Darcy v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:19-cv-00348-MR

[CRIMINAL CASE NO. 1:17-cr-00036-MR-WCM]

ALAN PETER DARCY, )

)

Petitioner, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

UNITED STATES OF AMERICA, )

)

Respondent. )

________________________________ )

THIS MATTER is before the Court on Petitioner’s Motion to Vacate,

Set Aside, or Correct Sentence under 28 U.S.C. § 2255. [Doc. 1].1

I. BACKGROUND

In March 2017, a grand jury in the Western District of North Carolina

indicted Petitioner Alan Peter Darcy, charging him with wire fraud and aiding

and abetting the same, in violation of 18 U.S.C. §§ 1343 and 2 (Count One).

[CR Doc. 1 at 4: Indictment].

On April 26, 2017, Petitioner entered into a written Plea Agreement

with the Government and pleaded guilty to Count One. [CR Doc. 10 at 1:

1 Citations to the record herein that contain the relevant document number referenced

preceded by the letters “CR” denotes that the document is listed on the docket in the

criminal case file number 1:17-cr-00036-MR-WCM.

Plea Agreement]. As part of the Plea Agreement, the parties jointly

recommended to the Court a base offense level of seven under the United

States Sentencing Guidelines; a 14-level enhancement for a loss between

$550,000 and $1.5 million; and a two-level enhancement for substantial

hardship caused by the loss. [Id. at 2]. The parties agreed they would “not

seek any other enhancements or reductions to the offense level.” [Id.].

Petitioner affirmed that he understood the Court “is not bound by

recommendations or agreements by the United States [Attorney’s Office].”

[Id. at 5]. Petitioner agreed to pay full restitution, to disclose all “current and

projected assets,” and to truthfully complete and update a financial

disclosure statement under penalty of perjury. [Id. at 3].

The Plea Agreement states that Petitioner discussed with his attorney

his “rights pursuant to 18 U.S.C. § 3742, 28 U.S.C. § 2255, and similar

authorities to contest a conviction and/or sentence through an appeal or

post-conviction [action] after entering into a plea agreement.” [Id. at 5]. In

exchange for the concessions made by the Government in the Plea

Agreement, Petitioner expressly agreed to waive all such rights to appeal or

collaterally attack his conviction “except for claims of: (1) ineffective

assistance of counsel or (2) prosecutorial misconduct.” [Id.].

The Magistrate Judge conducted the plea colloquy required by Federal

Rule of Criminal Procedure Rule 11 and found that Petitioner’s guilty plea

was knowingly and voluntarily made. [CR Doc. 17 at 9: Acceptance and Entry

of Guilty Plea]. At the hearing, Petitioner was represented by counsel and

placed under oath. [Id.]. During the hearing, the Magistrate Judge read to

Petitioner the elements of the offense including the element that the offense

was committed “knowingly, willfully, intentionally, and unlawfully.” [Id. at 3].

Petitioner was informed of the minimum and maximum sentences he might

receive. [Id.]. Petitioner acknowledged that he understood that the Probation

Office would “prepare a presentence report which contains Guidelines

calculations and that both [he] and the Government will have an opportunity

to object to any alleged deficiencies in the report.” [Id. at 6]. Petitioner

affirmed his guilt and his acceptance of the terms of the Plea Agreement and

confirmed he had had ample time to discuss any potential defenses with his

attorney and that he was satisfied with his attorney’s services. [Id. at 6–8].

The probation officer prepared a Presentence Report (PSR) in

advance of sentencing with a recommendation of a total offense level of 25.

[CR Doc. 25 at 9: PSR]. In accordance with the Plea Agreement, the

probation officer recommended a base offense level of seven, a 14-level

increase for the amount of loss, and a two-level increase for causing

substantial hardship to at least one of the victims. [Id.]. The probation officer

did not include an adjustment for acceptance of responsibility and included

a two-level enhancement for obstruction of justice because Petitioner had

“provided materially false information to the probation officer” by attempting

to conceal his assets and by providing false financial information. [Id.]. With

a criminal history category of III, Petitioner’s advisory guideline range was 70

to 87 months’ imprisonment. [Id. at 21].

The Government submitted a sentencing memorandum in which it

noted the Probation Office’s recommendation for a two-level enhancement

for obstruction of justice. [CR Doc. 29]. The Government also stated that

while Petitioner was “not initially forthcoming about his financial situation and

[had] failed to provide complete information about his business bank

accounts and the trusts that purportedly hold his assets” it appeared that his

“lack of candor was not intended to hide some vast fortune and he has

agreed to forfeit his interest in one of the trusts.” [Id. at 6]. Through counsel,

Petitioner objected to the PSR, specifically objecting to the two-level

enhancement for obstruction of justice. [CR Doc. 23 at 1]. Petitioner stated,

“the information he provided to the probation office was complete and

truthful” other than “slight errors.” [Id.]. Petitioner argued that the Court

should sustain his objections so that the guideline range in this case would

be 41 to 51 months’ imprisonment. [Id. at 4]. The final PSR included the

guideline calculations both with and without the obstruction of justice

enhancement and acceptance of responsibility reduction. [CR Doc. 25 at 9,

21].

