United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION & ORDER
RAYMOND A. JACKSON, District Judge.
This matter is before the Court on Petitioner Troy Titus' Motion to Vacate, Set Aside or Sentence pursuant to 28 § 2255 ("§ 2255 Motion" or "§ 2255 Petition"). ECF No. 300. Petitioner has also riled a Motion for Discovery related to the § 2255 Motion. ECF No. 310. For the reasons stated below, Petitioner's Motions are DENIED.
I. FACTS AND PROCEDURAL HISTORY
On March 25, 2009, Petitioner was named in a Forty-nine count Third Superseding Indictment. ECF No. 50. It charged Petitioner with one count or bank fraud, 18 U.S.C. § 1344. one count of conspiracy to commit mail and wire fraud, 18 U.S.C. § 1349, twenty-four counts of wire fraud, 18 U.S.C. § 1343, five counts of mail fraud, 18 U.S.C. § 1341, ten counts of promotional money laundering, 18 U.S.C. § 1956(a)(1)(A)(i). and eight counts of engaging in financial transactions with criminally derived property, 18 § 1957. A jury trial started on November 10. 2009 and the jury began deliberating on December 15, 2009, On December 18. 2009, it found Petitioner guilty of thirty-three counts: the conspiracy count, sixteen of the wire fraud counts, all five of the mail fraud counts, four of the promotional money laundering counts, and seven of the unlawful financial transactions counts. ECF No. 214. It acquitted Petitioner of eight counts and was unable to reach a verdict as to six counts. Id. On April 15, 2010, the Court sentenced Petitioner to a total of three hundred sixty (360) months of imprisonment.
Petitioner appealed his convictions to the United States Court of Appeals for the Fourth Circuit, which rejected his claims on April 13, 2012. United States v. Titus, 475 F.Appx. 826 (4th Cir. 2012). The United States Supreme Court denied his petition for a writ of certiorari on October 1, 2012. Titus v. United States, 133 S.Ct. 316 (2012). A year later, Petitioner timely filed his § 2255 Motion and accompanying memorandum and exhibits. ECF Nos. 300, 301. In his Motion, he raises multiple claims of ineffective assistance of counsel against his first counsel, the second counsel who replaced first counsel prior to trial, and a third counsel who prepared his petition for certiorari. Petitioner claims that his first attorney was ineffective during plea bargaining, that his second was ineffective in preparing for and during trial as well as during his appeal to the Fourth Circuit, and that his third was ineffective in the Supreme Court. On October 24, 2013, the Court ordered the Government to respond to Petitioner's Motion. ECF No. 302. Before the Government filed its Response, the Court also granted its Motion to Compel. That Order directed Petitioner's former counsel to provide the Government with information required to respond to the allegations in Petitioner's Motion. ECF No. 306. On January 27, 2014, the Government filed its Response accompanied by affidavits from Petitioner's former counsel. ECF No. 307. It also filed a Supplemental Memorandum with an additional affidavit on January 31, 2014. ECF No. 308. On February 10, 2014, Petitioner filed his Reply to the Government's Response. ECF No. 309. On the same day, he filed a Motion for Discovery asking the Court to order the production of various documents. ECF No. 310.
Petitioner's § 2255 Motion and Motion for Discovery are now fully briefed and ripe for disposition.
II. LEGAL STANDARD
Section 2255 of Title 28 of the United States Code governs post-conviction relief for federal prisoners. It provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255. In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Additionally, pro se filers are entitled to more liberal construction of their pleadings. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), cert. denied, 439 U.S. 970 (1978) (providing that a pro se petitioner is entitled to have his petition construed liberally and is held to less stringent standards than an attorney drafting such a complaint). When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976). Ineffective assistance of counsel claims, however, should generally be raised in a collateral motion instead of on direct appeal. United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
Claims of ineffective assistance of counsel in violation of the Sixth Amendment are governed by the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Petitioner must show both: (1) that counsel's representation was deficient, and (2) that Petitioner was prejudiced by counsel's performance. Id. at 687. If Petitioner makes an insufficient showing on one prong, the court need not address both components of the inquiry, Id. at 697. In order to demonstrate deficient performance, Petitioner must show "that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Petitioner must overcome a strong presumption that counsel's performance falls within a "wide range of reasonable professional assistance." Id. at 689. To show prejudice, Petitioner must prove 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." Id. at 694.
