Hartstein v. United States of America

Filing 42

MEMORANDUM - For the reasons set out above, the court concludes that motion and the files and records of this case show that Hartstein is not entitled to relief under 28 U.S.C. § 2255 based on any of the claims she asserts in the motion to vac ate. Therefore, the motion will be denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the court finds that Hartstein has not made a substantial showing of the denial of a constitutional right. Therefore, the court will not issue a certificate of appealability. See 28 U.S.C. § 2253. An order denying the motion will be separately filed. Signed by District Judge Carol E. Jackson on 3/28/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KAREN HARTSTEIN,

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) No. 4:10-CV-2301 (CEJ)
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Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM
This matter is before the court on the motion of Karen Hartstein to vacate, set
aside, or correct sentence, pursuant to 28 U.S.C. § 2255. Also before the court is
Hartstein’s motion for leave to file an addendum to her motion to vacate. The United
States has filed responses in opposition.
I. Background
Hartstein was charged in a 53-count indictment alleging mail fraud, wire fraud,
and credit card fraud offenses. On February 17, 2006, Hartstein pled guilty to mail
fraud, in violation of 18 U.S.C. § 1341 (Count 18), and credit card fraud, in violation
of 18 U.S.C. § 1029(a)(2) (Count 49).

At the time of the plea, Hartstein was

represented by attorney Stephen Welby; a second attorney, Adam Fein, joined Mr.
Welby at the sentencing hearing. After a day-long sentencing hearing, Hartstein was
sentenced to an aggregate term of 135 months’ imprisonment.

Hartstein appealed,

and the case was remanded for re-sentencing based on the finding that the court erred
in allocating the burden of proof in the loss determination. United States v. Hartstein,
500 F.3d 790, 797 (8th Cir. 2007), cert. denied, 552 U.S. 1102 (2008) (“Hartstein I”).

On remand, the court conducted a second sentencing hearing and determined that the
loss amount was the same as it had previously found. The court again imposed a 135month sentence. The judgment was affirmed on appeal. United States v. Hartstein,
557 F.3d 589 (8th Cir.), cert. denied, 558 U.S. 1083 (2009) (“Hartstein II”). Hartstein
was represented by attorney Lawrence Fleming at the second sentencing hearing and
on both appeals.
II. Motion to Vacate
Hartstein asserts six grounds for relief in her § 2255 motion, each based on a
claim of ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, a movant must show
that her attorney’s performance fell below an objective standard of reasonableness and
that she was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687 (1984).
With respect to the first Strickland prong, there exists a strong presumption that
counsel’s conduct falls within the wide range of professionally reasonable assistance.
Id. at 689.

In Strickland, the Court described the standard for determining an

ineffective assistance claim:
[A] court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of
counsel’s conduct. A convicted defendant making a claim of
ineffective assistance must identify the acts or omissions of
counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then
determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.
in making that
determination, the court should keep in mind that counsel’s
function, as elaborated in prevailing professional norms, is
to make the adversarial testing process work in the
particular case. At the same time, the court should
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recognize that counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.
Strickland, 466 U.S. at 690. To establish the “prejudice” prong, the movant must show
“that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. The failure
to show prejudice is dispositive, and a court need not address the reasonableness of
counsel’s performance in the absence of prejudice. United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996).
A. Ground One: Failure to Convey Plea Offer
Hartstein alleges that the government offered a plea agreement that included
a specific sentence of 51-63 months’ imprisonment, but Mr. Welby did not inform her
of the offer. In support, Hartstein submits an email from the government’s attorney
to Mr. Welby, dated February 7, 2006, which refers to an “attach[ed] revised plea
agreement.” At the bottom of the message are some handwritten numbers, including
the notations “51-63" and “57-71.”
In an affidavit, Mr. Welby states that he relayed the plea offer contained in the
February 7 email to Hartstein, and that the handwriting on the message is his.

He

also states that “[t]here was never an offer made for a fixed term of imprisonment.”
[Doc. # 24-1, p. 2]. Likewise, David Rosen, the government’s attorney, states in his
affidavit that there was never an offer for a specific sentence. [Doc. # 24-2, p.1].
Scribbled numbers on a piece of paper do not prove the existence of a plea offer for

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a specific term of imprisonment. Hartstein has not provided sufficient factual support
for her claim in Ground One.
B. Ground Two: Coerced Guilty Plea
Hartstein alleges that her attorney allowed the government to coerce her into
pleading guilty and instructed her to deny the coercion when questioned during the
change of plea hearing. In support of her claim, Hartstein submits an email from Mr.
Rosen to Mr. Welby, stating “You may tell Ms. Hartstein that if we have a singed [sic]
plea agreement by 9:30 am tomorrow, we will not request that she be taken off bond
at the time of her plea.” [Doc. # 1-2, p. 58].
Nothing in the email can reasonably be interpreted as threatening or coercive.
Further, it would be unreasonable to draw the inference that Hartstein’s refusal to
plead guilty would lead to a request to revoke her release. During the change of plea
hearing, Hartstein stated under oath that she was pleading guilty voluntarily and not
as a result of any coercion.

