Soreide v. Zickefoose, Civil Action No. 10-2452 (RMB)
| Decision Date | 23 November 2010 |
| Docket Number | Civil Action No. 10-2452 (RMB) |
| Parties | ARNE SOREIDE, Petitioner, v. WARDEN D. ZICKEFOOSE, Respondent. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Petitioner, a federal prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey, has submitted a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 ("Petition"), see Docket Entry No. 4, and prepaid his filing fee. For the reasons detailed below, the Petition will be denied.
In December of 2009, Petitioner filed his original § 2241 petition; that filing resulted in initiation of Soreide v. Zickefoose ("Soreide-I"), Civil Action No. 09-cv-6067 (RMB). See Soreide I, Docket Entry No. 1. In light of the statements made in the original petition (which led the Court to believe that it might have jurisdiction over this matter), the Court directed Respondent to answer the Petition. See id., Docket Entry No. 3. However, in March 2010 and before Respondent's time to answer expired, Petitioner filed a motion in Soreide-I seeking to amend his original petition. See id. Docket Entry No. 5. The content of that motion suggested that the Court had no jurisdiction over Petitioner's claims (since the motion indicated that the original petition was but Petitioner's second/ successive § 2255 motion, which Petitioner had not received authorization to file, and over which this Court--being a district court having seat in the district of confinement--facially lacked jurisdiction). Therefore, the Court dismissed Petitioner's claims articulated in the original petition, and as clarified in that motion, for lack of jurisdiction and, correspondingly, vacated its order directing Respondent's answer. See id. Docket Entry No. 9. However, out of abundance of caution, the Court also directed the Clerk to open the instant matter for Petitioner to ensure that Petitioner has a full and meaningful opportunity to assert the claims over which the Court might have jurisdiction, see id.; such directive was entered in light of the statements made in Petitioner's making cursory references to In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). See id. Together with directing the Clerk to open the instant matter for Petitioner, the Court also directed Petitioner to file an amended petition asserting only those challenges, if any, that specifically fell within the narrow Dorsainvil exception. See id.
In response, Petitioner filed his amended petition, see Instant Matter, Docket Entry No. 4, and supplemented that filing by an "amendment" striving to add a handful of largely cosmetic changes to Petitioner's discussion of the decisions rendered by various circuit courts (other than the Court of Appeals for the Third Circuit). See Instant Matter, Docket Entry No. 6.
[Petitioner] was the owner and chief executive officer of Accutel Communications, Inc. ("Accutel"). Accutel would purchase long-distance services at wholesale prices from other long-distance providers. It would resell the services by engaging in "slamming" and "cramming," in which it switched telephone customers' long distance services to Accutel without the customers' permission (slamming) and then charged the customers a monthly fee for having Accutel as their long-distance provider (cramming). Accutel generally charged customers an additional $4.95 per month. Accutel's slamming and cramming resulted in millions of dollars of false charges to long-distance customers. Accutel transmitted its charges to customers by providing outside telecommunications consulting companies with billing data. Those companies would then process the data and wire the reformatted information to a billing agent, which provided the information to local telephone companies for billing. When customers complained to Accutel and the Federal Communication Commission ("FCC"), Accutel falsely told the customers that the change in service was inadvertent, and Accutel provided false records to the FCC.
Soreide v. USA, Civil Action No. 07-cv-60401 (JIC) (S.D. Fl.) ("Soreide-2255"), Docket Entry No. 17, at 4 (Report and Recommendation of Magistrate Judge P.A. White ("Judge White"), quoting the decision of the United States Court of Appeals in USA v. Soreide, which affirmed Petitioner's conviction).1
Petitioner appealed his conviction and sentence; the Court of Appeals for the Eleventh Circuit affirmed his conviction, see United States v. Soreide, 177 Fed. App'x 31 (11th Cir. 2006), but remanded for re-sentencing in light of United States v. Booker, 543 U.S. 220 (2005) (since Petitioner's appeal was in "pipeline" when Booker was decided), causing a re-hearing as to Petitioner's sentence; having held such re-hearing, Petitioner's trial court reimposed the same terms of imprisonment, forfeiture and restitution. See USA v. Soreide, Crim. Acrion No. 03-cr-60235 (JIC) (S.D. Fl.) ("Soreide-Criminal"), Docket Entry No. 319.
