The opinion of the court was delivered by: Alicemarie H. Stotler United States District Judge
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
On June 28, 2002, a federal grand jury returned a 33-count indictment charging David Frederick Thornton ("defendant" or "petitioner") with mail fraud in violation of 18 U.S.C. § 1341 (ten counts), wire fraud in violation of 18 U.S.C. § 1343 (nineteen counts), and impersonation of a federal officer or employee in violation of 18 U.S.C. § 912 (four counts). On March 17, 2003, pursuant to a written plea agreement, defendant pleaded guilty to two counts of mail fraud, two counts of wire fraud, and one count of impersonating a federal officer. On June 16, 2003, the court sentenced defendant to ninety-six months imprisonment, three years supervised release, $644,388.25 in restitution, and a $500 mandatory special assessment.
As a result of defendant's first appeal, the Court of Appeals for the Ninth Circuit, on April 10, 2006, remanded defendant's case for limited proceedings in accordance with United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), United States v. Thornton, 176 Fed. Appx. 765 (9th Cir. 2006). On October 16, 2006, the Court determined that re-sentencing was not required. Defendant again appealed. On January 10, 2008, in a published opinion, United States v. Thornton, 511 F.3d 1221 (9th Cir. 2008), the Ninth Circuit affirmed defendant's sentence.
Defendant's motion under 28 U.S.C. § 2255 (the "2255 Motion") raises multiple claims that his counsel, Deputy Federal Public Defender Leon Peterson ("Peterson" or "defense counsel") performed below constitutional standards in handling defendant's case. For the reasons discussed below, defendant does not establish ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), because defendant does not show that his counsel's conduct was deficient or that defendant was prejudiced by any deficiencies in legal representation.
Because the parties are familiar with the facts, the Court sets forth the overview contained in the Ninth Circuit's opinion in United States v. Thornton, 511 F.3d 1221, 1224 (9th Cir. 2008).
Over the course of many years, defendant successfully defrauded friends, family members, and complete strangers out of hundreds of thousands of dollars. He used two schemes: the first involved a charitable foundation he established purportedly to raise funds for kidney research for the University of Southern California ("USC"). In return for the funds raised, USC paid Thornton a salary and covered the administrative costs of the fund-raising. Although Thornton turned over to USC some of the funds raised, he kept about $150,000 for his own purposes. He also charged more than $25,000 to credit cards taken out on behalf of his foundation and USC, although USC never authorized any joint credit cards. For about a year after USC terminated its relationship with Thornton and his foundation, Thornton continued fraudulently to solicit funds.
In the second scheme, Thornton purported to be working for the United States government on various top secret missions, mostly involving channeling Nigerian money into the United States. Thornton explained to his victims that these transactions required heavy financing but would result in huge returns. Many friends and family members believed the tale, and Thornton bilked them out of hundreds of thousands of dollars. He also unsuccessfully attempted to cash a counterfeit check for $25 million, purportedly from the Nigerian government.*fn1
III. SUMMARY OF PARTIES' CONTENTIONS
A. Petitioner's Grounds for Relief
Claim One: Defense counsel failed to contact and/or interview witnesses that defendant named as persons who could confirm his innocence.
Claims Two and Three: Defense counsel failed to investigate and raise defendant's claim that a "key prosecution witness unlawfully obtained [defendant's] private documents and records" and thereafter allowed government agents to review those documents without a search warrant.
Claim Four: Defense counsel refused to prepare for trial and insisted that defendant plead guilty because counsel was too "overwhelmed." Counsel also contacted defendant's wife and mother without defendant's permission and told them that defendant faced "22" years in prison if he refused a plea agreement.
Claim Five: Defense counsel stated he was "too busy" to convey defendant's offer to cooperate with the government in exchange for sentencing leniency.
Claim Six: Defense counsel instructed defendant to "lie under oath" about defendant's purported innocence when pleading guilty.
Claim Seven: Defense counsel refused to forward letters written by defendant and his wife, mother, and father to the U.S. Probation Office and Court in connection with sentencing.
Claim Eight: Defense counsel refused to investigate the claim that defendant was a victim of entrapment due to his years of involvement with the "Republican Party, government politics, personal relationships and commendations from President Reagan, President George H. W. Bush, Vice President Quayle, Governor Wilson, and other leaders," along with defendant's ongoing communications with the U. S. Government.
Claim Nine: It was error for defense counsel not to object to the presence of 35 victims at the sentencing hearing.
Claim Ten: Defense counsel was ineffective by failing to object at sentencing to the imposition of the abuse of trust enhancement, imposition of conditions of release requiring drug treatment and psychological counseling, and the order to make monthly restitution payments of $1,000.
