United States v. Powell, Criminal Action No. 3:07-CR-324
| Decision Date | 20 March 2013 |
| Docket Number | Civil Action No. 3:12-CV-23,Criminal Action No. 3:07-CR-324 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | UNITED STATES OF AMERICA, v. SOLOMON POWELL. |
THIS MATTER is before the Court on the Motion to Vacate, Correct or Set Aside Sentence Pursuant to 28 U.S.C. § 2255 filed by pro se Petitioner Solomon Powell ("§ 2255 Motion") (ECF No. 76), as well as Petitioner's Motion for Reduction of Restitution Owed to Direct Victims ("Motion to Reduce Restitution") (ECF No. 82), and Petitioner's Motion for Sentence Reduction (ECF No. 96). The Government responded to the Motions with a Motion to Dismiss Petitioners § 2255 Motion ("Motion to Dismiss") (ECF No. 89)1 and a Response in Opposition to Petitioners Motion to Reduce Restitution. The Government did not respond to Petitioner's Motion for Sentence Reduction. For the reasons stated below, the Court GRANTS
the United States' Motion to Dismiss and DISMISSES Powell's § 2255 Motion. The Court also DENIES the Motion for Reduction of Restitution and DENIES the Motion for Sentence Reduction.
Powell was indicted in an eleven-count indictment in early September 2007, stemming from his role in orchestrating a scheme in which he sold merchandise over the internet but did not deliver the products ordered and paid for by the customers. The record shows Powell ran several businesses, selling electronics over the internet and received payments through PayPaland credit card companies, including American Express. After paying for their purchases, customers either received nothing in return or received products that did not conform to the quality product they ordered. When customers contacted Powell about their orders, he would often claim the items had been shipped and provided false tracking numbers. Other times, Powell would claim the items were back-ordered and would be shipped in the future or he would ship lower quality products to the customers. Customers complained to the Better Business Bureau ("BBB") and the complaints were investigated by postal inspectors. Throughout the investigation, the Government did not uncover any instances where a customer actually received what he or she ordered. The grand jury returned an eleven-count indictment in September of 2007, charging Powell with mail and wire fraud offenses. Powell was located in March of 2008 in the Southern District of California.
After Powell's arrest, the United States discovered that Powell had written his former landlord, Houman Haghighi, while he was in federal custody and asked Haghighi to delete email accounts from his computer and move the computer. Rather than do as Powell asked, Haghighi contacted the authorities and the Government was able to secure the evidence. An examination of the computer recovered revealed phone and email messages from customers who had been defrauded in California. As a result, the Government added an attempted destruction of evidence charge against Powell.
Powell rejected a plea offer and proceeded to trial on five counts of Wire Fraud, in violation of 18 U.S.C. § 1343, two counts of Mail Fraud, in violation of 18 U.S.C. § 1341, and one count of Attempted Destruction of Evidence, in violation of 18 U.S.C. § 1512(b)(2)(B). The Government moved to dismiss the remaining counts prior to trial. After hearing the evidence presented at trial, the jury found Powell guilty of all the remaining counts. The Court sentenced Powell to 102 months on all counts, to run concurrently, on December 18, 2008, and on May 4, 2009, the Court entered a restitution judgment of $43,732.91.
Powell appealed his conviction to the United States Court of Appeals for the FourthCircuit ("Fourth Circuit"). In an Anders brief, Powell's attorney argued this Court improperly relied on hearsay evidence at sentencing, violating the confrontation clause, and that the Court failed to provide sufficient explanation of the 18 U.S.C. § 3553(a) factors in arriving at the ultimate sentence. Powell also submitted a supplemental pro se brief ("supplemental brief") in support of his appeal. In his supplemental brief, Powell argued (1) there was insufficient evidence to prove all elements of mail and wire fraud, (2) the Government failed to disclose information to the defense, (3) the Government failed to prove obstruction of justice, and (4) he received ineffective assistance of counsel at trial. The Fourth Circuit published an opinion affirming the district court's judgment. United States v. Powell, 650 F.3d 388 (4th Cir. 2011). Powell timely filed his § 2255 Motion alleging the following nine grounds for relief:
All motions are fully briefed, or the time to file responsive briefings has passed, and are therefore ripe for decision.
Under 28 U.S.C. § 2255 ("§ 2255"), a prisoner in federal custody may attack his sentenceon four grounds: (1) the sentence violates the Constitution or the laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeded the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; see also Hill v. United States, 368 U.S. 424, 426-27 (1962). A claim which does not challenge the constitutionality of a sentence or the court's jurisdiction is cognizable in a § 2255 motion only if the alleged violation constitutes a "miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979). To prevail under § 2255, the movant bears the burden of proof by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958); United States v. King, 36 F. Supp. 2d 705, 707 (E.D. Va. 1999). A pro se petitioner is held to a less exacting standard than an attorney in drafting his petition. Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978). Therefore, the Court generously interprets Powell's factual allegations and legal contentions.
Powell's first four Grounds allege his trial counsel was ineffective in his representation. Ineffective assistance of counsel claims under the Sixth Amendment are examined under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on an ineffective assistance claim, a petitioner must show: (1) his attorney's performance fell below an objective standard of reasonableness, and (2) he suffered actual prejudice. Id. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. A court must consider "the practical limitations and tactical decisions that counsel faced" when making an ineffective assistance of counsel determination. Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991).
To satisfy the first prong of the Strickland test, the petitioner "'must show that counsel's representation fell below an objective standard of reasonableness' measured by 'prevailing professional norms.'" Lewis v. Wheeler, 609 F.3d 291, 301 (4th Cir. 2010) (quoting Strickland, 466 U.S. at 688). When evaluating decisions regarding case investigation, a court must "regardcounsel's choices with an eye for 'reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgment.'" Id. (quoting Strickland, 466 U.S. at 691). To satisfy the prejudice requirement, the petitioner must show that counsel's errors were serious enough to deprive the petitioner of a fair trial. Strickland, 466 U.S. at 687. In other words, the petitioner must show Id. at 694. If it is clear the petitioner has not satisfied one prong of the Strickland standard, a court need not inquire into whether he satisfied the other. Id. at 697.
Powell's Ground 1 claim that trial counsel was ineffective in failing to subpoena witnesses or documents for trial, sentencing, and the restitution hearing fails. In assessing an attorney's performance, it is required "that every effort be made to eliminate the distorting effects of hindsight, to construct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Therefore, the "court must indulge in a strong presumption that counsel's conduct falls within the range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal quotation marks omitted). Powell fails to overcome the presumption that his attorney's conduct was a sound trial strategy. Further, some of the errors alleged by Powell would not have affected the outcome of his trial or sentencing.
As an initial matter, trial counsel, Charles Lewis, submitted an affidavit stating that his decision not to subpoena extra witnesses was based on his investigation prior to trial and sentencing, he found no witnesses not already subpoenaed by the government who would...
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