United States District Court, W.D. Michigan, Southern Division
OPINION REGARDING MCQUEEN'S § 2255
J. QUIST UNITED STATES DISTRICT JUDGE.
to 28 U.S.C. § 2255, David Wilson McQueen moves to
vacate, set aside, or correct his sentence. (ECF No. 1.)
McQueen claims that he was denied effective assistance of
counsel in the pre-trial, trial, sentencing, and appellate
phases of his case. Because “the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief, ” § 2255(b), the Court
will deny McQueen's motion in its entirety without a
Sixth Circuit summarized the facts of this case as follows:
In 2006, McQueen used a home equity loan acquired from the
purchase of a rental home to personally invest in Maximum
Return Trading (MRT). Jim Clements, the owner of MRT,
represented to McQueen that Clements was earning returns of
forty to fifty percent per month from currency trading.
Clements told McQueen that he would receive a twenty-percent
return, but it would eventually drop to ten percent. Soon
after his initial investment with MRT, McQueen started
accepting funds from others on behalf of his own company,
Accelerated Income Group (AIG), to invest in MRT. In turn, he
paid a five-percent return to those who had invested in AIG
from the total ten percent he was receiving from MRT.
For a short period of time, MRT fulfilled its obligations by
making the promised returns to AIG. However, in mid-2007, MRT
ceased making payments to AIG. Subsequently, McQueen stopped
sending his investors' funds to MRT in mid-2007. Except
for some nominal amount, MRT was insolvent. Despite the lack
of returns from MRT, which were the only significant source
of revenue for AIG at that time, McQueen managed to meet his
payment obligations to preexisting AIG investors from the
only source available to him: funds from new investors.
McQueen also established three other investment funds,
International Opportunity Consultants (IOC), Diversified
Global Finance (DGF), and Diversified Liquid Asset Holdings
(DLAH). With the help of his bookkeeper, Tricia Rice, McQueen
comingled the funds from these newly created entities, paid
himself a monthly salary ranging from $75, 000 to $120, 000,
and compensated agents who helped him find new investors.
McQueen personally received about $3.2 million in investor
funds and spent an additional $3.1 million for
business-related travel and other miscellaneous expenses. In
addition, McQueen disbursed approximately $3.6 million in
commissions for agents, who were paid between one and five
percent for every month an investor's money remained with
one of McQueen's entities.
Following a tip from a financial institution in early 2008,
IRS Agent Barbara Birdsong started investigating McQueen. In
2009, the IRS and the FBI executed a search warrant for
McQueen's home, a home of one of McQueen's
associates, and several business locations tied to McQueen.
The search revealed severely depleted assets; the agencies
recovered only $433, 467 from McQueen's accounts.
United States v. McQueen, 636 Fed.Appx. 652, 654
(6th Cir. 2016) (footnote omitted).
falsely represented to investors, either directly or through
his agents, that (1) he would invest all of their money in
some kind of investment; (2) the investment was safe or
guaranteed; (3) he was very successful; and (4) investors
could withdraw their money at any time. McQueen sent out
monthly or quarterly account statements that communicated to
investors that their investments were safe and growing.
Although McQueen promised investors that they could liquidate
their accounts at any time, most did not because they relied
on the account statements. McQueen also funneled money
through his associate, John Bertuca, a Berrien County bail
bondsman. McQueen provided investment funds to Bertuca for
“marketing” expenses, and directed Bertuca to pay
McQueen's personal expenses with the funds.
2011, the Grand Jury for the Western District of Michigan
returned fraud and money laundering charges against McQueen
and Trent Francke, McQueen's business associate since
2007. One year later, the Grand Jury brought a superseding
indictment that added Jason Juberg, Donald Juberg, and Penny
Hodge as codefendants and an additional charge of securities
fraud. Subsequent superseding indictments continued to add
commenced against McQueen on the Fourth Superseding
Indictment on April 1, 2014. After a six-week trial with 40
government witnesses and 30 defense witnesses, McQueen was
convicted on six counts of mail fraud, four counts of
spending money laundering, one count of structuring, one
count of concealment money laundering, and three counts of
misdemeanor failure to file tax returns. The jury acquitted
him of one count each of mail fraud, spending money
laundering, and concealment money laundering.
December 3, 2014, this Court sentenced McQueen to a
below-guidelines sentence of 360 months' incarceration,
more than $32 million in restitution, and three years'
supervised release. McQueen appealed, but the Sixth Circuit
affirmed his conviction and sentence in an opinion dated
January 19, 2016.
to 28 U.S.C. § 2255(a), a prisoner in the custody of the
United States may seek collateral relief from a sentence
where “the sentence was imposed in violation of the
Constitution or laws of the United States, or . . . the court
was without jurisdiction to impose such sentence, or . . .
the sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral attack.” A
“[s]ection 2255 [motion] is not a substitute for a
direct appeal, and thus a defendant cannot use it to
circumvent the direct appeal process.” Regalado v.
United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing
United States v. Frady, 456 U.S. 152, 167-68, 102
S.Ct. 1584, 1594 (1982)). Consequently, a habeas court will
not readjudicate claims raised and rejected on direct review
“absent countervailing equitable considerations.”
Withrow v. Williams, 507 U.S. 680, 720-21, 113 S.Ct.
1745, 1769 (1993); see also DuPont v. United States,
76 F.3d 108, 110 (6th Cir. 1996) (“A § 2255 motion
may not be used to relitigate an issue that was raised on
appeal absent highly exceptional circumstances.”).
claims that a movant failed to raise on direct review are
procedurally defaulted and “may be raised in habeas
only if the defendant can first demonstrate either
‘cause' and actual ‘prejudice', or that
he is ‘actually innocent.'” Bousley v.
United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 1611
(1998) (internal citations omitted). To show cause, a movant
must demonstrate “that some objective factor external
to the defense impeded counsel's efforts to comply with
the . . . procedural rule.” Murray v. Carrier,
477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986). The movant
also carries the burden of showing actual
prejudice-“not merely that the errors at his trial
created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.” Frady, 456 U.S. at 170, 102 S.Ct.
at 1596 (emphasis in original). In the absence of cause and
actual prejudice, the movant may present a new claim only if
he can show actual innocence. “To establish actual
innocence, petitioner must demonstrate that, in ...