United States District Court, S.D. West Virginia, Charleston
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley, United States Magistrate Judge
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).
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.
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).
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.
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.
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).
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
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
2. Ineffective assistance of counsel during presentence
investigation 3. Ineffective assistance of counsel at
B. The prosecution presented perjured testimony at
C. The presiding District Judge had a conflict of interest.
(ECF No. 73, passim).
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.
Ineffective Assistance of Counsel Claims.
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).
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.
Ineffective assistance during plea negotiations.
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).
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). 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).
Government further asserts that Defendant's claim that he
was coerced to sign the plea agreement in order to avoid
prosecution of his relatives ...