Minor v. United States of America
MEMORANDUM OPINION AND ORDER re 23 MOTION for Reconsideration re 22 Judgment filed by Corey Minor. ORDERED that Movant's motion for reconsideration (dkt #23) is DENIED. It is also ORDERED that all motions filed by any party not previously ruled upon are DENIED. Signed by Judge Richard A. Schell on 3/2/2017. (daj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
COREY MINOR, #14282-078
UNITED STATES OF AMERICA
CIVIL ACTION NO. 4:09cv317
CRIMINAL ACTION NO. 4:07cr48(1)
MEMORANDUM OPINION AND ORDER
Movant Corey Minor filed the above-styled and numbered motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255.
This court denied his § 2255 motion and
dismissed his case. Following Final Judgment and the Fifth Circuit’s decision affirming, Movant
filed a motion for reconsideration, which this court also denied. On appeal, the Fifth Circuit vacated
the order denying Movant’s motion for reconsideration. Concluding that Movant’s claims were not
barred by the appeal waiver, it remanded the case for further proceedings.
MOTION FOR RECONSIDERATION
The Fifth Circuit has observed that “[a]ny motion that draws into question the correctness
of a judgment is functionally a motion under Civil Rule 59(e), whatever its label.” Harcon Barge
Co. v. D&G Boat Rentals, Inc., 784 F.2d 665, 669-70 (5th Cir. 1986) (en banc) (citing 9 Moore’s
Federal Practice ¶ 204.12 at 4-67 (1985)). “Rule 59(e) serves the narrow purpose of allowing a
party to correct manifest errors of law or fact or to present newly discovered evidence. . . .
Reconsideration of a judgment after its entry is an extraordinary remedy that should be used
sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (internal citations and
quotations omitted). The Fifth Circuit recognizes that Rule 59(e) “favor[s] the denial of motions to
alter or amend a judgment.” Southern Constructors Group, Inc. v. Dynalectric Co., 2 F.3d 606, 611
(5th Cir. 1993). The rule does not exist to be a vehicle for re-litigating old issues, presenting the case
under new theories, obtaining a rehearing on the merits, or taking a “second bite at the apple.” Sequa
Corp v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). However, it allows a party to “question the
correctness of a judgment.” Templet, 367 F.3d at 478.
The rule for reconsideration of a final judgment allows a court to alter or amend a judgment
because of (1) an intervening change in controlling law, (2) the availability of new evidence not
available previously, (3) the need to correct a clear error of law or fact, or (4) to prevent a manifest
injustice. Schiller v. Physicians Resource Group, Inc., 342 F.3d 563, 567 (5th Cir. 2003). Because
Movant filed his motion for reconsideration thirty-seven (37) days after Final Judgment, his motion
is construed as a Rule 60(b) motion.
FACTS OF THE CASE
Movant owned and operated a securities brokerage firm named “Christ Minor Investments,”
through which Movant sold securities to the public. From 2003 through November 2006, Movant
devised and implemented a scheme to defraud his customers. He obtained money from customers
by falsely representing that their money would be used to buy securities. Instead, Movant used the
money for his personal benefit and would send false account statements to customers. Movant had
at least sixty-four (64) victims. Movant’s fraudulent scheme caused an actual loss of $3,421,958.21
to his victims.
After being named in a one-count information, Movant pleaded guilty pursuant to a written
plea agreement for mail fraud, in violation of 18 U.S.C. §1341. Movant signed a plea agreement
stating, “This plea of guilty is freely and voluntarily made and is not the result of force, threats, or
promises other than those set forth in this plea agreement.” Immediately above his signature on the
agreement, he stated, “I have read (or had read to me) this Plea Agreement and have carefully
reviewed every part of it with my attorneys. I fully understand it and voluntarily agree to it.” Movant
also stated that (1) he understood the nature and elements of the crimes to which guilt is admitted
and that the Factual Statement signed is true, (2) he had “thoroughly reviewed all legal and factual
aspects of this case with his/her lawyers and is fully satisfied with that lawyers’ legal representation”,
(3) he received satisfactory explanations from his lawyer concerning each paragraph of the plea
agreement, each of his rights affected thereby, and the alternatives to entering a guilty plea, and (4)
after discussing it with his counsel, he “concedes guilt and has concluded that it is in [his] best
interest to enter this agreement rather than proceeding to trial.”
