United States v. Stierhoff, CR. No. 06-0042 ML

Decision Date30 November 2011
Docket NumberCR. No. 06-0042 ML
PartiesUNITED STATES OF AMERICA v. NEIL STIERHOFF
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
MEMORANDUM AND ORDER

In 2007, Neil Stierhoff ("Stierhoff," "Defendant," or "Petitioner") was convicted of four counts of income tax evasion. This Court sentenced Stierhoff to concurrent 46-month incarcerative terms on the four counts of conviction. Stierhoff unsuccessfully appealed the conviction and sentence. United States v. Stierhoff, 549 F.3d 19 (1st Cir. 2008) (Stierhoff III). Stierhoff has now filed a motion to vacate, set aside or correct a sentence pursuant to 28 U.S.C. § 2255.1 For the reasons that follow, that motion is denied.2

I. Standard of Review

Pursuant to § 2255, a prisoner may move to vacate, set aside or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateralattack . . . ." 28 U.S.C. § 2255(a). Relief under § 2255 is available to the Petitioner only if the Court finds a lack of jurisdiction, constitutional error, or a fundamental error of law. See United States v. Addonizio, 442 U.S. 178,184-85 (1979).

A motion under § 2255 is not a substitute for direct appeal. United States v. Frady, 456 U.S. 152 (1982). A movant is procedurally precluded from obtaining § 2255 review of claims not raised on direct appeal absent a showing of both "cause" for the default and "actual prejudice" - or alternatively, that he is "actually innocent" of the offense of which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and citations omitted). Claims of ineffective assistance of counsel, however, are not subject to this procedural hurdle. Knight v. United States, 37 F.3d 769 (1st Cir. 1994).

Success on a claimed violation of the right to effective representation of counsel requires a showing of both "deficient performance by counsel and resulting prejudice." Peralta v. United States, 597 F.3d 74, 79 (1st Cir. 2010) (citing Strickland v. Washington, 466 U.S. 668, 687-688 (1984)); West v. United States, 631 F.3d 563, 567 (1st Cir. 2011) (petitioner is required to show that "(1) counsel's performance fell below an objective standard of reasonableness, and (2) the deficient performance resulted in prejudice to the applicant") (citing Strickland, 466 U.S. at 687). Courts are instructed by Strickland "to indulge 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and [the defendant] must overcome the presumption that the challenged action might be considered sound strategy.'" West, 631 F.3d at 567 (citations omitted). Moreover, "[t]he Constitution guarantees only an effective defense, not necessarily a perfect defense or a successful defense." Peralta, 597 F.3d at 79 (internal quotation marks and citation omitted) To show that his counsel's performance was less than adequate, Stierhoff is required to "'identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. . . ."' United States v. Manon, 608 F.3d 126, 131 (1st Cir. 2010) (quoting Strickland, 466 U.S. at 690). The Court, in turn, must determine whether, in the circumstances of the case, the identified acts or omissions were "outside the wide range of professionally competent assistance." Id. In addition, Stierhoff must '"show that there is a reasonable probability that, but for [bis] counsel's unprofessional errors, the result of the proceeding would have been different.'" Manon, 608 F.3d at 131 (quoting Strickland, 466 U.S. at 694).

Because Stierhoff brings this motion pro se, the Court construes his papers more liberally than those drafted by an attorney. Erickson v. Pardus, 551 U.S. 89(2007). Nevertheless,

Stierhoff's pro se status does not excuse him from complying with procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

II. Analysis
A. Speedy Trial Act
1. Performance Prong

The Court begins with Stierhoff's ineffective assistance of counsel claims. Stierhoff argues that both trial and appellate counsel were ineffective because they failed to assert a Speedy Trial Act ("STA") violation. See 18 U.S.C. § 3161.3 The STA provides that a defendant has a right to a trial within 70 days from the latter of the date of the indictment or the date the defendant first appears before a judicial officer on the charge. Id. at § 3161(c)(1). Certainperiods of time, however, are excludable under the STA. See generally § 3161(h). For example, the STA permits the exclusion of days resulting from the filing of "any pretrial motion," § 3161(h)(1)(F), and, under certain conditions, from the granting of a motion to continue, § 3161(h)(8)(A).

