Clark v. United States
| Decision Date | 27 January 2017 |
| Docket Number | 3:09-cr-44,3:17-cv-6-FDW |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | CHRISTINA H. CLARK, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
THIS MATTER is before the Court on Petitioner's Petition for Writ of Error Coram Nobis Pursuant to 28 U.S.C. § 1651. (Doc. No. 3). Petitioner is represented by Charles Morgan and Marcia Shein. For the reasons set forth below, the Court denies the petition.
On August 31, 2016, Christina Clark filed the pending petition for a writ of error coram nobis, challenging the restitution component of the criminal sentence this Court imposed in 2010. In 2006 and 2007, Petitioner participated in a mortgage-fraud scheme in Waxhaw, North Carolina. (Crim. Case No. 3:09-CR-44, Doc. No. 12 at 3-5: Presentence Report ("PSR")). A real estate agent, Petitioner personally participated in about nine different fraudulent real-estate transactions involving mortgage loans, facilitating fraudulent straw purchases and related fraudulent transactions. (Id. at 5-7). Petitioner received payments for her participation in the form of real-estate commissions, "bonuses," and payments for purported design and decorating work. (Id. at 5-6).
In March 2009, Petitioner pleaded guilty to two counts of conspiracy to commit bank fraud, 18 U.S.C. § 371, and two counts of conspiracy to launder money, 18 U.S.C. § 1956(h), pursuant to a written plea agreement. (Id. at 1-2). In exchange for her plea of guilty and compliance with other terms of the agreement, the Government agreed that it would not prosecute Petitioner for additional known offenses arising from the conduct described in the charging document. (Id., Doc. No. 2 at 1: Plea Agreement). The Government also agreed to recommend a two-offense-level reduction under the United States Sentencing Guidelines for acceptance of responsibility, U.S.S.G. § 3E1.1(a), and to move for an additional one-level reduction for entering a timely plea, U.S.S.G. § 3E1.1(b). (Id. at 2).
Petitioner and the Government agreed to recommend that the Court find that an 18-offense-level increase was appropriate under section 2B1.1 of the Guidelines, (id. at 3), which corresponds to a loss amount of "[m]ore than $2,500,000." U.S.S.G. § 2B1.1(b)(1)(J) (2008). Petitioner represented that she understood that restitution, under the applicable statute, "may be different from, greater, or lesser than" the loss under the Guidelines. (Id., Doc. No. 2 at 2: Plea Agreement). This Court's probation office prepared a presentence report concluding that the United States Sentencing Guidelines advised a term of imprisonment of 46 to 57 months. (Id., Doc. No. 12 at 14). That range was based, among other things, on a conclusion that Petitioner warranted a 3-offense-level adjustment for acceptance of responsibility. (Id. at 8). The presentence report determined the amount of loss caused by her offense was $5,113,963.46. (Id.). The presentence report also concluded that "[r]estitution in the amount of $5,113,963.46 [was] outstanding." (Id. at 15). The report explained that "investigating agents determined loss and restitution by subtracting the value of the properties at the time of the foreclosure sales from the original loan amounts." (Id. at 7). See United States v. Robers, 134 S. Ct. 1854, 1856, 1859 (2014) (). Using that methodology, the presentence report identified five different banks and the Federal DepositInsurance Corporation as victims who suffered losses, ranging from slightly more than $300,000 to slightly more than $1.2 million. (Id. at 7). The report noted that only one bank, First Tennessee Bank, had responded to inquiries by the probation office. (Id.). As to that bank, the presentence report determined that Petitioner owed $801,000 in restitution for losses on a property listed at 412 Gladelynn Way in Waxhaw, North Carolina.1 (Id., Sentencing Tr. at 21, 29; Doc. No. 12 at 7).