At the sentencing hearing, Petitioner reaffirmed that the answers that

he had given at the plea hearing were true and correct and that he would

answer the questions the same way if the Court were to ask them again. [CR

Doc. 41 at 4–7]. Asked if it was still his intent to plead guilty in this matter,

Petitioner replied, “Yes, sir.” [Id. at 6]. The Court confirmed the findings of

the Magistrate Judge during the plea colloquy and reaffirmed the Magistrate

Judge’s acceptance of Petitioner’s guilty plea. [Id. at 7–8].

The Court then reviewed the PSR and asked both parties about the

enhancement for obstruction of justice and the reduction for acceptance of

responsibility. [Id. at 8–12]. Although Petitioner’s attorney advocated for a

reduction for acceptance of responsibility and against the enhancement for

obstruction of justice, the Court concluded “that in responding to what [the

Court] see[s] as various straightforward questions regarding the assets of

the defendant that the defendant simply got too cute by half in trying to skirt

around the information that was sought.” [Id. at 12]. The Court therefore

found that the calculation of the offense level in the presentence report that

included the two-level enhancement for obstruction of justice and excluded

the reduction for acceptance of responsibility was correct. [Id.].

One of the victims in this case, Kathleen Haggarty, addressed the

Court at the sentencing hearing. [Id. at 16]. Ms. Haggarty informed the Court

about the financial impact of the crime on herself and her family. After she

spoke, the Court asked Petitioner’s attorney for the appropriate sentence in

this case. Petitioner’s attorney argued for a sentence at the low end of the

guidelines, citing Petitioner’s age and health conditions, including “cardiac

issues, gastrointestinal issues, eye problems, lung problems,” a stroke,

bursitis issues, and his need for a CPAP machine. [Id. at 19]. The

Government argued for a guidelines sentence, citing its sentencing

memorandum. [Id. at 22]. Petitioner allocuted and stated, “I stopped doing

all this when it first came to light” and “I accept responsibility. We believed in

what we are doing. We stopped doing it very simply.” [Id. at 24].

The Court varied upward in imposing the sentence, citing to the

seriousness of the offence based on the amount of money taken, the

hardship to the victims, and to the history and characteristics of Petitioner,

noting that he “has previously been convicted of almost exactly the same

sort of thing” and has been involved in similar civil cases. [Id. at 28–29].

Petitioner’s criminal history belied his assertion at allocution that he

discontinued the criminal activity ”when it first came to light.” The Court

stated that this sentence was necessary to “afford adequate deterrence to

criminal conduct.” [Id. 29]. The Court sentenced Petitioner to 108 months’

imprisonment and ordered him to pay $740,028.43 in restitution. [CR Doc.

33: Judgment]. The Fourth Circuit dismissed Petitioner’s appeal as barred

by the appeal waiver in the Plea Agreement on September 18, 2018. [CR

Doc. 44]. On December 13, 2019, Petitioner filed his timely § 2255 motion

before this Court asserting numerous claims of ineffective assistance of trial

counsel, as well as ineffective assistance of appellate counsel, government

misconduct, and other errors. [Doc. 1]. The Government filed its response

on March 20, 2020. [Doc. 9].

II. STANDARD OF REVIEW

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides

that courts are to promptly examine motions to vacate, along with “any

attached exhibits and the record of prior proceedings . . . .” in order to

determine whether the petitioner is entitled to any relief on the claims set

forth therein. In many cases, an evidentiary hearing is required to determine

whether or not counsel was ineffective for misadvising a petitioner about a

plea offer. See generally United States v. Witherspoon, 231 F.3d 923, 926–

27 (4th Cir. 2000); 28 U.S.C. § 2255(b). After examining the record in this

matter, the Court finds that the arguments presented by Petitioner can be

resolved without an evidentiary hearing based on the record and governing

case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

III. DISCUSSION

Petitioner presents six claims in his motion: (1) ineffective assistance

of trial counsel; (2) ineffective assistance of appellate counsel; (3)

prosecutorial misconduct; (4) the “government, de facto, abrogated the plea

agreement” and ineffective assistance of counsel for not filing a motion to set

aside the plea agreement; (5) violation of his Fourth Amendment rights and

ineffective assistance of counsel for not filing a motion to suppress or dismiss

based on this violation; and, (6) violation of his rights because the victim who

spoke at sentencing was not cross-examined.

A. Ineffective Assistance of Trial Counsel (Claim 1)

The Sixth Amendment to the United States Constitution guarantees

that in all criminal prosecutions, the accused has the right to the assistance

of counsel for his defense. See U.S. Const. amend. VI. To show ineffective

assistance of counsel, a petitioner must first establish a deficient

performance by counsel and, second, that the deficient performance

prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

In making this showing, there is “a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” Id. at 689;

see also United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010).

In order to establish prejudice, a petitioner must demonstrate there is

“a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 669. It is not sufficient to show the mere “‘possibility of

prejudice.’” Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997) (quoting

Murray v. Carrier, 477 U.S. 478, 494 (1986)). To demonstrate prejudice in

the context of a guilty plea, a petitioner must show “a reasonable probability

that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). In

the context of a claim of ineffective assistance of counsel at sentencing, a

petitioner must show that but for counsel’s deficient performance, there is a

reasonable probability that he would have received a lower sentence. See

Royal v. Taylor, 188 F.3d 239, 249 (4th Cir. 1999).

