AUYER v. USA
| Decision Date | 05 April 2011 |
| Docket Number | No. 1:05-cr-60/1:07-cv-233,1:05-cr-60/1:07-cv-233 |
| Parties | ANTHONY C. AUYER, Petitioner, v. UNITED STATES OF AMERICA Respondent. |
| Court | U.S. District Court — Eastern District of Tennessee |
OPINION TEXT STARTS HERE
MEMORANDUM AND ORDER
The previous Memorandum inadvertently entered in this cause is hereby VACATED and SET ASIDE and this instant Memorandum and Order will REPLACE it.
Petitioner Anthony C. Auyer,("Auyer" or "Petitioner"), has made a pro se motion for postconviction relief pursuant to 28 U.S.C. § 2255. The United States has filed a response and petitioner a reply. After reviewing these filings and the record, the Court concludes the motion will be DENIED IN PART and GRANTED IN PART. Specifically, as explained herein, because Auyer has demonstrated counsel was ineffective for failing to challenge an incorrect amount of restitution, the order of restitution will be amended to reflect the amount of restitution owed after Auyer receives the credit he is due.
28 U.S.C. § 2255(a) provides that a federal prisoner may make a motion to vacate, set aside, or correct his judgment of conviction and sentence on the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court lacked jurisdiction to impose the sentence, or that the sentence is in excess of the maximum authorized by law, or is otherwise subject to collateral attack. As a threshold standard, to obtain post-conviction relief under § 2255 a motion must allege: (1) an error of constitutional magnitude; (2) a sentence was imposed outside the federal statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire criminal proceeding invalid. Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003); Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003); Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001).
Petitioner Auyer bears the burden of demonstrating an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Reed v. Farley, 512 U.S. 339, 353 (1994); Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999).
To warrant relief under § 2255 based on an alleged non-constitutional error, Auyer must show there was a fundamental defect in the criminal proceeding which necessarily resulted in a complete miscarriage of justice or an error so egregious that it amounts to a violation of due process of law. Hill v. United States, 368 U.S. 424, 428 (1962); Watson, 165 F.3d at 488; Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998); Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990).
A § 2255 motion is not a substitute for a direct appeal and it cannot do service for an appeal. Bousley v. United States, 523 U.S. 614, 621 (1998); United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Timmreck, 441 U.S. 780, 784 (1979); Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003); Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996); United States v. Walsh, 733 F.2d 31, 35 (6th Cir. 1984).
An evidentiary hearing is unnecessary if there are no material issues of fact in dispute or if the record conclusively shows that Auyer is not entitled to relief under § 2255. An evidentiary hearing is not required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or mere conclusions rather than statements of fact. Amr v. United States, 280 Fed. Appx. 480, 485, (6th Cir. 2008); Valentine v. United States, 488 F.3d 325, (6th Cir. 2007); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999); Cordell v. United States, 2008 WL 4568076, * 2 (E.D. Tenn. Oct. 14, 2008).
Auyer bears the burden of articulating sufficient facts to state a viable claim for relief under 28 U.S.C. § 2255. Mere vague conclusions, which are not substantiated by allegations of specific facts with some probability of verity, are not enough to warrant an evidentiary hearing. A § 2255 motion may be dismissed if it only makes vague conclusory statements without substantiating allegations of specific facts and thereby fails to state a viable claim cognizable under § 2255. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961); Ryals v. United States, 2009 WL 595984, * 5 (E.D. Tenn. March 6, 2009); Stamper v. United States, 2008 WL 2811902, * 1 (E.D. Tenn. July 18, 2008).
