United States District Court, E.D. Michigan, Northern Division
DISTRICT JUDGE THOMAS L. LUDINGTON
MAGISTRATE JUDGE'S RECONSIDERED REPORT AND
RECOMMENDATION ON PETITIONER'S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE (DOC.
Patricia T. Morris United States Magistrate Judge
following reasons, IT IS RECOMMENDED that
Petitioner's Motion (Doc. 93) be DENIED;
and that the civil case be DISMISSED.
September 26, 2013, Petitioner was indicted on the following
three counts: (1) attempt to evade and defeat the payment of
income taxes due and owing by him in violation of 26 U.S.C.
§7201; (2) scheme and artifice to defraud and deprive
the United States and the State of Michigan of payment of his
income tax obligations through use of the mail in violation
of 18 U.S.C. §1341; and (3) knowing and wilful false
statements made to the Internal Revenue Service by falsely
characterizing regular payments to his wife as payroll when
his wife was not working for Defendant's dental practice
in violation of 18 U.S.C. §1001. On April 4, 2014,
defense counsel filed a motion for good faith jury
instruction (Doc. 29) and a motion to dismiss Counts 1 and 2
because the tax code does not impose upon him a duty to pay
since he is not a "person."(Doc. 30.) The court
denied the motions. (Doc. 41.) A renewed motion for good
faith instruction (Doc. 45) and a motion to dismiss Count 2
(mail fraud) based on the "fatal defect" in failing
to "charge that the returns themselves were false and
fraudulent" (Doc. 46) were filed by defense counsel on
November 2, 2014. A hearing was held on August 21, 2014, and
the motions were taken under advisement. After trial, on
November 13, 2014, these two motions were denied. (Doc. 53.)
trial was held from November 4, 2014 through November 7,
2014, and Petitioner was convicted on all three Counts. (Doc.
47.) Defense counsel filed a sentencing memorandum (Doc. 63)
and Petitioner was sentenced on April 14, 2015, to 45 months
on each of the three counts, to be served concurrently. (Doc.
70.) Petitioner appealed his conviction and sentence, arguing
that the court should have provided a separate good faith
jury instruction and that the district court erred in
applying a two-point enhancement for using a sophisticated
means to hide his tax evasive conduct. On April 12, 2016, the
Sixth Circuit Court of Appeals disagreed and affirmed his
conviction and sentence. (Doc. 87.) A mandate issued on May
10, 2016. (Doc. 88.) Petitioner sought a writ of certiorari
before the United States Supreme Court but on October 7,
2016, the petition for writ of certiorari was denied. (Doc.
September 28, 2017, Petitioner filed the instant motion to
vacate sentence. (Doc. 93.) Although Petitioner was denied
the ability to file a memorandum to supplement his motion to
vacate (Doc. 96 at ¶ 1040, ) he nonetheless filed such a
memorandum on October 23, 2017. (Doc. 99.) The government
responded to the motion to vacate on November 1, 2017. (Doc.
100.) This motion was referred to the undersigned (Doc. 96)
and is ready for resolution.
Analysis and Conclusion
2255 and ineffective assistance of counsel standards
prevail on a § 2255 motion '"a petitioner must
demonstrate the existence of an error of constitutional
magnitude which had a substantial and injurious effect or
influence on the guilty plea or the jury's
verdict.'" Humphress v. United States, 398
F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003)).
Non-constitutional errors are generally outside the scope of
section 2255 relief. United States v. Cofield, 233
F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a
section 2255 motion alleging non-constitutional error only by
establishing a '"fundamental defect which inherently
results in a complete miscarriage of justice, or, an error so
egregious that it amounts to a violation of due
process.'" Watson v. United States, 165
F.3d 486, 488 (6th Cir. 1999) (quoting United States v.
Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal
quotation marks omitted)).
of ineffective assistance of counsel are governed by the U.S.
Supreme Court's rule pronounced in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). In Strickland, the Court enunciated a
two-pronged test that must be satisfied to prevail on an
ineffective assistance of counsel claim. First, the movant
must show that counsel's performance was deficient in
that it fell below an objective standard of reasonableness.
Id. at 688. "Constitutionally effective counsel
must develop trial strategy in the true sense - not what
bears a false label of 'strategy' - based on what
investigation reveals witnesses will actually testify to, not
based on what counsel guesses they might say in the absence
of a full investigation." Ramonez v. Berghuis,
490 F.3d 482, 488 (6th Cir. 2007). Second, the movant must
show that he was prejudiced by the deficiency to such an
extent that the result of the proceeding is unreliable.
Strickland, 466 U.S. at 688. It is not enough to
show that the alleged error "had some conceivable affect
on the outcome of the proceeding." Id. Rather,
the movant must show that, but for counsel's errors, the
result would have been favorably different. Id. at
693. Failure to make the required showing under either prong
of the Strickland test defeats the claim.
Id. at 700.
Supreme Court has explained that "[t]he essence of an
ineffective-assistance claim is that counsel's
unprofessional errors so upset the adversarial balance
between defense and prosecution that the trial was rendered
unfair and the verdict rendered suspect." Kimmelman
v. Morrison,466 U.S. 365, 374, 106 S.Ct. 2574, 91
L.Ed.2d 305 (1986). This language highlights the Supreme
Court's consistent ...