McGuire v. Strada
Filing
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OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY PAUL McGUIRE,
Movant,
File No. 1:12-CV-878
v.
HON. ROBERT HOLMES BELL
UNITED STATES OF AMERICA,
Respondent.
/
OPINION
This matter comes before the Court on Movant Jeffrey Paul McGuire’s motion under
28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him by this
Court.
I.
Movant was charged in a three-count indictment with mail fraud, aggravated identify
theft, and wire fraud. (United States v. McGuire, File No. 1:11-CR-102 (W.D. Mich. Feb. 6,
2012), ECF No. 1.)
Movant pled guilty to a two-count superseding felony information
charging him with wire fraud and failure to appear. (Id., ECF No. 25.) Movant was
sentenced to eighteen months in prison as to each of Counts 1 and 2, to be served
concurrently, and three years supervised release. (Id., ECF No. 34.). Movant did not appeal
his conviction or sentence.
II.
A prisoner who moves to vacate his sentence under § 2255 must show that the
sentence was imposed in violation of the Constitution or laws of the United States, that the
court was without jurisdiction to impose such a sentence, that the sentence was in excess of
the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion “a petitioner must demonstrate the existence of an
error of constitutional magnitude which had a substantial and injurious effect or influence
on the guilty plea or the jury’s verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th
Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Nonconstitutional errors are generally outside the scope of § 2255 relief. United States v.
Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion
alleging non-constitutional error only by establishing a “fundamental defect which inherently
results in a complete miscarriage of justice, or, an error so egregious that it amounts to a
violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999)
(quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)) (internal quotations
omitted).
As a general rule, claims not raised on direct appeal are procedurally defaulted and
may not be raised on collateral review unless the petitioner shows either (1) “cause” and
“actual prejudice” or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 504
(2003); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456
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U.S. 152, 167-68 (1982). To satisfy the “cause” test, a petitioner must show that “some
objective factor external to the defense” kept him from raising the issue earlier. Coleman v.
Thompson, 501 U.S. 722, 753 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
An ineffective assistance of counsel claim, however, is not subject to the procedural
default rule. Massaro, 538 U.S. at 504. An ineffective assistance of counsel claim may be
raised in a collateral proceeding under § 2255, whether or not the petitioner could have raised
the claim on direct appeal. Id.
A court is generally required to grant a hearing to determine the issues and make
findings of fact and conclusions of law on a § 2255 motion “[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief. . . .” 28
U.S.C. § 2255. No evidentiary hearing is required if the petitioner’s allegations “cannot be
accepted as true because they are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.” Valentine v. United States, 488 F.3d 325, 333
(6th Cir. 2007) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).
III.
Movant has raised six claims of ineffective assistance of counsel. He contends that
Jeffery Crampton, his trial counsel, provided ineffective assistance of counsel because he:
(1) failed to provide adequate representation at sentencing; (2) failed to conduct an adequate
investigation and neglected to submit documentary evidence; (3) failed to communicate with
Movant at pivotal times during the prosecution; (4) failed to provide Movant with his case
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file; (5) failed to provide Movant with detailed billing statements; and (6) violated the
attorney-client confidences by disclosing Movant’s medical records.
Movant entered into a plea agreement in which he waived the right to appeal his
conviction and sentence, and “also knowingly and voluntarily waive[d] the right to challenge
the sentence imposed, the manner in which it was determined, and any other aspect of the
disposition of the charges against him, in any collateral attack, including but not limited to
a motion brought under Title 28, United States Code, Section 2255.” (File No. 1:11-CR-102,
ECF No. 24.)
“When a defendant knowingly, intelligently, and voluntarily waives the right to
collaterally attack his or her sentence, he or she is precluded from bring a claim of ineffective
assistance of counsel based on 28 U.S.C. § 2255.” Davila v. United States, 258 F.3d 448,
451 (6th Cir. 2001). However, if a criminal defendant’s claim of ineffective assistance of
counsel brought by way of a § 2255 motion to vacate runs directly to the validity of the guilty
plea itself, rather than other issues outside the plea that the defendant has agreed not to
appeal or collaterally attack, then the defendant may not be precluded from directly
challenging the plea agreement itself, including its waiver provision, through a claim of
ineffective assistance of counsel. In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007).
With the possible exception of his second argument, all of Movant’s arguments are
barred by the waiver because they do not purport to challenge the validity of the guilty plea
itself. Movant has not argued, nor is it logical to presume, that but for counsel’s failure to
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provide adequate representation at sentencing, counsel’s failure to communicate effectively,
counsel’s refusal to provide the case file after sentencing, counsel’s failure to provide
detailed billing statements, and counsel’s disclosure of medical information that was used
against Movant at sentencing, Movant would not have pleaded guilty. These arguments
(Arguments 1, 3-6) are accordingly barred by Movant’s waiver.
