Burton v. United States

• Decision Date: 16 October 2020
• Docket Number: Cr. No. 13-10292-MLW
• Citation: 495 F.Supp.3d 62
• Parties: Robert BURTON, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Massachusetts

495 F.Supp.3d 62

Robert BURTON, Petitioner,

v.UNITED STATES of America, Respondent.

Cr. No. 13-10292-MLW

United States District Court, D. Massachusetts.

Filed October 16, 2020

Sarah E. Walters, United States Attorney's Office MA, Boston, MA, for Petitioner.

Oscar Cruz, Jr., Federal Public Defender Office, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

WOLF, D.J.

I. INTRODUCTION

Defendant Robert Burton pled guilty to securities and tax fraud on August 21, 2014. On December 22, 2014, he was sentenced to serve 48 months in custody and 3 years of supervised release. See Dkt. No. 125 (Judgment).

On April 20, 2015, Burton filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Dkt. No. 132), which he subsequently amended. The amended § 2255 Petition was filed on May 19, 2015. See Dkt. No. 137 (the "Petition"). A memorandum in support was filed on June 15, 2015. See Dkt. No. 139 ("Mem. in Supp. Petition"). The government opposes the Petition.

As discussed in this Memorandum, many of the "facts" that Burton alleges are conclusively refuted by the records of this case. The true facts and the knowledge this court obtained presiding in Burton's case demonstrate that Burton's contention that his counsel, Oscar Cruz, Esq., was ineffective is without merit. Burton's other claims are both defaulted and also without merit. Accordingly, it is not necessary or appropriate to conduct an evidentiary hearing on Burton's claims. The Petition is being denied. A Certificate of Appealability is being denied as well.

II. FACTUAL AND PROCEDURAL BACKGROUND

Burton was indicted on October 3, 2013. See Dkt. No. 21. On February 13, 2014, a Superseding Indictment was returned. See Dkt. No. 53. On August, 14, 2014 a Second Superseding Indictment was returned. See Dkt. No. 77. The Second Superseding Indictment charged Burton with three categories of offenses: (1) securities fraud associated with funds invested with him (Counts 1-5); (2) procuring false tax returns (Counts 6-7); and (3) subscribing false tax returns (Counts 8-11). The tax charges concern the preparation of false tax returns by Burton for both clients and for himself.

These charges arose out of Burton's conduct in running a financial services business originally located in Boston and then in Lawrence, Massachusetts. Although the business had multiple names, it was generally referred to as "Pinnacle". Through Pinnacle, Burton provided tax preparation, loan modification, debt consolidation, investment advising, and bankruptcy petition preparation services. During some of the period relevant to this case, Burton had between eight and ten employees assisting him at Pinnacle.

Burton's scheme to defraud investors involved interactions with Ariel Castillo, Larry and Miriam Coleman (together, the "Colemans"), Sean Hannan, and Edward Vozella. In essence, Burton, made various misrepresentations to obtain funds from these individuals. More specifically, Burton told them he would invest their money. However, no such investments were made. Rather, Burton used much of the money for personal purposes. The tax charges relate to Burton's preparation of false returns for the Colemans, and Ramon and Brenda Tejada, as well as Burton's own tax returns.

On August 19, 2014, Burton and the government entered into a binding plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). See Dkt. No. 84 at 2. Burton agreed to plead guilty to all counts of the indictment and waived his right to appeal if the agreement were accepted by the court. See id. at 1, 6. On August 21, 2014, the court accepted Burton's plea of guilty and deferred until sentencing deciding whether to accept or reject the binding plea agreement. See Dkt. No. 87.

Before the sentencing hearing, however, Burton breached the plea agreement by failing to pay as promised restitution of at least $50,000, and by violating the curfew which was a condition of his release and lying to the Probation Officer about that. See Dkt. No. 120 at 1-3; Dec. 22, 2014 Tr. (Dkt. No. 173) at 4. The government informed the defendant that it was exercising its option to be released of its obligations under the plea agreement. It recommended that the court conduct the colloquy required by Rule 11(c)(5) when a binding plea agreement is rejected and, among other things, provide the defendant with the opportunity to withdraw his plea. See Dkt. No. 120 at 4-7. In his sentencing memorandum, the defendant acknowledged his breach of the plea agreement and stated that he did not intended to withdraw his guilty plea. See Dkt. No. 119 at 6.

At the sentencing hearing on December 22, 2014, the court conducted a Rule 11(c)(5) colloquy with Burton and afforded him the opportunity to withdraw his guilty plea. Burton again declined to do so. See Dec. 22, 2014 Tr. (Dkt. No. 173) at 4.

