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Berry v. United States

United States District Court, C.D. California

March 6, 2014

MATTHEW CARL BERRY, Movant,
v.
UNTIED STATES OF AMERICA, Respondent.

ORDER DENYING MOTION FOR RELIEF UNDER 28 U.S.C. § 2255

VIRGINIA A. PHILLIPS, District Judge.

I. SUMMARY OF PROCEEDINGS

On September 25, 2013, Matthew Carl Berry ("Movant") filed a "Motion Under U.S.C. § 2255 To Vacate, Set Aside Or Correct A Sentence By A Person In Federal Custody." ("Motion" or "Mot.") ([Civ.] Doc. No. 1.)[1] Respondent filed an Opposition to the Motion on December 6, 2013. ([Civ.] Doc. No. 9.) On January 9, 2014, Movant filed a Reply. ([Civ.] Doc. No. 12.)

II. BACKGROUND FACTS

After a jury trial, Movant was found guilty of one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and three counts of willfully filing false tax returns, in violation of 26 U.S.C. § 7206(1). ([Crim.] Doc. Nos. 252 (April 17, 2008 Jury Trial Minutes); 256 (Jury Verdict Form).) Movant was sentenced to 60 months imprisonment on the conspiracy count and 16 months of imprisonment for each count of willfully filing a false tax return, for a total of 108 months, to be served consecutively. ([Crim.] Doc. No. 366 (Second Amended Judgment).)

Movant filed a Notice of Appeal on June 28, 2009. ([Crim.] Doc. No. 359.) On December 5, 2011, the Ninth Circuit Court of Appeals affirmed Movant's conviction. ([Crim.] Doc. No. 489; United States v. Berry, 460 F.Appx. 684 (9th Cir. 2011).) The Supreme Court denied Movant's petition for writ of certiorari on October 1, 2012. (See Berry v. United States, 2012 WL 1945723 (U.S. Oct. 1, 2012).)

III. DISCUSSION

Section 2255 authorizes the Court to "vacate, set aside or correct" a sentence of a federal prisoner that "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Claims for relief under § 2255 must be based on some constitutional error, jurisdictional defect, or an error resulting in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck , 441 U.S. 780, 783-84 (1979). If the record clearly indicates that a movant does not have a claim or that he has asserted "no more than conclusory allegations, unsupported by facts and refuted by the record, " a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Quan , 789 F.2d 711, 715 (9th Cir. 1986); see also United States v. Chacon-Palomares , 208 F.3d 1157, 1159 (9th Cir. 2000) ("When a prisoner files a § 2255 motion, the district court must grant an evidentiary hearing [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" (quoting 28 U.S.C. § 2255)).

A. Grounds for Relief

Movant raises two grounds for relief:

1. Movant's sentence for conspiracy to defraud the United States and for willfully filing a false tax return are based on the same conduct, and therefore, to the extent his sentences on those counts were imposed consecutively, they violated the Double Jeopardy Clause of the Fifth Amendment (Mot. P & A at 12-15);

2. Movant's trial counsel and appellate counsel rendered ineffective assistance of counsel by failing to object on double jeopardy grounds to the imposition of consecutive sentences against him. This ineffective assistance of counsel should excuse him from procedural default on his first ground for relief (Id. at 8-12).

B. Procedural Default

Generally, claims not raised on direct appeal may not be raised in a motion pursuant to § 2255 unless the petitioner shows cause and prejudice, "actual innocence, " or if the claim is related to an ineffective assistance of counsel claim. Massaro v. United States , 538 U.S. 500, 504-05 (2003) ("We hold that an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal."); see also Bousley v. United States , 523 U.S. 614, 621-622 (1998). As Movant alleges that he was deprived of effective assistance of counsel when his trial and appellate counsel failed to raise the double jeopardy argument, Movant's procedural default is excused.

C. Movant's Double Jeopardy Claim Is Without Merit

Movant argues that his sentence for conspiracy to defraud the United States and for willfully filing a false tax return are based on the same conduct, and therefore violate the Double Jeopardy Clause of the Fifth Amendment, as stated in Blockburger v. United States , 284 U.S. 299 (1932). (Mot. P & A at 12-15.)

The Fifth Amendment, among other things, protects "against multiple punishments for the same offense." North Carolina v. Pearce , 395 U.S. 711, 717 (1969) overruled on other grounds by Alabama v. Smith , 490 U.S. 794 (1989). In Blockburger, the Supreme Court held that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger , 284 U.S. at 304. The typical case is one in which two different statutes define the "same offense" because one is a lesser included offense of the other. Rutledge v. United States , 517 U.S. 292, 297 (1996); see Missouri v. Hunter , 459 U.S. 359, 366-67 (1983).

If the two offenses are determined not to be the same, the district court may impose consecutive sentences. See 18 U.S.C. § 3584 ("If multiple terms of imprisonment are imposed on a defendant at the same time... the terms may run concurrently or consecutively....").

Movant's argument that the sentencing for his convictions runs afoul of Blockburger because "the offense described in 18 U.S.C. § 371 also cover the offenses described in 26 U.S.C. § 7206(1), " lacks merit.

