Opinion
No. 5:13-CR-199-BO-2 No. 5:18-CV-415-BO
04-03-2019
DAVID C. MAYHEW, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This cause comes before the Court on petitioner's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [DE 289]. The government has moved to dismiss the petition. [DE 297]. The matter is ripe for disposition. For the reasons discussed below, the government's motion to dismiss [DE 297] is GRANTED and petitioner's motion [DE 289] is DISMISSED.
BACKGROUND
In June 2015, following a jury trial, petitioner was convicted of conspiracy to commit mail fraud, to commit wire fraud, and to engage in unlawful monetary transactions, in violation of 18 U.S.C. §§ 371, 1341, and 1957(a) (Count One); wire fraud and aiding and abetting, in violation of 18 U.S.C. §§ 1343 and 2 (Counts Two, Three, Four, Five, Six, Eight, Ten, Twelve, Fourteen, and Sixteen); mail fraud and aiding and abetting, in violation of 18 U.S.C. §§ 1341 and 2 (Counts Seventeen, Eighteen, Nineteen, and Twenty); and engaging in unlawful monetary transactions and aiding and abetting, in violation of 18 U.S.C. §§ 1957 and 2 (Counts Twenty-One, Twenty-Two, and Twenty-Three). [DE 145]. In January 2016, Judge James C. Fox sentenced petitioner to a total term of 320 months' imprisonment, 3 years of supervised release, an $1,800 special assessment, and $2,025,300 in restitution. [DE 199]. Petitioner appealed, and in November 2017 the Fourth Circuit affirmed. [DE 273]. In March 2018, the Supreme Court denied certiorari. [DE 277].
In August 2018, petitioner filed the instant motion to vacate under 28 U.S.C. § 2255. [DE 289, 290]. Petitioner alleges the following: (1) counsel was constitutionally ineffective in failing to object to the prosecution's use of certain peremptory jury strikes, (2) counsel was ineffective in advising petitioner not to accept a plea agreement and in advising petitioner that he would receive between 2 and 5 years' imprisonment if he lost at trial, (3) counsel was ineffective in failing to identify two alleged instances of prosecutorial misconduct, (4) counsel was ineffective in failing to challenge the government's motion in limine, (5) petitioner was denied the counsel of his choice; (6) counsel was ineffective at petitioner's pretrial release revocation hearing, (7) counsel was ineffective in failing to, uncover an alleged discovery violation, (8) counsel was ineffective in failing to appeal the revocation of petitioner's pretrial release, (9) petitioner was deprived of due process when the Court failed to hold a hearing on his pretrial detention status, (10) petitioner was deprived of due process as a result of four alleged errors at trial, (11) counsel was ineffective in failing to object at sentencing to the use of uncharged and dismissed conduct, (12) counsel was ineffective in failing to object to petitioner's restitution amount, (13) appellate counsel was ineffective in failing to move for panel rehearing, (14) counsel was ineffective in failing to object to two incidents described in the presentence report (PSR), (15) counsel was ineffective in failing to object to the allegedly false testimony of Mr. Travis Cox, and (16) petitioner was deprived of a fair criminal proceeding as a result of the alleged instances of ineffective assistance of counsel. [DE 290, 291]. The government has moved to dismiss petitioner's § 2255 petition. [DE 297].
DISCUSSION
The government has moved to dismiss petitioner's motion under Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion to dismiss must be granted if the pleading fails to allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Rule 12, Rules Governing Section 2255 Proceedings (applying the Federal Rules of Civil Procedure to Section 2255 proceedings). Additionally, "vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court." United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
Many of petitioner's claims are premised on ineffective assistance of counsel under the Sixth Amendment. Under Strickland v. Washington, 466 U.S. 668 (1984), petitioner must show "that counsel's performance fell below an objective standard of reasonableness." Sharpe v. Bell, 593 F.3d 372, 382 (4th Cir. 2010) (internal quotation marks omitted). A court's "scrutiny of counsel's performance must be highly deferential." Id. In fact, there is a "'strong presumption' that a trial counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" United States v. Roane, 378 F.3d 382, 404 (4th Cir. 2002) (quoting Strickland, 466 U.S. at 689). Petitioner must further show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Petitioner's claims can only succeed if he establishes both that his counsel's performance fell below an objective standard of reasonableness and that, but for counsel's errors, the result would have been different.