In considering the prejudice prong, a court “can only grant relief under

. . . Strickland if the ‘result of the proceeding was fundamentally unfair or

unreliable.’” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting

Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). If a petitioner fails to

conclusively demonstrate prejudice, the Court need not consider the

performance prong. United States v. Terry, 366 F.3d 312, 315 (4th Cir.

2004).

1. Claims of Pre-Plea Ineffective Assistance

Regarding claims of ineffective assistance of counsel that arose before

Petitioner pled, Petitioner argues that his counsel was ineffective because

she failed to (1) properly advise him in connection with the proposed plea;

(2) file a motion to dismiss based on Fourth Amendment violations; (3) file a

motion to dismiss for lack of criminal intent; (4) review discovery with him;

and (5) argue retaliatory prosecution.

“Before deciding whether to plead guilty, a defendant is entitled to ‘the

effective assistance of competent counsel.’” Padilla v. Kentucky, 559 U.S.

356, 364 (2010) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).

A guilty plea knowingly and voluntarily made “forecloses federal collateral

review” of prior constitutional deprivations, including allegations of ineffective

assistance of counsel that do not affect the voluntariness of the plea. See

Fields v. Att’y Gen. of Md., 956 F.2d 1290, 1294–96 (4th Cir. 1992). “When

a defendant pleads guilty, he waives all nonjurisdictional defects in the

proceedings conducted prior to entry of the plea.” United States v.

Moussaoui, 591 F.3d 263, 279 (4th Cir. 2010).

In evaluating claims under § 2255, statements made by a defendant

under oath at a plea hearing carry a “strong presumption of verity” and

present a “formidable barrier” to subsequent collateral attacks. Blackledge

v. Allison, 431 U.S. 63, 73–74 (1977). “[I]n the absence of extraordinary

circumstances, allegations in a § 2255 motion that directly contradict the

petitioner’s sworn statements made during a properly conducted Rule 11

colloquy are always palpably incredible and patently frivolous or false.”

United States v. Lemaster, 403 F.3d 216, 221–22 (4th Cir. 2005) (quotations

omitted).

a. Advising Defendant to Plead Guilty

Petitioner first contends that his trial attorney failed to properly advise

him in connection with his guilty plea. Petitioner argues that (1) he received

bad advice because his counsel should not have advised him to plead guilty

because Petitioner informed his counsel that he did not commit a crime and

because of his age and health, and (2) that his counsel made a bad

prediction by suggesting that he would “receive a very light active sentence,

if any at all” and his plea was “a misunderstanding due to misinformation

from his lawyer about the sentencing that he would likely receive.” [Doc. 1-1

at 1–2].

Petitioner’s own statements at his Rule 11 colloquy made under oath

and affirmed in front of this Court belie Petitioner’s argument. During the

plea hearing Petitioner admitted guilt and testified under oath that he

understood the elements of the crime; he understood that he could be

sentenced up to the statutory maximum of 20 years’ imprisonment; he

understood how the guidelines may apply to him; and that he understood the

Court was not bound to sentence him within the guideline range. [CR Doc.

42 at 3, 15–18]. These statements contradict Petitioner’s argument that he

told his attorney that he was not guilty. As to the argument that counsel was

ineffective in advising Petitioner to plead in light of his age and health, such

factors are not relevant as to whether Petitioner committed the crime and

would not absolve him of guilt. To the extent these may be relevant factors

for sentencing his attorney addressed this in other ways as discussed below.

Petitioner has not alleged any “extraordinary circumstances” that would

justify disregarding Petitioner’s sworn statements at the Rule 11 hearing and

sentencing that he was, in fact, guilty. See Lemaster, 403 F.3d at 221. This

claim, therefore, is without merit.

Even assuming that Petitioner’s attorney did, in fact, advise Petitioner

to expect a short sentence, Petitioner has still not alleged facts sufficient to

support his assertion that his attorney provided pre-plea ineffective

representation. As the Supreme Court has stated, “uncertainty is inherent in

predicting court decisions.” McMann v. Richardson, 397 U.S. 759, 771

(1970). Accordingly, an erroneous prediction by counsel of what a court will

do or what sentence a defendant is likely to receive does not establish

constitutionally ineffective assistance. See Spiller v. United States, 855 F.3d

751, 757 (7th Cir. 2017); Moreno-Espada v. United States, 666 F.3d 60, 65

(1st Cir. 2012); cf. Little v. Allsbrook, 731 F.2d 238, 240 (4th Cir. 1984)

(holding that an attorney’s “grossly misinform[ing]” a defendant “about parole

possibilities” did not establish constitutionally ineffective assistance of

counsel requiring the district court to permit him to withdraw his guilty plea).

b. Violating Petitioner’s Fourth Amendment Rights (Claim 5) and

Failing to Move to Suppress or Dismiss Based on the Violation

Petitioner contends that his counsel was ineffective in failing to file a

motion to suppress or dismiss based on evidence obtained from Petitioner’s

bank records, arguing that the Government violated his Fourth Amendment

rights in obtaining those records. In order to establish that counsel was

ineffective for failing to move to dismiss or suppress the evidence Petitioner

must first establish that he had a meritorious Fourth Amendment claim;

therefore, the Court will address the Fourth Amendment issue first.

Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S. Ct. 2574, 2586–87

(1986).

There is generally is “no Fourth Amendment interest” in a person’s

bank records because the “Fourth Amendment does not prohibit the

obtaining of information revealed to a third party and conveyed by him to

Government authorities.” United States v. Miller, 425 U.S. 435, 443–44

(1976). This applies to the information Petitioner disclosed to his bank, which

the bank then provided to the Government. Petitioner argues that Miller

should not apply to banking information citing to Carpenter v. United States,

138 S. Ct. 2206 (2018). Petitioner’s reliance on Carpenter is misplaced.

Carpenter did not overrule Miller but merely limited Miller in the context of

modern cell phone technology. Carpenter, 138 S. Ct. at 2217 (declining to

extend Miller because of “the unique nature of cell phone location records”).

Other than Petitioner’s naked assertion that he believes “that his private

records had been illegally obtained,” he offers no evidence of illegality on the

part of the Government. This is not enough to establish a violation of

Petitioner’s Fourth Amendment rights. United States v. Dyess, 730 F.3d 354,

359–60 (4th Cir. 2013) (holding it was proper to dismiss § 2255 claims based

on vague and conclusory allegations). Petitioner’s Fourth Amendment

violation claim is, therefore, without merit.

Turning to the claim of ineffective assistance of counsel for not filing a

motion to suppress, Petitioner’s guilty plea “by itself” forecloses any

challenge to alleged misconduct by his attorney before and unrelated to the

voluntariness of his guilty plea. As stated above, the Rule 11 colloquy and

the confirmation at the sentencing hearing establish that Petitioner’s plea

was knowing and voluntary. Burket v. Angelone, 208 F.3d 172, 190 (4th Cir.

2000); Fields, 956 F.2d at 1294–96. Even if Petitioner’s guilty plea did not

foreclose any challenge to counsel’s failure to file a motion to suppress or

dismiss, he has not alleged facts that would tend to show that “no competent

attorney would think a motion to suppress would have failed.” Premo v.

Moore, 562 U.S. 115, 124 (2011). Petitioner’s attorney could well have

examined the information available to her and made a reasonable judgment

that a motion to suppress was not worth pursuing. Morrison, 477 U.S. at 382.

Considering the fact that Petitioner’s Fourth Amendment argument is without

merit, such assessment by counsel would be fully warranted. Petitioner’s

claim for infective assistance of counsel on this issue is, therefore, denied.

c. Failing to File a Motion to Dismiss for Lack of Criminal Intent

Petitioner alleges that his trial counsel was ineffective in not filing a

motion to dismiss the charges against him for lack of criminal intent. At the

time of Petitioner’s plea it was clearly explained to him that criminal intent is

an element of the crime charged. Petitioner affirmed that he understood the

elements of the crime and that he was guilty of that crime. [CR Doc. 42 at

15]. As such, he has confessed under oath to having the requisite criminal

intent. Petitioner’s claim is thereby waived by his guilty plea and statements

at the Rule 11 colloquy. See Lemaster, 403 F.3d at 221.

Even if the claim was not waived by his guilty plea, Petitioner has not

shown that his counsel was ineffective in not moving to dismiss. Other than

his self-serving statements that the case was “civil rather than criminal,”

Petitioner offers no evidence or argument in support of this claim. His

admission under oath that he acted with criminal intent is unrebutted

Therefore, he can show neither deficient performance nor prejudice from

counsel’s alleged failure to move to dismiss on this basis. Morrison, 477 U.S.

at 382.

d. Failing to Review Discovery with Petitioner

Next, Petitioner claims that counsel did not review discovery with him.

Petitioner does not articulate what discovery his counsel failed to review with

him or what difference such discovery would have made, but generally states

“neither the petitioner nor his undersigned [habeas] counsel have seen the

discovery.” [Doc. 17 at 23].

General allegations that counsel failed to fully review or provide

discovery are generally insufficient to support a finding of error. Dyess, 730

F.3d at 359–60. During the Rule 11 proceedings Petitioner asserted that he

had reviewed the charges and the Plea Agreement with counsel, admitted

that the government would be able to prove the elements of the offense,

agreed with the factual basis set forth in the Plea Agreement, and stated that

he was satisfied with counsel’s representation. [CR Doc. 42 at 15, 20, 25,

27, 31]. These statements are presumptively correct and are not overcome

by Petitioner’s self-serving and conclusory statements that counsel failed to

adequately review discovery with him before the plea hearing. See

Blackledge, 431 U.S. at 74. There is no evidence that Petitioner’s counsel

was objectively unreasonable with respect to discovery or discussing the

nature of the charges.2 Petitioner has not established prejudice or how any

specific discovery might have altered his calculation about whether to plead

guilty, therefore, this claim is dismissed.

e. Failing to Argue Prosecutorial Misconduct and Prosecutorial

Misconduct (Claim 3)

Petitioner alleges that the Government entrapped him and committed

prosecutorial misconduct (Claim 3). [Doc 1-1 at 16]. He also alleges that his

counsel was deficient in failing to secure records from earlier investigations

of Petitioner and in failing to argue that the charge was based on government

2 To the extent that Petitioner suggests that prejudice must be presumed in failing to

review discovery this claim is also without merit. See United States v. Cronic, 466 U.S.