A. Ineffective assistance during plea bargaining Attorney Dalton
1. Plea offer
During the course of the criminal proceedings in this Court, Petitioner was represented by two different attorneys. In early October 2008, about a month after Petitioner was first indicted, the Court appointed Walter Dalton of the Federal Public Defender's Office as Petitioner's defense counsel. Petitioner's principal claim of ineffective assistance by Attorney Dalton centers on the plea offer the Government extended to Petitioner in November 2008 and later withdrew after Petitioner declined to plead guilty. At that time, Petitioner was subject to a First Superseding Indictment that named Petitioner in fifteen counts of conspiracy and mail and wire fraud. ECF No. 26. The draft plea agreement, which the Government sent to Attorney Dalton on November 19, 2008 along with a draft Statement of Facts, specified that Petitioner would plead guilty to one count of wire fraud, 18 U.S.C. § 1343, which carried a statutory maximum penalty of twenty years of imprisonment. Petr's Supporting Memorandum, ECF No. 301 (hereinafter "Supp. Mem."), Ex. B. All parties agree that Attorney Dalton immediately transmitted the offer to Petitioner. E.g., Supp. Mem. 2; Govt. Response, Ex. A (Affidavit of Walter B. Dalton) ¶ 3. He included an estimated U.S. Sentencing Guidelines calculation that predicted an offense level of 30 and a sentence of 97-121 months if Petitioner accepted the agreement. Supp. Mem. Ex. B. Petitioner further acknowledges that Attorney Dalton met with Petitioner "right away, " "thoroughly" reviewed the offer with him, and answered all of his questions. Id. at 2.
As to the content of the discussions between Petitioner and Attorney Dalton about the potential plea agreement, Petitioner has presented substantially different versions of events in his affidavit that he attached to his § 2255 Petition, Supp. Mem., Ex. A. and in his affidavit that accompanied his Reply, ECF No. 309, Ex. A. The latter, of course, was written after Petitioner had the benefit of reading Attorney Dalton's own affidavit and the Government's Response.
In the affidavit attached to his § 2255 Petition, Petitioner avers that Attorney Dalton told him that the likely sentence under the proposed plea agreement would be 9-12 years, although that was not guaranteed. Supp. Mem., Ex. A ¶ 1. Further, he says that Attorney Dalton recommended that Petitioner enter into the plea agreement even though it guaranteed no ascertainable benefit. Id. Petitioner's principal claim of error is that Attorney Dalton never explained to him that the plea agreement would be beneficial because it would limit Petitioner's sentence to a maximum of 20 years. Id. The only benefit he informed Petitioner of was that the Government would withdraw the plea and supersede the indictment if Petitioner did not accept it. Id. ¶ 4. According to Petitioner, Attorney Dalton never even "suggest[ed] that [Petitioner] could receive more than 12 years" if he went to trial and was convicted. Id. ¶ 1. He should have informed Petitioner that if he went to trial, he would face "a life sentence, " even if convicted of only one count. Id. If Attorney Dalton had, Petitioner says he would have accepted the plea agreement. Petitioner also claims in his first affidavit that Attorney Dalton "never explained to me how the U.S. Sentencing Guidelines were structured and how they would be applied to my case." Id.
In his affidavit, which accompanied the Government's Response, Attorney Dalton says that he provided Petitioner with the plea agreement, statement of facts, and an estimated sentencing guidelines calculation. Govt. Response, Ex. A, ¶ 4. Further, he says he "reviewed them with him in detail" and "advised [Petitioner] of the offer's benefits, such as limiting his exposure to no more than twenty (20) years, and receiving credit for acceptance of responsibility." Id. He also says that the offer was discussed several times and that the Government extended the deadline for accepting it, but that in the end Petitioner "indicated that it was unacceptable." Id ¶ 5.
