Hoyo v. United States

• Decision Date: 22 February 2019
• Docket Number: CASE NO. 2:18-CV-579,CRIM. NO. 15-CR-256
• Parties: MATTHEW J. HOYO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Ohio

MATTHEW J. HOYO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 2:18-CV-579

CRIM. NO. 15-CR-256

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

February 22, 2019

JUDGE MICHAEL H. WATSON

Magistrate Judge Chelsey M. Vascura

REPORT AND RECOMMENDATION

Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 89.) This matter is before the Court on the Motion to Vacate, Respondent's Response in Opposition and Supplemental Memorandum Supporting the Response in Opposition (ECF Nos. 97, 101), and the exhibits of the parties. For the reasons that follow, the undersigned RECOMMENDS that all of Petitioner's claims, with the exception of his claim of the denial of the effective assistance of counsel based on his attorney's failure to file an appeal after being requested to do so, be DISMISSED. The undersigned further RECOMMENDS that proceedings be held in abeyance on Petitioner's sole remaining claim of the denial of the effective assistance of counsel based on his attorney's failure to file an appeal pending a decision from the United States Supreme Court on the issue.

I. Facts and Procedural History

On November 19, 2015, Petitioner was indicted on two counts of mail fraud, in violation of 18 U.S.C. § 1341, and six counts of money laundering, in violation of 18 U.S.C. § 1957. (ECF No. 8.) Represented by Federal Public Defender Attorney Deborah Williams, on October 3, 2016, Petitioner proceeded to jury trial. (See ECF Nos. 68-70.) Attorney Williams thereafter filed a motion to withdraw, and on October 14, 2016, Attorney Bradley Barbin filed a Notice of Appearance as new court-appointed counsel. (ECF No. 73; Transcript, ECF No. 101-1.)¹ On October 17, 2016, pursuant to the terms of his negotiated Plea Agreement, Petitioner pleaded guilty to one count of mail fraud, and one count of money laundering. (ECF Nos. 74, 76.) On June 15, 2017, the Court sentenced Petitioner pursuant to the agreement of the parties to a term of 54 months imprisonment, to be followed by 3 years supervised release. (ECF Nos. 82, 83.) Petitioner did not file an appeal.

On June 12, 2018, Petitioner filed the subject pro se Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 89.) Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to properly cross examine Katheryn Thalmon, who falsely stated that he induced her to invest by providing her with a financial prospectus (claim one); that he was denied a fair trial due to prosecutorial misconduct, because the prosecutor knowingly submitted the false testimony of Thalmon (claim two); that he was denied the effective assistance of counsel because his attorney failed to file an appeal after being requested to do so (claim three); and that the District Court improperly refused to grant his request for a mistrial or permit cross-examination of Thalmon's false testimony (claim four). It is the position of the Respondent that Petitioner's claims lack merit or are waived.

II. Standard of Review

In order to obtain relief under 28 U.S.C. § 2255, a petitioner must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780, 783 (1979); United States v. Ferguson, 918F.2d 627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or when the trial court lacked jurisdiction, when the sentence was in excess of the maximum sentence allowed by law, or when the judgment or conviction is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). In the absence of constitutional error, the question is "whether the claimed error was a 'fundamental defect which inherently results in a complete miscarriage of justice.' " Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428-429 (1962)); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). However, " '[a] § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances.' " DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (quoting United States v. Brown, No. 94-5917, 1995 WL 465802, at *1 (6th Cir. Aug. 4, 1995) (citations omitted)). Further, non-constitutional claims not raised at trial or on direct appeal are waived on collateral review except where the errors amount to something akin to a denial of due process. Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained on a motion under § 2255 unless the petitioner shows (1) cause and actual prejudice sufficient to excuse his failure to raise the claims previously or (2) that he is "actually innocent" of the crime. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal citations omitted).

II. Waiver of Claims by Entry of Guilty Plea

In claim four, Petitioner asserts that the Court improperly failed to grant his request for a mistrial in view of evidence indicating that Katheryn Thalmon lied, dismissed the jury for six days, refused to permit him to re-call Thalmon as a witness, limited the scope of his cross-examination, and failed to instruct the jury that it could not independently investigate the case. (ECF No. 89, PAGEID # 365.) In claim one, Petitioner asserts that his attorney performed in a constitutionally ineffective manner by failing to cross-examine or object to Thalmon's testimony that he induced her investment with him by providing her with a financial prospectus. (PAGEID # 361.) In claim two, Petitioner asserts that the prosecutor knowingly submitted false testimony by Thalmon about this prospectus used to obtain her investment. All of the foregoing claims are waived by the entry of Petitioner's guilty plea or under the explicit terms of his negotiated Plea Agreement.