None of petitioner's claims of ineffective assistance of counsel satisfy the high Strickland bar. Petitioner's first claim, premised on counsel's failure to object to the government's use of certain peremptory jury strikes, fails because counsel's decisions as to whether to challenge the jury selection process is entitled to a high degree of deference under the first Strickland prong. Petitioner also has not alleged sufficient facts to demonstrate that the outcome of his jury selection or of his jury trial would have been different had counsel objected. Petitioner's first claim must be dismissed.
Petitioner's second claim fails under the second Strickland prong. Petitioner alleges that counsel incorrectly told him that he would only receive 2 to 5 years' imprisonment if he went to trial and lost. Even taking petitioner's allegation as true, however, it is plain that petitioner cannot demonstrate prejudice. At petitioner's arraignment, Judge Fox said to petitioner, "your attorney's calculation of your anticipated sentence is only an estimate and that it is solely the court that will determine your sentence." [DE 229, p. 6]. During petitioner's plea colloquy, Judge Fox explained the minimum and maximum penalties associated with each of petitioner's charged offenses. [DE 229, p. 18-20]. Petitioner still pleaded guilty and chose to go to trial. As such, petitioner cannot allege that he would have pleaded guilty had his counsel advised him of a different sentencing range, and his second claim must be dismissed.
Petitioner's third claim, that counsel was ineffective in failing to object to the government allegedly presenting false testimony, also fails under Strickland. Counsel cross-examined the witnesses, Mr. Nasir Dukes and Mr. James Stewart, and asked Mr. Dukes about whether Mr. Stewart had threatened petitioner or his co-defendant. [DE 154, p. 118]. Additionally, the government presented Mr. Stewart with an email in which petitioner's co-defendant claimed that Mr. Stewart had threatened him with physical harm. [DE 155, p. 20]. The Court finds that counsel's decision to impeach the witnesses rather than object to their allegedly false testimony was not objectively unreasonable. See Dyess, 730 F.3d at 365-65 (noting that courts give "counsel wide latitude in determining which witnesses to call as part of their trial strategy"). Petitioner's third claim must be dismissed.
Petitioner's fourth claim, that counsel was ineffective in failing to challenge the government's motion in limine, must be dismissed. The government's motion accurately explained why the Court should exclude, under Federal Rule of Evidence 609, questions relating to embezzlement allegations against Ms. Priscilla Oates and questions relating to the criminal history of Mr. Stewart. [DE 127]. Counsel's decision not to challenge the government's motion in limine was, therefore, objectively reasonable. Petitioner's fourth claim must be dismissed.
Petitioner's fifth claim, that he was denied the counsel of his choice, fails because it was not raised on direct appeal. "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and 'actual prejudice' . . . or that he is 'actually innocent.'" Bousley v. United States, 523 U.S. 614, 622 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 485, 496 (1986)). Petitioner has not alleged sufficient facts to demonstrate that he satisfies either exception, and as such his fifth claim is procedurally defaulted and must be dismissed.
Petitioner's sixth claim, that counsel was ineffective at petitioner's pretrial release revocation hearing, fails under the Strickland prejudice prong. Petitioner has not alleged sufficient facts to establish that, had his pretrial release not been revoked, he would not have received the sentence that he received. Petitioner's sixth claim must be dismissed.
Petitioner's seventh claim, that counsel was ineffective in failing to uncover an alleged discovery violation, must also be dismissed under the Strickland prejudice prong. Even assuming counsel failed to uncover fraud charges against Mr. Dukes, petitioner has not alleged that Mr. Dukes was convicted of any fraud-related offense. Petitioner has not alleged sufficient facts to demonstrate that counsel could have impeached Mr. Dukes under Federal Rule of Evidence 609 or that, even if counsel could have impeached Mr. Dukes in that manner, there would have been any effect on petitioner's conviction or sentence. Petitioner's seventh claim must be dismissed.
