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Busack v. United States

United States District Court, N.D. West Virginia

December 27, 2016

MARK C. BUSACK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 5:15CV151

          MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING PETITIONER'S § 2255 MOTION AND OVERRULING PETITIONER'S OBJECTIONS

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.

         The petitioner, Mark C. Busack (“Busack”), filed this pro se[1] motion under 28 U.S.C. § 2255 challenging the validity of his conviction and sentence. This matter was referred to United States Magistrate Judge James E. Seibert under Local Rule of Civil Procedure 72.01. The magistrate judge entered a report recommending that Busack's motion be denied. Busack then filed timely objections to the report and recommendation. For the following reasons, the magistrate judge's report and recommendation is adopted and affirmed, Busack's § 2255 motion is denied, and Busack's objections are overruled.

         I. Background

         Busack plead guilty to four counts of use of an unauthorized access device and one count of filing a false S Corporation income tax return. Busack's plea agreement included a full waiver of his right to seek appellate and post-conviction review of his conviction and sentence if the sentence was within the statutory maximum. This Court sentenced Busack to 35 months of imprisonment as to each count to be served concurrently, followed by three years of supervised release as to Counts One through Four and one year as to Count Five to be served concurrently. This Court also ordered Busack to pay restitution in the amount of $121, 249.19, due immediately with minimum payments of $1, 000.00 per month. Busack's plea agreement also included a provision in which Busack agreed to participate in the Inmate Financial Responsibility Program and to make restitution payments through that program while incarcerated.

         Busack then filed this motion under § 2255 alleging six instances of ineffective assistance of counsel. Busack alleges his counsel was ineffective in failing to: (1) present evidence that Busack claims would have substantially altered the terms of the plea agreement and his sentence; (2) organize a coherent defense; (3) pursue discovery; (4) disclose to the Court an alleged conflict of interest between the United States Attorney and Busack; (5) properly prepare Busack for the sentencing hearing; and (6) provide effective representation at the post-sentencing restitution hearing. Busack then filed two separate motions to reduce his sentence, alleging that his Total Offense Level under the United States Sentencing Guidelines (“the Guidelines”) was miscalculated and that this Court failed to account for repayments he made to his victims in the course of his fraudulent scheme. This Court consolidated Busack's motions to reduce his sentence with his § 2255 motion. Magistrate Judge Seibert then entered a report recommending that Busack's motions be denied. Busack filed timely objections to the report and recommendation.

         II. Applicable Law

         Because the petitioner filed timely objections to the report and recommendation, the magistrate judge's recommendation will be reviewed de novo as to those findings to which objections were made. 28 U.S.C. § 636(b)(1)(C). As to those findings to which objections were not filed, the findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A).

         III. Discussion

         A. Waiver of Post-Conviction Review Rights

         Magistrate Judge Seibert concluded that Grounds One through Four of Busack's § 2255 motion and his motions to reduce his sentence are barred under the waiver of appellate and post-conviction review rights contained in the plea agreement. However, he concluded that Grounds Five and Six of Busack's § 2255 motion were not barred, but that they failed as a matter of law.

         A defendant may waive his right to collaterally attack his conviction or sentence under § 2255, “so long as the waiver is knowing and voluntary.” United States v. Lemaster, 403 F.3d 216 (4th Cir. 2006). Section 2255 waivers are generally “subject to the same conditions and exceptions applicable to waivers of the right to file a direct appeal, ” including claims of ineffective assistance of counsel. United States v. Cannady, 645 n.3 (4th Cir. 2002) (noting other circuits' holdings); see also United States v. Attar, 38 F.3d 727, 732 (4th Cir. 1994) (holding that a general waiver of appellate rights may not bar claims for ineffective assistance of counsel at sentencing). However, claims of ineffective assistance of counsel prior to sentencing are quintessential § 2255 claims. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (“It is well settled that a claim of ineffective assistance should be raised in a . . . § 2255 motion in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.”). Thus, if ineffective assistance claims were generally exempt from a § 2255 waiver, “such an exception would render all such waivers virtually meaningless.” Braxton v. United States, 358 F.Supp.2d 497, 503 (W.D. Va. 2005), aff'd, 214 F.App'x 271 (4th Cir. 2007) (per curiam) (affirming district court's denial of Braxton's motion to reconsider its ruling on his § 2255 waiver). While the United States Court of Appeals for the Fourth Circuit has not considered the scope of § 2255 waivers in regard to ineffective assistance claims, all of the Courts of Appeals that have considered this issue agree that a general § 2255 waiver bars ineffective assistance of counsel claims unless the claims bear on the validity of the plea agreement or the § 2255 waiver itself. See Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005), cert. denied, 546 U.S. 902 (2005), reh'g denied, 546 U.S. 1133 (2006); United States v. White, 307 F.3d 336, 343-44 (5th Cir. 2002); United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001), cert. denied, 534 U.S. 1085 (2002); Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001); Mason v. United States, 211 F.3d 1065, 1069-70 (7th Cir. 2000), cert. denied, 531 U.S. 1175 (2001); cf. Washington v. Lampert, 422 F.3d 864, 870-71 (9th Cir. 2005) (concluding that a petitioner serving a state imposed sentence was barred from asserting an ineffective assistance claim under a § 2254 waiver contained in his plea agreement). Accordingly, this Court adopts the consensus of the Courts of Appeals on this issue.

         Busack's plea agreement provided that he

waives the following rights, if the Court sentences within the statutory maximums of the statutes of conviction:
b. [the right] to challenge the conviction or sentence or the manner in which it was determined in any post-conviction proceeding, including any proceeding under ...

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