Spiridon v. USA

Filing 60

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the evidentiary hearings on October 12, 2017, and October 20, 2017, will address what the Court believes to be material issues of fact that cannot be resolved or refuted by the record with respect to Petitioner's claims that defense counsel rendered ineffective assistance of counsel by (1) failing to review and advise Petitioner regarding the deed agreement that she submitted to the Probation Office, (2) failing to investigate the Gover nment's allegation that Petitioner forged the deed agreement, which violated her plea agreement, and (3) advising Petitioner to concede the alleged forgery in exchange for the Government's agreement that the total loss was less than $2.5 million.. Signed by District Judge John A. Ross on 10/10/2017. (CLO)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DANIELA SPIRIDON,
Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:15-cv-01380-JAR

MEMORANDUM AND ORDER
This matter is before the Court on the motion of Petitioner Daniela Spiridon, filed under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Doc.I). On August 10, 2017, the
Court set the matter for an evidentiary hearing on September 22, 2017 (Doc. 55), which was
subsequently continued to October 12, 2017, and October 20, 2017 (Doc. 58).
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In her amended motion (Doc. 39), Petitioner challenges the effectiveness of counsel

John Rogers (plea counsel) and Branden Bell (sentencing counsel). Specifically, Petitioner
contends that she entered into a plea agreement with the government which, among other things,
recommended a total offense level of 20 or 22. (Id at 4). After her guilty plea, Petitioner claims
that she provided the United States Probation Office with information regarding her bank
accounts and monthly expenses and participated in a financial interview. (Id). In response to
the probation officer's requests for additional financial documentation, Petitioner contends that
she forwarded a document titled "deed agreement" to the probation officer. (Id). Believing that

The Government in its response argues that Petitioner's amended motion is time-barred
and the claims contained therein do not relate back to the original motion. (Doc. 43). In light of
the general nature of the claims contained in Petitioner's original motion, the Court believes an
evidentiary hearing is necessary and can proceed without a ruling on that issue before the
hearing.

the deed agreement was a forgery, the Probation Office revised Petitioner's Presentence
Investigation Report ("PSR") to include allegations of forgery and obstruction of justice as it
related to its suspicions about the deed agreement.
On February 18, 2014, plea counsel filed a motion for leave to withdraw. (United States
v. Daniela Spiridon, 4:13-cr-00101-JAR-1, (E.D.Mo. August 20, 2014) (hereinafter referred to as

"Crim. File"), at Doc. 67).

Plea counsel indicated that he was having a difficult time

communicating effectively with Petitioner and was under the impression that Petitioner was
suffering from psychological difficulties due to emotional distress. (Id.). After Petitioner sent
the deed agreement to the probation office, plea counsel contended that he recommended that
Petitioner undergo a psychological examination to determine whether she was mentally
competent to understand the proceedings against her, which Petitioner refused.

(Id.).

Plea

counsel asserted that because Petitioner's explicit orders not to seek a psychological evaluation
were at odds with plea counsel's understanding and judgment, he was unable to effectively and
competently continue to represent her. (Id.). The motion to withdraw was granted on February
27, 2014. (Crim. File at Doc. 77).
The Probation Office amended Petitioner's PSR to eliminate the downward adjustment
for acceptance of responsibility and added a two-level enhancement for obstruction of justice.
Crim. File at Doc. 80). Sentencing counsel entered his appearance on behalf of Petitioner and
filed objections to the PSR, arguing that the allegedly misleading deed agreement was immaterial
and should not result in the elimination of the downward adjustment. (Crim. File at Doc. 104).
The final PSR reduced the specific offense characteristics to sixteen levels, rather than eighteen,
but the adjustment for obstruction of justice remained. (Crim. File at Doc. 110).

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On August 19, 2014, the sentencing hearing was held.

Petitioner contends that the

Government stated on the record that in exchange for Petitioner withdrawing her objections to
the PSR, it agreed that the amount of loss was less than $2.5 million.

(Doc. 39 at 11 ).

Sentencing counsel acknowledged that this was the agreement, and the Court sentenced
Petitioner to 78 months imprisonment.
Accordingly,
IT IS HEREBY ORDERED that the evidentiary hearings on October 12, 2017, and
October 20, 2017, will address what the Court believes to be material issues of fact that cannot
be resolved or refuted by the record with respect to Petitioner's claims that defense counsel
rendered ineffective assistance of counsel by (1) failing to review and advise Petitioner regarding
the deed agreement that she submitted to the Probation Office, (2) failing to investigate the
Government's allegation that Petitioner forged the deed agreement, which violated her plea
agreement, and (3) advising Petitioner to concede the alleged forgery in exchange for the
Government's agreement that the total loss was less than $2.5 million.

A.ROSS
TED STATES DISTRICT JUDGE
Dated this 10th day of October. 2017.

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