Claim Eleven: Defense counsel failed to object to the sentencing enhancement for carrying a weapon in connection with the offense and failed to investigate defendant's claim that he had a permit to carry such a weapon.
Claim Twelve: Defense counsel erred by failing to object to the Court's imposition of a 16-level increase for amount of loss at sentencing.
Claim Thirteen: The government unlawfully informed third parties when it would execute arrest and search warrants concerning defendant and/or his property, but Peterson failed to act on such information.
Claim Fourteen: Defense counsel failed to obtain or use certain purported exculpatory documents, namely, the Thornton Foundation Bylaws and a contract with USC.
Claim Fifteen: Defense counsel failed to obtain medical records or argue for a downward departure based on defendant's medical condition.
B. Respondent's Opposition
Defendant's motion should be denied in all respects. Defendant was not denied effective assistance of counsel, and the Declaration of defense counsel who represented defendant so indicates. The evidence attached to the Declaration of Curtis Kin, Assistant United States Attorney, comprised of discovery and plea agreement correspondence exchanged with Peterson, the final plea agreement pursuant to which defendant entered his guilty pleas, reporter's transcripts of defendant's change of plea and sentencing hearings, the defendant's Sentencing Position and letters submitted in support of defendant, and the Court's Tentative Ruling issued at the sentencing hearing, support the government's position that defendant is not entitled to relief. Claim by claim, the government refutes petitioner's contentions as follows.
1. Failure to Interview Witnesses (Claim #1)
Defendant asserts that Peterson failed to interview witnesses that defendant named as persons who could confirm his innocence. However, it is not clear that defendant ever provided Peterson with a list of persons to interview. (Peterson Decl. ¶ 33). Peterson did instruct his defense investigator to contact a number of witnesses, including some of whom may have been identified by defendant as persons to interview. (Peterson Decl. ¶ 33). The investigator made contact with a number of witnesses, including: (1) Dr. E.U. Kalu, Director of the Central Bank of Nigeria, who could not verify or provide any definitive answers about the existence of any contracts with Thornton for millions of dollars; (2) Dr. Joseph Sansu (or Sansusi) of Nigeria; (3) Steven Hurd, the bodyguard defendant had hired; (4) Dr. J. Hapleman of the USC Medical Department; (5) B. Ott, whom defendant claimed was his investment advisor; (6) M. Silk, who was defendant's former business partner and friend; and (7) defendant's wife and mother. (Peterson Decl. ¶ 33).
After November 1, 2002, when defendant first indicated he wanted to plead guilty, the focus of Peterson's representation shifted to negotiating the best plea agreement possible and investigating the case insofar as it would relate to defendant's guilty plea and sentencing, as opposed to trial preparation. (Peterson Decl. ¶ 33). Peterson's representation necessarily changed from interviewing witnesses that would demonstrate innocence. Instead, Peterson's changed his approach to develop evidence in mitigation, including, for example, an emphasis on making arrangements for a psychological examination. (Peterson Decl. ¶ 9).
2. Failure to Investigate and Object to Government's Receipt of Documents by a Third Party Without a Search Warrant (Claims #2 & #3)
Defendant claims that Peterson failed to investigate and raise defendant's claim that a "key prosecution witness unlawfully obtained [defendant's] private documents and records" and thereafter allowed government agents to review those documents without a search warrant. It is not clear that defendant, in fact, ever raised this issue with Peterson. (Peterson Decl. ¶ 34). This ground for relief lacks merit.
3. Failure to Prepare for Trial Because Too "Overwhelmed" (Claim #4)
The record shows that, in his plea agreement, defendant: (1) admitted that he was "in fact guilty" of the offenses to which he pled guilty; (2) agreed to a lengthy statement of facts outlining in detail his charity fraud scheme, his Nigerian fraud scheme, and his false impersonation of government officers; and (3) signed his name under the attestation that he understood the entire agreement and agreed to all of its terms. (Kin Decl. Ex. E at ¶¶ 6, 15, 30 & Attach. A).
At the change of plea hearing, defendant confirmed under oath that he wanted to plead guilty and was guilty. (Kin Decl. Ex. F at 4, 12, 13). Defendant also confirmed under oath that he agreed to the statement of facts attached to the plea agreement, which established his guilt, and did not wish to make any changes. (Kin Decl. Ex. F at 16-17). When asked explicitly by the Court whether he wished to give up his rights to persist in pleas of not guilty and go to trial, defendant answered, under oath, in the affirmative.*fn2 Kin Decl. Ex. F at 21 22).
