Weinberger v. U.S.
| Decision Date | 21 October 1999 |
| Docket Number | No. CR-1-97-79.,CR-1-97-79. |
| Parties | Barrett N. WEINBERGER, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Henry Louis Sirkin, Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, for Petitioner.
Christopher Keen Barnes, U.S. Attorney, Cincinnati, OH, for U.S.
Petitioner is an inmate in federal custody pursuant to a judgment of conviction entered on June 29, 1998. Petitioner had pleaded guilty to Count 1, mail fraud in violation of 18 U.S.C. § 1341, Count 6, interstate transportation of money in execution of fraud in violation of 18 U.S.C. § 2314 and Count 12, tax evasion in violation of 26 U.S.C. § 7201. No direct appeal was taken from either Petitioner's convictions or sentence. This matter is now before the Court on Petitioner's pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 27), Respondent's response (Doc. No. 30), and Petitioner's reply (Doc. No. 31).
A detailed statement of the facts in this case appears in the record (Doc. No. 16). The gist of the charges is that Petitioner was an attorney at law entrusted with the affairs of Dorette K. Fleischmann ("Fleischmann"), her daughter Joan Fleischmann Tobin ("Tobin"), and the Fleischmann estate. Through an assortment of devices, Petitioner diverted approximately $1.14 million from Fleischmann, Tobin and the Fleischmann estate and converted said funds to his personal use during a period beginning in 1989 and continuing through December, 1994. The diversion and conversion of the various funds occurred in the Southern District of Ohio and elsewhere. On October 1, 1997, the Grand Jury for the Southern District of Ohio, Western Division, returned a twelve (12) count indictment against Petitioner. Petitioner pleaded guilty to Counts 1, 6, and 12 pursuant to a plea agreement with the government. On June 29, 1998, Petitioner was sentenced to forty-one (41) months on each count to run concurrently; followed by three years of supervised release on each count to run concurrently; restitution in the sum of $1,285,243.24 on Counts 1 and 6 to be paid through the Bureau of Prisons Inmate Financial Responsibility Program with any unpaid balance to be paid in monthly installments pursuant to a payment plan to be developed by Petitioner and his probation officer; restitution in the sum of $370,624 to the Internal Revenue Service on Count 12; no fine; and $150 in combined special assessments for the three counts of conviction. Counts 2, 3, 4, 5, 7, 8, 9, 10 and 11 were dismissed upon motion by the government. Petitioner declined the Court's offer to have the courtroom deputy file a notice of appeal in his behalf and did not thereafter pursue a direct appeal of his pleas of guilty or his sentence.
On February 19, 1999, Petitioner filed the present motion raising four bases upon which he believes that he is entitled to have his sentence vacated, set aside or corrected. First, Petitioner contends that the Court erred in failing to group all of the counts of conviction pursuant to § 3D1.2 of the United States Sentencing Guidelines ("U.S.S.G.") (closely related counts) for purposes of calculating his adjusted offense level for sentencing. As a consequence, he argues that his adjusted offense level was two levels too high and resulted in a sentencing range of thirty-three (33) to forty-one (41) months rather than a sentencing range of twenty-seven (27) to thirty-three (33) months, which he argues is the correct range. Second, Petitioner argues that the Court incorrectly applied 18 U.S.C. § 3663A (the Mandatory Victims Restitution Act of 1996) rather than 18 U.S.C. § 3663 to his restitution obligation for Counts 1 and 6 in violation of the Ex Post Facto Clause (U.S. Const., Art. I, Sec.9, I.3), when the Court ordered Petitioner to make restitution in full. Third, Petitioner argues that the Court incorrectly ordered restitution to the Internal Revenue Service in connection with Count 12 for tax year 1994, despite the fact that he "was convicted of violating 26 U.S.C. § 7201 with respect to his taxes for years 1990, 1991, 1992 and 1993" only. Fourth, Petitioner argues that the Court erred in delegating the judicial function of setting the amount, timing and schedule of installment payments on his restitution obligations to the Bureau of Prisons and the United States Probation Office, both agencies of the Executive Branch of government, in violation of the Constitutional Separation of Powers doctrine.
