Nix v. United States

Decision Date08 November 2011
Docket NumberCase No. CR409-164,Case No. CV411-160
PartiesTHOMAS EDWARD NIX, Movant, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — Southern District of Georgia
REPORT AND RECOMMENDATION

Thomas Nix moves for 28 U.S.C. § 2255 relief. (Doc. 1.1 ) For the following reasons, his motion should be DENIED.

I. BACKGROUND

In 2006, Concept Finishings of Savannah, Inc., ("Concept") hired Nix to perform accounting services. (Presentence Investigation Report ("PSI") ¶ 5.) After suffering inexplicable financial difficulties, Concept directed Nix to produce certain financial statements and reports in order to analyze the situation. (Id. ¶ 6.) Nix refused and wasterminated. (Id.) Concept hired an independent CPA to review the books. (Id.) He discovered that the amounts payable on certain checks were incorrect. (Id. ¶ 7.) The company retained two additional accountants to double-check the findings, and they reached the same conclusion. (Id.) After examining the questionable checks, the company owners realized that Nix had forged their signatures on checks payable to himself. (Id.) Secret Service agents verified that the funds were deposited into Nix's personal accounts. (Id.) In total, Nix had issued more than $100,000 in fraudulent checks to himself. (Id. ¶ 8.) In addition, defendant fraudulently added himself as an American Express charge account business cardholder for the company and charged thousands of dollars in unauthorized goods and services to the account. (Id. ¶¶ 9-11.) After Concept fired him, he continued his fraud campaign against his next employer, The Arts Center, in Highland Park, Illinois. (Id. ¶¶13-17.)

Eventually, Nix was indicted by a federal grand jury. (Cr. doc. 1.) He pled guilty to one count of bank fraud (cr. doc. 35 (plea agreement)), was sentenced above the United States Sentencing Guidelines ("USSG")advisory range (27-33 months) to 51 months' imprisonment (cr. doc. 36 (judgment)), then unsuccessfully appealed his sentence. See United States v. Nix, 415 F. App'x 981 (11th Cir. 2011). He now moves for 28 U.S.C. § 2255 relief, claiming: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; (3) judicial misconduct relating to the upward variance; (4) prejudicial misconduct in preparation of the PSI; (5) cumulative errors giving rise to a violation of due process; and (6) judicial failure to properly consider the 18 U.S.C. § 3553(a) sentencing factors. (Doc. 1 at 4-9; 14.)

II. ANALYSIS
A. Procedurally Defaulted Claims

Grounds 2, 4, 5, and 6 are procedurally defaulted since Nix did not raise them on direct appeal.2 A § 2255 movant may not use a collateral attack as a "surrogate" for a direct appeal. Lynn v. United States, 365F.3d 1225, 1232 (11th Cir. 2004); see Stone v. Powell, 428 U.S. 465, 478 n.10 (1976) (28 U.S.C. § 2255 will not be allowed to do service for an appeal). The courts have crafted the procedural default rule to address such situations: "a [movant] generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else he is barred from presenting the claim in a § 2255 proceeding." Lynn, 365 F.3d at 1234; Hill v. United States, 317 F. App'x 910, 913-14 (11th Cir. 2009).3 Since Grounds 2, 4, 5, and 6 could have been raised on direct appeal but were not, the Court need not consider them on the merits unless Nix can establish cause and prejudice excusing his default (or establish his actual innocence of the crimes). Lynn, 365 F.3d at 1234 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)); United States v. Nyhuis, 211 F.3d 1340 (11th Cir. 2000). Nix has not done so.4 He simply states that he did not raise them on appeal because a "[§] 2255motion is the proper proceeding to first raise" the issues. (Doc. 1 at 14.) He is incorrect. Accordingly, these claims fail.

Those same grounds (2, 4, 5, and 6) also fail on the merits. In Ground 2, Nix contends that the prosecutor misled the sentencing judge as to the American Express card account and otherwise suborned perjury on that score. To make out a prosecutorial misconduct claim, however, he must establish that the prosecutor knowingly used perjured testimony and the falsehood was material. United States v. Woodruff, 296 F.3d 1041, 1043 n.l (11th Cir. 2002). Even crediting Nix's assertion that the prosecution tendered faulty evidence, Nix has not offered any facts showing that the prosecution knowingly presented perjured testimony. Moreover, the falsehoods are immaterial. Nix steadfastly insists that he did not open an American Express card account without the knowledge of Concept's owners. (Doc. 4 at 1-3.) Whether Nix fraudulently opened the account, fraudulently added himself as an authorized user to an existing account, or was added by the owners as an authorized user, he still made unauthorized, personal purchases using the cards and then redirected corporate resources to cover up the expenditures. (See doc. 8at 2-3 (order denying Nix's motion for discovery on this very issue).) Nix even admitted while entering his plea that he used the corporate credit cards for unauthorized purchases. (Cr. doc. 51 at 24 (plea hr'g tr.).) Based upon that admission, the details are largely irrelevant, except to the extent that they supported a sophisticated-means, Guidelines enhancement. He still more than met the requirements for that enhancement based upon his check forgery, redirecting funds to pay off the American Express purchases, and otherwise "cooking" the business's books. (PSI objections ¶ 3.)

