United States v. Taylor

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal No. 13-cr-67 (BAH)

GARFIELD TAYLOR, Chief Judge Beryl A. Howell

Defendant.

MEMORANDUM OPINION

The defendant, Garfield Taylor, was sentenced to 156 months’ incarceration on his guilty

plea, pursuant to a plea agreement, to one count of securities fraud stemming from his operation

of a Ponzi scheme that defrauded over 150 victims of over $25 million. See Judgment in a

Criminal Case, ECF No. 72. 1 Almost one year after his sentencing, the defendant filed pro se

motions seeking to obtain discovery, Def.’s Expedited Mot. for Leave to Modify Protective

Order Governing Disc. (“Def.’s Disc. Mot.”), ECF No. 76, and to vacate his guilty plea and

sentence, pursuant to 28 U.S.C. § 2255, on the ground that he received ineffective assistance of

counsel in multiple respects, Def.’s Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or

Correct Sentence by a Person in Federal Custody and to Permit Discovery (“Def.’s 2255 Mot.”),

ECF No. 79. 2 For the reasons below, the defendant’s motions are denied.

I. BACKGROUND

Set out below are the facts underlying the defendant’s conviction, as summarized in the

Statement of Offense accompanying the Plea Agreement, which facts were admitted by the

1

This case was reassigned to the undersigned Chief Judge on May 4, 2016, following the retirement of the

original sentencing Judge.

2

The defendant has moved to amend a typographical error in his § 2255 petition, Def.’s Mot. Amend § 2255

Mot., ECF No. 94, and filed a “Writ or Order to Show Cause,” Def.’s Writ or Order to Show Cause, ECF No. 98,

which the Court construes as seeking to amend the defendant’s § 2255 motion to include the document itself as a

proposed order. These two motions to amend are granted.

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defendant at the time of his guilty plea, see Stmt. of Offense, ECF No. 27; Plea Agreement, ECF

No. 28; Plea Hr’g Tr. dated March 6, 2014 (“Plea Hr’g Tr.”) at 21–25, ECF No. 85, followed by

a summary of the hearings held regarding the defendant’s guilty plea, sentencing and post-

sentencing confirmation of his intention to maintain his guilty plea.

A. THE DEFENDANT’S CRIMINAL CONDUCT

From roughly 2006 to 2010, the defendant ran a Ponzi scheme through which he

defrauded over 150 people of millions of dollars. Stmt. of Offense ¶¶ 1, 4, 46. While promising

that his investment strategy was a “safe and lucrative” way to “provide his customers above-

market returns through a covered-call trading strategy,” the defendant knowingly failed to

disclose that he was “engaging in trading strategies that involved a high degree of risk” and

“using other investors’ principal—not trading profits—to pay for the large returns he had

promised to earlier investors.” Id. ¶¶ 4, 5. The defendant’s “highly risky trading strategies”

resulted in “overwhelming losses,” yet he knowingly continued to pursue victims through his

misrepresentations. Id. ¶ 7. The defendant used two companies to facilitate this criminal

activity, Garfield Taylor Incorporated (“GTI”) and Gibraltar Asset Management Group, LLC

(“GAM”). Id. ¶¶ 2–3. GTI was “the original entity that defendant used to lure investors,” id. ¶

8, and through GTI, the defendant lost approximately $16,450,415 of principal invested through

a series of high risk trades, id. ¶12. GAM, which was founded in late 2007 or early 2008,

likewise was used by the defendant to make risky trades with investor capital and lost

approximately $8,683,577 of principal invested, including a single investment of six million

dollars from a children’s charity. Id. ¶¶ 14, 21, 25. Despite incurring massive losses to his

investors, the defendant withdrew at least $2,500,000 over the course of his criminal activity for

his own personal use. Id. at ¶ 45.

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B. HEARINGS ON THE DEFENDANT’S PLEA AND SENTENCING

The defendant was represented by court-appointed counsel from the time of his

arraignment through his plea of guilty. See Minute Entry, dated Feb. 28, 2013. During this

period, the parties entered into a protective order providing that documents created by the United

States “in preparation for, or in connection with” the defendant’s case would be disclosed to the

defense, but required that any “sensitive materials” containing identifying personal and financial

information of his victims must “be maintained in the custody and control of defense counsel,”

who could show the materials to the defendant “as necessary to assist in preparation of the

defense” without “provid[ing] a copy” to the defendant or permitting the defendant to “write

down any personal identity information” in the documents. Consent Order Governing Disc. ¶¶ 1,

7, 9, ECF No. 8.

Almost one year after the defendant’s arraignment, the defendant entered a guilty plea to

one count of securities fraud, in violation of 15 U.S.C. §§ 78j, 78ff, pursuant to an agreement

reached with the government. Plea Agreement at 1; see also Minute Entry, dated March 6, 2014.

