Busack v. USA

Filing 12

MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S 10 REPORT AND RECOMMENDATION, DENYING PETITIONER'S § 2255 1 MOTION AND OVERRULING PETITIONER'S OBJECTIONS. It is ORDERED that this civil action be DISM ISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 12/27/16. (copies to Pro Se Petitioner via CM/rrr; counsel via CM/ECF) (lmm) (Additional attachment(s) added on 12/27/2016: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARK C. BUSACK,
Petitioner,
v.

Civil Action No. 5:15CV151
(Criminal Action No. 5:14CR54)
(STAMP)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
DENYING PETITIONER’S § 2255 MOTION AND
OVERRULING PETITIONER’S OBJECTIONS
The petitioner, Mark C. Busack (“Busack”), filed this pro se1
motion under 28 U.S.C. § 2255 challenging the validity of his
conviction and sentence. This matter was referred to United States
Magistrate Judge James E. Seibert under Local Rule of Civil
Procedure

72.01.

The

magistrate

judge

recommending that Busack’s motion be denied.

entered

a

report

Busack then filed

timely objections to the report and recommendation.

For the

following reasons, the magistrate judge’s report and recommendation
is adopted and affirmed, Busack’s § 2255 motion is denied, and
Busack’s objections are overruled.

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

I.

Background

Busack plead guilty to four counts of use of an unauthorized
access device and one count of filing a false S Corporation income
tax return.
right

to

Busack’s plea agreement included a full waiver of his
seek

appellate

and

post-conviction

review

of

his

conviction and sentence if the sentence was within the statutory
maximum.

This Court sentenced Busack to 35 months of imprisonment

as to each count to be served concurrently, followed by three years
of supervised release as to Counts One through Four and one year as
to Count Five to be served concurrently.

This Court also ordered

Busack to pay restitution in the amount of $121,249.19, due
immediately with minimum payments of $1,000.00 per month. Busack’s
plea agreement also included a provision in which Busack agreed to
participate in the Inmate Financial Responsibility Program and to
make restitution payments through that program while incarcerated.
Busack then filed this motion under § 2255 alleging six
instances of ineffective assistance of counsel. Busack alleges his
counsel was ineffective in failing to: (1) present evidence that
Busack claims would have substantially altered the terms of the
plea agreement and his sentence; (2) organize a coherent defense;
(3) pursue discovery; (4) disclose to the Court an alleged conflict
of interest between the United States Attorney and Busack; (5)
properly prepare Busack for the sentencing hearing; and (6) provide
effective

representation

at

the

2

post-sentencing

restitution

hearing.

Busack then filed two separate motions to reduce his

sentence, alleging that his Total Offense Level under the United
States Sentencing Guidelines (“the Guidelines”) was miscalculated
and that this Court failed to account for repayments he made to his
victims in the course of his fraudulent scheme.

This Court

consolidated Busack’s motions to reduce his sentence with his
§ 2255 motion.

Magistrate Judge Seibert then entered a report

recommending that Busack’s motions be denied.

Busack filed timely

objections to the report and recommendation.
II.

Applicable Law

Because the petitioner filed timely objections to the report
and recommendation, the magistrate judge’s recommendation will be
reviewed de novo as to those findings to which objections were
made.

28 U.S.C. § 636(b)(1)(C).

As to those findings to which

objections were not filed, the findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”

28

U.S.C. § 636(b)(1)(A).
III.
A.

Discussion

Waiver of Post-Conviction Review Rights
Magistrate Judge Seibert concluded that Grounds One through

Four of Busack’s § 2255 motion and his motions to reduce his
sentence are barred under the waiver of appellate and postconviction review rights contained in the plea agreement. However,

3

he concluded that Grounds Five and Six of Busack’s § 2255 motion
were not barred, but that they failed as a matter of law.
A defendant may waive his right to collaterally attack his
conviction or sentence under § 2255, “so long as the waiver is
knowing and voluntary.”
(4th Cir. 2006).

