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United States v. Fiel

United States District Court, E.D. Virginia, Richmond Division

March 3, 2015


Mark Jason Fiel, Petitioner(3:13cv526), Pro se.

For Harley Davidson Financial Services, Inc., Claimant(3:10-cr-00170-HEH): Jeffrey Alan Fleischhauer, LEAD ATTORNEY, Matthew D. Huebschman, Shenandoah Legal Group PC, Roanoke, VA.

Kristen Lusk, Interested Party(3:10-cr-00170-HEH), Pro se, Bristow, VA.

For USA, Plaintiff(3:10-cr-00170-HEH): Dennis Fitzpatrick, LEAD ATTORNEY, United States Attorney Office, Alexandria, VA; G. Wingate Grant, Laura Colombell Marshall, Theryn G. Gibbons, United States Attorney's Office, Richmond, VA; Peter S. Duffey, Stephen Wiley Miller, Office of the U.S. Attorney, Richmond, VA; Philip Sam Kaplan, U.S. Attorney's Office (Alexandria-NA), Alexandria, VA.

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Henry E. Hudson, United States District Judge.

(Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255)

By Memorandum Opinion and accompanying Order issued on August 1, 2014 (ECF Nos. 1087, 1088), this Court dismissed all but one claim of Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (" § 2255 Motion" ).[1] The remaining claim focuses on the adequacy of trial counsel's representation during the course of plea negotiations. Because several pivotal facts material to the resolution of this claim are in dispute, this Court was unable to find conclusively at the pleading stage that Petitioner was entitled to no relief. See 28 U.S.C. § 2255(b). Accordingly, this Court conducted an evidentiary hearing on January 20, 2015, limited to whether Petitioner was competently counseled concerning his potential sentencing exposure under the U.S. Sentencing Guidelines if convicted by a jury.

As more fully explained in this Court's previous Memorandum Opinion, the Petitioner, Mark Jason Fiel (" Petitioner" ), who is presently a federal inmate, was convicted by a jury of this Court of Conspiracy to Violate the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), in violation of 18 U.S.C. § § 1961-1968; and Conspiracy to Commit Violence in Aid of Racketeering, in violation of 18 U.S.C. § 1959(a)(3). Petitioner was sentenced to 114 months of imprisonment on Count One, and 36 months on Count Two, to be served concurrently. Petitioner's convictions

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were affirmed by the United States Court of Appeals for the Fourth Circuit on August 2, 2012. Werth v. United States, 493 F.App'x 361, 364 (4th Cir. 2012).

Succinctly, in Petitioner's remaining claim he contends that " [i]n light of the recent Supreme Court rulings in Lafler and Frye [, ] counsel fail[ed] to properly advise Movant regarding possible plea." (Pet'r's § 2255 Mot. 5, ECF No. 1029.) This claim is premised on his perception that his counsel failed to effectively negotiate a plea agreement with the United States, specifically by misjudging the chances of acquittal, miscalculating his sentencing guidelines, and inaccurately assessing his possible sentencing exposure if convicted.

According to Petitioner, in the weeks preceding trial his counsel expressed confidence in a favorable outcome. He maintains that she expressed little interest in pursuing a plea agreement, advising that even if convicted he was facing an offense level of 19, and about 36 months of confinement. (Pet'r's Aff. at 2, ECF No. 1029-1.) At some point, the United States " offered a plea agreement of 21-27 months if I pled to Count I and II." ( Id.) The United States also stipulated in the proposed plea agreement that Petitioner " played no aggravating or mitigating role in the offense." (Gov't's Resp. to Court Order, Ex. 1 at 4, ECF No. 1107-1.) Petitioner alleges that he responded by suggesting that certain language pertaining to the Outlaws Motorcycle Club be removed from the agreement. Ultimately, the modifications he requested were not made by the United States and, according to Petitioner, on advice of counsel, he turned down the plea agreement. (Pet'r's Aff. at 2-3.) In her affidavit, Petitioner's retained trial counsel, Angela D. Whitley (" Whitley" ), recalls the events differently. Whitley denies having assessed Petitioner's exposure if convicted at only 36 months. She disclosed to him that the minimum sentence he could receive at a base offense level of 19 would be 36 months, but that depending on the evidence introduced at trial and other possible sentencing enhancements under the guidelines, his sentence could be as high as the statutory maximum of 20 years. (Gov't's Resp. to § 2255 Mot., Ex. 1 ¶ 2 (" Whitley Aff" ), ECF No. 1081-1.) Furthermore, according to Whitley's affidavit, Petitioner elected to wait until the jury trying the first group of Outlaws returned a verdict before deciding on whether to plead guilty.[2] The government declined to defer Petitioner's entry of a guilty plea until after the jury returned a verdict. The plea offer was therefore withdrawn. ( Id. ¶ 3.) To resolve the discrepant versions, this Court conducted an evidentiary hearing.

In Missouri v. Frye, the United States Supreme Court reiterated that the Sixth Amendment right to effective assistance of counsel applies to all critical stages of criminal proceedings, including the consideration of plea offers that lapse or are rejected. 132 S.Ct. 1399, 1402, 182 L.Ed.2d 379 (2012). The court in Frye also emphasized that the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) governs ineffective assistance claims in the plea bargain context. See Frye, 132 S.Ct. at 1405; Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The negotiation and acceptance of a plea offer is a critical stage of the proceedings during which the right to counsel adheres. Lafler v. Cooper,

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132 S.Ct. 1376, 1392, 182 L.Ed.2d 398 (2012).

To prevail on a petition alleging ineffective assistance of counsel under 28 U.S.C. § 2255, a petitioner must first show that counsel's representation was deficient, and second, that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. To satisfy the deficient prong of Strickland, the 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).[3] 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 ...

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