At the plea hearing, the Court carefully reviewed the consequences of entering a guilty plea and

the constitutional rights that the defendant waived by pleading guilty, as also set forth in the plea

agreement. Plea Hr’g Tr. at 23–31. Of particular relevance to the defendant’s claims, the Court

informed the defendant at the hearing that he was not waiving his right to claim ineffective

assistance of counsel on collateral review. Id. at 38. During the hearing, the defendant discussed

privately with his attorney various matters related to his plea. Id. at 26.

When questioned directly by the Court, the defendant affirmed that the facts laid out in

the Statement of Offense were “correct,” id. at 22–23, that he had not been coerced to enter the

plea, id. at 39, 41, that he was “satisfied with the services of [his] lawyer in th[e] case,” id. at 5–

6, and that he had sufficient time to talk with his attorney about the case, the plea offer, and

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“whether [he] should accept it,” id. at 6, 33–35. Indeed, the defendant himself stated that “there

[was]n’t anything that [he] d[id]n’t understand” about the plea agreement. Id. at 40. The Court

accepted the defendant’s guilty plea and the plea agreement, id. at 41, being satisfied that the

defendant had voluntarily signed the plea agreement, and that he had “carefully read it” and

“underst[oo]d its terms,” id. at 29–31.

Two months after the plea hearing, the defendant’s first attorney moved to withdraw as

counsel, citing an unspecified conflict of interest brought to his attention by the defendant.

Def.’s Att’y’s Mot. Withdraw Counsel at 1, ECF No. 33. The motion was granted, and a second

attorney was appointed as counsel. Notice of Appearance, ECF No. 37. The parties then

informed the Court that the defendant was considering seeking withdrawal of his guilty plea. J.

Status. Rep., dated June 18, 2014, ECF No. 39. The Court entered a scheduling order requiring

the defendant to file any motion to withdraw the plea by August 18, 2014, see Minute Order,

dated June 30, 2014, which filing deadline passed without the defendant submitting any motion.

After several postponements of the scheduled sentencing date, the sentencing hearing was set for

May 12, 2015. See Minute Order, dated May 1, 2015.

The day before the sentencing hearing, the defendant moved to withdraw his guilty plea.

Def.’s Mot. Withdraw Guilty Plea (“Def.’s Mot. Withdraw Plea”), ECF No. 66. Due to the

untimely filing of the motion, the sentencing proceeded as scheduled, but the defendant was

advised by the Court that he would be permitted to pursue his motion after his sentencing.

Sentencing Hr’g Tr., dated May 12, 2015 (“Sentencing Tr.”) at 3–4, 116, ECF No. 75.

At the sentencing hearing, defense counsel raised a number of objections to the PSR,

including in relevant part, objecting to “the calculation of the loss amount” for which the

defendant would be held responsible. Id. at 4–44. The Court rejected the defense objections. Id.

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at 44–48. After seven of the defendant’s many victims testified as to the hardships they suffered

due to the defendant’s criminal activity, id. at 60–84; 110–11, 3 the defendant addressed the Court

directly. He stated, in relevant part, that he initially “didn’t want to sign” the plea agreement,

and that this was “why [he] switched lawyers.” Id. at 106. He denied an intent to hurt his

clients, id. at 101–04, but admitted that his plan to mislead his victims in order to procure

investments was “not a good plan, looking back,” and that though he “really thought” that his

actions would produce returns for his victims, he will “never be able to pay [them] back” and

that “[he] can’t blame anybody” but himself for his actions, id. at 105–07. The defendant was

then sentenced to 156 months’ imprisonment and an obligation to pay restitution totaling

$28,609,438. Id. at 108–13. In explaining the reasons for the sentence, the Court noted that the

defendant’s “lying and thievery was ongoing” and that it was “shocking . . . how many elderly

victims [the defendant] targeted and lied to.” Id.

C. THE DEFENDANT’S WITHDRAWAL OF HIS MOTION TO WITHDRAW

HIS GUILTY PLEA

Six days after his sentencing, the defendant filed a motion to withdraw his motion to

withdraw his plea in order to maintain his guilty plea. Def.’s Mot. Withdraw Mot. Withdraw

Plea, ECF No. 69. The Court held a hearing on both of the defendant’s pending motions to

withdraw his plea and to withdraw that motion, in order to “make sure” that the defendant in fact

wanted to maintain his guilty plea. Mot. Withdraw Guilty Plea Hr’g Tr., dated June 12, 2015

(“Mot. Withdraw Hr’g Tr.”) at 2, ECF No. 86. At the hearing, the defendant stated, under oath,

that he had discussed with his second counsel “what [he] really wanted to do,” and that nobody,

specifically including both of his court-appointed counsel, had “force[d] [him] or coerce[d] [him]

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The testifying victims included elderly retirees who lost their entire savings, parents of young children with

special needs, an adult child struggling to care for his ailing parent, a religious organization, and a non-profit

organization providing pediatric care.