United States v. Lemaster, 403 F.3d 216

Section 2255 waivers are generally “subject to

the same conditions and exceptions applicable to waivers of the
right to file a direct appeal,” including claims of ineffective
assistance of counsel. United States v. Cannady, 645 n.3 (4th Cir.
2002) (noting other circuits’ holdings); see also United States v.
Attar, 38 F.3d 727, 732 (4th Cir. 1994) (holding that a general
waiver of appellate rights may not bar claims for ineffective
assistance
ineffective

of

counsel

at

sentencing).

assistance

of

counsel

quintessential § 2255 claims.

prior

However,
to

claims

sentencing

of
are

See United States v. King, 119 F.3d

290, 295 (4th Cir. 1997) (“It is well settled that a claim of
ineffective assistance should be raised in a . . . § 2255 motion in
the district court rather than on direct appeal, unless the record
conclusively shows ineffective assistance.”). Thus, if ineffective
assistance claims were generally exempt from a § 2255 waiver, “such
an exception would render all such waivers virtually meaningless.”
Braxton v. United States, 358 F. Supp. 2d 497, 503 (W.D. Va. 2005),
aff’d, 214 F. App’x 271 (4th Cir. 2007) (per curiam) (affirming
district court’s denial of Braxton’s motion to reconsider its

4

ruling on his § 2255 waiver).

While the United States Court of

Appeals for the Fourth Circuit has not considered the scope of
§ 2255 waivers in regard to ineffective assistance claims, all of
the Courts of Appeals that have considered this issue agree that a
general § 2255 waiver bars ineffective assistance of counsel claims
unless the claims bear on the validity of the plea agreement or the
§ 2255 waiver itself.

See Williams v. United States, 396 F.3d

1340, 1342 (11th Cir. 2005), cert. denied, 546 U.S. 902 (2005),
reh’g denied, 546 U.S. 1133 (2006); United States v. White, 307
F.3d 336, 343-44 (5th Cir. 2002); United States v. Cockerham, 237
F.3d 1179, 1187 (10th Cir. 2001), cert. denied, 534 U.S. 1085
(2002); Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001);
Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir.
2001); Mason v. United States, 211 F.3d 1065, 1069-70 (7th Cir.
2000), cert. denied, 531 U.S. 1175 (2001); cf. Washington v.
Lampert, 422 F.3d 864, 870-71 (9th Cir. 2005) (concluding that a
petitioner

serving

a

state

imposed

sentence

was

barred

from

asserting an ineffective assistance claim under a § 2254 waiver
contained in his plea agreement).

Accordingly, this Court adopts

the consensus of the Courts of Appeals on this issue.
Busack’s plea agreement provided that he
waives the following rights, if the Court sentences
within the statutory maximums of the statutes of
conviction:
. . .

5

b. [the right] to challenge the conviction or
sentence or the manner in which it was
determined in any post-conviction proceeding,
including any proceeding under Title 28,
United States Code, Section 2255.
Nothing in this paragraph, however will act as a bar
to the defendant perfecting any legal remedies he may
otherwise have [under recognized exceptions] on appeal or
collateral attack respecting claims of ineffective
assistance of counsel or prosecutorial misconduct. The
defendant agrees that there is currently no known
evidence of ineffective assistance of counsel or
prosecutorial misconduct.
ECF No. 7 at 4 (emphasis added).

At the change of plea hearing

held on December 16, 2014, this Court explained that the plea
agreement contained a waiver of appellate and post-conviction
review rights, and Busack stated that he had reviewed the plea
agreement with his counsel before signing it, that his counsel had
answered to his satisfaction all the questions he had about the
agreement, and that he understood the waivers contained in the plea
agreement.

ECF Nos. 5, 30 at 9, 10, 15, 20.