Consistent with defendant's actions and statements that he, in fact, was guilty and wanted to plead guilty is the recollection of his counsel. Peterson has no recollection of defendant ever pleading with him to go to trial. (Peterson Decl. ¶ 35). Rather, on numerous occasions prior to signing the plea agreement, defendant told Peterson that he wanted to plead guilty, including meetings on November 1, 2002; December 17, 2002; December 19, 2002; February 6, 2003; and February 28, 2003. (Peterson Decl. ¶¶ 8, 12, 15, 18, 22). On March 7, 2003, defendant ultimately signed the agreement after Peterson reviewed all of the terms of the agreement and discussed the risks and potential consequences of rejecting the proposed agreement. (Peterson Decl. ¶ 25). After signing the plea agreement, Peterson met with defendant in advance of the guilty plea hearing, and defendant verified that he wished to go forward with his guilty plea. (Peterson Decl. ¶ 27). If defendant had indicated he no longer wanted to plead guilty, Peterson, consistent with his normal practice, would have instructed his client not to go forward. (Peterson Decl. ¶ 27). But, defendant gave no indication of any problems, hesitations, or doubts about the decision to plead guilty, other than the ordinary unhappiness attendant with the realization that he must plead guilty to having committed crimes.*fn3 (Peterson Decl. ¶ 27).
Because the record clearly shows that defendant sought to plead guilty, it is hardly surprising that the record does not support the claim indeed -- bears no indication -- that Peterson "insisted" defendant plead guilty or told defendant that he was too "overwhelmed" to prepare for trial. Peterson denies having done so. (Peterson Decl. ¶ 35). Furthermore, Peterson's so doing would have been entirely inconsistent with his ordinary practice of proceeding to trial if a client wants to go trial. (Peterson Decl. ¶ 35). Moreover, the allegation that Peterson claimed he was too "overwhelmed" to prepare for trial is entirely inconsistent with the fact that Peterson spent numerous hours and days working on defendant's case, as set forth in Peterson's Declaration and his case management notes. Thus, to the extent Peterson "insisted" that defendant should plead guilty, such insistence did not arise from Peterson's desire to avoid preparing for trial; rather, it was borne of Peterson's assessment that it was in defendant's best interest to accept the government's plea offer, particularly in light of Peterson's review of the case, the overwhelming evidence against defendant, and the risks and downside of proceeding to trial. (Peterson Decl. ¶ 35). Among other reasons, Peterson came to that conclusion because defendant had made post-arrest statements sufficient to support findings of guilt to all charges in the indictment and because a conviction after trial might have led to a Sentencing Guidelines range of 292-365 months imprisonment, as opposed to the Guidelines range of 70-87 months contemplated by the government's plea offer. (Peterson Decl. ¶ 35).
Accordingly, when viewed against the record, including defendant's statements under oath at the plea hearing, it is clear that defendant's unsubstantiated claims that his counsel refused to prepare for trial and insisted defendant plead guilty are so palpably incredible, patently frivolous, and false that they must be dismissed. Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 52 L.Ed. 2d 136 (1977); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). Moreover, based on the overwhelming evidence against defendant (including his written confession), it was highly reasonable -- and certainly not constitutionally defective -- for Peterson to have strongly advised defendant to plead guilty. Strickland, 466 U.S. at 689.
4. Failure to Convey to Government the Defendant's Desire to Cooperate (Claim #5)
Defendant alleges that Peterson stated he was "too busy" to convey defendant's offer to cooperate with the government in exchange for sentencing leniency. Even if true, defendant's claim must fail, because no prejudice resulted from the purported failure of Peterson to communicate defendant's willingness to cooperate.*fn4 On the heels of his arrest, defendant communicated in a written statement his willingness to cooperate with the government (Kin Decl. ¶ 4 & Ex. C), and, thus, the government was well aware of defendant's stated desire to assist law enforcement, regardless of whether Peterson passed along defendant's wish to cooperate.
In any event, whether defendant, Peterson, or both had lobbied the government for sentencing leniency in exchange for defendant's cooperation, the government was not ultimately interested in defendant's cooperation, because the government had concluded that defendant could not provide any substantial cooperation or assistance based on its review of documents seized during the execution of the search warrant at defendant's home. The government's conclusion was in accord with Peterson's own conclusion that defendant did not have sufficient information about other Nigerian perpetrators of fraud such that the government would be interested in hearing about his information or that defendant's providing such information would have risen to the level of substantial assistance worthy of a downward departure for cooperation under Sentencing Guidelines Section 5Kl.1.*fn5 (Peterson Decl. ¶ 36).
Accordingly, defendant's claim should be dismissed, because, even if true, defendant suffered no prejudice. ...