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into” entering or maintaining his guilty plea. Id. at 4, 7. The defendant confirmed that he had

“fully discussed with [counsel] how withdrawing [his] motion” was “likely to make [his]

conviction and [his] sentence final,” and acknowledged that by withdrawing his motion and

admitting under oath that he had not been coerced to do so, he was “giving up an ability or right

to argue that [he was] coerced by [his counsel] into pleading guilty.” Id. at 8–10. In his own

words, the defendant stated that he had “accepted the sentence” imposed, that he “didn’t want to

put anybody through any more troubles, the victims or [his] family,” and that he was “very

satisfied” with the services of his second attorney. Id. Based on the defendant’s representations

at the hearing, the Court granted the defendant’s motion to withdraw the motion to withdraw his

plea, concluding that the defendant “knowingly and voluntarily signed” the plea agreement, and

that he was “fully competent and capable of making a decision” to maintain his guilty plea. Id.

at 12.

Almost one year after his sentencing, the defendant filed the pending § 2255 motion

seeking to vacate his sentence and seeking discovery, as well as his motion to modify the

protective order governing discovery. These motions are now ripe for review. 4

II. LEGAL STANDARD

A. 28 U.S.C. § 2255

Pursuant to 28 U.S.C. §2255(a), a prisoner in custody may file a motion to “vacate, set

aside, or correct” a sentence that was “imposed in violation of the Constitution or laws of the

4

Additional documents have been submitted in this case purportedly on behalf of the petitioner by a person

named “Otis Paris,” which documents were not accepted unless also signed by the defendant because “Otis Paris” is

not a party to this suit or an attorney who has entered an appearance for the defendant. See 28 U.S.C. § 1654 (“In all

courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the

rules of such courts, respectively, are permitted to manage and conduct causes therein.”); see also Muhammed v.

U.S. Parole Comm'n, Civ. No. 10 0177 (CKK), 2010 U.S. Dist. LEXIS 8742 (D.D.C. Jan. 24, 2010) (“A plaintiff in

this court who wishes to proceed with counsel may do so only with counsel that is duly licensed and admitted to

practice in this court.”).

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United States.” 28 U.S.C. §2255(a). “[A]fter sentencing a plea may be set aside only on direct

appeal or via a section 2255 motion.” United States v. Farley, 72 F.3d 158, 162 (D.C. Cir. 1995)

(emphasis in original) (citing FED. R. CRIM. P. 32(d)); see also FED. R. CRIM. P. 11(e) (“After the

court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and

the plea may be set aside only on direct appeal or collateral attack.”). If the court finds that there

has been “a denial or infringement of the constitutional rights of the prisoner as to render the

judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and

shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may

appear appropriate.” 28 U.S.C. § 2255(b).

A judgment challenged on collateral attack carries with it a “presumption of regularity,”

even “when the question is waiver of constitutional rights.” Daniels v. United States, 532 U.S.

374, 382 (2001). The burden of proof rests on the petitioner to establish a denial of

constitutional rights by a preponderance of evidence. Id.; United States v. Simpson, 475 F.2d

934, 935 (D.C. Cir. 1973) (concluding that, in § 2255 action to set aside plea of guilty, “the

preponderance of evidence supports the judgment rejecting petitioner’s claim”).

B. INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment provides that “during plea negotiations defendants are entitled to

the effective assistance of competent counsel.” Lafler v. Cooper, 566 U.S. 156, 162–65 (2012)

(internal quotations omitted); Missouri v. Frye, 566 U.S. 133, 138-39 (2012). “It is well-

established that the validity of a guilty plea depends on ‘whether the plea represents a voluntary

and intelligent choice,’ and that ‘the voluntariness of the plea depends on whether counsel’s

advice’ satisfies the Sixth Amendment guarantee of effective assistance.” In re Sealed Case, 488

F.3d 1011, 1015 (D.C. Cir. 2007) (citing Hill v. Lockhart, 474 U.S. 52, 56 (1985)); see also

United States v. McCoy, 215 F.3d 102, 107 (D.C. Cir. 2000) (“A plea of guilty is constitutionally

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valid if and only if it represents a voluntary and intelligent choice among the alternative courses

of action open to the defendant.” (internal quotation marks omitted) (citing Hill, 474 U.S. at 56));

