United States District Court, E.D. Virginia, Alexandria Division
JAMES C. CACHERIS, District Judge.
This matter is before the Court on Petitioner Matthew James Addy's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255. [Dkt. 21.] Also before the Court is Petitioner's Motion to Appoint Counsel. [Dkt. 22.] For the following reasons, the Court will deny Petitioner's motions.
On February 22, 2013, Petitioner waived indictment and pled guilty to a single count of securities fraud. (Plea Mins. [Dkt. 3] at 1.) In a statement of facts filed in connection with his plea, Petitioner admitted that from 2010 through 2012 he ran a Ponzi scheme that involved the supposed purchase and resale of jewelry and precious stones. (Statement of Facts [Dkt. 5] at 1-2.) He admitted to recruiting investors and issuing fake promissory notes that supposedly secured their investment and guaranteed twenty percent returns. ( Id. at 2.) Petitioner paid out returns to some existing investors and failed to disclose that these disbursements actually came from funds contributed by new investors. ( Id. at 3.) In his plea agreement, Petitioner further agreed that the loss attributable to his conduct fell between $2.5 million and $7 million, and that the offense involved ten or more victims. (Plea Agreement [Dkt. 4] at 3.)
On April 5, 2013, the United States Probation Office issued a presentence report, calculating Petitioner's Guidelines range at 51 to 63 months. (Presentence Report [Dkt. 9] at 24.) Following a hearing on this matter, the Court sentenced Petitioner to 51 months incarceration. (Sentencing Mins. [Dkt. 15] at 1.) The Court also entered an agreed restitution order calling for the payment of $2.7 million to 34 different victims. (Restitution Order [Dkt. 19] at 1-2.)
Petitioner did not appeal, and instead filed the instant motion on February 6, 2014. (Mot. to Vacate (as paginated by CM/ECF) at 13.) As grounds for relief, Petitioner claims that defense counsel from the Office of the Federal Public Defender provided ineffective assistance by failing to raise the following arguments at sentencing: (1) that Petitioner's extraordinary family circumstances and compelling § 3553 factors warranted a downward variance; (2) that the number of victims in this case was actually fewer than ten; (3) that the loss amount at issue was actually less than $2.7 million; (4) that Petitioner ran a legitimate business in the years prior to the fraud; and (5) that Petitioner was entitled to a downward variance for voluntary disclosure under U.S.S.G. § 5K2.16. (Mot. to Vacate at 4-8, 14.) According to Petitioner, counsel's failure to raise these arguments resulted in an enhanced sentencing range. ( Id. at 13.) Petitioner asks to be resentenced and to serve whatever new sentence is imposed in home confinement. ( Id .)
Petitioner has also filed a motion asking the Court to appoint counsel in this matter. (Mot. to Appoint Counsel at 1.) Petitioner claims that assigned counsel is necessary because he "does not have the means to pay" for an attorney. ( Id. ) Apparently unhappy with past services rendered, Petitioner specifically asks that "counsel is not appointed from the Federal Public Defenders office[.]" ( Id. )
Petitioner's motions are addressed below.
A. Motion to Appoint Counsel
The Court will first take up Petitioner's request for a Court appointed attorney. It is well settled that "a criminal defendant has no right to counsel beyond his first appeal[.]" Coleman v. Thompson , 501 U.S. 722, 756 (1991). Nevertheless, a trial court may appoint counsel to a financially eligible person seeking habeas relief if justice so requires. See United States v. Rhodes , No. 3:08CR82, 2013 WL 150335, at *5 (E.D. Va. Jan. 14, 2013). In the Fourth Circuit, a district court should appoint counsel in such matters only if the case presents "exceptional circumstances' such as particularly complex factual and legal issues or a litigant unable to represent himself adequately." United States v. Jones , No. 1:08cr1-1, 2011 WL 3269420, at *2 (E.D. Va. July 28, 2011) (citation omitted).
Here, Petitioner has made no showing of exceptional circumstances that would warrant the appointment of counsel. As evidenced from Petitioner's motion, he is capable of communicating his position to the Court without the assistance of counsel. See Dire v. United States, No. 2:10cr56, 2013 WL 6912666, at *2 (E.D. Va. Dec. 20, 2013) ("Movant's eloquent, well-reasoned motion... belie[s] the assertion that his lack of education and language barrier somehow prevent him from communicating his habeas claims to this Court without the assistance of counsel."). Moreover, the legal issues raised by Petitioner are hardly novel or complex. Unlike on direct appeal, Petitioner's indigent status is, by itself, insufficient. See Little v. United States , 184 F.Supp.2d 489, 498 n.6 (E.D. Va. 2002). Accordingly, the Court will deny Petitioner's motion.
B. Motion to Vacate
A motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 allows a prisoner to challenge the legality of his sentence on four grounds: (1) "the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "the court was without jurisdiction to impose such sentence"; (3) "the sentence was in excess of the maximum authorized by law"; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The petitioner bears the burden of ...