Movant was convicted and sentenced on one conspiracy count and three substantive counts. Here, in order to convict Movant of violating 26 U.S.C. § 7206(1), willfully filing a false tax return, the Government had to prove the following beyond a reasonable doubt:

(1) the defendant made and subscribed a return, statement, or other document that was incorrect as to a material matter; (2) the return, statement, or other document subscribed by the defendant contained a written declaration that it was made under the penalties of perjury; (3) the defendant did not believe the return, statement, or other document to be true and correct as to every material matter; and (4) the defendant falsely subscribed to the return, statement, or other document willfully, with the specific intent to violate the law.

United States v. Scholl , 166 F.3d 964, 979-80 (9th Cir. 1999)(citing United States v. Marabelles , 724 F.2d 1374, 1380 (9th Cir. 1984)).

With respect to 18 U.S.C. § 371, conspiracy to defraud the United States, the Government had to prove the following beyond a reasonable doubt: (1) defendant entered into an agreement; (2) to obstruct a lawful function of a government; (3) by deceitful or dishonest means; and (4) made at least one overt act in furtherance of the conspiracy. See United States v. Caldwell , 989 F.2d 1056, 1058 (9th Cir. 1993) (citing Hammerschmidt v. United States , 265 U.S. 182, 188 (1924)). Section 371 "reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any government agency [and] clearly applies to conspiracies to impede, impair, obstruct, or defeat the lawful function of the Department of Treasury in the collection of income taxes." United States v. Little , 753 F.2d 1420, 1443 (9th Cir. 1984) (internal citations omitted).

It is well-settled that a sentence for conspiracy does not preclude a sentence on underlying substantive counts on Fifth Amendment grounds. As the Ninth Circuit explained

As a general rule, a substantive charge, and conspiracy charge based on the substantive charge, pass muster under the Blockburger test and retain their separateness. The reason for this is because a requirement for a conspiracy conviction is proof of an agreement which is not necessary to prove an underlying substantive count. And, conviction on the substantive count will require the consummation of the crime, which, of course, is not essential for completing the crime of conspiracy.

United States v. Wylie , 625 F.2d 1371, 1381 (9th Cir. 1980) (emphasis added)(internal citations omitted).

As explained in Wylie, the elements of 26 U.S.C. § 7206(1) and 18 U.S.C. § 371 are not the same, and each prohibits different conduct. The conspiracy count includes an element that there be an agreement between two or more people to defraud the United States, whereas the tax fraud counts do not require an agreement and could, in theory, be accomplished by a single person acting alone. For these reasons, Movant's sentence does not run afoul of Blockburger, and the Court was free to sentence him consecutively for each count upon which he was convicted. See United States v. Davis , 793 F.2d 246, 249 (10th Cir. 1986) ("The elements required to prove commission of the three crimes [including 26 U.S.C. § 7206(1) and 18 U.S.C. § 371] are distinct under Blockburger; accordingly the consecutive sentences imposed pursuant to each statutory provision do not violate the Double Jeopardy Clause.")[2]; United States v. Kritt, 2009 WL 6567103, at *10 (S.D. W.Va. Nov. 19, 2009) report and recommendation adopted, 2010 WL 2331061 (S.D. W.Va. June 8, 2010) ("The allegations [in the indictment] are intended to charge one of several affirmative acts constituting the attempted evasion of income tax, a separate offense requiring the proof of one or more facts which the charge of conspiracy to defraud the United States does not. The undersigned finds no multiplicity.").

Accordingly, Movant is not entitled to relief on this ground.

D. Movant's Ineffective Assistance of Counsel Claim Must Fail

Movant argues that his trial and appellate counsel rendered ineffective assistance of counsel by failing to object to or seek review of the imposition of the consecutive sentences against him. (Mot. P & A at 8-12.)

As the U.S. Supreme Court has held, "the proper standard for attorney performance is reasonably effective assistance." Strickland v. Washington , 466 U.S. 668, 687 (1984). To establish ineffective assistance of counsel, Petitioner must prove (1) "counsel's representation fell below an objective standard of reasonableness, " and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 688, 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Under the second component, Petitioner must demonstrate his attorney's errors rendered the result unreliable or the proceedings fundamentally unfair. Lockhart v. Fretwell , 506 U.S. 364, 372 (1993); Strickland , 466 U.S. at 694.

A claim of ineffective assistance of counsel requires proof of both of these elements. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice... that course should be followed." Strickland , 466 U.S. at 697.

Here, as explained above, Movant's sentences comport with the Fifth Amendment, and do not violate the Blockburger rule. As any objection to or request to review Movant's sentence on this ground would have been meritless, Movant's trial and appellate counsel were not ineffective. See Shah v. United States , 878 F.2d 1156, 1162 (9th Cir. 1989) ("The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.") (citing Baumann v. United States , 692 F.2d 565, 572 (9th Cir. 1982)). Thus, as Movant cannot show that his trial or appellate counsel's performance fell below an objective standard of reasonableness, he cannot prevail on his ineffective assistance of counsel claim.

Accordingly, Movant is not entitled to relief on this ground.

IV. CONCLUSION

Movant has not shown he is entitled to relief on any of the grounds raised in his Motion. Hence, the Court DENIES the Motion and orders this action dismissed with prejudice.


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