In Movant’s Factual Statement, he admitted that he devised a scheme to defraud customers
of investments and to obtain their money by false and fraudulent pretenses and representations.
Movant then outlined the specific manner in which he schemed and defrauded at least 64 customers.
Furthermore, a “Findings of Fact and Recommendation on Guilty Plea before the United
States Magistrate Judge” was filed in this case. In it, the court found that Movant “is fully competent
and capable of entering an informed plea, that [Movant] is aware of the nature of the charges and the
consequences of the plea, and that the plea of guilty is a knowing and voluntary plea supported by
an independent basis in fact containing each of the essential elements of the offense.”
Movant appeared before the United States Magistrate Judge on March 22, 2007, where the
court advised Movant of his rights to remain silent, to have legal counsel appointed, and to plead
not guilty and have a trial by jury. Movant had retained legal counsel and indicated that he was
satisfied with his legal representation. Movant stated that he understood the elements of the
offense of mail
fraud outlined by the court, the minimum and maximum penalties, and the items he was forfeiting.
The sentencing guidelines were explained to Movant. Movant stated that he understood (1)
the guidelines are merely discretionary and are not binding on the court, and (2) he was giving up
his right of appeal and right to file any post-conviction proceedings, except for those issues listed
as reservations in his plea agreement waiver. Movant confirmed that it was his signature on the plea
agreement and that he had read over it and fully understood it before signing it. Movant then stated
that no promises, forces, or threats had been made to force him to plead guilty, that he had
considered the consequences of his guilty plea, and that he entered into the plea freely and
Formal declarations in open court carry with them a strong presumption of truth.
Blackledge v. Allison, 431 U.S. 63, 74 (1977). Although a defendant’s attestation of voluntariness
at the time of the plea is not an absolute bar to later contrary contentions, it places a heavy burden
upon him. United States v. Diaz, 733 F.2d 371, 373-74 (5th Cir. 1979). After stating that he was
not taking any medication or under the care of a doctor at the time, Movant stated that he
understood he was pleading guilty to a felony, which means he is giving up his right to vote, right
to possess a firearm, right to hold public office, and the right to serve on a jury. Movant
confirmed that it was his signature that appeared on the Factual Statement. He also confirmed
that everything stated in the Factual Statement was true.
The court concluded that Movant was competent to plea, had able assistance of counsel,
understood his trial rights and the nature of the charges against him, understood the maximum
penalties that could be given, and that the sentencing guidelines were discretionary. The court found
that Movant’s plea was voluntary, there was a factual basis for the plea, and the ends of justice will
be served by the acceptance of his plea. Movant stated that he did not have any hesitation or
reservation about his plea of guilty.
Movant’s sentencing hearing was conducted on October 4, 2007. Evidence was presented
concerning the amount of restitution owed and Movant’s obstruction of justice through the mailing
of letters to victims following his guilty plea. Additionally, several victims testified. At the
conclusion of the hearing, this court sentenced Movant to 240 months of imprisonment and ordered
him to pay $2,874,469.63 in restitution.
In Movant’s two-page motion for reconsideration, his sole complaint is that “[c]ounsel was
ineffective for guiding Minor to plead guilty to a charge that he is legally innocent of and whose
actions are not cognizable under any Federal statute.” Any challenge to a conviction that was
obtained by a guilty plea is limited to issues of voluntariness, the defendant’s understanding of the
charges against him, and his understanding of the consequences of the plea. Hill v. Lockhart, 474
U.S. 52, 58-59 (1985); Diaz v. Martin, 718 F.2d 1372, 1376-77 (5th Cir. 1983) (“a guilty plea
is more than a confession of having acted culpably, it is itself a conviction; nothing remains but
to give judgment and determine punishment.”) (citing Boykin v. Alabama, 395 U.S. 238, 242
(1969)). If a movant challenges his guilty plea, there must be independent indicia of the likely merit
of his contentions, and mere contradictions of his statements at the guilty plea will not carry his
burden. Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987). The validity of a guilty plea is a
question of law and will be upheld on habeas review if entered into knowingly, voluntarily, and
intelligently. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).
