United States v. Reed

          OPINION

          Janet T. Neff, United States District Judge.

         Before the Court is a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, filed by Defendant Freeman Carl Reed (ECF No. 131). Defendant has also filed a memorandum in support of his motion (ECF No. 136), the Government has filed a response (ECF No. 145), and Defendant has filed a reply to that response (ECF No. 150). Defendant also moves to expedite the disposition of his motion. For the reasons herein, these motions will be denied.

         I. Background

         In 2013, the Government charged Defendant with five counts of wire fraud (Counts I to V), two counts of money laundering (Counts VI and VII), and three counts of failure to file a tax return (Counts VIII to X). The wire fraud and money laundering charges were based on Defendant's participation in two schemes to defraud investors. Defendant raised over $1.3 million from investors by promising to recover gold bars that were supposedly buried at a secret dig site in the Philippines, and by redeeming gold certificates in Switzerland that were purportedly worth billions of dollars. Defendant repeatedly assured investors that they would soon receive a profitable return on their investments, but instead they received nothing. Defendant never attempted to recover gold from the dig site in the Philippines, and the gold certificates were worthless. Defendant used virtually all of the investors' money for personal expenses. And despite the fact that Defendant received an enormous income from these schemes, he did not file federal tax returns for the years 2007, 2008, and 2009.

         In January 2014, the Court held a jury trial on the charges for failure to file a tax return (Counts VIII to X), after severing them from the other counts in the indictment. The jury found Defendant guilty on all three counts.

         In March 2014, Defendant pleaded guilty to one of the wire fraud charges (Count II), in exchange for dismissal of the remaining counts and a nonbinding recommendation by the Government that Defendant receive a three-year sentence for the wire fraud conviction. In addition, the Government agreed not to oppose Defendant's request that he receive credit under the Sentencing Guidelines for accepting responsibility.

         In August 2014, the Court sentenced Defendant to 87 months of imprisonment for the wire fraud conviction, and 12 months of imprisonment for each of the tax return convictions, to be served concurrently. The Court also ordered restitution of over $1.8 million. The Court did not accept the recommended three-year sentence, and did not give Defendant credit for acceptance of responsibility.

         Defendant appealed the judgment of conviction and sentence, arguing that the Government did not abide by its promise to recommend a three-year sentence, and that this Court erred by not giving Defendant credit for acceptance of responsibility. The Court of Appeals rejected these arguments and affirmed the Court's judgment. See United States v. Reed, 788 F.3d 231 (6th Cir. 2015).

         Defendant now raises the following grounds for relief in his § 2255 motion:

I. Counsel was ineffective with regards to plea negotiations and the plea agreement.

II. Counsel was ineffective for advising the defendant to proceed to trial.

III. Counsel was ineffective for failing to object to the government's breach of the plea agreement and to postpone sentencing and pursue withdrawal.

IV. Counsel failed to secure the defendant's acceptance of responsibility.

V. Counsel failed to advise the defendant of his right to an open plea to the court.

(§ 2255 Mot., ECF No. 131, PageID.1530, 1531, 1533, 1534, 1537.)

         II. Standards

         A. Merits

         A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. 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 § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 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 quotations omitted)).

         B. ...