On March 22, 2007, Petitioner filed his § 2255 motion. See id., Docket Entry No. 311 (reflecting this submission as part of the docket created with regard to Petitioner's criminal action); see also Soreide-2255, Docket Entry No. 1 (reflecting same submission as part of the docket created with regard to Petitioner's § 2255 action).
In his 2255 motion, Petitioner raises thirteen claims, summarized by Judge White as follows:
1. [Petitioner] received ineffective assistance of counsel when counsel failed to object to theSentencing Guideline used to calculate his sentence....
2. [Petitioner] received ineffective assistance of counsel when counsel failed to object to the computation of his criminal history....
3. [Petitioner] received ineffective assistance of counsel when counsel failed to object to [tax fraud counts] of the [i]ndictment....
4. [Petitioner] received ineffective assistance of counsel when counsel failed to object to the special verdict form.
5. [Petitioner] received ineffective assistance of counsel when counsel failed to object to the grouping of offenses in the presentence investigation report.
6. [Petitioner] received ineffective assistance of counsel when counsel failed to object to restitution.
7. [Petitioner] received ineffective assistance of counsel when counsel failed to stop the government from confiscating his assets pursuant to an order of forfeiture.
8. [Petitioner] received ineffective assistance of counsel when counsel failed to contest money laundering charges [after] the prosecutor advised the jury that the government [had lost] the information on the accounting discs and had no copies of the information.
9. [Petitioner] received ineffective assistance of counsel at the resentencing hearing....
10. There was no proof or testimony that [Petitioner] had the mens rea to sustain his convictions of fraud...
11. [Petitioner] received ineffective assistance of counsel at trial when he was represented by two attorneys [who conducted examinations and cross-examinations of different witnesses].
12. [Petitioner] received ineffective assistance of counsel when counsel failed to appeal his conviction and only challenged the sentence imposed at the original sentencing hearing.2
13. [Petitioner] received ineffective assistance of counsel when counsel failed to call [certain] witnesses on his behalf....
Soreide-2255, Docket Entry No. 17, at 1-3.
Specifically, stating to his eighth claim (i.e., the claim that his counsel was ineffective for failure to contest money laundering charges in connection with prosecutorial loss of accounting data), see Soreide-2255, Docket Entry No. 1, at 31-34 (), Petitioner asserted, inter alia:
[Petitioner's beliefs that, in order to support his money laundering conviction, t]here must [have] be[en] some evidence that the funds were "more concealed" US v. Magluta, 41[8] F.3d 1166 (11th Cir. 2005) [contending that this decision supported Petitioner's § 2255 challenges because] "the Magluta Court" found that the defendant [in that case] went to great length to "cloak the account" in a "v[e]il of secrecy." [Petitioner contended that, in his case, there was no such showing but only] "simple and straight forward banking transactions [involving Petitioner's and Accutel's] accounts. [Since these banking transaction were not "veiled," Petitioner contended that t]he government failed to meet it's burden to prove the requisite intent of conceal [because, in Petitioner's opinion, the government] "presented no evidence of unusual secrecy, questionable structuring, highly irregular features of the transfers, or multiple movements of the same funds that assisted in concealing their original source." [Petitioner, therefore, believed that his conviction was unwarranted because, as one] court made clear[,]... the government must prove that concealment of the money's illicit origin was the [d]efendant's purpose and that is not proved by evidence of concealment alone. [Citing] United States v. Cuellar, 5th Cir., [decision in the Crim. Action] No. 05-10065, [dated] 02-22-2006.
Petitioner's contentions were found meritless by Judge White, see Soreide-2255, Docket Entry No. 17, and--after two rounds of Petitioner's objections to Judge White's recommendation (see Soreide-2255, Docket Entries Nos. 18 and 19, rehashing, once again, Petitioner's challenges, including his assertions that the government was obligated to show "more concealment")-Petitioner's trial court, after allowing Petitioner to appear in court for additional testimony as to his position--adopted Judge White's recommendations and denied Petitioner § 2255 relief. See Soreide-2255, Docket Entries Nos. 20 and 21 (writ of habeas corpus ad testificandum and memorandum order adopting Judge White's report...
To continue reading
Request your trial