Benson v. USA
Filing
8
ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255 AND ORDER DENYING CERTIFICATE OF APPEALABILITY: Upon review and consideration of the record in the above-referenced case as to whether petitioner Benson has made a showing that reasonable jurists would question this Court's rulings, the Court determines he has not and that a certificate of appealability should not issue for the reasons stated in this order. (Ordered by Judge Terry R Means on 6/30/2011) (klm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
BRUCE BENSON
§
§
§
CIVIL NO. 4:10-CV-764-Y
§(CRIMINAL NO. 4:09-CR-056-Y(1))
§
§
VS.
UNITED STATES OF AMERICA
ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255
AND ORDER DENYING CERTIFICATE OF APPEALABILITY
(With special instructions to the clerk of Court)
Pending before the Court is defendant Bruce Benson’s motion
seeking relief under 28 U.S.C. § 2255. The government filed a
response to the § 2255 motion, and Benson then filed a reply.1
After careful consideration and review of Benson’s motion under §
2255, the government's response, the reply, and the applicable law,
and after an examination of the record of this case, the Court
concludes that the § 2255 motion must be denied for the reasons
stated by the government and as set forth here.
Benson seeks relief under 28 U.S.C. § 2255 on the grounds that
(1)
his
guilty
plea
was
not
knowing
and
voluntary;
(2)
his
conviction was obtained by the use of a coerced confession; (3)
the government failed to disclose evidence which would have been
favorable to him; and (4) he received ineffective assistance of
counsel when counsel failed to inform him of the “real facts”
concerning restitution, construed as a claim that had he understood
1
Benson entitled the document, filed January 6, 2011, a “response,” but as
it was filed in reply to the government’s response, the clerk of court is
directed to note on the docket that this document is a reply.
he would be ordered to pay restitution, he would not have pleaded
guilty.
With regard to Benson’s first, second, and third grounds for
relief, the Court concludes that such claims are procedurally
barred from this Court’s review under § 2255. The Supreme Court has
emphasized repeatedly that a “collateral challenge may not do
service for an appeal.”2 As the United States Court of Appeals for
the Fifth Circuit has observed:
After conviction and exhaustion or waiver of any right to
appeal, “we are entitled to presume that [the defendant]
stands fairly and finally convicted.” [Frady] at 164. A
defendant can challenge his conviction after it is
presumed final only on issues of constitutional or
jurisdictional magnitude, Hill v. United States, 368 U.S.
424, 428(1962), and may not raise an issue for the first
time on collateral review without showing both “cause”
for his procedural default, and “actual prejudice”
resulting from the error. Frady, 456 U.S. at 168. This
cause and actual prejudice standard presents “a
significantly higher hurdle” than the “plain error”
standard that we apply on direct appeal. Id. at 166. We
apply this rigorous standard in order to ensure that
final judgments command respect and that their binding
effect does not last only until “the next in a series of
endless postconviction collateral attacks.” Id. at
165-66. A defendant must meet this cause and actual
prejudice test even when he alleges a fundamental
constitutional error.3
The cause-and-prejudice test applies both for failure to raise an
error at trial and on appeal. It is only after a movant has met
2
United States v. Frady, 456 U.S. 152, 165 (1982).
3
United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991), cert. den’d, 502
U.S. 1076 (1992).
2
both requirements that a reviewing court should proceed to a
determination of his claim on the merits.4
Benson has shown no reason for his failure to raise these
claims in this Court or through a direct appeal from this Court’s
conviction and imposition of sentence. Thus, he has not shown cause
for his procedural default. Although the Court thus need not engage
in the prejudice analysis, Benson has also failed to satisfy that
requirement.
Benson claims that his guilty plea was not knowing and
voluntary because he believed that he would not be required to pay
court-ordered restitution and that, had he known, he could have
presented evidence to show that the restitution order was improper.
But complaints concerning restitution may not be addressed in §
2255 proceedings.5
Moreover, Benson’s claim that he did not know
he was subject to restitution is directly refuted by his own
testimony at the rearraignment hearing, and by the documents he
signed.
