MEMORANDUM AND ORDER RE: MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
Following his indictment, trial, and conviction on charges of conspiracy to defraud the United States pursuant to 18 U.S.C. § 371 and attempted tax evasion pursuant to 26 U.S.C. § 7201, and an affirming appeal, United States v. Sigerseth, 304 Fed. Appx. 498 (9th Cir. 2008), Charles J. Sigerseth filed the instant motion to vacate, set aside or correct his conviction and sentence pursuant to 28 U.S.C. § 2255. (Docket No. 174.)
I. Factual and Procedural Background
On April 6, 2005, the government indicted defendant and charged him with conspiracy to defraud the United States pursuant to 18 U.S.C. § 371 and two counts of attempted tax evasion pursuant to 26 U.S.C. § 7201. (Docket No. 1.) On February 9, 2006, a superseding indictment was filed that included the same charges. (Docket No. 61.) On June 30, 2006, defendant was found guilty on all counts. (Docket No. 109.) On December 13, 2006, he was sentenced to 63 months imprisonment. (Docket No. 127.) On appeal, the Ninth Circuit affirmed the jury's verdict. Sigerseth, 304 Fed. Appx. 498.
Defendant avers that his appellate counsel was ineffective because appellate counsel did not raise the following challenges on direct appeal: (1) the statute of limitations barred prosecution; (2) the tax court decision of June 21, 2001 had a res judicata effect as to his criminal prosecution; (3) the original indictment was defective because it did not allege that defendant filed false tax returns; (4) jury instruction 15 constructively amended the indictment by adding the criminal charge of filing false tax returns; (5) the original indictment was defective because there had been no formal assessment of tax owed; (6) jury instruction 23 was wrong to inform the jury that a tax obligation arises from law rather than from a tax assessment; (7) jury instructions 18, 20, 21 and 22 constructively amended the charges in the indictment by adding elements to the charges not alleged in the indictment, and also the jury instructions referred to the trust entities, which are legal entities distinct from defendant; (8) the prosecutor presented false evidence of defendant's tax deficiency; (9) increasing defendant's sentence by a two point obstruction of justice factor violated Apprendi v. New Jersey, 530 U.S. 466 (2000); and (10) the base offense level under the sentencing guidelines was improperly determined by the court under Apprendi. (Mot. to Vacate (Docket No. 174) 19.) Defendant also attempts to raise these claims independently of his ineffective assistance of counsel claim.
A § 2255 motion is neither a recapitulation of nor a substitute for a direct appeal and a federal prisoner may not use it as a vehicle to circumvent decisions made by the appellate court. Grounds for relief under § 2255 are narrower than grounds for relief on direct appeal. See United States v. Addonizio, 442 U.S. 178, 184-85 (1979) ("The question in this case is whether an error has occurred that . . . come[s] within those narrow limits."). On direct appeal a defendant can complain of any harmful error committed in the district court, but in order to prevail under § 2255, "a prisoner in custody under sentence for a federal crime must demonstrate one of the following: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose such sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack." United States v. Clark, 781 F.2d 730, 732 (9th Cir. 1986). A collateral attack based on a claim of ineffective assistance of appellate counsel is appropriate under a § 2255 motion. United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003). If counsel failed to raise meritorious claims that would have resulted in defendant's conviction being overturned, then defendant has suffered a Sixth Amendment violation and should be permitted to raise those claims.
A. Ineffective Assistance of Counsel
Defendant argues that his counsel, Mr. Morris, was ineffective for failing to raise the claims enumerated above. In order to prevail on a claim of ineffective assistance of counsel, a defendant must show "(1) that counsel's performance was so deficient that it fell below an objective standard of reasonableness and (2) that the deficient performance rendered the results of his trial unreliable or fundamentally unfair." Cox, 588 F.3d at 1046. The Supreme Court has recognized that a defendant arguing ineffective assistance of counsel "must satisfy both prongs of [this] test in order to prevail." Smith v. Robbins, 528 U.S. 259, 289 (2000).
Counsel fails to meet an objective standard of reasonableness when the behavior complained of falls below "prevailing professional norms." United States v. McMullen, 98 F.3d 1155, 1158 (9th Cir. 1996). However, in analyzing the performance of counsel, judicial scrutiny is deferential. The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. The burden is on petitioner to identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.
Cox, 588 F.3d at 1046. Counsel is not required to raise every non-frivolous issue requested by a defendant. United States v. Baker, 256 F.3d 855, 862 (9th Cir. 2001). Indeed, "the weeding out of weaker issues is widely recognized as one of the hallmarks of effective . . . advocacy." Id. Appellate counsel's failure to raise a meritless issue does not amount to ineffective assistance of counsel because the omission did not render those results unreliable or unfair. Cox, 588 F.3d at 1046.
To demonstrate that a proceeding's outcome was unreliable or unfair, defendant must prove that "there is a reasonable probability that, absent [counsel's] errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances" warranted a different outcome in his case. Strickland, 466 U.S. at 695. In determining if defendant was prejudiced, the court must consider the totality of the evidence before it. Id. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, the court in making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors. Id.
Nothing suggests that defendant's counsel failed to meet "prevailing professional norms." Strickland, 466 U.S. at 694. It was within appellate counsel's discretion to decline to bring even non-frivolous claims that defendant proposed if counsel felt that they were not defendant's strongest arguments. Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Nor is there any evidence that "but for counsel's unprofessional errors, [defendant] would have prevailed on appeal." Id. Because defendant's claims were meritless, counsel's failure to raise them could not have affected the proceeding's outcome.
The court considers the merits of each of defendant's claims in order to determine whether they are meritorious and whether counsel was ineffective in failing to raise them. A finding that these claims are meritless will also of course dispose of the claims to the extent that they are raised independently of the ineffective assistance of counsel claim.
Defendant argues that he was charged with three offenses--filing false tax returns, conspiracy, and attempted tax evasion--after the statute of limitations had expired and that prosecution of these offenses is therefore time barred. (Mot. to Vacate 35.) Defendant was charged with conspiracy to defraud the United States pursuant to 18 U.S.C. § 371 in Count 1 and with attempted tax evasion pursuant to 26 U.S.C. § 7201 in Counts 2 and 4. (Docket No. 1.) He was not charged with ...