648, 659–60 (1984) (listing three presumption cases which does not include failing to

review discovery).

misconduct or retaliatory prosecution. [Id. at 10–14]. In support of this

allegation, Petitioner states that “upon information and belief” he was

“targeted” by the Government because of “retaliation and government

animus toward [him] resulting from earlier federal and state investigations.”

[Id. at 14–16]. Petitioner states that “from 1973 to the present [he] has been

the subject of many state and federal governmental actions” including an IRS

investigation that allegedly lasted for nearly a year, but which did not result

in an indictment. [Id. at 13–14]. Petitioner summarily concluded that grand

jury testimony or records of this investigation and others “would have

assisted in an effort to show prosecutorial misconduct in connection with this

investigation and the indictment resulting from it.” [Id. at 14].

In order to establish ineffective assistance of counsel for not

investigating or filing a motion to dismiss based on alleged prosecutorial

misconduct, a petitioner must first sufficiently demonstrate government

misconduct. United States v. Richardson, 724 F. App’x 193, 196 (4th Cir.

2018) (“[B]ecause he does not establish prosecutorial vindictiveness, he

cannot show that counsel was ineffective for failing to investigate.”).

When considering a claim of prosecutorial misconduct, the Court must

determine “whether the conduct ‘so infected the [proceedings] with

unfairness as to make the resulting [conviction and sentence] a denial of due

process.’” United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002)

(quoting United States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995)). “The

test for reversible prosecutorial misconduct has two components; first, the

defendant must show that the prosecutor’s remarks or conduct were

improper and, second, the defendant must show that such remarks or

conduct prejudicially affected his substantial rights so as to deprive him of a

fair trial.” Id.; see United States v. Caro, 597 F.3d 608, 624–25 (4th Cir.

2010).

Vindictive or retaliatory prosecution is one form of prosecutorial

misconduct. Prosecution of a person “brought with a vindictive motive,

penalizing those who choose to exercise their constitutional rights, [is]

patently unconstitutional.” North Carolina v. Pearce, 395 U.S. 711, 724

(1969) (quotations omitted). In order to make out a claim for vindictive

prosecution the defendant must make an objective showing that “(1) the

prosecutor acted with genuine animus toward the defendant and (2) the

defendant would not have been prosecuted but for that animus.” United

States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001).

Petitioner has not identified any objective evidence of misconduct or

improper motive but rather makes a conclusory statement “upon information

and belief that these charges are the result of government retaliation and

government animus.” [See Doc. 1-1 at 14]. Petitioner has not set forth any

evidence that the prosecutor had a personal stake in the outcome of his case

or that the case related to the grand jury investigation of the Petitioner from

years earlier in the Western District of North Carolina or to any state court

cases.3 Petitioner’s conclusory, unsupported claims of prosecutorial

misconduct and his personal belief that this case is “civil not criminal” is

insufficient to establish any prosecutorial animus or wrongdoing. A motion to

dismiss based on retaliatory prosecution or other prosecutorial misconduct

would have been frivolous. Therefore, Petitioner’s counsel was not

ineffective for failing to file such a motion. See Richardson, 724 F. App’x at

196. The claim of governmental or prosecutorial misconduct must, therefore,

be dismissed.

2. Failing to Challenge the Plea Agreement and Abrogation of

the Plea Agreement by the Government (Claim 4)

Petitioner next argues that the Government “de facto, abrogated the

plea agreement” and that his counsel was ineffective in failing to raise the

issue. [Doc. 1-1 at 2, 18]. The Government argues that it did not violate the

Plea Agreement because it merely provided the Court with the information

3 Petitioner does not explain how the previous state court cases are related to the

allegation of prosecutorial misconduct in this case. “The fact that a federal prosecution

occurred after an unfavorable result in a state court does not, in and of itself, demonstrate

vindictiveness on the part of the federal prosecutor.” United States v. Spears, 159 F.3d

1081, 1087 (7th Cir. 1998).

required by the Agreement and argued for a sentence within the guideline

range. [Doc. 9 at 21–22].

Petitioner and the Government entered into a Plea Agreement in which

both parties agreed they would “not seek any other enhancements or

reductions to the offense level” and that Petitioner would pay full restitution

and truthfully complete and update a financial disclosure statement under

penalty of perjury. [CR Doc. 10 at 2–3]. As discussed above, the Probation

Office included a two-point enhancement for obstruction of justice in the PSR

after Petitioner “provided materially false information to the probation officer.”

[CR Doc. 22 at 8–9]. The Government responded in its Sentencing

Memorandum that “[p]ursuant to paragraph 7(g) of the Plea Agreement, the

United States is advising the court herein of all facts pertinent to” Petitioner’s

sentencing. [CR Doc. 29 at 2].

The Fourth Circuit has held “[t]he government has a ‘duty to furnish

complete and accurate information at sentencing,’” and has “expressed

doubt as to whether a plea agreement may abridge that duty.” United States

v. Edgell, 914 F.3d 281, 287 (4th Cir. 2019) (quoting United States v. Crisp,

817 F.2d 256, 259 (4th Cir. 1987)). Consistent with that requirement, the

Plea Agreement included the provision that the Government “will inform the

Court and the probation office of all facts pertinent to the sentencing process

and will present any evidence requested by the Court.” [CR Doc. 10 at 2].

