United States District Court, E.D. Virginia, Richmond Division
(MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE)
HENRY E. HUDSON, District Judge.
Petitioner Joan Marsh ("Marsh"), a federal inmate proceeding pro se, was convicted by a jury of this Court on September 21, 2011, of Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C. § 1349 (Count One); Bank Fraud, in violation of 18 U.S.C. § 1344 (Counts Two through Seven); Conspiracy to Launder Monetary Instruments, in violation of 18 U.S.C. § 1956(h) (Count Eight); and Money Laundering, inviolation of 18 U.S.C. § 1956(a)(1)(b)(i) (Counts Nine and Twelve through Fourteen).
On December 19, 2011, Marsh was sentenced to 96 months on each count, to run concurrently, followed by five years of supervised release. Marsh filed a timely notice of appeal to the United States Court of Appeals for the Fourth Circuit. However, on April 19, 2012, the appeal was dismissed on Marsh's motion. Marsh is currently serving her sentence at the Federal Correctional Institution, Danbury, in Danbury, Connecticut.
This case is presently before the Court on Marsh's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion", ECF No. 113), which was timely filed. The § 2255 Motion includes a number of exhibits. The United States has filed a memorandum in opposition to the § 2255 Motion, accompanied by an affidavit filed by Marsh's trial counsel, John F. Carman, Esquire, and correspondence relating to plea negotiations in her case.
Although the centerpiece of Marsh's petition is a claim of ineffective assistance of counsel-at all stages of the proceedings-she also challenges the constitutionality of judicial fact-finding in applying certain sentencing enhancements. The undercurrent of her § 2255 Motion, however, is in essence a re-argument of a number of issues rejected by this Court and the jury during the trial of her case.
This Court's analysis begins with recognition of the well-settled principle that unless a claim alleges a lack of jurisdiction or constitutional error, the scope of collateral review is limited. Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). As Chief Justice Rehnquist noted in Brecht v. Abrahamson, "the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness.... Accordingly, it hardly bears repeating that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." 507 U.S. 619, 633-34 (1993) (internal quotation marks and citations omitted). Therefore, errors of law do not typically provide a basis for habeas relief under 28 U.S.C. § 2255 unless it constitutes "a fundamental defect which inherently results in a complete miscarriage of justice" United States v. Timmreck, 441 U.S. 780, 783 (1979).
Marsh's claim of ineffective assistance of counsel encompasses virtually every stage of the proceedings from indictment through the appellate process. She contends that (1) her trial counsel failed to effectively negotiate a favorable plea agreement with the United States; (2) counsel, at sentencing, failed to object to parts of the Presentence Report and to factual findings supporting sentencing enhancements; and (3) her appellate counsel failed to perfect her appeal. Her § 2255 Motion is sweeping in scope but stands on frail factual footing.
The standard of review for petitions alleging ineffective assistance of counsel is well-established in 28 U.S.C. § 2255 jurisprudence. To prevail, a petitioner must first show that counsel's representation was deficient, and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, a defendant must overcome the "strong presumption' that counsel's strategy and tactics fall within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). As to prejudice, a defendant 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.
In analyzing ineffective assistance of counsel claims, the Court need not determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697. To prevail, the petitioner must demonstrate a "reasonable probability of a different outcome." Lenz v. Washington, 444 F.3d 295, 303 (4th Cir. 2006) (internal quotation marks and citations omitted). Demonstrating a reasonable probability of a different outcome is an insurmountable hurdle for Marsh in this case.
At trial, Marsh was represented by John F. Carman, Esquire ("Carman"), whom she retained. Carman has practiced law for over twenty years and handled in excess of 400 federal criminal cases. (Gov't Resp. to § 2255 Mot., Ex. 1 at ¶ 1 ("Carman Aff."), ECF No. 115-1.) Although Marsh expresses general discontent with Carman's handling of her case, her principle complaint focuses on plea negotiations.
Although Marsh's claims concerning her counsel's negotiation of a potential plea agreement has several components, at bottom she believes that Carman should have more aggressively pressed the government for a better deal. The strength of her claim is predicated on a belief that the government would have been willing to offer her a more favorable disposition. Unfortunately, she offers no evidence to bolster such speculation.
Marsh maintains that Carman's representation during plea negotiations was deficient in three respects. First, she contends that Carman inaccurately predicted that she had a 70 percent chance of acquittal at trial. (Marsh Mem. Supp. § 2255 Mot. at 11.) Marsh also maintains that Carman anticipated that she would be facing a U.S. Sentencing Guideline range of only 51-72 months of imprisonment if she was convicted at trial. ( Id. ) The plea agreement offered by the United States in this case required her to enter a plea of guilty to Count One of the Indictment, charging conspiracy to commit bank fraud, and contained no specific sentencing recommendation by the United States. Marsh, however, recalls that Carman explained to her "that the government had offered her a plea offer of 41 months. However, based on the erroneous advice given to her by Carman, she opted to proceed to trial." ( Id. )
Lastly, she finds fault with her counsel's alleged failure to "attempt to make a better deal with the government and see if they would go below the 41 months." ( Id. ) She asserts that"[h]ad Carman correctly informed Marsh that she was facing a Guideline range of 92-115 months imprisonment as compared to 41 months imprisonment, there is a reasonable probability that Marsh would have taken the government's plea offer. Further, had Carman informed Marsh that the evidence against her was overwhelming and that it was more like 90 percent that she would be convicted, Marsh would have certainly opted to accept the government's] plea offer." ( Id. at 12.)
Under the terms of the plea agreement offered to Marsh, she would have been required to plead guilty to Count one of the Indictment, charging conspiracy to commit bank fraud. (Gov't Resp. to § 2255 Mot, Ex. 3 at ¶ 1, ("Draft Plea Agreement").) The balance of the remaining counts would have been dismissed at sentencing and she would not have been charged with any other related conduct. Furthermore, if Marsh received a two point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), the government would move for an additional one level reduction pursuant to U.S.S.G. § 3E1.1(b). In the event that Marsh offered substantial assistance to the prosecution, the agreement left the door ajar for a further sentencing reduction pursuant to U.S.S.G. § 5K1.1 or Fed. R. Crim. P. 35(b). (Draft Plea Agreement at ¶¶ 9-14.) In addition, in the statement of ...