Petitioner did not file any objections to the final presentence report, but she filed a sentencing memorandum seeking a sentence below what the Guidelines advised. (Id., Doc. No. 12 at 17-18; Sentencing Tr. at 6). This Court sentenced Petitioner to a term of imprisonment of 21 months, less than half of the low end of the range the presentence report stated was advised by the United States Sentencing Guidelines. (Id., Sentencing Tr. at 31, 35, 40). The Court imposed the sentence after considering remarks from both the Government and Petitioner's attorney that Petitioner had been extraordinarily cooperative. (Id. at 7, 12-13). The Court also ordered Petitioner to pay restitution to First Tennessee Bank in the amount of $801,000. (Id. at 42). Although the transactions in which Petitioner had personally been involved caused "actual loss" of more than $5.1 million, (id. at 21), the Government explained that it was "unclear who had suffered that loss" because only First Tennessee had formally responded with information related to restitution. (Id. at 20). The Court declined to enter a restitution judgment in favor of the other entities described in the presentence report, which had not filed declarations of losses. (Id. at 31). The Court adopted the presentence report, noting that restitution would be limited to the $801,000 owed First Tennessee Bank, instead of the more than $5.1 million calculated by thereport. (Id., Sentencing Tr. at 6; Doc. No. 21 at 1, 3: Statement of Reasons).
The Court entered its judgment on December 15, 2010, and Petitioner did not appeal. (Id., Doc. No. 20: Judgment). Petitioner completed her prison term, and this Court terminated her supervised release early on September 17, 2013. (Id., Doc. No. 31). On August 31, 2016, more than five years and eight months after the judgment in her criminal case became final, Petitioner filed the pending petition for a writ of error coram nobis, alleging that her attorney's failure to challenge the restitution order was ineffective assistance of counsel. Petitioner contends in the petition that First Horizon, a bank holding company of First Tennessee Bank, was the proper victim, not First Tennessee Bank. Petitioner explains that the property at issue—a residence at 412 Gladelynn Way in Waxhaw, North Carolina—was sold by Jackson Custom Homes, LLC to Dan Richards on July 20, 2007. First Horizon, a bank holding company of First Tennessee, provided a loan for the purchase of the Gladelynn Way property in the amount of $1,050,000.00. Petitioner contends that, as a bank holding company of First Tennessee, "[w]hile First Horizon has a relationship with First Tennessee, they are separate legal entities in the eyes of the law and, therefore, the judgment listing First Tennessee as the victim is incorrect." (Doc. No. 3 at 7). Petitioner further contends that the amount of restitution ordered~$801,000—was incorrect because this figure did not take into account the fair market value of the recovered asset. Petitioner explains that the initial loan was for $1,050,000.00. By the time the judgment was entered, First Horizon had bought the property from itself through foreclosure for $1,104,525.84, which Petitioner argues was the fair market value of the property at the time of the foreclosure sale. Petitioner contends that the amount she was ordered to pay should have been offset by the value of the property. Petitioner contends therefore that no restitution was actually owed to First Horizon. Petitioner contends that she did not raise this issue earlier "dueto First Tennessee's misconduct and the ineffective assistance of her prior counsel." (Doc. No. 3 at 5). Petitioner contends that (Id. at 10).
Following an order from this Court, the Government filed its response on December 21, 2016, opposing the petition for writ of error coram nobis, and Petitioner filed her Reply on December 28, 2016. (Doc. Nos. 7; 8).
Under 28 U.S.C. § 1651(a), coram nobis relief is only available when all other avenues of relief are inadequate and where the defendant is no longer in custody. In re Daniels, 203 F. App'x 442, 443 (4th Cir. 2006) (unpublished); United States v. Mandel, 862 F.3d 1067, 1075 (4th Cir. 1988). Even where a defendant has served his time and believes he was unjustly convicted, coram nobis relief is only available in very limited circumstances. In reviewing a petition for a writ of error coram nobis, the Court "must presume that the underlying proceedings were correct, and the burden of showing otherwise rests on the petitioner." Hanan v. United States, 402 F. Supp. 2d 679, 684 (E.D. Va. 2005), aff'd, 213 F. App'x 197 (4th Cir. 2007). The burden placed on a petitioner who seeks a writ of coram nobis exceeds the burden placed on a petitioner who seeks collateral relief through a habeas petition. Id. This heavier burden is justified in coram nobis proceedings, because where, as here, the petitioner has completed her sentence, the government is unlikely to allocate scarce prosecutorial resources to retry a defendant who will not be resentenced. See id. Indeed, the United States Supreme Court hasstated that "it is difficult to conceive of a situation in a federal criminal case today where a writ of coram nobis would be necessary or appropriate," Carlisle v. United States, 517 U.S. 416, 429 (1996) (internal quotation marks and brackets omitted) (quoting United States v. Smith, 331 U.S. 469, 475 n.4 (1947)).
In discussing relief through a writ of coram nobis, the Fourth Circuit recently held, in United States v. Akinsade, as follows:
As a remedy of last resort, the...
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