Jackson v. United States

• Decision Date: 14 May 2019
• Docket Number: CRIM. NO. 2:14-CR-00106(2),CASE NO. 2:18-CV-00465
• Parties: THOMAS E. JACKSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Ohio

THOMAS E. JACKSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 2:18-CV-00465

CRIM. NO. 2:14-CR-00106(2)

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

May 14, 2019

CHIEF JUDGE EDMUND A. SARGUS, JR.

Chief Magistrate Judge Elizabeth P. Deavers

REPORT AND RECOMMENDATION

Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. (ECF Nos. 184, 188.) This matter is before the Court on the motion and supplemental memorandum in support (ECF Nos. 184, 188), Respondent's Response in Opposition (ECF No. 193), Petitioner's Reply (ECF No. 194), supporting Affidavits and bank records (ECF Nos. 189, 197-99), and the exhibits of the parties. For the reasons that follow, the Undersigned RECOMMENDS that the Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 184) be DENIED and that this action be DISMISSED.

I. Facts and Procedural History

The United States Court of Appeals for the Sixth Circuit summarized the facts and procedural history of the case as follows:

Jackson and his business partner, Preston Harrison ("Harrison"), founded Imperial Integrative Health and Research Development, LLC ("Imperial") to develop and market a sports beverage called "OXYwater." Jackson was the founder and CEO of Imperial, while Harrison was the president and founder. In 2010, Jackson and Harrison began looking for investors for OXYwater. Toward the beginning of their search for investors, Jackson and Harrison met with Robert Smith ("Smith"), who at the time owned a consulting company called Investors Capital Edge. Smith's job involved consulting with clients on how to build proper business plans, corporate credit, etcetera. During the initial meeting with Smith, Jackson told Smith that OXYwater was oxygen-enhanced, and that their goal was to raise about $8.5 million in capital. Jackson and Harrison initially contracted with Smith for him to perform consulting services for Imperial and OXYwater. Upon joining Imperial, Smith suggested that they increase the start-up amount to $9.5 million and recommended other changes to the Private Placement Memorandum ("PPM")—the document that provided the overview of Imperial, how funds would be raised, and how much each share would cost. Smith subsequently took on the more formal role of Chief Financial Officer of Imperial, where his focus was primarily on recruiting investors for OXYwater.

The PPM, which was given to a number of Imperial's investors, contained false information. The PPM listed as National Sales Manager Daniel Couts, a former employee of Coke and Vitaminwater, and also listed Kevin Waddle, Michael Skelton, and Matthew Godsey, all former Coke and Vitaminwater employees, as members of the OXYwater sales team, and included their resumes. None of these individuals, however, were ever employed by or associated with Imperial. The PPM further included a section on celebrity endorsements that listed OXYwater's official endorsers as well-known athletes, Manny Pacquiao and Gregory Jennings. These athletes were never officially affiliated with OXYwater or Imperial. Even further, the PPM indicated that in the first year, Jackson would receive a salary of $90,000 and Harrison a salary of $60,000. These numbers were subject to increase in subsequent years. Contrary to these representations, Jackson and Harrison were never officially on Imperial's payroll. Rather, Jackson used the Imperial accounts for his personal use, funneling significantly higher amounts than disclosed in the PPM to himself and Harrison. Finally, the PPM stated that the funds raised would be used for marketing, inventory, payroll, office warehouse lease, and to purchase machinery and commercial vehicles for local delivery to retail accounts. While some of the funds were used for legitimate business purposes, bank records indicated that the invested funds were also used by Jackson and Harrison for personal expenses. Based on the misrepresentations in the PPM and other oral communications, Jackson and Harrison received approximately $9.3 million in investments for Imperial and OXYwater.

In 2011, Jackson—who controlled all of Imperial's finances—transferred over one million dollars from Imperial accounts into an account listed under the name of ForeverNow, LLC ("Forever Now"). Forever Now listed Harrison and his wife, Lovena, as the only signatories to the account. The Harrisons used the Forever Now account as their personal account, purchasing personal items and paying for home improvement projects out of the account.

Following a joint investigation by the Federal Bureau of Investigation and the Internal Revenue Service, a federal grand jury, in May 2014, returned an indictment against Jackson and Harrison on various counts of wire fraud and money laundering. The grand jury also indicted Preston and Lovena Harrison for tax fraud and tax fraud conspiracy, and indicted Lovena for structuring currency transactions to evade reporting requirements.

Jackson was tried in an eight-day joint trial with co-defendants Preston and Lovena Harrison. In its case in chief, the prosecution presented evidence from twenty witnesses, including six investor victims. Following the prosecution's case, the defense rested without presenting any proof. The jury convicted Jackson of one count of wire fraud conspiracy, in violation of 18 U.S.C. § 1349; eight counts of wire fraud, in violation of 18 U.S.C. § 1343; one count of money laundering conspiracy, in violation of 18 U.S.C. § 1956(h); and twelve counts of money laundering, in violation of 18 U.S.C. § 1957. The district court sentenced him to eighty-three months in prison and ordered restitution in the amount of $8,840,706.

United States v. Jackson, 662 F. App'x 416, 418-20 (6th Cir. 2016). On November 21, 2016, the Sixth Circuit affirmed the Judgment of this Court. Id. On May 15, 2017, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. Jackson v. United States, -- U.S. --, 137 S.Ct. 2119 (2017).

On May 11, 2018, Petitioner filed this Motion to Vacate under 28 U.S.C. § 2255. He asserts that he was denied the effective assistance of counsel because his attorney failed to move to withdraw or join his motion for new counsel despite a conflict of interest (claim one); because his attorney failed to move for a severance of charges or a mistrial following admission of unfairly prejudicial and inflammatory evidence against co-defendants that was not admissible against him (claim two); because his attorney was verbally abusive and hostile, accused him of crimes not charged, failed to present evidence, favored victims' feelings over her duty to advocate, and assisted the government in its prosecution of its case (claim three); because his attorney failed to seek a two-week delay of sentencing so that his offense level would be reduced two levels under an amendment to the United States Sentencing Guidelines (claim four); and because his attorney failed to introduce evidence at sentencing to challenge the government's loss figures (claim five). It is the position of the Respondent that none of Petitioner's claims provide a basis for relief.

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 (1979); United States v. Ferguson, 918 F.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 exception circumstances.'" DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996) (quoting United States v. Brown, 62 F.3d 1418 (6th Cir. 1995) (unpublished)). Further, if a petitioner fails to raise a non-constitutional claim at trial or on direct appeal, he or she has waived the matters for 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 to vacate 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. 2013) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal citations omitted).

III. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that counsel's performance was deficient, or that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed" by the Sixth Amendment, and that this deficient performance prejudiced the petitioner. Id. at 687. This showing requires that defense counsel's errors were so serious as to deprive the defendant of a fair and reliable trial. Id.

"Surmounting Strickland's high bar is never an easy task." Padilla...