In re Sealed Case, 670 F.3d 1296, 1303 (D.C. Cir. 2011) (“A plea is not voluntary or intelligent,

and therefore unconstitutional, if the advice given by defense counsel on which the defendant

relied in entering the plea falls below the level of reasonable competence” required by the Sixth

Amendment (internal quotation marks omitted) (citing United States v. Loughery, 908 F.2d 1014,

1018 (D.C. Cir. 1990)). Indeed, a defendant who “ple[d] guilty upon the advice of counsel ‘may

only attack the voluntary and intelligent character of the guilty plea by showing that the advice

he received from counsel’ was not ‘within the range of competence demanded of attorneys in

criminal cases.’” United States v. Rubio, 677 F.3d 1257, 1261–62 (D.C. Cir. 2012) (quoting Hill,

474 U.S. at 56).

Under the two-factor Strickland v. Washington, 466 U.S. 668 (1984), analysis that applies

to evaluate the merits of an ineffective assistance of counsel claim under the Sixth Amendment,

the defendant must demonstrate: “that (1) his counsel’s performance ‘fell below an objective

standard of reasonableness,’ and (2) ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” Payne v.

Stansberry, 760 F.3d 10, 13 (D.C. Cir. 2014) (quoting Strickland, 466 U.S. at 687–88, 694).

Failure of either prong of the Strickland inquiry will preclude relief. See Strickland, 466 U.S. at

697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, which we expect will often be so, that course should be followed.”). The Strickland

analysis applies to § 2255 proceedings. United States v. Toms, 396 F.3d 427, 432 (D.C. Cir.

2005); see also United States v. Streater, 70 F.3d 1314, 1318 (D.C. Cir. 1995) (“Strickland v.

Washington applies to a collateral attack on the voluntary and intelligent nature of a guilty plea

8

on Sixth Amendment grounds.” (citation omitted) (citing United States v. Horne, 987 F.2d 833,

835 (D.C. Cir.), cert. denied, 510 U.S. 852 (1993))). Consistent with the burden on the

defendant to establish the right to relief under § 2255, “[t]he burden to ‘show that counsel’s

performance was deficient’ rests squarely on the defendant.” Burt v. Titlow, 134 S. Ct. 10, 17

(2013) (quoting Strickland, 466 U.S. at 687).

With respect to the first Strickland factor, the defendant “must show that counsel’s

actions were not supported by a reasonable strategy . . . .” Massaro v. United States, 538 U.S.

500, 505 (2003); United States v. Brisbane, 729 F. Supp. 2d 99, 109 (D.D.C. 2010) (same).

When engaging in this analysis, the Supreme Court has instructed that “counsel should be

‘strongly presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.’” Burt, 134 S. Ct. at 17 (quoting Strickland

466 U.S. at 690); Payne, 760 F.3d at 13 (“‘[A] court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.’” (quoting

Strickland, 466 U.S. at 689)); see also United States v. Mendez-Cruz, 329 F.3d 885, 891 (D.C.

Cir. 2003) (“‘Judicial scrutiny of counsel’s performance must be highly deferential. . . . .’”

(quoting Strickland, 466 U.S. at 689)).

With respect to the second Strickland factor, “[i]n the context of pleas a defendant must

show” a reasonable probability that “the outcome of the plea process would have been different

with competent advice.” Lafler, 566 U.S. at 163 (citing Frye, 566 U.S. at 133). “‘A reasonable

probability is a probability sufficient to undermine confidence in the outcome.’” United States v.

Thompson, 721 F.3d 711, 713 (D.C. Cir. 2013) (quoting Strickland, 466 U.S. at 694), cert.

denied, 134 S. Ct. 629 (2013). Demonstrating a reasonable probability in the context of a plea

agreement requires a defendant to show “that there is a reasonable probability that, but for

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counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going

to trial.” Lafler, 566 U.S. at 163 (alteration in original) (internal quotation marks omitted)

(quoting Hill, 474 U.S. at 59).

III. DISCUSSION

The defendant seeks to have his guilty plea and sentence set aside under 28 U.S.C. §

2255, asserting that his decision to enter and maintain a guilty plea, while represented by two

consecutive court-appointed attorneys, “was not knowing and voluntary as a result of ineffective

assistance of counsel.” Def.’s Mem. Supp. 2255 Mot. (“Def.’s 2255 Mem.”) at 14, ECF No. 79.

He also requests leave to conduct discovery of “all of the materials” in the government’s

possession related to his criminal conviction, Def.’s 2255 Mot. at III, and to modify the consent

protective order to permit him to do so, see Def.’s Mem. Supp. Disc. Mot. (“Def.’s Disc. Mem.”)

at II–VIII, ECF No. 76. As explained below, the defendant fails to demonstrate any instances of

ineffective assistance of counsel, falling short of meeting the first Strickland factor, and his

requests for leave to conduct discovery and to modify the protective order amount to no more

than an attempt at an unguided fishing expedition into the government’s files.

