United States District Court, W.D. Michigan, Southern Division
T. Neff, United States District Judge.
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.
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.
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.
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.
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.
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).
now raises the following grounds for relief in his §
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
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,
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)).