United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION TO VACATE SENTENCE
 AND MOTION TO DISMISS INDICTMENT AND FOR IMMEDIATE
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
Albert Greer was convicted of bank fraud and conspiracy to
commit bank fraud under 18 U.S.C. §§ 1349, 1344.
ECF 60. Greer filed motions to vacate his 168-month sentence
under 28 U.S.C. § 2255, and to dismiss the indictment
and release him immediately. ECF 85, 94. For the following
reasons, the Court will deny the motions.
February 7, 2013, the Government charged Greer with
conspiracy to commit bank fraud, bank fraud, and aggravated
identity theft. ECF 1. The Court severed and dismissed the
identity theft charge, the case proceeded to a six-day trial,
and a jury convicted Greer of the remaining charges. On July
25, 2014, the Court determined a guideline range of 135 to
168 months, and sentenced Greer to 168 months imprisonment,
three years supervised release, and $832, 793.23 in
restitution payments. ECF 80, PgID 1299-1301; ECF 60. A
judgment issued on August 19, 2014. ECF 60. The next day,
Greer filed a notice of appeal of the Court's judgment.
ECF 61. Six weeks later, Greer failed to surrender to the
Federal Bureau of Prisons as directed, and the Court issued a
warrant for his arrest. ECF 66. The arrest occurred while
Greer's appeal was pending, so the Government moved for
the Sixth Circuit to dismiss the appeal based on the fugitive
disentitlement doctrine. The Sixth Circuit granted the motion
and dismissed Greer's appeal. ECF 81.
individual sentenced by a federal court may seek to vacate,
set aside, or correct the sentence pursuant to 28 U.S.C.
§ 2255. There are four different grounds for claiming
relief: "(1) that the sentence was imposed in violation
of the Constitution or laws of the United States; (2) that
the court was without jurisdiction to impose such sentence;
(3) that the sentence was in excess of the maximum authorized
by law; and (4) that the sentence is otherwise subject to
collateral attack." Hill v. United States, 368
U.S. 424, 426-27 (1962) (quoting 28 U.S.C. § 2255)
(internal quotation marks omitted).
§ 2255 motion "is not a substitute for a direct
appeal, " Regalado v. United States, 334 F.3d
520, 528 (6th Cir. 2003) (citing United States v.
Frady, 456 U.S. 152, 167-68 (1982)), so "a prisoner
must clear a significantly higher hurdle than would exist on
direct appeal" to merit collateral relief,
Frady, 456 U.S. at 166. Generally, the motion must
allege "(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid." Weinberger v. United
States, 268 F.3d 346, 351 (6th Cir. 2001).
seeks § 2255 relief for alleged prosecutorial
misconduct, judicial errors and bias, and ineffective
assistance of counsel. ECF 85, PgID 1318-19; ECF 86, PgID
1327- 33. Upon review, the Court construes Greer's
"Motion to Dismiss Indictment and for Immediate
Release" as a reply to the Government's response
brief. The Government argues that Greer's first two
claims are procedurally barred because he did not raise them
on direct appeal, and his ineffective assistance of counsel
claims are without merit. ECF 93, PgID 1375-88. An
evidentiary hearing is appropriate when "a factual
dispute arises." Huff v. United States, 734
F.3d 600, 607 (6th Cir. 2013). No factual dispute exists
here; Greer's allegations are neither contradicted by the
Government nor by the record. Because there is no factual
dispute, the Court declines to hold an evidentiary hearing.
28 U.S.C. § 2255 (A Court should grant an evidentiary
hearing "[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief[.]").
Prosecutorial Misconduct and Judicial Bias and
could have raised his claims for prosecutorial misconduct,
ECF 85, PgID 1318 and ECF 86, PgID 1330-31, and judicial bias
and errors, ECF 85, PgID 1318, 1322- 24, on direct appeal.
The Sixth Circuit dismissed Greer's direct appeal
pursuant to the fugitive disentitlement doctrine. The
doctrine allows appellate courts to dismiss direct appeals
"of defendants who fle[e] the jurisdiction during an
appeal and remain at large." ECF 81, PgID 1308
(quoting United States v. Lanier, 123 F.3d 945, 946
(6th Cir. 1997)). Generally, courts consider a claim
procedurally defaulted if a defendant fails to raise the
issue on direct review. See Massaro v. United
States, 538 U.S. 500, 504 (2003) (stating "claims
not raised on direct appeal may not be raised on collateral
review"); Frady, 456 U.S. at 165 ("[A]
collateral challenge may not do service for an
appeal."). The procedural default rule "conserve[s]
judicial resources and . . . respect[s] the law's
important interest in the finality of judgments."
Massaro, 538 U.S. at 504.
exceptions allow a defendant to avoid procedural default if:
the defendant (1) shows "cause" and "actual
prejudice" or (2) demonstrates that he is "actually
innocent." Bousley v. United States, 523 U.S.
614, 622 (1998). Only the first exception applies
Government argues that Greer's § 2255 motion is
procedurally barred because Greer's failure to raise his
§ 2255 issues on appeal was caused by his "decision
to become a fugitive, " and thus lacked a legitimate
cause. ECF 93, PgID 1376-77 (citing United States v.
Lynn, 365 F.3d 1225 (11th Cir. 2004)). The court in
[I]f a defendant's direct appeal was involuntarily
dismissed under the fugitive disentitlement doctrine, a
prisoner is not per se barred from filing a § 2255
motion. Rather, a prisoner may proceed with those § 2255
claims that are cognizable and that are not defaulted under
the traditional rules of procedural default.