Petitioner's ninth and tenth claims, both raising due process issues that allegedly arose before or during petitioner's trial, must be dismissed for the same reasons as his fifth claim. That is, because petitioner either failed to raise the claims on direct appeal or raised them unsuccessfully, Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976), and has not demonstrated that he fits any exception, the claims are procedurally defaulted. Petitioner's ninth and tenth claims must be dismissed.
Petitioner's eleventh claim, that counsel was ineffective in failing to object at sentencing to the use of uncharged and dismissed conduct, must be dismissed because courts may consider uncharged and dismissed conduct in imposing a sentence. See, e.g., United States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009). Given that courts may consider such conduct, counsel reasonably did not object. Petitioner's eleventh claim must be dismissed.
Petitioner's twelfth claim, that counsel was ineffective in failing to challenge the amount of restitution, must be dismissed because § 2255 motions cannot be used to obtain relief from restitution orders. See United States v. Hudgins, 201 F. App'x 142, 143 (4th Cir. 2006) (finding that "a § 2255 motion may not be used for the sole purpose of challenging fines or restitution orders"). Petitioner cannot challenge the amount of his restitution on collateral review and, as such, his twelfth claim must be dismissed.
Petitioner's thirteenth claim, that counsel was ineffective in failing to seek an en banc rehearing of his direct appeal in the Fourth Circuit, must be dismissed. The Fourth Circuit rejected all of petitioner's sufficiency-of-the-evidence challenges on appeal. United States v. Mayhew, 715 F. App'x 232, 234-35 (4th Cir. 2017) (unpublished). It was, therefore, objectively reasonable for counsel not to petition for an en banc rehearing of those issues before the full Fourth Circuit. Petitioner's thirteenth claim must be denied.
Petitioner's fourteenth claim, that counsel was ineffective in failing to object to two incidents described in petitioner's PSR, must be dismissed. Neither of the incidents that petitioner complains of were treated as relevant conduct and, as such, it was objectively reasonable for counsel to instead focus on relevant conduct that affected petitioner's sentencing range under the U.S. Sentencing Guidelines. [DE 192, p. 17-20]. Petitioner's fourteenth claim must be dismissed.
Petitioner's fifteenth claim, that counsel was ineffective in failing to object to the allegedly false testimony of Mr. Travis Cox, must be dismissed for the same reasons as his third claim. Counsel's response on cross to the government's direct examination of Mr. Cox is entitled to broad deference, and even the government on direct elicited information from Mr. Cox that would tend to undermine his testimony. [DE 156, p. 61, 87]. Additionally, petitioner cannot demonstrate that the outcome of his trial would have been different had counsel objected to Mr. Cox's testimony. As such, petitioner's fifteenth claim must be dismissed.
Petitioner's sixteenth claim, that he was denied a fair trial on the basis of all of the alleged instances of ineffective assistance of counsel, must be dismissed because each of the underlying claims of ineffective assistance fail under Strickland. Petitioner's sixteenth claim must be dismissed.
In sum, petitioner has failed to state a claim upon which relief can be granted. Accordingly, his 28 U.S.C. § 2255 petition must be dismissed.
CERTIFICATE OF APPEALABILITY
A certificate of appealability shall not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by demonstrating that reasonable jurists would find that an assessment of the constitutional claims is debatable and that any dispositive procedural ruling dismissing such claims is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). As reasonable jurists would not find this Court's dismissal of petitioner's § 2255 motion debatable, a certificate of appealability is DENIED.
CONCLUSION
For the above reasons, the government's motion to dismiss [DE 297] is GRANTED and petitioner's § 2255 motion [DE 289] is DISMISSED. A certificate of appealability is DENIED. SO ORDERED, this 3 day of April, 2019.
/s/_________
TERRENCE W. BOYLE
CHIEF UNITED STATES DISTRICT JUDGE