United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, District Judge.
Currently before the Court are the Report and Recommendation ("R & R") (Doc. 36) filed in this case on January 29, 2015, by the Honorable Erin L. Setser, United States Magistrate Judge for the Western District of Arkansas, regarding Plaintiff James B. Mitchell's ("Mitchell") 28 U.S.C. § 2255 Amended Motion to Vacate, Set Aside, or Correct Sentence (Doc. 20) and Mitchell's Objections to the R & R (Doc. 37). In light of Mitchell's Objections to the R & R, the Court has conducted a de novo review of the record, focusing in particular on the portions of the R & R to which specific objections have been made, in accordance with 28 U.S.C.§ 636(b)(1)(C). After review, the Court finds that the objections lodged by Mitchell offer neither law nor fact requiring departure from the Magistrate's findings. Accordingly, the Magistrate's R&R (Doc. 36) is ADOPTED IN ITS ENTIRETY and Mitchell's § 2255 Amended Motion to Vacate (Doc. 20) is DENIED.
On March 2, 2011, Mitchell waived indictment and consented to prosecution by an Information (Doc. 1), which charged Mitchell with knowingly and willfully making a materially false, fictitious, and fraudulent statement and representation in an application to the Social Security Administration for the purpose of obtaining retirement payments under the Social Security Act, in violation of 18 U.S.C. § 1001(a)(2). Also on March 2, 2011, Mitchell entered into a Plea Agreement (Doc. 4) wherein he agreed to plead guilty to the one-count Information. On June 20, 2011, Mitchell was sentenced to 12 months imprisonment, with the terms to run consecutively to the sentence imposed in Case No. 5:10-CR-50067 (the "prior case"). Mitchell did not appeal the judgment. On June 28, 2012, Mitchell filed the present § 2255 Motion to Vacate, subsequently amended on August 29, 2012, asserting seven grounds for relief. The Magistrate recommends denying the Motion on all seven grounds.
Mitchell now offers objections in response to the Magistrate's recommendations as to all grounds. As to grounds two and seven, the Court agrees with the Magistrate's determination that these arguments were procedurally defaulted because they were not brought on direct appeal. Nevertheless, the Court will address Mitchell's substantive objections, turning first to those objections that raise ineffective assistance of counsel allegations.
First, Mitchell objects to dismissal of grounds one, three, five, and six, citing ineffective assistance of counsel, contending as follows: (1) his attorney, Greg Klebanoff, should have insisted at the change of plea hearing that the Government's counsel maintain her promise to recommend that his sentences run concurrently; (2) the Government's counsel acted in bad faith when she threatened to indict him on other charges if he did not agree to plead guilty to the instant offense, and Klebanoff improperly remained silent regarding his offer to cooperate; (3) Klebanoff failed to argue that enhancing his sentence by considering his criminal history is a violation of the Fourteenth Amendment; and (4) Klebanoff failed to argue that supervised release is unconstitutional.
Second, as to ground two, Mitchell asserts that the Government breached the terms of the plea agreement in the prior case by bringing the charge in this case, as it stems from activities described in the Superseding Indictment in his prior case, because the proceeds from the escort business are the same proceeds he had fraudulently under reported on his application for social security benefits.
Third, as to ground four, Mitchell contends that he is actually innocent, and that he "succumbed to the Government's threats of indicting him on this and other bogus charges to avoid several more months in a county jail." (Doc. 37, p. 18). In support of his contention, he includes letters from Klebanoff to the Government's counsel stating that he is innocent of the charges. Mitchell also argues that the deposits the Government relied upon were gross proceeds and not net profits, and that this is evidenced by his tax reporting for the relevant years.
Lastly, as to ground seven, he argues that he was denied his Sixth Amendment right to counsel of his choice, as he did not request that Klebanoff represent him in either case.
The Court will address each objection in turn.
A. Ineffective Assistance of Counsel
Under the two-part test announced in Strickland v. Washington for determining the validity of an ineffective assistance of counsel claim, Mitchell must show that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Padilla v. Kentucky, 559 U.S. 356, 366 (2010). Under the deficient performance prong, Mitchell must show that counsel "made errors so serious that counsel was not functioning as the counsel' guaranteed [her] by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). The scrutiny of counsel's performance is highly deferential, and there is a presumption that counsel's conduct fell within the wide range of reasonable assistance. Id. at 689.
In order to satisfy the prejudice prong, Mitchell must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. United States v. Rice, 449 F.3d 887, 897 (2006) (internal quotations omitted). Thus, it is not sufficient for Mitchell to show that the error had some "conceivable effect" on the result of the proceeding because not every error that influences a proceeding undermines the reliability of the outcome of the proceeding. Morales v. Ault, 476 F.3d 545 (8th Cir. 2007) (citing Odem v. Hopkins, 382 F.3d 846, 851 (8th Cir. 2004)). In addition, to the extent that Mitchell's claims arise out the plea process, he ...