Both
Benson
and
his
counsel
signed
the
factual
resume
(criminal docket 10). The factual resume included the following in
the listing of maximum penalty exposure:
4
United States v. Bondurant, 689 F.2d 1246, 1250 (5th Cir. 1982).
5
See generally Campbell v. United States, 330 Fed. Appx. 482, 483, 2009 WL
1472217, at *1 (5th Cir. May 27, 2009)(“A district court lacks jurisdiction to
a modify [sic] restitution order under § 2255, a writ of error coram nobis, or
‘any other federal law.’”)(quoting United States v. Hatten, 167 F.3d 884, 887 &
nn 3 &6 (5th Cir. 1999)).
3
The defendant shall be ordered to pay restitution to any
victim of his crime, which restitution may include
community service. The defendant specifically agrees,
pursuant to 18 U.S.C. § 3663(a)(3) that the extent of the
restitution ordered by the Court may include defendant’s
total offense conduct, and is not limited to the
restitution attributable to Count One of the Information.
Benson signed this factual resume.(Factual Resume at 3.) At the
rearraignment
understood
hearing,
the
factual
Benson
testified
resume.
Transcript (Tr.) at 23-24.)
((May
20,
that
he
2009,
signed
and
Rearraignment
Benson also testified to the Court
that he understood the penalties and consequences, including the
ordering of restitution. (Rearraignment Tr., at 19.)
Ordinarily, “a defendant will not be heard to refute his
testimony
given
under
oath
when
pleading
guilty.”6
“Solemn
declarations in open court carry a strong presumption of verity,”
and the “representations of the defendant, his lawyer, and the
prosecutor at a [plea] hearing, as well as any findings made by the
judge accepting the plea, constitute a formidable barrier in any
subsequent collateral proceedings.”7
Any documents signed by the
defendant at the time of the guilty plea are entitled to “great
evidentiary weight.”8
After review of the record, and giving the proper deference to
Benson’s testimony and the factual resume he signed, he fails to
6
United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985)(quoting
United States v. Sanderson, 595 F.2d 1021, 1022 (5th Cir. 1979)).
7
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
8
See United States v. Abreo, 30 F.3d 29, 32 (5th Cir. 1994).
4
shown that he did not have a clear understanding that he would be
required to pay restitution. Nothing otherwise appears in the
record to suggest that Benson would be relieved of the requirement
to pay the Court-ordered restitution after he served his prison
sentence. Rather, at the sentencing proceeding, after the Court
stated the sentence including restitution of $782,297.14, when
asked if he had any questions, Benson replied “No.” (October 19,
2009, Sentencing Transcript at 6,8.) Thus, Benson’s claim that he
did not understand he would be required to pay restitution is
denied.
Benson claims that his conviction was obtained by use of a
coerced confession because he was told that if he “did not sign,”
his wife and son would be indicted. Benson asserts that, even
though he did plead guilty, his wife and son were still indicted.
Benson, however, was not convicted based upon a confession, he was
convicted due to his entry of voluntary plea.9
Further, if this
claims is construed as an argument by Benson that he was induced to
plead guilty based upon a promise that his wife and son would not
be indicted, it is contradicted by Benson’s own testimony. At
rearraignment, he testified that no one had made any promise or
assurance to him of any kind to induce him to plead guilty.
(Rearraignment Tr. at 21-22.)
9
See generally McMann v. Richardson, 397 U.S. 759, 771 (1970)(“[A]
defendant who alleges that he pleaded guilty because of a prior coerced
confession is not, without more, entitled to a hearing on his petition for habeas
corpus”).
5
Benson also contends that the government failed to disclose
evidence that would have been favorable to him.
Benson asserts
that there was evidence in the form of a report from the “NCIS”
which would have shown that his company had been previously
investigated for the same conduct for which he was convicted and no
illegal activity was found. In order to support an action for
violation of constitutional rights, a movant must allege specific
facts and not merely make conclusory allegations.10 But Benson has
not provided such specifics. He offers no facts to support his
claim that there was a previous investigation or that any report of
any previous investigation exists.