Movant’s second argument is that counsel failed to conduct an adequate investigation.
Although Movant has not argued that he would have insisted on going to trial had counsel
investigated his case more thoroughly, such an argument can be implied under a liberal
construction of Movant’s petition.1 Accordingly, the Court finds that Movant’s second
argument is not barred by his waiver of the right to collaterally attack his sentence. Movant’s
second argument is nevertheless insufficient to support Movant’s request for habeas relief.
To make out a claim of ineffective assistance of counsel, Movant must show that
counsel’s representation fell below an objective standard of reasonableness, and that
counsel’s deficient performance prejudiced the Defendant. Strickland v. Washington, 466
U.S. 668, 687-88 (1984). “The benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Id. at 686. “Judicial
scrutiny of counsel’s performance must be highly deferential.” Id. at 689. “[A] court must
1
Pro se pleadings are liberally construed and are held to less stringent standards than
those prepared by attorneys. See Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 358 (6th
Cir. 2012) (citing Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)).
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indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.”
Id.
(quotation marks omitted). In order to satisfy the “prejudice” requirement in the guilty plea
context, “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 v. Lockhart, 474 U.S. 52, 59 (1985). “Moreover, he must show that there would have
been a reasonable chance he would have been acquitted had he gone to trial.” Spikes v.
Mackie, 541 F. App’x 637, 649 (6th Cir. 2013) (citing Hill, 474 U.S. at 59); Railey v. Webb,
540 F.3d 393, 415-16 (6th Cir. 2008) (same).
Movant contends that counsel failed to conduct an investigation of Movant’s financial
documents and mobile text messages that would have called into question the credibility of
John Evans, the prosecution’s chief witness and Movant’s former domestic partner, and
would have suggested that Movant had permission from Evans to open the accounts.
Assuming this assertion is true,2 it is nevertheless insufficient to suggest that counsel was
2
The Court makes this assumption for purposes of this habeas petition, even though
it is belied by Evans’ denial that he gave Movant permission, by evidence that Movant
moved out of his shared residence with Evans four years before he began opening accounts
in Evans’ name, by evidence that Movant lied to agents when he stated that the victim had
given him permission to use his identifying information to apply for lines of credit (PSR
¶ 23), and by Movant’s admissions to the Court and the presentence investigator that he used
Evans’ identity without permission (PSR ¶ 25).
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ineffective.
Before he was represented by trial counsel, Movant admitted all of the allegations of
fraudulently opening credit card accounts to investigators, except that he told the
investigators he had the victim’s permission to do so. (Crampton Aff. ¶ 7, ECF No. 15.)
Movant’s trial counsel advised Movant at their first meeting that having permission from the
victim to open the fraudulent accounts was not a defense to the charges because the accounts
were still opened fraudulently and the victims were the individual banks who were
defrauded. (Id. at ¶ 12.) Movant’s trial counsel further advised that he did not think he could
subpoena the four-year old SMS text messages based on his experience that carriers do not
store such messages longer than six months. (Id. at ¶ 13.) Despite repeated requests, Movant
failed to provide trial counsel with copies of the SMS text messages or an accounting of his
asserted joint use of the funds. (Id. at ¶ 23.) Based on this uncontested evidence from trial
counsel, Movant cannot meet his burden of showing that counsel’s investigation fell below
an objective standard of reasonableness.
Neither can Movant sustain his burden of showing a reasonable probability that, but
for counsel’s investigatory failures, Movant would not have pleaded guilty and would have
insisted on going to trial. As trial counsel noted in his affidavit, the plea enabled Movant to
avoid a mandatory consecutive two year prison term for the wire fraud or mail fraud counts.
(Id. at ¶ 13.)
Finally, Movant cannot meet his burden of showing that there would have been a
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reasonable chance he would have been acquitted had he gone to trial with evidence of Evans’
consent. As trial counsel properly advised Movant, Evans’ consent was not a proper defense
to the charges against Movant. See, e.g., United States v. Lumbard, 706 F.3d 716, 723 (6th
Cir. 2013) (rejecting argument that consent renders use of identifying information lawful, and
explaining that “one could have permission to use an individual’s identifying information,
but that permission itself does not confer lawful authority to misuse the information”).
IV.
The files and records in this case conclusively show that Movant is entitled to no relief
under § 2255. Accordingly, for the reasons stated herein, Movant’s motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 must be denied.
An application for a certificate of appealability will also be denied because Movant
cannot make a substantial showing of the denial of a federal constitutional right with respect
to any of his claims. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84
(2000).
An order and judgment consistent with this opinion will be entered.
Dated: September 24, 2015
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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