The Government did not “seek” the obstruction of justice enhancement either

at sentencing or in their sentencing memorandum but informed the Court

about the facts surrounding the Probation Office’s recommendation for the

enhancement and the law in reference to the enhancement. The

Government did not breach the plea agreement by informing the Court about

Petitioner’s “lack of candor towards the Probation Office and the Financial

Litigation Unit of the United States Attorney’s Office.” [CR Doc. 29 at 2].4

It was the Probation Office, not the Government, that advocated for the

enhancements to the Offense Level. The Probation Office is an agency of

the Court, not the U.S. Attorney’s Office. United States v. Myers, 702 F.

App’x 129, 130-31 (4th Cir. 2017) (“[T]he probation officer is considered ‘a

neutral, information-gathering agent of the court, not an agent of the

prosecution.’”) (quoting United States v. Johnson, 935 F.2d 47, 49-50 (4th

Cir. 1991)). The language used in the Plea Agreement indicated that the

Court was not bound by the Agreement and that the U.S. Attorney’s Office

would provide information to the Court and the Probation Office. The

Probation Office did not violate the Plea Agreement when it provided

4 Furthermore, nothing in the Plea Agreement precluded the Government from seeking

an obstruction of justice enhancement based on Petitioner’s post-plea conduct.

information regarding the obstruction of justice enhancement as it was not

bound by the U.S. Attorney’s Office’s agreements.5

As there was no breach, Petitioner’s attorney was not ineffective for

failing to raise the issue. Further, Petitioner cannot show that he was

prejudiced. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“[T]his Court

has never required defense counsel to pursue every claim or defense,

regardless of its merit, viability, or realistic chance for success.”).

3. Failing to Properly Advise the Court of Petitioner’s Health

Petitioner next asserts a claim for ineffective assistance of counsel

alleging that his counsel failed to properly advise the Court regarding

Petitioner’s medical conditions. [Doc.1-1 at 3]. Petitioner argues his counsel

should have provided the Court with sufficient evidence regarding his health

conditions so that the Court would understand that the Petitioner’s “age and

medical condition [would make] any lengthy sentence . . . the equivalent of

a life sentence for him.” [Id. at 5].

The Court was well informed of Petitioner’s health through the

information in the PSR, amendments to the PSR, and in arguments by

5 The Government also argues that, alternatively, even if it violated the Plea Agreement,

its conduct was justified because Petitioner breached the Agreement by failing to provide

complete and truthful financial information. [Doc. 9 at 23]. Because the Court concludes

that the Government did not breach the Agreement the Court does not reach the issue of

whether Petitioner breached it.

counsel at sentencing. The PSR appraised the Court of the severity of the

conditions by including information about Petitioner’s “three heart attacks in

the past eight years” resulting in having a “pace maker placed in June 2017;”

problems with his eyes; ulcers; and the medications that he takes, including

Oxycodone. [CR Doc. 25 at 15]. A supplement to the PSR contained

information that the Petitioner “suffers macular degeneration in both of his

eyes,” and “has had a series of falls relating to four TIA’s, dizziness,

headaches and slurred speech.” [CR Doc. 30]. At sentencing, Petitioner’s

counsel indicated that “[b]ecause of his age, he’s had a number of issues

regarding his health,” including “cardiac issues, gastrointestinal issues, eye

problems, lung problems,” a stroke, and “bursitis issues.” [CR Doc 41 at 19].

She also indicated the need for self-surrender after Petitioner had cataract

surgery. [Id. at 21].

The Court was made sufficiently aware of Petitioner’s health conditions

and sentenced Petitioner “fully cognizant of [his] age,” indicating that if

Petitioner “were a younger man [the Court] probably would have imposed a

longer judgment.” [CR Doc. 41 at 29]. There is no indication of any prejudice

to Petitioner or that the Court would have imposed a different sentence with

more information about his medical conditions. Royal, 188 F.3d at 249

(holding there must be a “reasonable probability” the petitioner’s sentence

“would have been more lenient had counsel advanced additional mitigating

evidence on his behalf”).

4. Failing to File a Sentencing Memorandum

Petitioner next contends that his attorney was constitutionally deficient

in failing to file a sentencing memorandum. This claim is conclusory and

without merit. First, Petitioner’s attorney did file a memorandum objecting to

the PSR and specifically advocating for a reduction for acceptance of

responsibility and against the enhancement for obstruction of justice. [CR

Doc. 24]. Though such memorandum did not include arguments relating to

Petitioner’s previous conviction (discussed more below) or more information

about his medical conditions (discussed more above), Petitioner has not

demonstrated prejudice or that counsel acted outside the bounds of

professional reasonableness.

5. Failing to Argue “from the South Carolina” Case

Petitioner argues that his trial counsel should have contacted his South

Carolina counsel and reviewed the file of his previous South Carolina

conviction for two counts of Attempt to Commit Wire Fraud. [Doc. 1-1 at 5–

8]. Petitioner appears to argue that had his trial counsel investigated the prior

case, she would have discovered that his culpability was less than implied in

the PSR. Without anything further, Petitioner argues that this Court would

have sentenced him differently as a result.