While Movant’s motion for reconsideration is vague and conclusory, a look at his § 2255
motion sheds some light on his assertion. In his § 2255 motion, Movant claims counsel was
ineffective because she (1) failed to independently review discovery before advising Movant to plead
guilty, (2) failed to independently review the evidence, (3) failed to request exculpatory evidence
prior to advising Movant to plead guilty, and (4) was unfamiliar with the Sentencing Guidelines and
the mail fraud statute. Movant also asserts that his guilty plea was not knowing and voluntary
because the Government did not give him access to the evidence confiscated from him, in violation
of Brady v. Maryland, 373 U.S. 37 (1963).
In addition to the actual written plea agreement, the court examined Movant’s Factual
Statement, Findings of Fact and Recommendation on Guilty Plea before the United States Magistrate
Judge, and the transcript from the plea hearing. The court concluded that Movant knowingly and
voluntarily pleaded guilty pursuant to a written plea agreement. A knowing and voluntary guilty
plea waives all nonjurisdictional deprivations that occurred prior to the plea. Tollett v Henderson,
411 U.S. 258, 267(1973). Once a guilty plea has been entered, all nonjurisdictional defects in the
proceedings are waived. United States v. Bell, 966 F.2d 914, 915 (5th Cir. 1992). This waiver
includes all claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness
relates to the giving of the guilty plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983), cert.
denied, 466 U.S. 906 (1984). Thus, Movant’s knowing and voluntary guilty plea waives all the
claims brought in his § 2255 motion as they allegedly occurred prior to the plea. Tollett, 411 U.S.
INEFFECTIVE ASSISTANCE OF COUNSEL
Even if Movant’s knowing and voluntary plea did not waive his claims occurring prior to his
plea, there must be independent indicia of the likely merit of his contentions when the guilty plea is
challenged. Davis, 825 F.2d at 894. Here, Movant claims that his plea was involuntary because his
trial counsel was ineffective. Each of Movant’s ineffective assistance of counsel claims concerns
counsel’s alleged failure to investigate. Movant asserts counsel’s failure to investigate resulted in
trial counsel erroneously advising Movant to plead guilty.
It is well-settled that trial counsel must engage in a reasonable amount of pretrial
investigation, and “at a minimum, . . . interview potential witnesses and . . . make an independent
investigation of the facts and circumstances of the case.” Nealy v. Cabana, 764 F.2d 1173, 1177 (5th
Cir. 1985). A defendant who alleges a failure to investigate must allege with specificity what the
investigation would have revealed and how it would have altered the outcome of the trial. Gray v.
Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982); Gregory v. Taylor, 601 F.3d 347, 354 (5th Cir. 2010).
A movant who seeks to overturn his conviction on the grounds of ineffective assistance of
counsel must prove his entitlement to relief by a preponderance of the evidence. James v. Cain, 56
F.3d 662, 667 (5th Cir. 1995). To succeed on a claim of ineffective assistance of counsel, a movant
must show that “counsel’s representation fell below an objective standard of reasonableness,” with
reasonableness judged under professional norms prevailing at the time counsel rendered assistance.
Strickland v. Washington, 466 U.S. 668, 688 (1984). The standard requires the reviewing court to
give great deference to counsel’s performance, strongly presuming counsel exercised reasonable
professional judgment. Id., 466 U.S. at 690. The right to counsel does not require errorless counsel;
instead, a criminal defendant is entitled to reasonably effective assistance. Boyd v. Estelle, 661 F.2d
388, 389 (5th Cir. 1981). See also Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982); Murray v.
Maggio, 736 F.2d 279 (5th Cir. 1984). Secondly, 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.” Strickland, 466 U.S. at 694. Movant must “affirmatively prove,” not just allege,
prejudice. Id. at 693. If he fails to prove the prejudice component, the court need not address the
question of counsel's performance. Id. at 697.
To establish ineffective assistance of counsel relating to the entry of a guilty plea, a defendant
must establish that his counsel erred, and but for this error, he would not have pleaded guilty. Del
Toro v. Quarterman, 498 F.3d 486, 490 (5th Cir. 2007). When defense counsel has discussed the
case with the defendant, explained the elements of the charged offense and possible defenses, and
is satisfied that the plea is voluntary, the counsel has fulfilled his duty. Farmer v. Beto, 446 F.2d
1357 (5th Cir. 1971).
