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Sargent v. United States

United States District Court, S.D. West Virginia, Charleston

February 7, 2018

ARVILLE SARGENT, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley, United States Magistrate Judge

         Pending before the Court is Movant's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 73, Motion to Vacate, Set Aside or Correct Sentence). This matter is assigned to the Honorable John T. Copenhaver, Jr., United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).

         PROCEDURAL HISTORY

         On February 12, 2013, Movant, Arville Sargent (hereinafter “Defendant”), was charged in a two-count information with one count of aiding and abetting honest services mail fraud, in violation of 18 U.S.C. §§ 1341, 1346, and 2, and one count of attempting to evade or defeat tax under 26 U.S.C. § 7201. (ECF No. 1). Throughout his district court proceedings, Defendant was represented by retained counsel, Troy N. Giatras.

         On January 14, 2013, Defendant executed a written plea agreement in which he agreed to plead guilty to both counts of the information. (ECF No. 13). As noted by Respondent, the plea agreement included the following acknowledgement:

I hereby acknowledge by my initials at the bottom of each of the foregoing pages and by my signature on the last page of this twelve-page agreement that I have read and carefully discussed every part of it with my attorney, and that I understand the terms of this agreement, and that I voluntarily agree to those terms and conditions set forth in the agreement. I further acknowledge that my attorney has advised me of my rights, possible defenses, the Sentencing Guideline provisions, and the consequences of entering into this agreement, that no promises or inducements have been made to me other than those in this agreement, and that no one has threatened me or forced me in any way to enter into this agreement. Finally, I am satisfied with the representation of my attorney in this matter.

(Id. at 12). The plea agreement also contained a stipulation of facts and a proposed agreement setting the total adjusted sentencing guideline offense level at either 27 or 29, before acceptance of responsibility. (Id. at 23-28, Ex. B). However, the parties reserved the right to litigate whether the loss figure was above or below $7 million. (Id. at 9). The written plea agreement contained an express waiver of direct appeal (excluding the appeal of a guideline level outside of 24-29), and for post-conviction collateral attack, except for any claim based upon ineffective assistance of counsel. (ECF No. 13). Defendant signed and initialed each page of the plea agreement, and initialed each page of the stipulation of facts. (Id. at 1-12, 23-28).

         On March 27, 2013, Defendant waived indictment and pled guilty, pursuant to the written plea agreement, to both counts of the information. (ECF Nos. 11-14). The District Court conducted a thorough plea colloquy in accordance with Rule 11 of the Federal Rules of Criminal Procedure, including receiving Defendant's own factual basis for his guilty plea, the government's proffer of evidence to support the essential elements of Counts One and Two, and Defendant's acknowledgement of the rights he was waiving and his satisfaction with his attorney's representation. (ECF No. 27).

         Forfeiture proceedings were also instituted, and on June 28, 2013, the district court entered a Final Order of Forfeiture concerning $415, 000. (ECF No. 31). An Amended Final Order of Forfeiture was entered on July 8, 2013. (ECF No. 33). Defendant's sentencing hearing was also continued several times, upon motions of both the government and Defendant.

         On October 11, 2013, Defendant appeared for sentencing. During the sentencing hearing, both parties presented evidence and argument about whether the total loss figure was above or below $7 million. Ultimately, the district court concluded that a 20-level increase was warranted under USSG § 2B1.1(b)(1)(K), based upon a loss figure in excess of $7 million. (ECF No. 46 at 134). Accordingly, the court determined that Defendant's total offense level was 26, with a criminal history category of I, and sentenced Defendant to 72 months of imprisonment on Count One and a concurrent term of imprisonment of 60 months on Count Two, followed by a three-year term of supervised release. (Id. at 149-150).

         Defendant appealed his sentence to the United States Court of Appeals for the Fourth Circuit, asserting a claim of ineffective assistance of counsel. On appeal, Defendant was represented by court-appointed counsel, Christopher P. Keleher. The Fourth Circuit affirmed the judgment of the district court by unpublished per curiam opinion, which stated, “[b]ecause none of Sargent's alleged ineffective assistance of counsel claims conclusively appear on the record, we decline to address them in this appeal.” United States v. Sargent, No. 14-4098, 582 Fed.Appx. 197 (4th Cir. Aug. 25, 2014). Defendant did not file a petition for a writ of certiorari in the United States Supreme Court.