In the affidavit attached to his Reply, Petitioner says that reviewing those documents "caused [him] to remember additional details." ECF No. 309, Ex. A ¶ 4. Contrary to his initial affidavit, Petitioner says that Attorney Dalton did in fact affirmatively inform him that the plea agreement give him one benefit: it would limit his exposure to no more than 20 years in prison, and that it would provide him with two or three level reductions for acceptance of responsibility under the Guidelines. Id. ¶ 6. This statement directly contradicts Petitioner's previous statements that Attorney Dalton never explained the benefit of the potential agreement or the application of the Guidelines. Petitioner also contradicts his previous assertion that Attorney Dalton never even suggested that he might receive more than 12 years if he went to trial. Instead, Petitioner says in his second affidavit, Attorney Dalton estimated that if he went to trial Petitioner would lose the points for acceptance of responsibility and therefore be subject to an offense level of 33, which would be a 135-168 month (11.25-14 years) sentence. Id. ¶¶ 6-7. According to Petitioner, Attorney Dalton said this would be his "highest risk" and that based on his experience, Petitioner would likely receive under 20 years if convicted at trial. Id. ¶ 7. Attorney Dalton also told Petitioner that hypothetically, his risk was the statutory maximum for each count, but that courts rarely impose such sentences and usually sentence within the Guidelines range. Id.
Because of the direct and material contradictions and inconsistencies between Petitioner's affidavits as to his discussions with Attorney Dalton, the Court finds those portions of both documents inherently incredible and accords little weight to either. For that reason alone, the Court concludes that Petitioner has failed to satisfy his burden of proving ineffective assistance of counsel on the part of Attorney Dalton. Assuming, however, that Petitioner's most recent version of what transpired ( i.e., the affidavit attached to his Reply) and the uncontradicted facts in his initial affidavit are accurate, however, the Court alternatively concludes that Petitioner has failed to establish a viable claim for relief.
In Leer v. Cooper and Missouri v. Frye, the United States Supreme Court established that a defendant's right to effective assistance of counsel can be violated where defense counsel's deficient performance resulted in a rejection or lapse of a favorable plea offer. Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012). In both cases, the Supreme Court concluded that the defendant had raised a viable claim under the two-part test of deficient performance and prejudice established by Strickland v. Washington, 466 U.S. 668 (1984).
In Frye, the Court declined to "try to elaborate or define detailed standards" that would define what constituted deficient performance in the plea bargaining process. 132 S.Ct. at 1408. It did, however, conclude that "as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Id. That rule was sufficient to for the Court to conclude that the defendant's counsel had performed deficiently where he did not communicate the prosecution's offer to the defendant. The Supreme Court also provided guidance in an earlier case involving a claim that the ineffective assistance caused a defendant to accept a plea offer when the defendant was not informed of the collateral consequences of a plea. In Padilla v. Kentucky, 559 U.S. 356, 370 (2010), the Court rejected the argument that Strickland claims in the plea bargaining context were limited to "affirmative misadvice." It reasoned that such rule would inappropriately "give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of the advantages and disadvantages of a plea agreement." Id. Nonetheless, the Court emphasized, "[s]urmounting Strickland's high bar is never an easy task." Id. at 371.
Indeed, the Court concludes that the already wide range of acceptable performance allowed by Strickland is particularly broad when a defendant raises a claim that he was not fully informed of the advantages and disadvantages of a plea agreement. The calculation of the potential benefits and disadvantages of a plea agreement is often a highly subjective enterprise that occurs quite early in a case. Accurate predictions and advice depend on speculation about the strength of the then-existing evidence, the calculation of Guidelines ranges and potential enhancements and reductions, and other factors. An attorney must also account for any protestations of innocence by their client. Probably for these reasons, the relevant American Bar Association guidelines, a source that the Supreme Court consulted in Frye, are rather vague on this point:
To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and address considerations deemed important by defense counsel or the defendant in reaching a decision. Defense counsel should not recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed.
American Bar Association, ABA Standards for Criminal Justice: Pleas of Guilty 14-3.2 (3d ed. 1999), available at http://www.americanbar.org/publications/criminal justice_section_archive/crimjust_standards_g uiltypleas_blk.html.
