Ohlsen v. United States of America

Filing 90

OPINION, MEMORANDUM AND ORDER- IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. 1 ], and the supplement thereto, are DENIED. FURTHER ORDERED that this Court will not issue Certificates ofAppealability as Movant has not made a substantial showing of the denial of afederal constitutional right.A separate judgment is entered this same date. Signed by District Judge Henry E. Autrey on 01/22/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MILTON H. OHLSEN, III,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:10CV1906 HEA
4:10CV1907 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Movant’s Motions under 28 U.S.C. §
2255 by a Person in Federal Custody, [Doc. No. 1 in each case], to Vacate, Set
Aside or Correct Sentence. Pursuant to this Court’s Order, the government has
responded to the motions to vacate. The Court conducted two hearings on these
motions on November 27, 2012 and November 29,2012. Testimony from Jeffrey
Witt was heard on November 29, 2012. For the reasons set forth below, the
motions in both cases are denied.
Movant’s Claims
Movant makes the following claims in his Motion:
Ground One: Prosecutorial Misconduct.
Ground Two: Ineffective assistance of counsel.
Ground Three: Conviction Obtained by Plea that was Unlawfully Induced.

Facts and Background
Movant was indicted on fraud charges and a firearm charge, Cause Numbers
4:09CR114 ERW and 4:08CR710 HEA. For the purposes of guilty pleas, the two
indictments were consolidated. Movant plead guilty, pursuant to a written plea
agreement to Count I of both indictments on May 19, 2009.
A presentence investigation report was prepared, as ordered by the Court.
The Court, after a sentencing hearing, sentenced Movant to 30 months
incarceration on both counts to run concurrently. Movant did not appeal his
conviction, judgment or sentence.
Standards for Relief Under 28 U.S.C. 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a
sentence imposed against him on the ground that “the sentence was imposed in
violation of the Constitution or law of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255. Claims brought under § 2255 may also be limited by procedural
default. A Movant “cannot raise a nonconstitutional or nonjurisdictional issue in a
§ 2255 motion if the issue could have been raised on direct appeal but was not.”
Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v.
-2-

United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even
constitutional or jurisdictional claims not raised on direct appeal cannot be raised
collaterally in a § 2255 motion “unless a petitioner can demonstrate (1) cause for
the default and actual prejudice or (2) actual innocence.” United States v. Moss,
252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). Claims based on a federal statute or rule, rather than on a specific
constitutional guarantee, “can be raised on collateral review only if the alleged
error constituted a ‘fundamental defect which inherently results in a complete
miscarriage of justice.’” Reed v. Farley, 512 U.S. 339, 354 (1994)(quoting Hill v.
United States, 368 U.S. 424, 477 n. 10 (1962)).
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “unless the motion, files and records of the case conclusively show that the
prisoner is entitled to no relief.” Shaw v. United States, 24 F.3d 1040, 1043 (8th
Cir. 1994)(citing 28 U.S.C. § 2255). Thus, a “[movant] is entitled to an
evidentiary hearing ‘when the facts alleged, if true, would entitle [movant] to
relief.’” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996)(quoting Wade v.
Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim
“without an evidentiary hearing if the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon which it is based.” Shaw,
-3-

24 F.3d at 1043.
Discussion
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner’s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.
United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648,
658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail
on an ineffective assistance of counsel claim, a convicted defendant must first
show counsel’s performance “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
-4-

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Review of
counsel’s performance by the court is “highly deferential,” and the Court
presumes “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. The court does not “second-guess” trial strategy or
rely on the benefit of hindsight, id., and the attorney’s conduct must fall below an
objective standard of reasonableness to be found ineffective, United States v.
Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the
alleged deficient performance) would have been rejected, counsel's performance is
not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
“eliminate the distorting effects of hindsight” by examining counsel’s performance
from counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel’s error, and “that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. When determining if
prejudice exists, the court “must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir.
-5-

2006).
The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice
prong, however, is different in the context of guilty pleas. Instead of merely
showing that the result would be different, the defendant who has pled guilty must
establish 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); Matthews v. United States, 114 F.3d 114.
Prosecutorial Misconduct
Movant contends there were various actions of the prosecution which he
claims involved misconduct.
Movant alleges that the government provided false and misleading
testimony and/or omissions to the Grand Jury including statements regarding his
income being substantially less than $15,000 per month. Defendant plead guilty to
this count, and there were no objections to the amount, or any other facts at the
time of the plea.
Movant also argues the Government suppressed evidence in its possession
that contradicts the basis of the indictment and plea. Movant raised no such issue
at the time he entered into the guilty plea.
-6-

