASE NO. PWG-13-259

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(Civil Case No.: PWG-15-1392)1

PAUL K. ESSEL et al.
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MEMORANDUM OPINION AND ORDER
On May 22, 2013, Paul K. Essel was indicted on one count of conspiracy to commit bank
fraud, four counts of bank fraud, and one count of aggravated identity theft. See Indict., ECF
No. 12. On January 14, 2014, he pleaded guilty to conspiracy to commit bank fraud, one count
of bank fraud, and aggravated identity theft. Plea Agr., ECF No. 53. Essel was sentenced to a
total of fifty seven months in prison. See Sent. Mem., ECF No. 73. He now brings a motion
under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence on four bases: (i)
ineffective assistance of counsel with respect to the length of his sentence; (ii) an excessive
sentence for a first-time offender; (iii) an excessive restitution amount as agreed in his plea
agreement; and (iv) the imposition of “unrelated restitution.” Def.’s Mot, ECF No. 81.2 Because

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The ECF Numbers cited herein refer to the documents filed in Essel’s criminal case.
This motion is fully briefed; the Government has filed an opposition, Opp’n, ECF No. 89,
and Essel has filed a reply, Reply, ECF No. 93. A hearing to decide this motion is not necessary.
See Loc. R. 105.6. Essel has also filed a motion to vacate his sentence because the Government
had not responded by the original deadline for its opposition. See ECF No. 86. Essel’s motion
ignores my order dated July 25, 2015, approving an extension for the Government to file its
opposition to September 10, 2015. See Ext. Order, ECF No. 85. Accordingly, Essel’s motion to
vacate based on the Government failing to file its opposition by the original deadline is denied.
In my order extending the deadline for the Government to file its opposition, I ordered that there
would be “no further extensions” and that the “extension [was] approved until 091015 only.”
Ext. Order. The Government failed to file its opposition until September 18, 2015. I will not
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Essel’s claim that ineffective assistance of counsel resulted in his lengthy sentence is
unsupported by the record and because Essel has procedurally defaulted on the other three bases
for relief, I will deny his motion to vacate, set aside, or correct his sentence.3
I.

DISCUSSION

28 U.S.C. § 2255(a) permits a prisoner to file a motion to vacate, set aside, or correct his
sentence on the ground that it “was imposed in violation of the Constitution or laws of the United
States . . . .” The prisoner must prove his case by a preponderance of the evidence. Brown v.
United States, Civil No. DKC-10-2569 & Crim. No. DKC-08-529, 2013 WL 4562276, at *5 (D.
Md. Aug. 27, 2013). If the court finds for the prisoner, “the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). Although “a pro se movant is
entitled to have his arguments reviewed with appropriate deference,” the court may summarily
deny the motion without a hearing “if the § 2255 motion, along with the files and records of the
case, conclusively shows that [the prisoner] is not entitled to relief.” Brown, 2013 WL 4562276,
at *5 (citing Gordon v. Leeke, 574 F.2d 1147, 1151–53 (4th Cir. 1978); 28 U.S.C. § 2255(b)).
To prevail on a claim of ineffective assistance of counsel as the alleged constitutional
violation,
a petitioner must show that counsel’s performance was constitutionally deficient
to the extent that it fell below an objective standard of reasonableness, and that he
was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687–91 (1984).
In making this determination, there is a strong presumption that counsel’s conduct