Burton was sentenced to 48 months of imprisonment, 3 years of supervised release, and restitution in the amount of $159,500 to named victims, a fine of $7,500, and $1,100 special assessment. See Dkt. No. 125. Burton appealed, but too late. On September 14, 2015, the First Circuit dismissed Burton's appeal. See Dkt. No. 151.

On April 20, 2015, Burton, appearing pro se, filed his first Petition. See Dkt. No. 132. On May 19, 2015, Burton filed an amended petition. See Dkt. No. 137. On June 15, 2015, Burton filed a memorandum in support of the amended Petition, see Dkt. No. 139, and a supplemental memorandum shortly thereafter, see Dkt. No. 141. He subsequently filed multiple affidavits in support of his request for relief. See Dkt. Nos. 146, 149, 152, 153, 180. Burton also filed motions for discovery, see Dkt. Nos. 130, 142, 143, and, as ordered by the court, received some from Mr. Cruz. See Dkt. No. 180. The record also includes replies filed by Burton in response to the government's opposition memoranda. See Dkt. Nos. 197, 210.¹

The Petition alleges 16 grounds to vacate the judgment. Grounds 1-9 allege ineffective assistance of counsel. See Dkt. No. 137 at 4. Ground 10 alleges that the government failed to provide the defendant with certain material exculpatory evidence. Ground 11 alleges that a victim's statement at the sentencing hearing constitutes newly discovered evidence that negates the government's allegations that Burton engaged in securities and tax fraud. Grounds 12-16 allege errors by this court. More specifically, Burton alleges that the court failed to inform him of the maximum fines, restitution, or supervised release, in violation of Federal Rule of Criminal Procedure 11(b)(1)(H) ; failed to inquire and confirm at the sentencing hearing that the petitioner had discussed the Presentence Report with his counsel and that it was accurate, in violation of Federal Rule of Criminal Procedure 32 ; abused its discretion by sentencing the petitioner above the Guidelines range; failed to state reasons for its upward departure; and failed to provide the petitioner with sufficient notice that the court would reject the binding plea agreement and sentence him to an above-guidelines sentence.

On April 20, 2017, the government filed a partial opposition to the Petition, addressing Grounds 10-16 and some of the ineffective assistance of counsel claims. See Dkt. No. 185.² However, it asserted that it was unable to respond to most of Burton's claims of ineffective assistance without more information from his attorney, Mr. Cruz. See id. at 2. The court then ordered the Bureau of Prisons to report whether Burton was "being evaluated or treated for any condition that may affect his capacity to knowingly waive his attorney-client privilege." See Dkt. No. 190.

On May 18, 2017, in view of a response by Burton filed on May 1, 2017, and declarations filed by the government from both the clinical director and chief psychologist of FMC Devens, the court held that Burton had knowingly and voluntarily waived his attorney-client privilege with respect to any communications with Mr. Cruz that are relevant to the Petition and ordered Mr. Cruz to make the disclosures discussed in a March 24, 2017 Order. See Dkt. No. 203 at 5. In addition, the court ordered that the government respond to the remaining claims in the Petition; denied Burton's motion for an expedited evidentiary hearing and his request for an order requiring the Bureau of Prisons to place him in a Residential Re-entry Center or in home confinement until the Petition was resolved; and denied his motion for a "show cause hearing." Id. at 7-8. The court stated that it would decide whether an evidentiary hearing was necessary after Mr. Cruz submitted the required affidavit and the government briefed the issues raised in the Petition. See id. at 6.

On May 4, 2017, Burton filed a brief reply to the government's initial response to the Petition. See Dkt. No. 197. On June 13, 2017, Burton filed a more substantial reply. See Dkt. No. 210. On June 23, 2017, the government responded to Burton's nine claims of ineffective assistance of counsel. See Dkt. No. 212. On July 3, 2017, Burton replied to that response. See Dkt. No. 213. On August 18, 2017, Mr. Cruz submitted an affidavit as ordered by the court. See Dkt. No. 208 ("Cruz Affidavit 1"). In response to Burton's Reply, Mr. Cruz submitted a second affidavit, see Dkt. No. 214 ("Cruz Affidavit 2"), to which Burton subsequently responded, see Dkt. No. 216. The government then filed responsive memoranda, supplemented by sealed exhibits. See Dkt. Nos. 218, 219.

III. REVIEW UNDER 28 U.S.C. § 2255

A. Standard Applicable to a Pro Se Petitioner

Where, as here, a petitioner is acting pro se, his petition must be " ‘liberally construed ... [and] a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ " Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ).

B. Standard for an Evidentiary Hearing

When a prisoner files a...