A. THE DEFENDANT’S CLAIMS OF INEFFECTIVE ASSISTANCE CLAIMS

FAIL

The defendant argues that because his decision to enter and maintain a guilty plea “was

the result of ineffective assistance of counsel and “was not knowing and voluntary,” Def.’s 2255

Mem. at 11, his plea and sentence should be considered “not valid and void” and set aside, Def.’s

Reply Supp. 2255 Mot. (“Def.’s 2255 Reply”) at 13, ECF No. 90. 5 As support for his § 2255

5

The defendant also argues that he should be “permitted . . . to withdraw his formerly entered plea of

guilty,” Def.’s 2255 Mem. at 7; see also id. at 3 (“(I) Whether the defendant should be permitted, prior to

sentencing, to withdraw his formerly entered plea of guilty”), because he has demonstrated “a fair and just reason

for requesting the withdrawal,” Def’s Mem. at 8 (citing Fed. R Crim. P. 11(d)(2)(B)). The “fair and just” standard

for determining whether a defendant should be permitted to withdraw a guilty plea does not apply to collateral

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motion, the defendant raises eight overlapping issues with associated arguments that are

variously untethered to the issue posed or lacking in specifics to make them fully intelligible.

Nevertheless, the Court addresses these issues in related groups based on discernible arguments,

beginning with the defendant’s claims of ineffective assistance of counsel related to his plea and

then his claims related to sentencing and the hearing on his motion to withdraw his motion to

withdraw his guilty plea.

1. The Plea

The defendant contends that his counsel was constitutionally deficient because he

encouraged the defendant to enter into a plea agreement that impermissibly “limit[s] [his] ability

to claim ineffective assistance of counsel,” Def.’s 2255 Mem. at 12, see also id. at 2, 10–17,

Def.’s 2255 Reply at 3. This assertion is flatly contradicted by the record and, consequently,

without merit. The plea agreement waives the defendant’s right to bring certain challenges to his

conviction and sentence, but expressly does not waive the defendant’s right to bring a § 2255

claim “based on newly discovered evidence or on a claim that [he] received ineffective

assistance of counsel in entering into this Agreement.” Plea Agreement ¶ 9(D) (“Waiver of

attacks on guilty pleas, however. At this stage, a defendant may only attack “‘[a] guilty plea by showing that the

advice he received from counsel’ was not ‘within the range of competence demanded of attorneys in criminal

cases.’” Rubio, 677 F.3d at 1261–62 (quoting Hill, 474 U.S. at 56)); see also Edwards v. United States, 256 F.2d

707, 709–10 (D.C. Cir. 1958) (“A plea of guilty may not be withdrawn after sentence . . . except by proof that the

plea was not voluntarily or understandingly made . . . .”). Consequently, the defendant’s guilty plea may be set

aside only upon a showing that his plea was not knowingly or intelligently made because he received ineffective

assistance of counsel. To the extent the defendant means to argue that he was not given the opportunity to withdraw

his guilty plea prior to sentencing, relegating this effort to a collateral filing, this claim is clearly false. He was

given almost two months to consider withdrawal of his guilty plea immediately after his second counsel was

appointed, Minute Order, dated June 30, 2014, and despite missing this deadline and requesting that the Court

proceed to sentencing, J. Status Report, dated August 25, 2014 at 3, ECF No. 42, the sentencing judge permitted the

defendant to pursue a motion to withdraw his plea filed only one day before his scheduled sentencing hearing,

Sentencing Hr’g Tr. at 3. The defendant chose to withdraw this motion after his sentencing. Mot. Withdraw Hr’g

Tr. at 7 (confirming that withdrawing the motion was “what [the defendant] really wanted to do,” and that nobody,

including both of his court-appointed counsel, had “force[d] [him] or coerce[d] [him] into” entering or maintaining

his guilty plea). Given that the defendant was represented by his second counsel for a year, during which he was

able to consider withdrawing his guilty plea, he had more than sufficient time and opportunity to withdraw his plea

prior to sentencing.

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Collateral Attack”). Thus, four of the defendant’s issues related to the purported waiver of

ineffective assistance of counsel claims fail, as they are predicated on a plainly incorrect reading

of his plea agreement. See Def.’s 2255 Mem. 13–14; (“(IV) “Whether [his first counsel] is duty

bound to object to portions of a plea agreement that limit 2255 claims and refuse to assent to

such an agreement with such language in it?”); at 12–13 (“(III) “Whether [his first counsel] has a

conflict of interest in agreeing to such a provision because it becomes a prospective limiting of

liability?”); id. at 14–17 (“(V) whether [his first counsel] was required to bring a potential

conflict of interest to the attention of the Court”); and id. at 17–18 (“(VI) “whether [his second

counsel] was required to bring a potential conflict of interest to the attention of the Court”).