In the instant case, Movant fails to show that he was not adequately informed of the nature
of the charges against him or the consequences of pleading guilty prior to his guilty plea. Other than
his own assertions and those of his wife, Movant cites to the transcript from his sentencing hearing
as support, in which counsel stated she had not requested the Government’s financial records.
However, counsel noted that, while she did not have independent access to those records, she had
reviewed the records with the Government. As it pertained to one particular victim, Sterling
Carberry, counsel noted she had only received the actual records the morning of the hearing, but had
discussed the relevant dollar amounts prior to that. Also, in light of a review of the rest of the
specific records, counsel stated that she was comfortable with the summary prepared by the
Government concerning Sterling Carberry’s records. Counsel examined the majority of the
documents in question with the Government. Contrary to Movant’s assertions, she did not say that
she failed to ask the Government for records or failed to review the records. Movant has not shown
his counsel erred, Del Toro, 498 F.3d at 490; thus, he has not shown ineffective assistance of
counsel. Strickland, 466 U.S. at 688.
Additionally, in his § 2255 motion, Movant states that he did not know that using a private
carrier is not the same as using the United States Postal Service mail in furtherance of the scheme
to defraud. He states that had he known this, he would not have pleaded guilty, noting that he almost
always used carriers instead of the United States Postal Service. Movant blames counsel for not
advising him of the difference. He apparently believes he pleaded guilty to a crime without meeting
all the required elements. However, the statute for which Movant was convicted does not necessarily
limit fraudulent activities to the use of the United States Postal Service for delivery:
Whoever, having devised or intending to devise any scheme or artifice to defraud,
. . . for the purpose of executing such scheme or artifice or attempting so to do,
places in any post office or authorized depository for mail matter, any matter or thing
whatever to be sent or delivered by the Postal Service, or deposits or causes to be
deposited any matter or thing whatever to be sent or delivered by any private or
commercial interstate carrier, or takes or receives therefrom, any such matter or
thing, or knowingly causes to be delivered by mail or such carrier according to the
direction thereon, or at the place at which it is directed to be delivered by the person
to whom it is addressed, any such matter or thing, shall be fined under this title or
imprisoned not more than 20 years, or both....
18 U.S.C. § 1341 (emphasis added). Consequently, Movant is simply incorrect in his belief that, by
pleading guilty, he was admitting that he used the United States Postal Service for deliveries in
the furtherance of the crime. Additionally, the court notes that in the Elements of the Offense,
filed in the underlying criminal case, it clearly states the elements:
First: That you knowingly created a scheme to defraud,
Second: That you acted with a specific intent to commit fraud,
Third: That you mailed something or caused another person to mail something or
placed something or caused something to be placed with a private or commercial
interstate carrier for the purpose of carrying out the scheme.
See Cause No. 4:07cr48 (Dkt. #8). Furthermore, even if Movant’s belief was correct, the record
shows that he used the United States Postal Service to send fraudulent documents to at least one of
his victims – Max MacGregor, on January 31, 2006. Movant fails to show ineffective assistance of
counsel. Strickland, 466 U.S. at 688.
Movant claims that counsel failed to investigate, but fails to show what further
preparation trial counsel should have done and how it would have made a difference in his case.
Gray, 677 F.2d at 1093. He fails to show what counsel would have found had she investigated
further or how it would have altered the outcome of his case. Id.
Movant broadly states that he is legally innocent of the charge and counsel was ineffective
for encouraging Movant to plead guilty. Yet he fails to show that he is legally innocent. Movant’s
claim that counsel’s investigation was insufficient cannot be upheld where the allegation is too
speculative to overcome the strong presumption of competency and the high burden of actual
prejudice required to show ineffectiveness. Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997).
Conclusory claims are insufficient to entitle a habeas corpus petitioner to relief. United States v.
Woods, 870 F.2d 285, 288 (5th Cir. 1989); Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982).
Movant fails to show deficient performance or that there is a reasonable probability that, but for
counsel’s alleged unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694.
A close review of the record shows that, contrary to Movant’s assertion of an involuntary
plea of guilty, Movant was aware of the charges against him and the consequences of pleading guilty.