Nix next claims, in Ground 3, that the prosecution exercised undue influence upon the probation officer when he prepared the PSI and refused to discuss his own calculations showing that the loss amount should have totaled less than $120,000. Nix proffers no evidence suggesting that the probation officer was under any undue influence by the Assistant United States Attorney prosecuting the case. Moreover, the prosecution had no reason to meet with Nix to discuss the loss calculations. Nix was free to dispute the calculations both with theprobation officer and again at sentencing. His Ground 3 claims should be denied outright.

In Ground 4, Nix contends that the probation officer abandoned his neutral role by failing to properly investigate and report the PSI facts. (Doc. 4 at 15-16.) Nothing in the PSI suggests that the probation officer preparing the report abandoned his neutral role. Instead, it suggests that he exercised his independent judgment in fact-finding, which is his duty. United States v. Ortiz-Medina, 187 F.3d 624, *3 (1st Cir. 1999) (table). Again, Nix was given every opportunity to dispute the PSI factual recitation. (Cr. doc. 52 at 4-5.) Indeed, he made certain objections prior to sentencing, though he later withdrew them. (Id.; PSI objections.) Hence, even if the probation officer blatantly misstated the relevant facts, Nix was provided with every opportunity to rebut those facts prior to and during sentencing. This claim also fails.

In Ground 5, Nix contends that his case suffered from cumulative error based upon an overly aggressive prosecutor, a prejudiced probation officer, and an inexperienced attorney. (Doc. 4 at 16-17.) Nix, however, has not shown any evidence supporting his assertions that the prosecutorwas unduly aggressive or that the probation officer was prejudiced against him, much less that his attorney's relative inexperience actually harmed him. 5 In sum, Nix has not come close to showing the type of cumulative error that would call for reversal. See United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998).

Turning to Ground 6, Nix first contends that the sentencing judge failed to adequately address the § 3553(a) factors on the record.6 (Doc. 4at 17-18.) He is mistaken. The Eleventh Circuit "has held that 'nothing . . . requires the district court to state on the record that it has explicitly considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.'" United States v. Docampo, 573 F.3d 1091, 1107 (11th Cir. 2009) (emphasis in original) (quoting United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)). Instead, it has held "that an 'acknowledgement by the district court that it has considered the defendant's arguments and the factors in section 3553(a) is sufficient.'" Id. (quoting United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005)). Here, the sentencing judge not only mentioned that he was considered the factors, but he went into great detail in explaining his reasoning for varying from the Guidelines sentence. (Cr. doc. 52 at 46-47 (sent'g tr.).)

Nix also contends in Ground 6 that the sentencing judge improperly double-counted the fraud amounts by considering the fraud allegations relating to The Arts Center in Illinois. (Doc. 4 at 19.) The Court is at a loss as to how this amounts to double counting, and theEleventh Circuit explicitly held that the sentencing judge properly relied upon those amounts as relevant conduct. Nix, 415 F. App'x at 984; see § II B, infra. In any event, the additional loss amount attributable to Nix's fraud upon The Arts Center did not impact his total offense score. His intended loss attributable to Concept equaled more than $120,000. Even adding in the losses to The Arts Center, he did not exceed a total intended loss amount of more than $200,000, so the offense enhancement did not change.7 See USSG § 2B1.1(b)(1)(G) (for loss amounts between $120,001 and $200,000 add 10 points to the offense level). Nix's Ground 6 claims also fail.

B. Claims Already Disposed of on Direct Appeal

Nix contends in Ground 3 that the sentencing judge erred by relying upon the subsequent Illinois fraud scheme numbers in enhancing his sentence.8 (Doc. 4 at 14.) According to Nix, thesentencing judge's reliance upon those allegations was improper because he never pled guilty to the charges and the case was ultimately dismissed.9 (Id.)

As noted above, the Court of Appeals...

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