Time under the STA has "both quantitative and qualitative dimensions." United States v. Sepulveda, 15 F.3d 1161, 1193 (1st Cir. 1993). To assess an STA challenge, the court must follow "a two-step process. First, the court must do the basic mathematics and determine the aggregate time elapsed awaiting trial. Second, it must determine how many days should be excluded from that ultimate sum." United States v. Staula, 80 F.3d 596, 600 (1st Cir. 1996).

The parties agree that 392 days elapsed while Stierhoff awaited trial. The STA clock began to run in this matter on May 10, 2006, the day after Stierhoff was arraigned and first appeared before the court. United States v. Santiago-Becerril, 130 F.3d 11, 16 (1st Cir. 1997) (day defendant appears before district court is excludable as a "proceeding[] concerning the defendant"); United States v. Brown, 736 F.2d 807 (1st Cir. 1984).

On May 25, 2006, the government filed a motion for a date certain. That motion was pending until June 5, 2006. Therefore, the time period between May 25 through June 5, 2006 (12 days) is excludable pursuant to § 3161(h)(1)(F), ("delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion"); see also United States v. Mantos, No. 91-8106-CR-Paine, 1992 WL 24060 (S.D. Fla. Jan. 24, 1992) (motion for date certain tolls speedy trial clock), aff'd, 29 F.3d 639 (11th Cir. 1994) (unpublished table decision).

Stierhoff's argument concentrates on the delays associated with five defense motions forcontinuances. Stierhoff contends that the delays associated with these motions are not excludable under the STA because the Court failed to make explicit on-the-record "findings that the ends of justice served by [granting the continuance] outweigh the best interests of the public and the defendant in a speedy trial." 18 U.S.C. § 3161(h)(8)(A).

On June 5, 2006, defense counsel filed a motion to certify the case as complex litigation and to exclude an additional 60 days for pre-trial preparation pursuant to 18 U.S.C. § 3161(h)(8)(A). The Government did not oppose the motion. In support of the motion, defense counsel relied upon the reasoning in an attached memorandum of law detailing the complexity of the case and the voluminous discovery materials. Defense counsel argued that Stierhoff was charged with four counts of income tax evasion and that allegations in the indictment

stretch back as far as calendar year 2000. The government investigation of this matter includes approximately 9 full boxes of financial records allegedly retrieved by forensic examination of a computer hard drive allegedly belonging to [Stierhoff], which has been summarized in 16 exhibits. Additionally, there are at least five Compact Disc audio recordings of which counsel is aware. The government's case is circumstantial and extremely difficult to unravel. The government has 3 attorneys assigned to this matter in addition to the services of the IRS case agent. Defense counsel is a solo practitioner.
Counsel requires significant time to sift through the numerous boxes of discovery in order to mount an effective defense.
Next, counsel is aware of a significant search issue which will require additional time to research in order to properly formulate a Motion to Suppress. As the Court is aware, counsel was on trial from . . . May 11, 2006 until. . . May 26, 2006, thereby consuming much of the time excluded for the filing of a pre-trial motions.
Due to the novelty of the issues in this case and the volume of material which must be reviewed, counsel prays for Ms Court to certify this matter as complex litigation, and afford the defense an additional (60) days within which to meet the government's allegations.

Motion to Certify Case as Complex Litigation, Docket #13 at 1-2 (emphasis added). Defensecounsel, citing § 3161(h)(8)(A), concluded that the "interests of justice are better served by taking such action and that those interests outweigh those of the public or defendant in a speedy trial." Id., Memorandum of Law at 1. Counsel also conceded that "any delay occasioned by the making, hearing, or granting of this motion shall constitute in whole or in part, excludable time as defined in 18 U.S.C. § 3161(h)." Motion to Certify Case as Complex Litigation, Docket #13 at 3. On June 5, 2006, the Court granted the motion by margin order. Thus, the Court adopted the reasoning in the motion (and the incorporated by reference memorandum of law) and it became an order of the Court.

The "ends of justice" exception, § 3161(h)(8)(A), excludes from an STA calculation any

period of delay resulting from a continuance granted by a judge ... at the request of the defendant or his counsel... if the judge granted such continuance on the basis of his [or her] findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in
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