The defendant also claims that counsel improperly entered into the protective order,

“which impeded his actual innocence claim,” id. at 7, or somehow precluded him from having an

adequate “opportunity to . . . review the voluminous discovery before he entered a guilty plea,”

id. at 9. He further argues that the terms of the protective order somehow constituted

“prosecutorial misconduct or destruction of evidence.” Id. at 17. Specifically, apparently to

bolster his actual innocence claim, the defendant argues that, “had [counsel] not stipulated to a

protective order,” the defendant “would have shown” that the entire loss amount for which he

was held responsible was “$250,415.00.” Id. at 7. The only evidence the defendant identifies as

improperly withheld is testimony given by a government witness at a remedies hearing in a civil

enforcement action brought against the defendant by the Securities and Exchange Commission

(“SEC”), which hearing was attended by the defendant and held prior to his guilty plea. Id. at 5–

7. The testimony at issue was given by the SEC’s assistant chief accountant, who testified that

“the calculated amount repaid to investors [by the defendant] was approximately 16.2 million”

and “[t]he amount that was invested through that period was 38.6 million.” Id. at 5 (quoting

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from SEC v. Taylor, et al., No. 11-cv-2054-RC, Remedies Hr’g Tr. (“SEC Remedies Hr’g Tr.”),

ECF No. 93). Far from being exculpatory, however, the government witness described the

defendant’s activity as “a consummate Ponzi scheme,” SEC Remedies Hr’g Tr. at 45, stating that

the defendant’s victims invested roughly “$38.6 million” and he “repaid . . . approximately $16.2

million,” id. at 45–46, resulting in a loss amount of approximately $22.2 million, not the

$250,415.00 the defendant now claims. In any event, this evidence was hardly withheld from the

defendant by the protective order since he attended the hearing where the testimony was

presented and, since the testimony is on the public docket of the SEC civil action, was fully

accessible to the defendant and his counsel.

The defendant’s further claim that the protective order impeded his ability to “review the

voluminous discovery” in his case, Def.’s 2255 Mem. at 9, is also incorrect. The protective

order restricted the defense’s ability to transmit to non-parties, to copy, and to retain after

sentencing, any materials produced by the government, Consent Order Governing Disc. ¶¶ 1–6,

and required that the defendant be provided access to “sensitive” materials containing his victims

personal and financial information only in the presence of his attorney, id. ¶¶ 7–11. Thus, by its

terms, the protective order did not block the defendant’s access to that discovery, but merely

regulated the manner of review for good and sound reason. His claims that the protective order

prevented him from claiming actual innocence or from reviewing the discovery, or that the order

amounted to prosecutorial misconduct or destruction of evidence are consequently unpersuasive.

The defendant also claims that because his attorneys provided ineffective assistance of

counsel, he did not “understand[] the nature of the charges against him and the constitutional

protections that he [was] waiving.” Def.’s 2255 Mem. at 12. This argument, which is made in a

seemingly-unrelated section, id. (“II. Whether counsel Cary Clennon's unwillingness to present

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particular arguments at his request functions not only to abridge his right to counsel for trial, but

also to limit the defendant's constitutional right of equal access to the sentencing process.”), is

contradicted by the defendant’s own prior statements. The representations of a defendant at a

plea hearing “as well as any findings made by the judge accepting the plea, constitute a

formidable barrier in any subsequent collateral proceeding and the defendant’s declarations in

open court carry a strong presumption of verity.” Farley, 72 F.3d at 163. The defendant

confirmed at the plea hearing that he had “carefully” read the plea agreement, “underst[oo]d its

terms,” and had “discussed it with [his] lawyer,” Plea Hr’g Tr. at. at 30–31, which he also

confirmed in the plea agreement itself, Plea Agreement at 13, and even later confirmed at the

hearing on his motion to maintain his guilty plea, Mot. Withdraw Hr’g Tr. at 9–10. In his own

words, “there [was]n’t anything that [he] d[id]n’t understand” about the plea agreement. Plea

Hr’g Tr. at 40. Based on these repeated averments by the defendant, the sentencing judge

concluded that the defendant was “fully competent and capable of making” the decision to plead

guilty, that he understood “the nature and consequences” of the plea, that he was “acting

voluntarily and of his own free will,” and that there was “an adequate factual basis for [his]

plea.” Id. at 40–41. The defendant’s own statements at the time of his plea about fully

understanding the plea agreement and its consequences, as well as the findings of the sentencing

judge, far outweigh the defendant’s bare assertion now to the contrary.