United States v. Karen Hartstein, No. 4:05-CR-186

(E.D.Mo.) [Doc. # 110, p. 11]. Hartstein’s present claim that she was forced into
pleading guilty and that her attorney told her to lie to the court is squarely contradicted
by the record and is wholly unpersuasive. See Blackledge v. Allison, 431 U.S. 63, 74
(1977) (“Solemn declarations in open court carry a strong presumption of verity.”);
United States v. Harvey, 147 Fed. Appx. 627 (8th Cir. 2005) (defendant’s claim of
coerced guilty plea was contradicted by the record). Finally, Hartstein’s conduct at the
resentencing hearing undermines her claim of coercion. Although the allegation of
duress was raised at the resentencing hearing, Hartstein specifically declined the
opportunity to request to withdraw her guilty plea. United States v. Karen Hartstein,
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No. 4:05-CR-186 (E.D.Mo.) [Doc. # 201, pp. 110-112, 141]. Thus, the record shows
that Hartstein suffered no prejudice.
She is not entitled to relief on Ground Two.
C. Ground Three: Failure to Object to Restitution
Hartstein claims that her attorney was ineffective in allowing the court to order
restitution “beyond the notice given [to her] during the Rule 11 hearing.”
In the plea agreement, Hartstein agreed to pay restitution “to all victims of all
charges in the indictment, without regard to the count or counts to which the
defendant has agreed to plead guilty.” United States v. Karen Hartstein, No. 4:05-CR186 (E.D.Mo.) [Doc. # 94, p. 11].

During the change of plea hearing, the court

advised Hartstein that “[w]ith respect to each of the two counts, you may be required
to pay restitution to any victim of these offenses.” Id. [Doc. # 110, p. 14]. However,
any misstatement by the court with respect to restitution did not alter the parties’
agreement. What is more important is that Mr. Welby could not seek to limit the scope
of the restitution to the two counts of conviction without breaching the plea agreement.
Certainly, he cannot be faulted for adhering to the terms of the parties’ agreement.
Even if it could be said that Mr. Welby should have objected, Hartstein has not
shown a reasonable probability that a lesser amount of restitution would have been
ordered. Thus, she has not demonstrated prejudice and is not entitled to relief on
Ground Three.
D. Ground Four: Failure to Request a Continuance
Hartstein claims that Mr. Welby was ineffective by failing to request a
continuance of the first sentencing hearing to allow for the attendance of a witness---5-

William Runge---who could point out the errors in the government’s loss calculation.
According to affidavits submitted with Hartstein’s traverse, Mr. Runge was recovering
from surgery at the time of the hearing and requests were made to Mr. Welby to seek
a continuance until Mr. Runge was able to attend.
Even if it could be said that Mr. Welby’s conduct under these circumstances fell
below an objective standard of reasonableness, Hartstein cannot demonstrate
prejudice. She presents no evidence that Mr. Runge was unavailable at the second
sentencing hearing, nor does she criticize Mr. Fleming, the attorney who represented
her at that hearing, for failing to call Mr. Runge as a witness.1 Although the Eighth
Circuit ruled that Hartstein would be bound at second hearing by concessions she made
at the first hearing, neither the appellate nor the district court placed any limitation on
her presentation of evidence to contradict the government’s loss calculation. See
Hartstein I, 500 F.3d at 800.
Hartstein is not entitled to relief on Ground Four.
E. Ground Five: Concession of Loss
Hartstein alleges that Mr. Welby conceded a loss amount of $970,000 without
her authorization. In his affidavit, Mr. Welby states that he reviewed the victims and
loss amounts with Hartstein “on multiple occasions,” and she had no objection to them.

1

Hartstein does criticize Mr. Fleming’s failure to raise continuance issue on appeal. Even
if he had, claims of ineffective assistance of counsel are not reviewed on direct appeal,
“[e]xcept where a miscarriage of justice would obviously result or the outcome would be
inconsistent with substantial justice. . .”on direct appeal. United States v. Woods, 270 F.3d
728, 730 (8th Cir. 2001), cert. denied, 535 U.S. 948 (2002). So, it is unlikely that the Eighth
Circuit would have entertained the issue had it been raised. In any event, as discussed above,
Hartstein was given a second chance to present Mr. Runge’s testimony.
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[Doc. # 24-1, p. 4]. Even if Hartstein’s allegation were true, she cannot demonstrate
prejudice.
As noted above, the court conducted two sentencing hearings that focused on
the amount of loss. At the first hearing, Mr. Welby argued that the loss amount was
between $400,000 and $1 million, and that the appropriate guideline range was 37-46
months. At the conclusion of both hearings, the court determined the applicable
sentencing guideline range, based in part on its determination of the loss amount.
Both times, the court concluded that the loss exceeded $2.5 million and that the
guideline range was 108-135 months.

