Verberg v. U.S.
| Decision Date | 23 May 2011 |
| Docket Number | Cr. No. 5:07-45 |
| Parties | Michael T. Verberg, Movant, v. United States of America, Respondent. |
| Court | U.S. District Court — District of South Carolina |
Movant Michael T. Verberg operated a print brokering company that located customers who required printing services, such as print photography, design, and pre-press work. Movant, through his company, contracted with fifty-one companies in the United States and Canada to perform print jobs. Movant would submit the customers' print jobs to printers for bids. Movant would contract with a printer, and then quote a price to the customer at an amount substantially below the printer's bid in order to obtain the customer's business. Movant would receive payment directly from the customer, and either would not pay the printing company for its work, or would pay only a portion of the amount due.
Movant was indicted on January 16, 2007 for mail fraud in violation of 18 U.S.C. §§ 1341 and § 2. Movant initially was represented by a Federal Public Defender. On November 1, 2007, James H. Babb, Esquire of the South Carolina Bar was appointed to represent Movant. Movant pleaded guilty to mail fraud on February 26, 2008. On October 8, 2008, Movant retained Byron E. Gipson, Esquire of the South Carolina Bar. On April 3, 2009, Movant filed a motion to withdraw his plea of guilty. The motion was denied on April 13, 2009. Movant thereafter was sentenced toincarceration for a term of 108 months, restitution in the amount of $6,273,096.14, and supervised release for a period of three years. Judgment was entered on April 15, 2009.
This matter now is before the court on motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence, which motion was filed April 23, 2010. On May 10, 2010, the United States filed a response in opposition and motion for summary judgment. By order filed May 10, 2010, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Movant was advised of the summary judgment procedures and the possible consequences if he failed to respond adequately. Movant filed a response to the United States' response and motion for summary judgment on August 23, 2010. In addition, Movant filed a motion to dismiss the indictment on February 28, 2011.
Movant raises four grounds for relief:
Ground one: Conviction obtained by a Plea of GUILTY, which was unlawfully
induced or not made voluntarily or with understanding of the nature of the charge or
the consequences of the Plea.
Ground two: Conviction obtained by use of a Coerced Confession.
Ground three: Conviction obtained by a violation of the Privilege against Self-Incrimination.
Ground four: Denial of Effective Assistance of Counsel.
Motion 4-5 (ECF No. 122).
As an initial matter, the court notes that Movant failed to raise Grounds one, two, and three on direct appeal.1 Movant is legally barred from raising them now, pursuant to the doctrine ofprocedural default. See United States v. Sa'ad El-Amin, 373 F. Supp. 2d 574, 577-78 (E.D. Va. 2005) (). To the extent that Movant frames his allegations as resulting from ineffective assistance of counsel, the court will address his grounds for relief hereinbelow.
To prove ineffective assistance of counsel, Movant must show that trial counsel's performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney's performance is deficient when it is not reasonable under prevailing professional norms. Id. at 688. Movant also must demonstrate that he was prejudiced by trial counsel's alleged deficient performance, in that because of trial counsel's unprofessional errors, the result of the proceeding would have been different. See id. at 694. Strickland requires Movant to "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The court then must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. Even if counsel's performance is outside the wide range of professional assistance, an error by counsel will not warrant setting aside the conviction if the error had no effect on the judgment. Id. at 694.
In Hill v. Lockhart, 474 U.S. 52 (1985), the United States Supreme Court discussed the application of the rule regarding deficient performance in cases where the defendant does not go to trial, but instead enters a guilty plea:
In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failureto investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.
Id. at 57-59 (internal citations omitted).
A. Involuntary Guilty Plea (Ground one)
Movant contends that his plea of guilty was unlawfully induced and not made voluntarily or with an understanding of the nature of the charge and consequences of the plea. According to Movant, he relied on counsel's advice and "just went along and did what he was advised to do." ECF No. 122-1, 3. Movant notes that he attempted to withdraw his guilty plea on April 3, 2009 because he was not informed of the probable sentencing range and the enhancement that he would likely face.
At the change of plea hearing on February 26, 2008, the court engaged in the following exchange with Movant:
Q. Mr. Verburg, your attorney has advised the court he has explained the charges
against you, the possible penalty, your constitutional rights, including the right to a
jury trial; is that correct?
A. Yes, your honor.
a fine of $250,000 -
. . .
Mr. Verburg, do you understand what you have been charged with?
A. Yes, your honor.
Q. Do you understand what the government would have to prove if your case were to go to trial?
A. Yes, your honor.
Q. And do you understand the possible penalty that you face?
Change of Plea Hearing 54-55 (ECF No. 105).
Movant, under oath, informed the court that trial counsel explained the charges and possible penalties. As the Court of Appeals for the Fourth Circuit has explained:
A defendant's solemn declarations in open court affirming a plea agreement carry a strong presumption of verity because courts must be able to rely on the defendant's statements made under oath during a properly conducted Rule 11 plea colloquy. . . . In fact, in the absence of extraordinary circumstances, allegations in a § 2255 motion that directly contradict the petitioners sworn statements made during a properly conducted Rule 11 colloquy are always palpably incredible, and patentlyfrivolous or false.
United States v. Morgan, 284 F. App'x 79, 87 (4th Cir. 2008) (quoting United States v. Lemaster, 403 F.3d 215, 221 (4th Cir. 2005)) (internal quotations omitted). Moreover, even if trial counsel had been ineffective for failing to explain the charges and possible penalties, Movant was not prejudiced because the court also informed him of the charges contained in the indictment and that he faced a possible term of incarceration of up to twenty years. Movant's claim of ineffective assistance of counsel as to Ground one is without merit.
Movant contends that his conviction was obtained by the use of a coerced confession. Movant asserts that trial counsel told Movant that there was no choice but to talk to the Assistant United States Attorney and FBI investigator...
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