Fuller v. U.S.

• Decision Date: 18 February 2005
• Docket Number: No. 03-2369.,03-2369.
• Citation: 398 F.3d 644
• Parties: Mark K. FULLER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 644

398 F.3d 644

Mark K. FULLER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 03-2369.

United States Court of Appeals, Seventh Circuit.

Argued April 14, 2004.

Decided February 18, 2005.

Robert J. Palmer (argued), May, Oberfell & Lorber, South Bend, IN, for Petitioner-Appellant.

Grant C. Johnson, Alice H. Green (argued), Office of the United States Attorney, Madison, WI, for Respondent-Appellee.

Before BAUER, COFFEY, and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Mark Fuller was charged with making a false statement to a financial institution for the purpose of influencing his application for an overdraft protection loan in violation of 18 U.S.C. § 1014. He subsequently entered into a plea agreement and, after a hearing, was sentenced to 46 months' imprisonment and five years' supervised release. Thereafter, he filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that his trial counsel had rendered ineffective assistance at his withdrawal of guilty plea and sentencing hearings. The district court denied Fuller's motion, ruling that his claims were barred because they had been fully decided in his direct appeal. We affirm.

I. Background

Fuller and his associate Larry Esser were (separately) charged as participants in a fraudulent check scheme they perpetrated from December 1997 to January 1998. According to their plan, Fuller opened a checking account at the Commonwealth Credit Union ("CCU") in Baraboo, Wisconsin, under a fictitious business name, "Banner Freight," using false information. Thereafter, Fuller deposited seven worthless checks for various amounts totaling some $30,000. Fuller subsequently attempted to withdraw some $22,000 from the newly-created unfunded account by drawing checks payable to himself and several of Esser's fictitious businesses. After CCU discovered the fraud, it took action to prevent most of Fuller's withdrawals from being paid out in cash to him. Of the $22,000 Fuller attempted to withdraw, he was only able to obtain $5,501.68 in cash, an amount that represents the actual monetary loss borne by CCU.

In March 1999, Fuller was arrested and indicted on one count of making a false statement to the credit union for the purpose of influencing his application for an overdraft protection loan, 18 U.S.C. § 1014. He was released under pretrial supervision. Fuller entered into a plea agreement with the government and pled guilty to the charge on June 6, 1999. The trial judge accepted Fuller's guilty plea after ascertaining, during a plea colloquy hearing, that his guilty plea was being entered into freely and voluntarily, that he understood the nature of the charge he was pleading to, and that he fully understood the consequences of his plea and the possible maximum sentence. After the acceptance of Fuller's guilty plea, the court entered a conviction and set a sentencing date of August 18, 1999. Shortly thereafter, Fuller attended a presentence interview and learned that he was ineligible for probation.¹ In July of 1999, Fuller absconded and violated the terms of his pretrial supervision, changed his place of residence without informing his probation officer, departed from the jurisdiction and failed to appear for his scheduled sentencing. An arrest warrant was issued for Fuller as a fugitive from justice. He was apprehended and arrested some seven months thereafter, by United States Marshals, in February of 2000, and returned before the court. At that time, a new sentencing date of April 5, 2000 was set.

Prior to sentencing, Fuller filed a motion requesting the withdrawal of his guilty plea, claiming that he had been misled into pleading guilty by the prosecuting attorney and his own trial counsel. Fuller alleged that the prosecutor had promised he would receive a sentence of probation in exchange for a plea of guilty, and further that his trial counsel had failed to specifically advise him that he was ineligible for probation. The court held a hearing on Fuller's allegation with his trial counsel, who stated that neither he nor the prosecutor had promised Fuller probation. Fuller's counsel went on to advise the court that he had failed to ascertain prior to Fuller's pleading guilty whether he was eligible or not for probation, and went on to explain to the judge that he had told Fuller: "I sort of doubt that you're eligible for probation." United States v. Fuller, 312 F.3d 287, 290 (7th Cir.2002). Counsel went further and made clear that it would have been improper for him to argue to the court that Fuller had not entered his plea knowingly and voluntarily, because he (Fuller) had been fully advised of the nature of the crime charged and of his rights, as well as all of the ramifications of his plea and a possible sentence of up to thirty years' imprisonment. Nonetheless, counsel argued that the court should consider granting Fuller's motion to withdraw his plea on "judicial economy" grounds because Fuller would likely appeal the court's decision "based on ineffective assistance of counsel." After reviewing the transcript of the plea hearing colloquy, the trial judge denied Fuller's withdrawal motion, determining that the statements he made and the answers he gave to the judge's questions at the plea hearing made clear that he understood the consequences of his plea, and thus he was precluded from withdrawing his plea.