The defendant’s related claims that the Court “failed to inform [him] of the consequences

of his plea pursuant to Rule 11(b)(1)(G),” Def.’s 2255 Mem. at 11, and failed to “address[him]

personally in open court” prior to accepting his guilty plea, id. at 16 (quoting FED. R. CRIM. P.

11(b)(1)), are also demonstrably false. At his plea hearing, the Court walked the defendant

through the facts to which he was pleading guilty, which the defendant agreed were “correct.”

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Plea Hr’g Tr. at 10–23. The Court likewise carefully reviewed with the defendant the rights the

defendant was waiving under the plea agreement and by pleading guilty, id. at 23–31, and the

penalties he faced, depending on how certain legal issues were resolved at sentencing, id. at 34–

35. The defendant’s claims that he did not understand the plea agreement are thus refuted by the

record.

Finally, in an affidavit attached to his motion, the defendant cursorily alleges two

instances of ineffective assistance of counsel, claiming, first, that his first counsel “strongly

advised [him] to the point of coercion” to sign the plea agreement, Def.’s 2255 Mem. Ex. A

(Affidavit of Garfield Taylor (“Taylor Aff.”)) ¶ 15, ECF No. 79, and, second, that “[b]y failing to

investigating” his case, his first attorney “caused plus recommended that the plea agreement

should be taken,” id.¶ 26. These bare assertions fall far short of the requisite showing for the

first Strickland factor. Even assuming the defendant’s first counsel recommended strongly that

the defendant accept the plea agreement, the defendant was appointed new counsel for the very

purpose of helping him decide whether to withdraw his guilty plea, a decision he was able to

consider for a year. His claim of coercion by his first attorney is consequently irrelevant.

His claim that his attorney “fail[ed] to investigate” his case also fails. To support such a

claim, a defendant must do more than simply assert a failure to investigate, and must make a

“‘comprehensive showing as to what the investigation would have produced’ and how this

information ‘would have produced a different result.’” United States v. Bertram, 209 F. Supp.

3d 243, 256 (D.D.C. 2016) (quoting United States v. Askew, 88 F.3d 1065, 1073 (D.C. Cir.

1996)). The defendant offers no explanation as to the evidence he believes would have been

uncovered by further investigation and fails to explain how that evidence would affect the plea

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process. His claim of ineffective assistance of counsel during his plea is consequently

insufficient as a matter of law.

2. The Sentencing and Post-Sentencing Hearing

The defendant claims that counsel failed to “present particular arguments at his request”

at sentencing, Def.’s 2255 Mem. at 10, including that counsel “fail[ed] to press the loss amount”

for which he would be held liable, id. at 18–21. This assertion is contradicted by the record. At

sentencing, counsel extensively disputed the loss amount attributed to the defendant, Sentencing

Tr. at 4–14, 19–21, as well as a number of other issues, including whether the defendant’s

conduct constituted a Ponzi scheme, id. at 14–15, 17–19, whether certain individuals were

properly classified as victims, id. at 21–22, and whether the defendant was properly

characterized as an “investment advisor,” id. at 31–33. The defendant, who elsewhere in his

brief cites to the very argument made by his counsel that he claims did not occur, Def.’s 2255

Mem. at 19 (quoting Sentencing Tr. at 5), criticizes one aspect of the loss amount calculation.

Specifically, the defendant believes that the loss amount should have been reduced “by the total

amount of money returned to the investor victims, . . . approximately 16.2 million . . . identified

at 11-cv-02054-RC,” the aforementioned SEC civil enforcement action against the defendant.

Def.’s 2255 Mem. at 21–22. As already noted, however, the cited testimony by the government

witness does not support the defendant’s claim that the loss amount was improperly calculated

and, therefore, failure to raise the issue does not constitute deficient performance and the

defendant’s argument fails. Id. at 10–12 (“(II) Whether counsel[’s] unwillingness to present

particular arguments at his request functions not only to abridge his right to counsel for trial, but

also to limit the defendant's constitutional right of equal access to the sentencing process?”); id.

at 18–22 (“(VII) The failure of his counsel to press the loss amount that should be reduced by the

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amount of money that were returned to the investors, Defendant asserts that he received

ineffective assistance by [his second counsel.]”). 6

The defendant also claims that he “receive[d] ineffective assistance of counsel from [his

second attorney] with regard to the motion to withdraw the plea.” Id. at 22–23. The defendant

does not precisely identify what he believes constituted ineffective assistance of counsel at the

hearing, but simply asserts that “absent the ineffective assistance, his offense level would be 16

to 19 levels lower, yielding a Guidelines Sentencing range of 18 to 24 months.” Id. at 23; id. at