Petitioner's claim is that Attorney Dalton informed him that the agreement would have the benefit of limiting his exposure to twenty years and that he would probably receive 9-12 years under the agreement, but would likely receive only a few more years if he went to trial because that would be the likely Guidelines range and judges usually do not impose the statutory maximum on each count. Petitioner argues he should have been informed that he would face life or the term-of-years equivalent if he went to trial. Reply at 3. Even if Petitioner's claims are true, this does not amount to deficient performance for several reasons. First, Attorney Dalton promptly transmitted the agreement to Petitioner and by all accounts thoroughly discussed it and its estimated costs and benefits, meeting Frye and the consultation requirement embodied in the ABA standards quoted above. Second, according to Petitioner's first affidavit, Attorney Dalton recommended to Petitioner that he enter into the plea agreement, at least in part because he was highly likely to receive a lower sentence-an objectively accurate statement that accords with Dalton's statement that he advised Defendant of the offer's benefits. Third, Petitioner was indeed aware that there was at least a slight chance that he could receive a term-of-years sentence equivalent to life. The first page of the plea agreement, which Petitioner agrees he received, says that the statutory maximum was twenty years. Petitioner himself was a licensed attorney who earned his law degree in 1989 and an LLM in 1990, and practiced law until 2005. Presentence Investigation Report, ECF No. 311 (hereinafter PSR) ¶¶ 226, 227, 234. He could reasonably be expected to understand that if one count has a statutory maximum of 20 years, multiple similar counts would carry the potential of a greatly increased sentence. And Attorney Dalton's statement that a consecutive statutory maximum sentence on each count was highly unlikely was also reasonably accurate, particularly in light of the thirty-year sentence Petitioner did receive after a trial at which he was convicted of more counts than charged in the First Superseding Indictment.
Fourth, the Court finds that Attorney Dalton could not have been expected to reasonably provide a better prediction of Petitioner's actual Guidelines range and sentence. At the sentencing in this case, Petitioner's offense level was 43, which carries a Guidelines range of life in prison. Sentencing Tr. 153. Two of those levels were driven by a crime (promotional money laundering) of which Petitioner was not charged in the First Superseding Indictment. For the count for which Petitioner was offered a plea, wire fraud, the adjusted offense level in the Presentence Report was 41. Attorney Dalton's calculation was an offense level of 30 had Petitioner pleaded guilty to that count. He reasonably predicted that Petitioner would not receive three points for acceptance of responsibility had Petitioner gone to trial, leading to an offense level of 33 and a Guidelines range of 135-168 months. But a year before trial, Attorney Dalton did not act deficiently in failing to predict the dramatic increase in that range in Petitioner's final Presentence Report: 1) that Petitioner would take the stand and lie at trial (2 points); 2) that the loss was over $7 million rather than over $2.5 million (which Attorney Dalton's calculation explicitly noted was an estimate) (4 points); and 3) that Petitioner would receive an enhancement for a vulnerable victim, which Petitioner's second attorney vigorously objected to at sentencing (2 points).
For all of these reasons, Attorney Dalton's performance was not deficient within the meaning of Strickland, where 1) he promptly provided Petitioner with the Plea Agreement and estimated Guidelines range, had a thorough discussion with Petitioner about it, and recommended that Petitioner accept the agreement, Carlllo-Morales v. United States, 952 F.Supp.2d 797, 804 (E.D. Va. 2013) (advising a defendant to take a favorable plea agreement exceeds what is required by Strickland ); 2) he could not have been expected to precisely predict Petitioner's eventual Guidelines range; and 3) Petitioner, a highly educated and licensed attorney, can be expected to have an understanding that being convicted of multiple counts might increase his predicted sentence. Because Attorney Dalton did not perform deficiently, the Court need not address whether or not Petitioner was prejudiced by his performance.
2. Rule 11(c)(1)(C) plea & Alford plea
In his affidavits, Petitioner mentions that Attorney Dalton did not raise the possibility of either a Federal Rule of Criminal Procedure Rule 11 (c)(1)(C) plea agreement or an Alford plea. However, Petitioner has not raised these claims as grounds for an ineffective assistance of counsel claim in either the § 2255 Petition itself, his Supporting Memorandum, or his Reply. Accordingly, the Court declines to address these claims as they were not properly raised. In the alternative, the Court finds that Petitioner has failed to show prejudice because he has not contested the ...