Petitioner does not argue that he did not commit the South Carolina

offenses but only that had counsel investigated the offenses that he would

have been subject to a lesser sentence. Counsel’s failure to object to the

criminal history in the PSR is not ineffective assistance because there is no

evidence that the South Carolina charge was invalid. From Petitioner’s

“Petition to Enter a Plea of Guilty” from his South Carolina case, Petitioner

affirmed that he understood that if he pled guilty to the offense that conviction

“may impact the sentence(s) imposed for any further offense(s) that [he]

commit[s].” Petition to Enter Plea of Guilty at ¶ 31, United States v. D’Arcy,

(D.S.C. Oct. 30, 2010) (8:10-cr-00999-GRA), Entry Number 38. Further,

Petitioner informed the Court before its acceptance of the PSR that he

understood the PSR (which included the South Carolina conviction) and that

he had an opportunity to review the report with his counsel. [CR Doc. 41 at

8]. There is nothing in the record of this case to indicate that Petitioner’

sentence would have been any different if counsel had further investigated

his South Carolina conviction. See Royal, 188 F.3d at 249.

6. Failing to Inform the Court Regarding Payments to Kathleen

Haggarty

Petitioner contends that counsel was ineffective for failing to inform the

Court about a $20,000 payment to one of the victims in the case, Kathleen

Haggarty. Even if Petitioner had presented evidence that this payment

existed (which he did not) this claim fails for multiple reasons. First, Petitioner

does not contend that the adjustment of $20,000 in loss amount would have

made it objectively reasonable for him to go to trial, so Petitioner does not

establish prejudice. Second, Petitioner does not allege how this amount

would have changed his sentence. The loss amount upon which his offense

level was based was within the range of $550,000 to $1,500,000. The

difference of $20,000 would not have changed his offense level6 and thus

would not have affected his guideline range. Furthermore, the restitution and

forfeiture amounts determined by the Court are consistent with Petitioner’s

admission of guilt to Count One, the Plea Agreement, and the Factual Basis.7

6 The total restitution award was $740,028.43. [CR Doc. 33 at 4]. A reduction of $20,000

in this loss amount would have remained well within the same range.

7 To the extent that this is a challenge to the forfeiture and restitution amounts this claim

is not cognizable on § 2255 review because it is a nonconstitutional claim and does not

relate to Petitioner’s custody. See Shephard v. United States, 735 F.3d 797, 798 (8th Cir.

2013) (holding that as petitioner was not claiming a right to be released from custody,

even if counsel was ineffective with regards to restitution amount the claim could not be

raised in a § 2255 petition).

Petitioner also does not allege when such $20,000 payment was

made. The amount of loss is not reduced by funds returned after an offense

is detected. See U.S.S.G. § 2B1.1 cmt. n.3(E); United States v. Payne, 127

F. App’x 638, 640–41 (4th Cir. 2005) (holding the loss amount should not be

reduced by funds turned over after the offense had been discovered). As

Petitioner has shown neither prejudice nor defective performance from

counsel’s failure to inform the Court about the alleged payment made to Ms.

Haggarty, this claim is dismissed.

7. Failing to Interview Witnesses Before the Plea and

Subpoena Them to Testify at Sentencing

Petitioner next argues that his trial counsel was ineffective in not

interviewing certain witnesses or subpoenaing them before the sentencing

hearing. The Supreme Court has repeatedly held that “‘[i]n any

ineffectiveness case, a particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel’s judgments.’” Wiggins v. Smith, 539 U.S.

510, 521–22 (2003) (quoting Strickland, 466 U.S. at 690–91). Complaints of

ineffective assistance of counsel due to uncalled witnesses are generally

disfavored because “the presentation of witness testimony is a matter of

strategy and the nature of such testimony is speculative.” Brown v. United

States, No. 3:18-cv-00125-MOC, 2018 WL 3428148, at *8 (W.D.N.C. July

16, 2018) (citing Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).

Petitioner’s argument that the witnesses’ interviews would have helped

inform him whether to plead guilty is waived by Petitioner’s knowing and

voluntary guilty plea. See Fields, 956 F.2d at 1294–96. To the extent that the

claim is not waived as to pre-plea conduct, Petitioner fails to provide more

than a conclusory allegation that the testimony would have been helpful.

“[A]n allegation of inadequate investigation does not warrant habeas relief

absent a proffer of what favorable evidence or testimony would have been

produced.” Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996).

Petitioner’s argument that the testimony would have helped at

sentencing also fails. Petitioner cannot establish ineffective assistance of

counsel “on the general claim that additional witnesses should have been

called in mitigation.” Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir.

1990). Moreover, the three pretermitted witnesses Petitioner identifies

(Kathleen Haggarty, Gene Butler, Bob Barrett) were Petitioner’s victims. The

argument that their testimony would have negated criminal intent at

sentencing is meritless as Petitioner had already pled guilty thereby agreeing

he had the requisite intent. Moreover, Ms. Haggarty gave a victim impact

statement at sentencing that was quite unfavorable to Petitioner. The idea

that her compelled testimony would necessarily have been helpful to

Petitioner is entirely speculative. Petitioner has failed to show prejudice or

defective representation in not interviewing or subpoenaing the witnesses.