Lynn, 365 F.3d at 1242. The Lynn opinion
persuades the Court. See also United States v.
Lanier, 238 F.3d 425 (6th Cir. 2000) (Table) (finding
that the "district court correctly concluded that the
dismissal with prejudice of these claims [by the Sixth
Circuit] pursuant to the fugitive disentitlement doctrine
precludes their consideration" in post-conviction
Court finds that Greer's claims for prosecutorial
misconduct and judicial error and bias are procedurally
defaulted for several reasons. First, Greer makes no showing
of "cause" or "actual prejudice" to
satisfy the exception to procedural default. Second, even if
presented, Greer's status as a fugitive is insufficient
cause to satisfy the exception to procedural default. The
"cause" exception for procedural default
"ordinarily requires a showing of some external
impediment preventing counsel from constructing or raising
the claim." Murray v. Carrier, 477 U.S. 478,
492 (1986). Allowing Greer to rely upon his fugitive status
for his showing of "cause" would eviscerate the
efficacy of the fugitive disentitlement doctrine. A contrary
decision would allow a fugitive criminal defendant to benefit
from his own wrongdoing: he could escape the jurisdiction of
the appellate court, the appellate court could dismiss his
claims, and then he could bring the dismissed claims in a
§ 2255 motion as a substitute for a direct appeal.
Third, permitting Greer to bring claims in a § 2255
motion that he could have raised on direct appeal would
contradict the well-settled rule that collateral attacks on a
judgment cannot serve as proxies for direct appeals. See
Massaro, 538 U.S. at 504.
matter of equity, and in support of the long-established
fugitive disentitlement doctrine, the Court determines that
Greer cannot use his fugitive status to create the
"external impediment" preventing his counsel from
raising claims on appeal. Greer's claims of prosecutorial
misconduct and judicial errors and bias are procedurally
Ineffective Assistance of Counsel
remainder of Greer's motion centers on alleged
deficiencies in his trial and appellate counsel's
performances that amount to ineffective assistance.
See ECF 86, PgID 1327-29, 1332. Those claims are
not subject to the procedural bar. Massaro, 538 U.S.
at 503-04. To prevail, Greer must show that his counsel's
performance was deficient, and "that the deficient
performance prejudiced the defense." Strickland v.
Washington, 466 U.S. 668, 687 (1984). To satisfy the
first prong, Greer must show that counsel's errors were
so serious that "counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth
Amendment." Id. "Judicial scrutiny of
counsel's performance must be highly deferential."
Id. at 689. The second prong requires Greer to show
"a reasonable probability"-which is to say, "a
probability sufficient to undermine confidence in the
outcome"-that the proceeding would have had a different
result but for counsel's unprofessional errors.
Id. at 694. The likelihood of that different result
"must be substantial, not just conceivable."
Harrington v. Richter, 562 U.S. 86, 112 (2011)
(citing Strickland, 466 U.S. at 693). Furthermore,
the Court reviews the reasonableness of counsel's
performance from "counsel's perspective at the time
of the alleged error and in light of all the
circumstances." Kimmelman v. Morrison, 477 U.S.
365, 381 (1986).
§ 2255 motion is not the first instance of Greer raising
complaints about his trial counsel. The Court previously
noted that his complaints lacked merit. At the end of the
first day of trial, Greer informed the Court of his belief
that his defense counsel smelled like alcohol. ECF 73, PgID
535-36 (under seal). Greer raised the complaint after counsel
had conducted nearly five hours of pre-trial and voir dire
activities before the Court. In fact, the Court stated that
it knew defense counsel was not impaired. Id.
Defense counsel then expressed concern that Greer's
complaints were merely "the tip of the iceberg" of
Greer's "campaign" to frustrate the case.
on the last day of trial argument, Greer made a request to
represent himself. ECF 78, PgID 1060-61. Defense counsel
again-while protecting his client's privileged
conversations-indicated that his client had engaged in
"a concerted effort that began at the beginning of the
trial" and that Greer made misrepresentations to the
Court as "part of his plan" to be disruptive and to
frustrate defense counsel's efforts. Id. at
1061, 1085. In the end, it became evident that Greer wanted
to file a motion to challenge the indictment based on a
jurisdictional element of the crime. Id. at 1081,
1087. Defense counsel raised and argued that issue as a Rule
29 motion. Id. at 1165-79. The Court further granted
Greer leave to file a post-trial motion on the jurisdictional
issue. Id. at 1093. As the Court noted, Greer's
actions evinced a "manipulative effort to present
particular legal arguments and [not] a sincerely designed
effort to dispense with the benefits of counsel."
Id. at 1091 (referencing United States v.
Frazier-El, 204 F.3d 553 (4th Cir. 2000)).
the attempt at disparaging his counsel failed, Greer argued
that there was a conflict of interest because he was going to
file a grievance against defense counsel. Id. at
1095. Defense counsel denied knowledge of the alleged
complaint and then recounted Greer's public maneuvers and
his concern that Greer was trying to "create a situation
where he can say at some point that he didn't have
effective assistance of counsel[.]" Id.
Court repeatedly stated on the record its belief that defense
counsel served effectively and professionally as Greer's
attorney. Greer himself acknowledged his counsel's
efforts during the following exchange at trial:
DEFENSE COUNSEL: Yesterday after Mr. Greer and I had
conversations [regarding self-representation and
counsel's performance] with you, Mr. Greer, I just want
to thank ...