The underlying facts are summarized in the presentence investigation report (PSR). On May 10, 2005, a United States grand jury returned a fourteen count Indictment charging bank fraud, mail fraud, conspiracy to commit bank and mail fraud, money laundering, money laundering conspiracy, and wire fraud. Auyer was charged in Counts One through Fourteen. On April 4, 2006, petitioner was scheduled for trial; however, on April 3, 2006, a Notice of Intent to Plead Guilty was filed. On April 3, 2006, the same day as the Notice was filed, Auyer appeared before United States District Judge R. Allan Edgar. Without benefit of a plea agreement, defendant pled "straight up" to the Indictment. The Court accepted the guilty plea and sentencing was scheduled for July 24, 2006. On July 24, 2006, Auyer was sentenced to 34 months on each count, to be served concurrently, and to five years of supervised release, consisting of 5 years on Counts 1 - 2, 4 - 7, 13 - 14, and 3 years on Counts 3, 8-12, also to be served concurrently. Further, Auyer was ordered to pay a $1,400.00 special assessment and $1,358,059.00 in restitution. This amount was not disputed in court and no Notice of Appeal was filed by petitioner.
On August 8, 2007, Auyer filed this 28 U.S.C. § 2255 motion, raising two claims. In the first one, petitioner asserts that, for several reasons, his Fifth and Eighth Amendment rights were violated in that the Court imposed an unconstitutional sentence and restitution. Auyer specifically argues that he did not receive an evidentiary hearing to resolve disputed facts in his PSR; that collateral recovered by the victims was not applied or not properly applied to offset their losses; and that the amount of restitution was not based on charged conduct, but on relevant conduct, which was outside the time-limits of the offenses to which he pled guilty. In addition, Auyer insists that the amount of loss was incorrectly determined vis-a-vis mitigating factors, intervening causes, economic reality, and pecuniary harm.
Second, the petitioner claims that he was denied the effective assistance of counsel, which resulted in the imposition of a harsher sentence and more onerous restitution. Counsel's claimed errors are many; they include purported failings during the pretrial phase, the change-of-plea hearing,1 the PSR preparation stage, the sentencing proceedings, and the post-sentencing phase. All these shortcomings violated his right to the effective assistance of counsel under the Sixth Amendment, so alleges Auyer.
The Court finds that Auyer has met this burden of showing that he is entitled to relief under 28 U.S.C. § 2255 on two claims of ineffective assistance of counsel. He has established an error of constitutional magnitude which had a substantial and injurious effect or influence on his sentence. He has presented sufficient, credible facts showing that his Sixth Amendment right was violated.
The total amount of restitution set forth in petitioner's PSR and ordered by the Court was $1,358,059.00, with $1,254,518.00 of that sum to be paid to Bank Tennessee and $103,541.00 to the Tennessee Department of Economic and Community Development. (PSR, p. 16, ¶86; Court File No. 91, p.6). The restitution amount disclosed in the PSR was not disputed at sentencing. Indeed, during the sentencing hearing, the Court inquired about any objections to the PSR, and counsel for petitioner responded, "We have worked through the objections with pretrial and there are no objections at this time." (Court File No. 98, Sent. Tr., p. 3) (Available in Clerk's Office). A defendant who fails to object at the time of sentencing to alleged inaccuracies in a PSR waives the right to challenge the PSR in a collateral proceeding:
If the system [of sentencing a criminal defendant] is to work and if appellate review is to be meaningful, it is absolutely essential that a defendant raise all objections to the sentence before the sentencing judge in the first instance. For this reason, the law has developed that a failure to object results in a waiver.
United States v. Cullens, 67 F.3d 123, 124 (6th Cir. 1995) (citations omitted). See also United States v. Jarman, 144 F.3d 912, 915 (6th Cir. 1998) (); United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996) ().
Nor did petitioner challenge the restitution amount in an appeal to the Sixth Circuit Court of Appeals because, as noted, he did not pursue an appeal. A claim which could have been but was not raised on appeal or at an earlier opportunity is deemed to have been waived. Bousley v. United States, 523 U.S. 614, 619 (1998); United States v. Frady, 456 U.S. 152, 166 (1982); Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000); Turner v. United States, 1999 WL 777669 (6th Cir. Sept. 17, 1999) (...
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