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United States v. Greer

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

January 29, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ALBERT GREER, Defendant/Petitioner.

          OPINION AND ORDER DENYING MOTION TO VACATE SENTENCE [85] AND MOTION TO DISMISS INDICTMENT AND FOR IMMEDIATE RELEASE [94]

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE

         Defendant 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.

         BACKGROUND

         On 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.

         STANDARD OF REVIEW

         An 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).

         A § 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).

         DISCUSSION

         Greer 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[.]").

         I. Prosecutorial Misconduct and Judicial Bias and Errors

         Greer 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.

         Two 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 here.[1]

         The 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)).[2] The court in Lynn noted:

[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 motions).

         The 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.

         As a 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 barred.

         II. Ineffective Assistance of Counsel

         The 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.[3] 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).

         Greer's § 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. Id.

         Later, on the last day of trial argument, Greer made a request to represent himself. ECF 78, PgID 1060-61.[4] 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)).

         After 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.

         The 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 ...

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