After making this finding, the court proceeded to sentencing and set Fuller's base offense level under the Sentencing Guidelines at 6, see U.S.S.G. § 2F1.1 (1998),² and increased his offense level to 14 after imposing sentencing enhancements for: 1) his intended financial loss to the credit union ("at least $24,000, the amount deposited into the Commonwealth Credit Union checking account"), see U.S.S.G. § 2F1.1(b)(1)(E) (1998); 2) his "more than minimal" planning over the two-week period it took for him to open the account, transfer the non-existent funds from Esser's accounts and draw the unfunded checks, see U.S.S.G. §§ 1B1.1, cmt. n. 1(f), 2F1.1(b)(2)(A) (1998); and (3) his obstruction of justice by absconding from pretrial supervision, evading authorities and failing to appear for his sentencing hearing, see U.S.S.G. § 3C1.1 (1998). Fuller's counsel did not object to any of the sentencing enhancements, which when combined with Fuller's base offense level and criminal history category of 6, resulted in a sentencing range under the guidelines of 37 to 46 months' imprisonment. The trial judge chose to sentence Fuller at the top of this guideline range, to 46 months' imprisonment, and also imposed a five-year term of supervised release.

Fuller filed a direct appeal from his conviction, which was previously addressed by this Court in United States v. Fuller, 312 F.3d 287. In his direct appeal, Fuller, now represented by a substitute appellate counsel, contended that his former counsel had a conflict of interest that caused him to render ineffective assistance during the withdrawal of his guilty plea hearing. Fuller claimed that his attorney failed to advise him that he was ineligible for probation before he entered his plea of guilty, even though in the record it is most clear that his attorney did advise Fuller that he "doubt [ed Fuller was] eligible for probation." Id. at 290. Nonetheless, Fuller argued that his trial counsel's "interest" was "in shielding himself from a malpractice suit based on giving his client inadequate advice [, which] competed with his interest in zealously arguing [the] motion." Fuller, 312 F.3d at 292. We found no merit to this argument and affirmed the trial court's judgment, holding that Fuller failed to establish that his prior counsel had a conflict of interest that adversely affected his performance in arguing the motion, and that his performance did not rise to the level of improper or inadequate under the Strickland standard. See id. at 293.

Subsequently, Fuller filed a § 2255 motion in an attempt to vacate his sentence, claiming once again that his trial counsel had a conflict of interest that caused him to render ineffective assistance at the hearing concerning the withdrawal of his guilty plea, and furthermore that his trial counsel was ineffective for failing to object to the sentencing enhancements. The court denied his motion, concluding that his claims were barred by the law of the case, "because they were both raised and decided on direct appeal." We granted a certificate of appealability to consider only: 1) whether the Supreme Court's decision in Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), impacts the district court's decision with respect to Fuller's conflict of interest claim; and 2) whether the court correctly ruled that, having raised an ineffective assistance of counsel claim based on facts separate and distinct from those presented on direct appeal, Fuller is precluded from collaterally attacking counsel's performance at sentencing.

II. Analysis

When reviewing a district court's decision to deny a § 2255 petition, we employ a clear error standard when dealing with factual matters, and review all questions of law de novo. Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir.2002).

A. Fuller's Conflict-of-Interest Claim

As an initial matter, we note that the trial court correctly determined that Fuller's conflict-of-interest claim was barred by the law of the case. See United States v. Mazak, 789 F.2d 580, 581 (7th Cir.1986). In United States v. Fuller, 312 F.3d at 291-93, we addressed the merits of Fuller's claim, holding that his "[d]efense counsel may have [conceivably] faced a potential conflict of interest, but he never let the potential conflict ripen into an actual conflict," and that "defense counsel's performance at th[e] hearing was [constitutionally] adequate." Id. at 292. In the context of § 2255 petitions, the "law of the case" doctrine dictates that "once this court has decided the merits...