This Court found that

Busack was competent to enter a plea of guilty, that his plea was
freely and voluntarily made, and that Busack was aware of the
consequences of his plea.

ECF No. 30 at 39-40.

Busack offers no

evidence or argument to rebut this Court’s earlier finding that he
knowingly

and

voluntarily

waived

his

rights

collaterally attack his conviction or sentence.

to

appeal

or

Blackledge v.

Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations in open court
carry a strong presumption of verity.”).

Thus, Busack’s § 2255

waiver is enforceable and his ineffective assistance of counsel
6

claims are barred unless they bear on the validity of the plea
agreement or the waiver itself.
Grounds One through Four of Busack’s § 2255 motion deal with
defense counsel’s alleged conduct in investigating this case and
preparing a defense, but do not deal with defense counsel’s conduct
in negotiating the plea agreement or in advising Busack regarding
the plea agreement.

Thus, they do not bear on the validity of the

plea agreement or waiver.

Similarly, Busack’s motions to reduce

his sentence are based on allegations that this Court miscalculated
his sentence under the Guidelines, but have no bearing on the
validity of the plea agreement or § 2255 waiver.

Accordingly,

those claims are barred.
Judge Seibert concluded that Grounds Five and Six of Busack’s
§ 2255 motion are not barred under the § 2255 waiver because they
deal with the alleged ineffectiveness of Busack’s counsel at
sentencing and at the later restitution hearing.

Relying on the

Fourth Circuit’s holding in United States v. Attar, 38 F.3d 727
(4th Cir. 1994), the magistrate judge concluded that, just as with
a waiver of appellate rights, a defendant’s waiver cannot bar a
claim of ineffective assistance of counsel during sentencing.
United States v. Attar, 38 F.3d 727, 732 (4th Cir. 1994); see also
Lemaster, 403 F.3d at 220 n.2 (noting that the court was not
determining the scope of a § 2255 waiver, but that the court
“see[s] no reason to distinguish between waivers of direct-appeal

7

rights and waivers of collateral-attack rights”).

However, the

Courts of Appeals that have considered this issue agree that a
§ 2255 waiver bars claims for ineffective assistance of counsel at
sentencing, and that ineffective assistance claims are allowed only
where they bear on the validity of the plea agreement or the waiver
itself. See Williams, 396 F.3d at 1342; White, 307 F.3d at 343-44;
Cockerham, 237 F.3d at 1187; Davila, 258 F.3d at 451; GarciaSantos, 273 F.3d at 508-09; Mason, 211 F.3d at 1069-70.

Further,

the Fourth Circuit has refined its holding in Attar and explained
that a waiver does not apply prospectively to “errors that the
defendant[] could not have reasonably contemplated when the plea
agreements were executed,” for example, being sentenced without
counsel or being subject to an unauthorized restitution order.
United States v. Blick, 408 F.3d 162, 172 (4th Cir. 2005).
does

not

allege

that

he

was

wholly

deprived

of

Busack

counsel

at

sentencing or that this Court imposed an unauthorized sentence. He
could

reasonably

have

contemplated

when

executing

the

plea

agreement that his counsel’s conduct at sentencing would not meet
his expectations. Thus, this Court finds that Busack’s ineffective
assistance of counsel claims set out as Grounds Five and Six of his
§ 2255 motion are barred under his § 2255 waiver.
Further, even if Attar exempts from a § 2255 waiver claim of
ineffective assistance at sentencing, Busack’s claims fail.

“[A]

movant seeing collateral relief from his conviction or sentence

8

through an ineffective assistance claim must show (1) that his
counsel’s performance was deficient[,] and (2) that the deficiency
prejudiced his defense.”

United States v. Basham, 789 F.3d 358,

371 (4th Cir. 2015) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)).

Counsel’s performance was deficient if “counsel’s

representation fell below an objective standard of reasonableness
. . . under prevailing professional norms.”
at

688.