strike the Government’s opposition; however, I find its lack of timeliness and ability to meet the
deadlines established by this Court, particularly with the extension that I granted, problematic.
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Essel has also filed what he styles as a “petition/motion for relief of restitution,”
providing additional details for why he believes the restitution ordered by this Court is excessive.
I have considered these arguments in evaluating his § 2255 motion, ECF No. 81. For the same
reasons that his § 2255 motion is denied for being in procedural default, his motion for relief of
restitution is also denied.
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was within the wide range of reasonable professional assistance. Id. at 689; see
also Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297–99 (4th Cir. 1992).
Furthermore, the petitioner “bears the burden of proving Strickland prejudice.”
Fields, 956 F.2d at 1297. “If the petitioner fails to meet this burden, a reviewing
court need not consider the performance prong.” Fields, 956 F.2d at 1297 (citing
Strickland, 466 U.S. at 697). In considering the prejudice prong of the analysis,
the Court may not grant relief solely because the petitioner can show that, but for
counsel’s performance, the outcome would have been different. Sexton v. French,
163 F.3d 874, 882 (4th Cir. 1998). Rather, the Court “can only grant relief under .
. . Strickland if the ‘result of the proceeding was fundamentally unfair or
unreliable.’” Id. (quoting Lockhard v. Fretwell, 506 U.S. 364, 369 (1993)).
United States v. Lomax, Civil No. WMN-13-2375 & Crim. No. WMN-10-145, 2014 WL
1340065, at *2 (D. Md. Apr. 2, 2014). “When a petitioner alleges ineffective assistance of
counsel following the entry of a guilty plea, he ‘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.’” United States v. Fabian, 798 F. Supp. 2d 647, 670–71 (D. Md. 2011) (quoting
Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
A. Ineffective Assistance of Counsel
Essel states that his motion to vacate should be granted on the basis of ineffective
assistance of counsel by his attorney, Lisa Lunt. See Def.’s Mot. 5, 12. Essel states that
I was facing a total sentencing of 61 months without the plea deal, but my lawyer
told me I can get a much lesser sentence if I cooperate. Was facing 5 counts but
after speaking with the prosecutor, they informed me I was not being cooperative
and was wasting thier [sic] time. I took the plea deal and was convicted of 3
counts with 57 months sentencing instead of 5 counts and 61 months. Basically
the 57 months given to me apparently seems very unfair considering the fact that I
was cooperative.
Id. at 5. He separately alleges that “[t]he attorney misled me that I can not [sic] appeal the case if
I take a plea.” Id. at 4. I will read Essel as making two claims for ineffective assistance of
counsel: (1) with respect to taking the plea agreement that resulted in a 57-month sentence and
(2) with respect to not being told he waived his right to appeal.
1. Accepting the Plea Agreement and His Sentence
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Essel is unhappy that he pleaded guilty and that his sentence was reduced only to 57
months. Further, he feels that it was unfair given his cooperation with the prosecutor. As a
preliminary matter, Essel claims that he would have only received a 61-month sentence had he
pleaded guilty to all five counts. It is unclear why Essel refers to all five counts when the
indictment listed six counts. However, regardless of whether Essel faced a total of five or six
counts, Essel has not explained why he would have received only 61 months had he been found
guilty on all counts. Essel cannot know what sentence he would have faced had he been found
guilty because he pleaded.
What is clear from the record is that Essel received a 2-level reduction in offense level
based on “Defendant’s apparent prompt recognition and affirmative acceptance of personal
responsibility for his criminal conduct,” and “an additional 1-level decrease in recognition of the
Defendant’s timely notification of his intention to plead guilty.” See Plea Agr. 4. Essel received
a benefit for his guilty plea, and he cannot raise an ineffective assistance of counsel claim simply
because he is not happy with the benefit that he received.
With respect to his cooperation with prosecutors, Essel’s statements are contradictory and
reveal why he did not receive a further reduction in his sentence. According to Essel himself, the
prosecutors told him that he was not being cooperative and was wasting their time. Def.’s Mot.
5. Essel believes that his sentence was unfair given that he cooperated, but his own statements
demonstrate that prosecutors found him uncooperative. Further, Essel explicitly waived his
ability to raise any further departures or adjustments to his offense level including a Section
5k1.1 Substantial Assistance to Authorities departure. See Plea. Agr. 5.
Further, Essel has not provided any support that ineffective assistance of counsel led to
any of these issues. Indeed, when asked whether he was satisfied with Lunt’s representation of

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him, he responded affirmatively. See Plea Trans. 8, ECF No. 87. “Absent clear and convincing
evidence to the contrary, a defendant is bound by the representations he makes under oath during
a plea colloquy.” Fields, 956 F.2d at 1299. If a petitioner “presents no evidence that suggests
his representations during his plea were untruthful or involuntary . . . he is therefore rightly
bound by his sworn statements.” Id; see also United States v. Lemaster, 403 F.3d 216, 221–22
(4th Cir. 2005) (“[I]n the absence of extraordinary circumstances, the truth of sworn statements
made during a Rule 11 colloquy is conclusively established, and a district court should, without
holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations
that contradict the sworn statements. Otherwise, a primary virtue of Rule 11 colloquies would be
eliminated-‘permit[ting] quick disposition of baseless collateral attacks.’”) (alteration in original)
(citations omitted). Essel has provided no evidence to suggest that this statement—that he was
satisfied with Lunt’s representation—was untruthful or involuntary.
For these reasons, I find that Essel has failed to demonstrate that his “counsel’s
performance was constitutionally deficient to the extent that it fell below an objective standard of
reasonableness,” see Lomax, 2014 WL 1340065, at *2 (citing Strickland, 466 U.S. at 687–91),
and overcome the “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. His motion to vacate based on
ineffective assistance of counsel with respect to his acceptance of the plea agreement and his
subsequent sentence is denied.4