An action brought pursuant to 28 U.S.C. § 2255 must allege an error that meets the constitutional standards for collateral attack. A petition properly brought under this section must allege that a District Court
1) Committed an error of constitutional magnitude;
2) Imposed a sentence outside the statutory limits; or
3) Proceeded under an error of fact or law which was so fundamental as to render the entire proceedings invalid.
See United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979); Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). A § 2255 motion is not limited to constitutional claims, but a non-constitutional error does not provide a basis for collateral attack unless it involves a "fundamental defect which inherently results in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Ordinarily, collateral review under § 2255 is not available for errors committed in the application of the sentencing guidelines. See Grant v. United States, 72 F.3d 503 (6th Cir.1996). Rather, a Defendant must assert such claims on direct appeal. See id.1
Issues that Petitioner failed to raise before the trial court or on direct appeal will be considered waived, unless Petitioner shows cause for and prejudice from failing to raise them. See United States v. Frady, 456 U.S. 152, 167-168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Ratliff v. United States, 999 F.2d 1023, 1025 (6th Cir.1993); Noonan v. United States, 262 F.2d 585 (6th Cir.1958). Ineffective assistance of counsel, if alleged and demonstrated by Petitioner, will constitute cause for purposes of this standard. See Ratliff, 999 F.2d at 1026. Alternatively, a prisoner may secure collateral review of issues that he failed to raise before the trial or appellate court by showing that failure to consider his claims would lead to a "fundamental miscarriage of justice" because the constitutional violation probably resulted in the conviction of a person who is actually innocent. See United States v. Cox, 83 F.3d 336, 341 (10th Cir.1996) (citing Sawyer v. Whitley, 505 U.S. 333, 339-340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)); Spivey v. United States, Case No. CRIMA4:94CR00302HLM, CIV A4:96-CV-093-HLM, 1996 WL 735568, at *2 (N.D.Ga.1996) (citing Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)).
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court articulated a two-part test that a defendant must satisfy to establish his counsel's assistance was so deficient as to amount to a constitutional violation requiring reversal of the conviction or sentence. In order to prevail on an ineffective assistance of counsel claim, Petitioner must demonstrate (1) his counsel made such serious errors that he was not functioning as the "counsel" guaranteed by the Sixth Amendment; and (2) his counsel's deficient performance prejudiced the defense by undermining the reliability of the trial result. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
Under the first prong of the Strickland test, Petitioner must demonstrate that his counsel's representation fell below an objective standard of reasonableness based on all the circumstances surrounding the case. See id. at 688, 104 S.Ct. 2052. Judicial scrutiny of counsel's performance must be highly deferential, and a "fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight" and to evaluate the challenged conduct from counsel's perspective at the time of the conduct. Id. at 689, 104 S.Ct. 2052. In determining whether counsel's performance was deficient, the Court must indulge a strong presumption that counsel's conduct fell within the range of reasonable professional assistance. See id.
Under the second "prejudice" prong of the Strickland test, the focus is on whether counsel's deficient performance affected the outcome of the trial. Petitioner must show that a "reasonable probability" exists that, but for his counsel's errors, the result of the trial level proceeding would have been different. See id. at 694, 104 S.Ct. 2052. A showing by Petitioner that the alleged errors had "some conceivable" effect on the outcome of the proceeding is insufficient to meet this standard. See id. at 693, 104 S.Ct. 2052. However, by the same token, Petitioner need not demonstrate that his counsel's conduct "more likely than not" altered the trial level outcome to establish prejudice. See id. The ultimate focus of the inquiry must be on the fundamental fairness of the proceeding, i.e., whether the result of the proceeding "is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id. at 696, 104 S.Ct. 2052.
The Court need not examine the question of whether counsel's performance was deficient before addressing the question of whether Petitioner was prejudiced by counsel's performance. The Court may dispose of an ineffective assistance of counsel claim by finding that Petitioner made an insufficient showing on either ground. See id. at 697, 104 S.Ct. 2052.
In connection with his first and fourth grounds for correcting his sentence, Petitioner claims ineffective assistance of his privately-retained counse...
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