The court admonished Movant as to the charges against him and his constitutional rights, and
Movant stated he understood. Formal declarations in open court carry with them a strong
presumption of truth. Blackledge, 431 U.S. at 74. Movant’s declarations in open court undermine
any claims of involuntariness he now raises. Rogers v. Maggio, 714 F.2d 35, 38 n. 5 (5th Cir. 1983).
Movant fails to meet his burden of rebutting the presumption of regularity accorded his signed court
documents. Bonvillain v. Blackburn, 780 F.2d 1248, 1250 (5th Cir. 1986). He fails to show trial
counsel’s performance was deficient. Strickland, 466 U.S. at 688.
Movant lastly claims that his plea was involuntary because of a Brady violation. In Brady,
the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to punishment.”
Brady, 373 U.S. at 87. The prosecution “need not disgorge every piece of evidence in its possession
. . . [but] has an affirmative duty to disclose to the defense evidence that is favorable to the accused
and material to guilt.” Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997). In addressing a Brady
claim, the Fifth Circuit explained that a defendant must prove:
(1) the prosecution suppressed evidence;
(2) the suppressed evidence was favorable to the defense; and
(3) the suppressed evidence was material to the defense.
Derden v. McNeel, 938 F.2d 605, 617 (5th Cir. 1991). The test for materiality is whether there is a
“reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Id. The materiality of the evidence is evaluated in light of
the entire record. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex. Crim. App. 1997). The Fifth
Circuit also requires that a movant show that “discovery of the allegedly favorable evidence was not
the result of a lack of due diligence.” Rector,120 F.3d at 558. The Government does not have a duty
to disclose information that is available from other sources. Id. at 559. Additionally, the mere
possibility that a piece of information might have helped the defense does not establish materiality
in the constitutional sense. Id. at 562.
Movant claims that his plea was invalid because the Government refused to give him access
to materials that were seized from his place of business prior to his pleading guilty. However,
Movant’s counsel stated she reviewed all but one set of records with the Government. She stated
that, although she had not actually seen that one particular set of records before the hearing, such
records had been discussed. She then reviewed that set of records at the hearing. Movant fails to
point to any evidence, from the record or otherwise, to show that the Government suppressed
evidence. He fails to identify evidence that was material and favorable to his defense that was
suppressed. Movant wholly fails to establish the Brady requirements. He has presented nothing
other than his conclusory allegation, which is insufficient for habeas relief.
Woods, 870 F.2d at
288; Schlang, 691 F.2d at 799. Furthermore, the Fifth Circuit reviewed the record on direct appeal
and found no nonfrivolous issues for appeal.
The record shows that Movant’s plea of guilty was knowing and voluntary. Movant fails
to show that he did not understand the nature of a constitutional protection that he was waiving or
that he had “such an incomplete understanding of the charges against him that this plea cannot stand
as an admission of guilt.” James, 56 F.3d at 666. As a result, his claims, all of which allegedly
occurred prior to the guilty plea, were waived by his plea of guilty.
Even if Movant’s claims were not waived, they are without merit, and are otherwise not
supported by the record. Movant fails to show counsel’s performance was deficient or that he was
given deficient or misleading advice; thus, Movant fails to meet the requirements of Strickland, 466
U.S. 668. Movant also fails to establish a Brady violation. Movant’s guilty plea, which was not
affected by ineffective assistance of counsel or a Brady violation, must be upheld because it was
knowing and voluntary. Montoya, 226 F.3d at 404.
In sum, Movant fails to show trial counsel was ineffective, that counsel’s alleged
ineffectiveness affected the validity of his plea agreement, or that he suffered a Brady violation.
Movant fails to show (1) an intervening change in controlling law, (2) the availability of new
evidence not available previously, (3) the need to correct a clear error of law or fact, or (4) a
manifest injustice. Schiller, 342 F.3d at 567; Templet, 367 F.3d at 479. Consequently, he is not
entitled to relief. It is accordingly
ORDERED that Movant’s motion for reconsideration (dkt #23) is DENIED. It is also
ORDERED that all motions filed by any party not previously ruled upon are DENIED.
SIGNED this the 2nd day of March, 2017.
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE
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