Further, even if there were an
investigative report, Benson fails to show how such report would
have altered the outcome of the instant case.
Remaining before the Court is Benson’s claim that counsel was
ineffective. The now-familiar two-pronged standard for review of
claims of ineffective assistance of counsel was set forth by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):
“First, the defendant must show that counsel’s performance was
deficient.
serious
This requires showing that counsel made errors so
that
counsel
was
not
functioning
as
the
‘counsel’
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
10
See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983); Knighton v.
Maggio, 740 F.2d 1344, 1349 (5th Cir. 1984).
6
defense.”11 This same test applies to challenges to guilty pleas
based upon ineffective assistance of counsel.12
In order to show the deficiency component, the burden is upon
the defendant to show that his counsel’s representation fell below
an objective standard of reasonableness by identifying acts or
omissions of counsel “that are alleged not to have been the result
of
reasonable
determines
professional
whether,
“in
judgment.”13
light
of
all
A
district
the
court
circumstances,
then
the
identified acts or omissions were outside the wide range of
professionally
competent
assistance.”14
There
is
a
strong
presumption that the performance of counsel falls within this
range.15
In order to prove prejudice in the plea process, 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.”16
Benson’s claims that counsel failed to inform him of the facts
related to the imposition of restitution is not supported by the
record.
As noted above, Benson testified that he understood that,
by pleading guilty, he was subjecting himself to court-ordered
11
Strickland, 466 U.S. at 687.
12
Hill v. Lockhart, 474 U.S. 52, 58 (1985).
13
Strickland, 466 U.S. at 690.
14
Id., Hill, 474 U.S. at 57-58 (citing Tollet v. Henderson, 411 U.S. 258
((1973) and McMann v. Richardson, 397 U.S. 759 (1970)).
15
United States v. Samuels, 59 F.3d 526, 529 (5th Cir. 1995); see also King
v. Lynaugh, 868 F.2d 1400, 1405 (5th Cir.), cert den’d, 489 U.S. 1093 (1989).
16
Hill, 474 U.S. at 59.
7
restitution. (Rearraignment Tr. at 19.) Further, Benson testified
that he was satisfied with the representation and advice given him
by counsel. (Rearraignment Tr. at 17.
Benson has not overcome the
record that reveals he did understand that he would be subject to
restitution, and his claim that counsel was deficient in this
regard is denied.
For all of the foregoing reasons, Bruce Benson’s motion for
relief under 28 U.S.C. § 2255 is DENIED.
Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal
may not proceed unless a certificate of appealability (COA) is
issued under 28 U.S.C. § 2253.17 Rule 11 of the Rules Governing
Section 2255 Proceedings now requires that the Court “must issue or
deny a certificate of appealability when it enters a final order
adverse
to
the
applicant.”18
The
COA
may
issue
“only
if
the
applicant has made a substantial showing of the denial of a
constitutional right.”19 A petitioner satisfies this standard by
showing “that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists of
reason could conclude the issues presented are adequate to deserve
encouragement to proceed further.”20
17
See Fed. R. App. P. 22(b).
18
RULES GOVERNING SECTION 2255 PROCEEDINGS IN THE UNITED STATES DISTRICT COURTS, RULE
11(a) (December 1, 2009).
19
28 U.S.C.A. § 2253(c)(2)(West 2006).
20
Miller-El v. Cockrell, 537 U.S. 322, 326 (2003), citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
8
Upon review and consideration of the record in the abovereferenced case as to whether petitioner Benson has made a showing
that reasonable jurists would question this Court’s rulings, the
Court determines he has not and that a certificate of appealability
should not issue for the reasons stated in this order.21
Therefore, a certificate of appealability should not issue.
SIGNED June 30, 2011.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
21
See Fed. R. App. P. 22(b); see also 28 U.S.C.A. § 2253(c)(2)(West 2006).
9
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