22 (“(VIII) Whether Defendant Pro se, filed the present petition, claiming that he had received

ineffective assistance from counsel Cary Clennon with regard to the motion to withdraw the

plea?”). At the same time, the defendant alleges in his affidavit that his second counsel coerced

him to maintain his plea by telling him that “the Judge would likely give” him a much longer

sentence if he were to be convicted at trial. Taylor Aff. ¶ 29. The defendant does not contest the

accuracy of his counsel’s advice, id., and correctly informing a defendant that he may face a

greater sentence after conviction at trial is not coercion, and in fact, failure to do so may qualify

as ineffective assistance of counsel. See United States v. Hanson, 339 F.3d 983, 990 (D.C. Cir.

2003) (counsel is deficient if counsel “makes a plainly incorrect estimate of the likely sentence

due to ignorance of applicable law of which he should have been aware”). Thus, the defendant

fails to show any constitutionally deficient performance on the part of his counsel post-

sentencing.

6

The difference between the $22.2 million loss amount identified at the SEC remedies hearing, SEC

Remedies Hr’g Tr. at 45–46, and the “$28,709,438” figure urged by the government and ultimately adopted by the

Court at sentencing, id. at 39, 113, is immaterial to the determination of the defendant’s total offense level under the

Guidelines. Under the relevant sentencing guideline, a 22-level increase applied for any “loss between $20 and $50

million.” Sentencing Tr. at 92–93; see also U.S.S.G. § 2B1.1 (2014). Consequently, even if the applicable loss

amount were $22.2 million, the same sentencing enhancement would apply.

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B. THE DEFENDANT’S REQUEST FOR DISCOVERY IS WITHOUT MERIT

The defendant seeks disclosure of “all of the materials” in the government’s possession

related to his case, including “grand jury transcripts,” materials already received from the

government prior to his guilty plea, and documents that he produced to the government before he

pled guilty. See Def.’s Mem. Supp. Disc. Mot. (“Def.’s Disc. Mem.”) at II–VIII, ECF No. 76;

Def.’s 2255 Mot. at vii–xiv. He admits that he is seeking this discovery only “to see if” the

Government introduced “false evidence” that he had committed a crime, Def.’s Reply Supp.

Mot. Disc. at G, ECF No. 90-1, and acknowledges that because he is not seeking any specific

discovery, he “may not find any evidence” that would entitle him to relief, Def.’s Disc. Mem. at

III. Despite this acknowledgement, the defendant believes that discovery should be granted “in

an abundance of caution.” Id. This request fails for two reasons.

First, though a district court may, in its discretion, grant a § 2255 petitioner discovery

upon a showing of “good cause,” District Att’ys Office for the Third Judicial District v. Osborne,

557 U.S. 52, 72 (2009) (quoting FED. R. GOVERNING § 2255 PROCEEDINGS 6), a desire to engage

in little more than an unbounded fishing expedition “in an abundance of caution” does not

constitute such a showing, see Strickler v. Greene, 527 U.S. 263, 286 (1999) (“Mere speculation

that some exculpatory material may have been withheld is unlikely to establish good cause for a

discovery request on collateral review.”). The defendant admits that his discovery request is

only “to see” if there is any evidence that could support a claim for collateral relief. The Court

declines to grant the defendant leave to conduct such broad and unjustified discovery.

Second, even if the defendant had shown “good cause,” the government raises the

defendant’s enforceable waiver in the plea agreement of his “right to any further discovery or

disclosures of information not already provided at the time of the entry of [his] guilty plea.”

Gov’t’s Opp’n Def.’s 2255 Mot. at 1, 15–16 (citing Plea Agreement ¶ 9(B)), ECF No. 89. The

18

defendant has failed to demonstrate any reason to set aside the plea agreement, see supra Part

III.A.1, and cannot now rescind this waiver of any right to further discovery made pursuant to

the enforceable plea agreement. 7

IV. CONCLUSION

For the foregoing reasons, the defendant’s § 2255 Motion is DENIED and his motions

for Leave to Amend the Protective Order and other discovery-related motions are DENIED. An

Order consistent with this Memorandum Opinion will issue contemporaneously.

Date: June 7, 2017

__________________________

BERYL A. HOWELL

Chief Judge

7

The defendant has filed four additional discovery-related motions seeking to compel discovery, Def.’s First

Mot. Compel, ECF No. 87; Def.’s Second Mot. Compel, ECF No. 91, to sanction the government’s failure to

produce responses to his requests, Def.’s Sanction Mot., ECF No. 92, and for a hearing on his motions, Def.’s Mot.

Hearing, ECF No. 99. These four motions are denied as moot, because the defendant is not entitled to discovery

since “the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. §

2255(b).

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