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Rae v. United States

United States District Court, E.D. Michigan, Northern Division

November 29, 2017

CARTER WHITE RAE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          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. 93)

          Patricia T. Morris United States Magistrate Judge

         I. RECOMMENDATION

         For the following reasons, IT IS RECOMMENDED that Petitioner's Motion (Doc. 93) be DENIED; and that the civil case be DISMISSED.

         II. REPORT

         A. Introduction

         On 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.)

         A jury 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. 90.)

         On 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.

         B. Analysis and Conclusion

         1. 2255 and ineffective assistance of counsel standards

         To 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)).

         Claims 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.

         The 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 ...


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