Even with the allegedly unauthorized

concession, Mr. Welby’s sentencing guideline calculation was far below that of the
court’s.
It must be noted that Hartstein does not assert that the $970,000 amount was
incorrect (although she speculates that there may have been some errors in arriving
at the amount), just that its concession was unauthorized. Indeed, Hartstein states
that she “always thought that amount $970,000.00 that Counsel Welby had come up
with after putting together accounting summaries of who she paid back, or partially
paid back, or had not paid back at all was for restitution purposes, not loss
purposes.” [Doc. # 14, p. 52 (emphasis added)]. Hartstein cannot demonstrate a
reasonable probability that the court would not have considered $970,000 as part of
the loss calculation, regardless of any concession made by counsel.
Hartstein is not entitled to relief on Ground Five.

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Ground Six: Errors at Resentencing Hearing
Hartstein claims that Mr. Fleming was ineffective at the resentencing hearing
because he did not comply with her instructions to “show the Court that the loss was
under 2.5 million.” [Doc. # 14, p. 59].

She also appears to fault Mr. Fleming for not

pointing out Mr. Welby’s errors to the court. It is clear from the transcript of the
resentencing hearing that the court would not allow the defense to backtrack from
concessions made at the first hearing and did not find Hartstein’s allegations of duress
credible. United States v. Karen Hartstein, No. 4:05-CR-186 (E.D.Mo.) [Doc. # 201,
pp. 110-112, 141]. It is also clear that the court was unwilling to entertain any claims
of ineffective assistance of counsel. United States v. Karen Hartstein, No. 4:05-CR-186
(E.D.Mo.) [Doc. # 201, pp. 110-112, 141].

Mr. Fleming’s compliance with the

restrictions imposed by the court cannot be considered conduct falling below an
objective standard of reasonableness.
Hartstein also asserts that Mr. Fleming should have requested that she be
allowed to withdraw her guilty plea. At resentencing, the court asked Mr. Fleming
whether Hartstein wanted to withdraw her guilty plea and he responded that she did
not. Id. [Doc. # 201, pp. 110-112, 141]. During allocution, Hartstein made no request
to withdraw her guilty plea. Id. [Doc. # 201, pp. 135-149]. Instead, she repeatedly
stated that she accepted responsibility and wanted to repay the victims.
After a guilty plea is accepted by the court but before sentencing, a defendant
may withdraw a guilty plea only if she “can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Thus, withdrawal of a guilty plea is not
a matter of right. United States v. Prior, 107 F.3d 654, 657 (8th Cir. 1997). Given the
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court’s determination that Hartstein’s allegations of duress are not credible, it is
unlikely that Hartstein could have shown a “fair and just reason” supporting withdrawal
of her guilty plea. Thus, she cannot show a reasonable probability that a withdrawal
request would have been granted.
Hartstein is not entitled to relief on Ground Six.
II.

Motion for Leave to File Addendum

Hartstein seeks permission to supplement her ineffective assistance of counsel
claim in Ground One by citing to Lafler v. Cooper, __ U.S. ___, 132 S Ct. 1376, 182
L.Ed.2d 398 (2012) and Missouri v. Frye, __ U.S. __, 132 S. Ct. 1399, 182 L.Ed.2d 379
(2012). As discussed above, the court has concluded that the government did not
make a plea offer to Hartstein that was not communicated to her by her attorney.
Further, Hartstein has not claimed that her attorney encouraged her to reject a plea
offer and proceed to trial. The rulings in Laffler and Frye have no application in this
case.
Hartstein also seeks leave to file two exhibits. Exhibit 1 is already part of the
record in the case and Exhibit 2 is a restatement of arguments Hartstein has advanced
in earlier filings.
The motion for leave to file the supplement will be denied.
III. Conclusion
For the reasons set out above, the court concludes that motion and the files and
records of this case show that Hartstein is not entitled to relief under 28 U.S.C. § 2255
based on any of the claims she asserts in the motion to vacate. Therefore, the motion
will be denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th
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Cir. 1995). Additionally, the court finds that Hartstein has not made a substantial

showing of the denial of a constitutional right. Therefore, the court will not issue a
certificate of appealability. See 28 U.S.C. § 2253.
An order denying the motion will be separately filed.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 28th day of March, 2014.

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