There

is

a

“strong

Strickland, 466 U.S.

presumption

that

counsel’s

representation was within the wide range of reasonable professional
assistance.”

Harrington v. Richter, 562 U.S. 86, 104 (2011)

(internal quotation marks omitted).

“The Strickland standard is

difficult to satisfy, in that the ‘Sixth Amendment guarantees
reasonable competence, not perfect advocacy judged with the benefit
of hindsight.’”

Basham, 789 F.3d at 371 (quoting Yarborough v.

Gentry, 540 U.S. 1, 8 (2003)).

To show prejudice, “[t]he movant

must demonstrate ‘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. (quoting Strickland,

466 U.S. at 694).
Busack alleges that his counsel was ineffective because he
failed to adequately prepare Busack for sentencing, that he failed
to adequately challenge the government’s restitution calculations,
and that he had substitute counsel fill in for him at the post-

9

sentencing

restitution

hearing.

However,

Busack’s

counsel

vigorously litigated all aspects of sentencing and restitution
prior to sentencing and at the sentencing hearing.

He filed

objections to the Presentence Investigation Report regarding the
victim’s losses.

He also filed two, lengthy sentencing memoranda

challenging the government’s evidence regarding the amount of
restitution owed, and presenting evidence purporting to show that
Busack had repaid some of the victims and challenging the basis for
the government’s calculation of the amount owed to the IRS.
ECF Nos. 33, 41.

See

These arguments appear to have been ultimately

successful, as the parties’ arguments culminated in an agreement on
the amount of restitution owed that was significantly lower than
that initially asserted by the government.

ECF No. 55, 88 at 4.

Clearly, Busack’s counsel provided competent representation and
delivered a favorable result.

Further, Busack was not deprived of

competent counsel at the restitution hearing.

While his counsel’s

partner filled in at the restitution hearing, his counsel had fully
resolved all restitution issues prior to the hearing, and the
hearing served only to allow this Court to impose the final
restitution amount agreed upon by Busack and the government. Thus,
even

if

Busack’s

ineffective

assistance

claims

for

conduct

occurring after he executed the plea agreement are not barred by
his § 2255 waiver, those claims fail as a matter of law.

10

C.

Certificate of Appealability
Rule 11(a) of the Rules Governing § 2254 and § 2255 cases

provides that the district court “must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant” in such cases.

This memorandum opinion and order is a

final order adverse to the petitioner in a case in which 28 U.S.C.
§ 2253(c)(1) requires issuance of a certificate of appealability to
take an appeal.
This

Court

finds

that

it

is

inappropriate

certificate of appealability in this matter.

to

issue

a

Specifically, this

Court finds that Busack fails to make a “substantial showing of the
denial of a constitutional right.”

See 28 U.S.C. § 2253(c)(2).

A

petitioner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by

the

district

court

is

debatable

or

wrong

and

that

any

dispositive procedural ruling by the district court is likewise
debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
This Court concludes that, based on the consensus of the Courts of
Appeals as to the scope of § 2255 waivers, reasonable jurists would
not find this Court’s ruling to be debatable.

Accordingly, Busack

is DENIED a certificate of appealability by this district court.
Busack may, however, request a circuit judge of the United States
Court of Appeals for the Fourth Circuit to issue a certificate of
appealability.

11

IV.

Conclusion

For the reasons set forth above, the magistrate judge’s report
and recommendation (ECF No. 10/130) is AFFIRMED AND ADOPTED.
Accordingly, Busack’s § 2255 motion (ECF Nos. 1/63, 6/70) is
DENIED, Busack’s motions to reduce his sentence (ECF Nos. 79, 84)
are DENIED, Busack’s objections to the report and recommendation
(ECF No. 132) are OVERRULED, and Busack’s motion for leave to file
an exhibit (ECF No. 97) is DENIED AS MOOT.

It is ORDERED that this

civil action be DISMISSED WITH PREJUDICE and STRICKEN from the
active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

December 27, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
12