"When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973). This waiver includes pre-plea claims of the denial of the effective assistance of counsel. As this Court has explained:

Pre-plea claims of ineffective assistance of trial counsel are considered nonjurisdictional defects that are waived by a guilty plea. See United States v. Stiger, 20 F. App'x. 307, 309 (6th Cir. 2001); see also Siebert v. Jackson, 205 F. Supp. 2d 727, 733-34 (E.D. Mich. 2002) (holding that a habeas petitioner's claims of deprivations of his constitutional rights that occurred before his guilty plea, as a result of his trial counsel's alleged ineffective assistance, were foreclosed by his guilty plea, where he stated at the plea hearing that he was satisfied with counsel's representation, and he did not complain of counsel's advice concerning plea agreement). The petitioner's pre-plea claims of ineffective assistance of trial counsel have been waived by his guilty plea.

Smith v. Warden, Noble Corr. Inst., No. 2:17-cv-735, 2018 WL 4077457, at *4 (S.D. Ohio Aug. 27, 2018) (quoting Ratleff v. Warden, No. 2:15-cv-00128, 2016 WL 3077532, at *9 (S.D. Ohio June 1, 2016) (internal quotation omitted)). "The only challenges that a federal habeas corpus petitioner may make after he has entered a guilty plea concern the nature of his counsel's advice to plead and the nature of his plea as voluntary and intelligent." Woodhouse v. Sandusky Cty.Common Pleas Court, No. 3:05-cv-2934, 2007 WL 5234144, at *6 (N.D. Ohio Jan. 9, 2007) (citing Joe v. Eagleton, No. CA 2:03-1507-23, 2004 WL 3317659 at *3 (D.S.C. 2004) (citing Hill v. Lockhart, 474 U.S. 52, 56(1985); Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Signori, 844 F.2d 635 (9th Cir. 1988)). Thus, by the entry of his guilty plea and admission of guilt, Petitioner has waived his claims of the denial of the effective assistance of counsel during trial.

He thereby likewise has waived his claim of prosecutorial misconduct based on Thalmon's alleged false testimony about a prospectus. "This includes due process claims of prosecutorial misconduct unless it appears from the face of the indictment or the record at the time the guilty plea was entered that the government lacked the power to prosecute." United States v. Ayantayo, 20 F. App'x 486, 487-88 (6th Cir. 2001) (citing Tollett, 411 U.S. at 266-67; United States v. Broce, 488 U.S. 563, 574-75, (1989)); see also Heximer v. Woods, No. 2:08-cv-14170, 2012 WL 899358, at *7 (E.D. Mich. Mar. 16, 2012) ("A plea of guilty or nolo contendere waives a defendant's right to claim pre-plea claims of prosecutorial misconduct." (citing Ayantayo, 20 F. App'x at 487-88)); see also Carley v. Hudson, 563 F. Supp. 2d 760, 774 (N.D. Ohio 2008) (claim of prosecutorial misconduct waived by entry of guilty plea); Rhodes v. United States, Nos. 2:15-cv-2756, 2:12-cr-00122, 2017 WL 978118, at *10 (S.D. Ohio Mar. 14, 2017) ("Petitioner's claim that he has been wrongly prosecuted on the basis of false evidence or lies is foreclosed by Petitioner's admission of guilt."). Petitioner raises no such allegation here. Thus, he has waived his claim of prosecutorial misconduct for this Court's review. See Calvey v. Burt, No. 17-1926, 2018 WL 2015779, at *4 (6th Cir. Apr. 30, 2018); United States v. Borden, No. 17-5438, 2018 WL 1901009, at *3 (6th Cir. Jan. 23, 2018) (citations omitted); Kotsonis v. United States, No. 17-5099, 2017 WL 7310633, at *3 (6th Cir. Sept. 12, 2017).

Under the terms of his negotiated Plea Agreement, Petitioner also waived his claim regarding any alleged errors committed by the Court...