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Because I find Essel has not met his burden with respect to the first prong of the test for
ineffective assistance of counsel in Strickland, it is not necessary to determine whether he
satisfied the second prong that he suffered prejudice as a result. Nevertheless, in order to
demonstrate prejudice, Essel “must show that there is a reasonable probability that, but for
counsel’s error, he would not have pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985). Essel has provided no evidence that he would have not
pleaded guilty and gone to trial.
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2. Waiver of Right to Appeal
I have read Essel’s motion as also claiming ineffective assistance of counsel because
Lunt “misled” Essel that he did not have a right to appeal if he accepted the plea agreement. See
Def.’s Mot. 4. As an initial matter, Essel provides no evidence that Lunt misled him that by
accepting the plea agreement he waived his right to appeal and for that reason alone he fails to
demonstrate that Lunt’s representation constitutes ineffective assistance of counsel. Therefore, I
find that Essel has failed to meet his burden under the first prong of Strickland to demonstrate
that Lunt’s representation was below the objective standard of reasonableness.
However, even if I take Essel’s statement as true, I informed Essel during the Rule 11
colloquy that by entering into the plea agreement he waived his right to appeal. Plea Trans. 23–
24. Essel further indicated that he understood my statement that he “ha[d] given up or waived
the right to appeal any sentence I impose.” Id. at 24. This explanation is sufficient to correct any
misstatement by Lunt with respect to Essel’s ability to appeal following acceptance of the plea
agreement. See United States v. Foster, 68 F.3d 86, 88–89 (4th Cir. 1995) (“[I]f the information
given by the court at the Rule 11 hearing corrects or clarifies the earlier erroneous information
given by the defendant’s attorney and the defendant admits to understanding the court’s advice,
the criminal justice system must be able to rely on the subsequent dialogue between the court and
defendant.”). As a result, Essel is unable to demonstrate that he was prejudiced even if Lunt
misled him that he retained the ability to appeal after entering into the plea agreement.
For these reasons, Essel’s motion to vacate based on ineffective assistance of counsel
with respect to being informed that he had waived his right to appeal is denied.
B. Other Grounds for Relief

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Essel raises three other grounds for relief (i) an excessive sentence for a first-time
offender; (ii) an excessive restitution amount as agreed in his plea agreement; and (iii) the
imposition of “unrelated restitution.” Def.’s Mot. Essel did not raise these issues during
sentencing or on appeal; as part of his plea agreement, he waived the ability to do so. See Plea
Agr. 5, 7. As a result, he is generally barred from raising them on collateral review. See United
States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010). However, Essel’s claims may be able to
proceed under an equitable exception to this rule if he demonstrates “cause and prejudice, or
actual innocence.” See id. (citing Dretke v. Haley, 541 U.S. 386, 393 (2004)). “The existence of
cause for a procedural default must turn on something external to the defense, such as the
novelty of the claim or a denial of effective assistance of counsel.” United States v. Mikalajunas,
186 F.3d 490, 493 (4th Cir. 1999). Essel has offered no evidence that his claim is novel, and I
have denied his arguments that he had ineffective assistance of counsel. Therefore, Essel cannot
show cause. Further, Essel has not offered any arguments for his actual innocence. For these
reasons, I find that Essel procedurally defaulted with respect to these additional bases for relief,
and his motion to vacate with respect to these claims is denied.5
II.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Proceedings under 28 U.S.C. §§ 2254 and 2255
provides that the court must “issue or deny a certificate of appealability when it enters a final
order adverse to the petitioner.” Brown, 2013 WL 4562276, at *10. This certificate “is a
‘jurisdictional prerequisite’ to an appeal from the court’s order” that “may issue ‘only if the
applicant has made a substantial showing of the denial of a constitutional right.’” Id. (quoting 28
U.S.C. § 2253(c)(2) and citing United States v. Hadden, 475 F.3d 652, 659 (4th Cir. 2007)). A

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Because I find Essel procedurally defaulted with respect to these bases for relief, it is
unnecessary for me to consider the merits of these claims.
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prisoner makes this showing “[w]here the court denies a petitioner’s motion on its merits . . . by
demonstrating that reasonable jurists would find the court’s assessment of the constitutional
claims debatable or wrong.” Id. (citing Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Because Essel has not shown that a reasonable
judge “would find the court’s assessment of the constitutional claim[] debatable or wrong,” and
therefore has not made a substantial showing that his Constitutional rights were denied, this
Court will not issue a certificate of appealability. See id.; 28 U.S.C. § 2253(c)(2). Miller-El, 537
U.S. at 336–38; Slack, 529 U.S. at 484. However, this ruling does not preclude Essel from
seeking a certificate of appealability from the Fourth Circuit. See 4th Cir. Loc. R. 22(b)(1).
III.

CONCLUSION

For the reasons stated above, Essel’s motion to vacate, set aside or correct sentence is
DENIED.
ORDER
Accordingly, it is this 13th day of April, 2016, by the United States District Court for the
District of Maryland, hereby ORDERED that:
1. The Petition in Criminal Case No. PWG-13-259, ECF No. 81, IS DENIED;
2. Defendant’s motion to vacate, ECF No. 86, and motion for relief of restitution, ECF
No. 90, ARE DENIED;
3. The Clerk SHALL FILE a copy of this memorandum opinion and order in Criminal
Case No. PWG-13-259 and Civil Case No. PWG-15-1392;
4. The Clerk SHALL MAIL a copy of this memorandum opinion and order to
Defendant; and
5. The Clerk SHALL CLOSE Civil Case No. PWG-15-1392.

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/S/
Paul W. Grimm
United States District Judge
dpb

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