Arreskjold v. U.S.A

• Decision Date: 21 June 2010
• Docket Number: 06-20445-CR.,Case No. 09-20293-CV
• Citation: 707 F.Supp.2d 1332
• Parties: Ronald ARRESKJOLD, Petitioner,v.UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Florida

707 F.Supp.2d 1332

Ronald ARRESKJOLD, Petitioner,v.UNITED STATES OF AMERICA, Respondent.

Case No. 09-20293-CV, 06-20445-CR.

United States District Court S.D. Florida.

April 14, 2010.

Order Denying Certificate of Appealability June 21, 2010.

COPYRIGHT MATERIAL OMITTED

Anne Ruth Schultz, United States Attorney's Office, Miami, FL, Thomas Pinder, United States Attorney's Office, Miami, FL, Lead Attorney, Attorney to be Noticed, for USA.

Ronald Aareskjold, LSCI-Butner, Butner, NC, for Petitioner, pro se.

ORDER DENYING MOTION TO VACATE SENTENCE

JAMES LAWRENCE KING, District Judge.

THIS CAUSE comes before the Court upon Magistrate Judge Patrick A. White's Report and Recommendation (DE # 16) on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (DE # 1),¹ brought pursuant to 28 U.S.C. § 2255. Petitioner has filed Objections (DE # 17). After careful consideration and a de novo review of the record, the Court ultimately agrees with Judge White that the Motion should be denied. However, the Court reaches that result through different reasoning, and writes separately to clarify the decision.

I. Introduction

Petitioner pled guilty in Case No. 06-CR-20445 to conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h); money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i); and operating an unlicensed money transmitting business, in violation of 18 U.S.C. § 1960. As part of his plea agreement, he waived his right to appeal, and accordingly did not file a direct appeal. Several months after he was sentenced, the Supreme Court decided United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008), which narrowed the definition of the word “proceeds” in the money laundering statute by holding that, at least for some predicate offenses, “proceeds” meant “net profits” and not “gross receipts.” Petitioner thereafter filed the instant Motion to Vacate pursuant to 18 U.S.C. § 2255, claiming that Santos requires that his sentence be vacated.

Petitioner's motion is structured as asserting two claims: one for ineffective assistance of counsel, and one that he is “actually innocent” of the money laundering charge to which he pled guilty. However, in liberally construing the pro se motion, the Court notes that Petitioner has actually presented the following two claims: 1) He received ineffective assistance of counsel, and 2) his guilty plea was involuntary and unintelligent. Before addressing these two claims, however, it is necessary to briefly discuss two preliminary issues.

II. Preliminary IssuesA. Retroactivity

As an initial matter, retroactivity is not an issue in this case. Judge White notes in his Report that, because Santos was decided after Petitioner's judgment became final, and it appears that Santos does not apply retroactively, Petitioner is procedurally barred from raising it. Assuming for the moment that Santos does not apply retroactively, Petitioner would still not be procedurally barred because the instant case is not a “ Santos claim”; it is a claim for ineffective assistance of counsel (based on the Sixth Amendment guarantee of counsel) and an involuntary guilty plea (based on the Fifth Amendment privilege against self-incrimination and the general principle that waivers of constitutional rights must be knowing and voluntary). These principles were announced long before Petitioner's criminal judgment became final, and accordingly the issue of retroactivity need not be addressed.

Indeed, the Supreme Court conclusively decided this issue in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). In Bousley, the petitioner pled guilty to “using” a firearm in violation of 18 U.S.C. § 924(c)(1). Id. at 616, 118 S.Ct. 1604. Five years later, the Court held in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), that § 924(c)(1)'s “use” prong required the Government to show “active employment of the firearm.” Id. The petitioner then filed a § 2255 petition, arguing that his guilty plea was involuntary and unintelligent. Id. The Government made the argument that the petitioner could not seek relief because Bailey was not retroactive and the Court specifically rejected it, noting that it was unnecessary to conduct a retroactivity analysis because “[t]he only constitutional claim made [in Bousley ] is that petitioner's guilty plea was not knowing and intelligent. There is surely nothing new about this principle.” Id. at 620, 118 S.Ct. 1604.

Moreover, even if this were a “ Santos claim,” it would still not be procedurally barred when analyzed under the retroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Under Teague, “[a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) (quoting Teague, 489 U.S. at 311, 109 S.Ct. 1060; second brackets in original). This case does not fall within the second prong because Santos did not announce a watershed rule of criminal procedure, but it would fall within the first prong, because Santos announced a new substantive rule by modifying the elements of a criminal offense. See Schriro v. Summerlin, 542 U.S. 348, 354, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (“New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms.”). Gonzalez v. Crosby, 545 U.S. 524, 537 n. 9, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (“A change in the interpretation of a substantive statute may have consequences for cases that have already reached final judgment, particularly in the criminal context.”); United States v. Arevalo, 368 Fed.Appx. 957, 2010 WL 935645, *1 (11th Cir.2010) (“It is also clear that the claim Arevalo makes in his audita querela motion-that his conviction should be collaterally overturned because the Supreme Court's recent decision in United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) applies retroactively-is cognizable under § 2255.”).² Thus, under Teague, a pure “ Santos claim” should apply retroactively. ³

B. Actual Innocence

The term “actual innocence” has been used loosely by the parties in this case, and thus it would be helpful to clarify the scope of that term. Although the Supreme Court has assumed, without deciding, that a freestanding actual innocence claim may be available to a capital defendant, such a claim is not available in a non-capital case. Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (“But this body of our habeas jurisprudence makes clear that a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”). Thus, “actual innocence” is not an affirmative claim for relief upon which a habeas petition may be granted. Rather, it is an exception that allows a petitioner to get around procedural hurdles such as 1) the one-year statute of limitation, 2) the prohibition against second or successive petitions, and 3) the rule of procedural default. The first and second hurdles are inapplicable here because Petitioner filed the instant Motion within one year of his criminal judgment becoming final,⁴ and this is his first petition. However, it is relevant to the third hurdle, procedural default.

Procedural default is “the general rule that claims not raised on direct appeal may not be raised on collateral review.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). There are exceptions to this rule (including actual innocence), which will be discussed below. Here, Petitioner did not raise any claim on direct appeal because no appeal was filed. Therefore, procedural default must be addressed with respect to each claim raised in this Motion. Having so recognized, the Court will now turn to Petitioner's claims.

III. Ineffective Assistance of CounselA. Procedural Default

The Supreme Court has held that a claim for ineffective assistance of counsel is not subject to the rule of procedural default. Massaro, 538 U.S. at 509, 123 S.Ct. 1690 (“We do hold that failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.”). Therefore, the fact that Petitioner did not raise this claim on direct appeal does not bar consideration of the claim in the instant Motion.

B. The Merits

Petitioner claims that he received ineffective assistance of counsel because his lawyer failed to notify him that the Supreme Court had granted certiorari in the Santos case, and that, had he known of this development, he would not have pled guilty and would have insisted on going to trial. Similarly, Petitioner claims that his counsel should have filed a challenge to the statute, arguing for a different interpretation of the word “proceeds,” which was the subject of the eventual Santos decision.⁵

However, these purported errors do not amount to ineffective assistance of counsel. Under the two-part test of Strickland v. Washington, Petitioner must show 1) that his counsel exhibited constitutionally deficient performance, and 2) that he was prejudiced as a result. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong is easily disposed of because, in the Eleventh Circuit, it is not ineffective assistance of counsel to fail to anticipate a change in the law. Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.1994) (“We have held many times that ‘reasonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop.’ ”) (quo...