In sum, for the reasons stated herein, Petitioner’s ineffective

assistance of trial counsel claim is denied and dismissed. Petitioner’s

assertion of “cumulative error” is without merit. He has not shown any error

by counsel, and in any event “claims of ineffective assistance of counsel are

not subject to cumulative error analysis.” Rattler v. United States, No. 1:16-

cv-00126-MR, 2016 WL 5349466, at *8 (W.D.N.C. Sep. 23, 2016) (citing

Fisher v. Angelone, 163 F.3d 835, 852–53 (4th Cir. 1998)).

B. Ineffective Assistance of Appellate Counsel (Claim 2)

Courts ordinarily find ineffective assistance for failure to raise claims

on appeal only when “ignored issues are clearly stronger than those

presented.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (internal citation and

quotation marks omitted); United States v. Mason, 774 F.3d 824, 828–29

(4th Cir. 2014). Appellate counsel is not required to assert all non-frivolous

issues on appeal. Griffin v. Aiken, 775 F.2d 1226, 1235 (4th Cir. 1985).

Rather, “it is the hallmark of effective appellate advocacy” to winnow out

weaker arguments and to focus on more promising issues. Smith v. Murray,

477 U.S. 527, 536 (1986). The petitioner still bears the burden to show that

there is a reasonable probability that but for counsel’s failure to raise an issue

on appeal, he would have prevailed. See Robbins, 528 U.S. at 285–86.

Petitioner alleges that his appellate counsel “did not contact him in any

way prior to filing of the opening brief.” [Doc. 1-1 at 15]. He argues that

because appellate counsel “relied strictly on issues that were waived in the

plea agreement” and the brief was not filed as an Anders Brief, his appeal

“was totally ineffectual ab initio.” [Id.]. He further argues that his appellate

counsel should have raised the issues that he now raises. [Doc. 17 at 25].

As shown above, however, the claims Petitioner asserted regarding trial

counsel and the claims of prosecutorial misconduct are without merit and

could not have afforded Petitioner any relief. Furthermore, ineffective

assistance of counsel claims can be “brought in a later, appropriate

proceeding under §2255” even if not raised on direct appeal. Massaro v.

United States, 538 U.S. 500, 509 (2003). As he cannot establish deficiency

or prejudice in appellate counsel’s substantive performance this claim is

dismissed.8

8 In their Sur-Reply the Government argues that Petitioner has improperly raised some of

the ineffective assistance of appellate counsel claims outside of the one-year period of

limitation. [Doc. 24 at 1–2]. The Court does not reach the issue of whether some of the

issues are time barred because the claims fail as a matter of law.

C. Cross-Examination of Victim at Sentencing (Claim 6)

Petitioner argues that after Kathleen Haggarty gave her victim

statement at sentencing his counsel should have cross-examined her and

the Court should have asked for cross-examination. Victims of a crime have

“[t]he right to be reasonably heard at any public proceeding in the district

court involving release, plea, sentencing, or any parole proceeding.” 18

U.S.C. § 3771(a)(4); see also Fed. R. Crim. P. 32(i)(4)(B) (“Before imposing

sentence, the court must address any victim of crime who is present at

sentencing and must permit the victim to be reasonably heard.”). Petitioner

cites to no authority requiring the Court to place victims under oath and

subject them to cross-examination.

In sentencing, courts can consider the victim’s statement and “any

relevant information before it, including uncorroborated hearsay, provided

that the information has sufficient indicia of reliability to support its accuracy.”

United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010). There is no

requirement that a victim giving a victim impact statement at a sentencing

hearing be placed under oath. See United States v. Myers, 402 F. App’x 844,

845 (4th Cir. 2010). The Confrontation Clause, which provides defendants

with the right to cross-examine witnesses against them, also does not apply

at sentencing. United States v. Powell, 650 F.3d 388, 392–93 (4th Cir. 2011).

For these reasons this claim is without merit.

IV. CONCLUSION

For the reasons stated herein, the Court denies and dismisses the

motion to vacate.

The Court further finds that Petitioner has not made a substantial

showing of a denial of a constitutional right. See generally 28 U.S.C. §

2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336–38 (2003)

(stating that in order to satisfy § 2253(c), a “petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong”) (citing Slack v. McDaniel, 529 U.S.

473, 484–85 (2000)). Petitioner has failed to demonstrate both that this

Court’s dispositive procedural rulings are debatable, and that the Motion to

Vacate states a debatable claim of the denial of a constitutional right.

McDaniel, 529 U.S. at 484–85. As a result, the Court declines to issue a

certificate of appealability. See Rule 11(a), Rules Governing Section 2255

Proceedings for the United States District Courts, 28 U.S.C. § 2255.

ORDER

IT IS, THEREFORE, ORDERED that Petitioner's Section 2255 Motion

to Vacate, Set Aside, or Correct Sentence [Doc. 1] is DENIED and

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules

Governing Section 2255 Proceedings, the Court declines to issue a

certificate of appealability.

IT IS SO ORDERED.

Signed: January 11, 2021

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< Reidinger wey

Chief United States District Judge ely

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