         On December 1, 2014, Defendant filed the instant section 2255 motion (ECF No. 73), which includes Defendant's motion and a brief in support thereof. Although the claims raised in the motion and brief are somewhat inconsistently pled, the undersigned has construed the section 2255 motion to be asserting the following grounds for relief:

A. Ineffective assistance of counsel.
1. Ineffective assistance of counsel during plea negotiations.
2. Ineffective assistance of counsel during presentence investigation 3. Ineffective assistance of counsel at sentencing.
B. The prosecution presented perjured testimony at sentencing.
C. The presiding District Judge had a conflict of interest.

(ECF No. 73, passim).

         On June 26, 2015, pursuant to the undersigned's Order, Defendant's defense counsel, Troy N. Giatras, filed an Affidavit responding to Defendant's grounds for relief. (ECF No. 90). On July 27, 2015, Respondent (hereinafter “the Government') filed a Response to the section 2255 motion asserting that Mr. Giatras provided effective assistance at all pertinent stages of Defendant's criminal proceedings. (ECF No. 92). Accordingly, the Government requests that Defendant's section 2255 motion be denied and this matter be dismissed. (Id.) On August 24, 2015, Defendant filed two reply briefs. (ECF Nos. 93 and 94). This matter is ripe for adjudication.

         ANALYSIS

         A. Ineffective Assistance of Counsel Claims.

         The Supreme Court addressed the right to effective assistance of counsel as guaranteed by the Sixth Amendment in Strickland v. Washington, 466 U.S. 668 (1984), in which the Court adopted a two-pronged test. The first prong is competence; movant must show that the representation fell below an objective standard of reasonableness. Id. at 687-91. There is a strong presumption that the conduct of counsel was in the wide range of what is considered reasonable professional assistance, and a reviewing court must be highly deferential in scrutinizing the performance of counsel. Id. at 688-89.

In order to meet the first prong, movant must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Id. at 690. This inquiry is directed at whether defense counsel's representation “amounted to incompetence under ‘prevailing professional norms,' not whether it deviated from best practices or most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011). As noted by Respondent, “[t]he question is whether counsel made errors so fundamental that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.” Id. at 88. (ECF No. 113 at 6).

         The second prong is prejudice; "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may determine the prejudice prong prior to considering the competency prong if it is easier to dispose of the claim on the ground of lack of prejudice. Id. at 697. Using this standard, the undersigned will address each claim of ineffective assistance of counsel asserted by Defendant.

         1. Ineffective assistance during plea negotiations.

         Defendant alleges that his plea negotiations were defective because Mr. Giatras did not thoroughly discuss the plea agreement with him; that during the pendency of the plea negotiations, Mr. Giatras communicated with Defendant by telephone because he was traveling in China; and that Defendant executed the plea without his counsel being present. Defendant further appears to assert that his plea agreement was coerced because Mr. Giatras encouraged him to plead guilty to avoid further prosecution of other family members, including his wife and son. (ECF No. 73 at 4-5).

         The Government's Response, as supported by Mr. Giatras' Affidavit, confirms that Mr. Giatras did communicate, via Skype, with Defendant about the plea agreement while Mr. Giatras was in China. (ECF No. 90 at 2; ECF No. 92 at 7). However, the Response and Affidavit further indicate that, between August of 2012, when Defendant retained Mr. Giatras's firm, and January 15, 2013, when the plea agreement and stipulation of facts were fully executed, Mr. Giatras engaged in numerous substantive discussions with Defendant, both in person and by e-mail, and “worked closely with defendant in reviewing and revising the plea agreement and related documents multiple times.” (ECF No. 90 at 2; ECF No. 92 at 8).[1] Respondent asserts that “[i]n fact, Defendant was very involved in the plea negotiation and review process” and that he “does not even specifically contend otherwise.” (ECF No. 92 at 8). The Government's Response further asserts:

For the same reasons, defendant's claim that he signed the plea agreement without his counsel “present” (Motion at p. 2) is meritless. The fact that defendant signed the agreement without his counsel present does not establish ineffective assistance of counsel when defense counsel had discussed the plea agreement thoroughly with him. Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005). Further, during the plea colloquy, the trial court asked defendant to verify his signature and initials on the agreement and the supporting factual stipulation (he did). (Plea Tr. at p. 36) [footnote omitted].

(ECF No. 92 at 8).

         The Government further asserts that Defendant's claim that he was coerced to sign the plea agreement in order to avoid prosecution of his relatives ...


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