Movant boldly and outrageously claims that the Government used its power
to deprive him of his free will thereby obtaining the guilty plea. Contrary to
Movant’s claim, the record establishes that at the time of the guilty plea, the Court
questioned Movant as to the voluntary nature of the plea. Movant answered the
Court in the affirmative when questioned as to whether Movant was entering the
plea of his own free will, and that no one had forced him into so pleading. Movant
cannot overcome the clear testimony he gave the Court when asked at the time of
the plea.
Movant claims that the Government inferred he was a flight risk at his bond
hearing. Once again, the record belies Movant’s claim. Before the Honorable
Thomas C. Mummert, III, a witness testified that she was fearful for her well
being. Based upon this testimony, Judge Mummert ordered Movant detained.
Movant’s outlandish claims of Government inference that he stole an airplane
made him a flight risk do not require this Court to set aside, vacate or correct the
sentence imposed.
Likewise, Movant’s claim that the Government improperly influenced the
pretrial service officer is equally outlandish in light of the fact that Judge
Mummert conducted a full and thorough bond hearing.
Movant’s claim that the government hid evidence of income of $225,000 in
-7-

2007 fails. As the Government points out, this evidence was a separate,
independent fraud investigation that was part of the plea agreement wherein the
Government agreed to forego any prosecution on its claim that this “income” was
fraudulently obtained from investors and was not truly income. Movant cannot
claim Government misconduct on an issue upon which it agreed to forego
prosecution. Movant can claim no prejudice by these alleged actions of the
Government.
Movant’s claim that there were witnesses who may have been called by the
government if the case was tried who had substantial credibility issues. Initially,
the Court reiterates that Movant plead guilty to the two counts in the indictments.
At the plea hearing, the Court clearly advised Movant that he was giving up his
right to call witnesses in his own behalf and to require the Government to prove its
case beyond a reasonable doubt. Movant advised the Court that he understood and
that he agreed to forego the rigors of the trial proof by the Government.
Movant argues that Jeffrey Witt was representing him and cooperating with
the Government against Movant. As Judge Nanette A. Baker carefully and
articulately determined, there was no breach of any attorney client relationship
between Movant and Mr. Witt. Mr. Witt was not representing Movant on any of
the criminal charges against him.
-8-

Moreover, with regard to the firearm which gave rise to the firearm count in
the gun indictment, as the Government clearly outlines in its response, Movant’s
former employer turned the gun over to the St. Louis County Police Department,
which in turn notified the United States Attorney’s Office and the FBI. This lead
to the filing of the superseding indictment which added the gun count. Movant’s
attempt to give rise to a breach of the attorney client privilege by Mr. Witt will not
withstand the reality of the course of events leading to the gun count.
Ineffective Assistance of Counsel
Movant challenges the effectiveness of counsel. Movant claims that
counsel was ineffective in: failing to investigate the elements of the offence
including the Federal deposit Insurance Company’s status of the financial
institution; failing to investigate and advise of the elements regarding the Petite
policy; failing to seek experts; failing to investigate and present mitigating facts;
failing to investigate misconduct; failing to correctly advise pertaining to release;
failing to obtain evidence; failing to file motions; a failure pertaining to the
Presentence Investigation Report and plea.
Each of Movant’s claims regarding counsel’s performance prior to, during
and at sentencing are without merit. Movant advised the Court, in open court and
under oath, and without equivocation, that he was fully satisfied with the work his
-9-

lawyer had done for him. When asked if there was anything he wanted his lawyer
to do that he failed to do, Movant advised the Court in the negative. Likewise,
when asked if there was anything at all that Movant wanted from his lawyer,
Movant denied same. Movant’s claims now that counsel failed in so many
respects are a crystal clear attempt to avoid the sentence for crimes which Movant
voluntarily entered a guilty plea and received the benefit of the Government’s
foregoing prosecution on certain counts and other investigations.
Fourth Amendment
Movant attempts to challenge the search of his vehicle on march 28, 2008
and December 17, 2008. The Court agrees with the Government that these
searches apply to the guilty plea. Notwithstanding, Movant waived his
constitutional rights to the validity of these searches when he plead guilty.
Remaining claims
Movant makes a variety of other claims regarding the procedures in his
criminal cases. The record establishes that the Court thoroughly and completely
advised Movant of his rights and the effects of entering a plea of guilty. The Court
questioned Movant as to the voluntariness of the plea. Additionally, the Court
afforded Movant the opportunity to express any concerns he had at the plea
hearing and again at sentencing. Movant did not raise a single issue or concern at
- 10 -

either of these hearing. Movant’s newly found discrepancies with the proceedings
herein are totally and completely without merit.
As stated by the Government, if there are any items of non-contraband that
the Government possesses, Movant may seek to have it returned by notifying the
Government of the items to which he claims he is entitled to recover.
Movant’s claims of unlawful arrest and lack of jurisdiction are rendered
meaningless by an examination of the record in this case. The indictment in this
case was properly handed down, accepted and filed. Likewise, the indictment was
properly filed in the office of the Clerk of the Court for the Eastern District of
Missouri, as reflected in the Court’s records.
Conclusion
Based upon the foregoing analysis, Movant’s claims fail to afford him relief.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A substantial showing of the denial of a constitutional right requires
that “issues are debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133
- 11 -

F.3d 565, 569 (8th Cir. 1997). Based on the record, and the law as discussed
herein, the Court finds that Movant has not made a substantial showing of the
denial of a constitutional right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. 1], and the supplement thereto, are DENIED.
IT IS FURTHER ORDERED that this Court will not issue Certificates of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 22nd day of January, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

- 12 -