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Petersen v. United States

United States District Court, S.D. Alabama, Southern Division

May 16, 2018

DAVID PETERSEN Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.

         David Petersen (“Petersen” or “Petitioner”), a federal prisoner proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 237[1]). The Court has referred the petition to the undersigned Magistrate Judge who, under S.D. Ala. GenLR 72(a)(2)(R), is authorized require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of these proceedings brought under 28 U.S.C. § 2255, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings for the United States District Courts. See S.D. Ala. GenLR 72(b); (3/20/2017 electronic referral).

         The United States has timely filed a response (Doc. 238) in opposition to Petersen's § 2255 motion, and Petersen has filed a reply (Doc. 241)[2] to the response. The motion is now under submission for determination of whether expansion of the record and/ or an evidentiary hearing is warranted. See Rules 7 and 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts.

         Having reviewed the parties' submissions in accordance with Rule 8(a) of the Rules Governing Section 2255 Proceedings, the undersigned finds that neither expansion of the record nor an evidentiary hearing is not warranted and RECOMMENDS that Petersen's § 2255 motion (Doc. 44) is due to be DISMISSED with prejudice.

         On January 29, 2018, Petersen filed a motion labeled “Ex Parte Motion for Judgment on the Pleadings related to 2255 Motion before this Court” and later filed a Motion to Unseal the same (Docs. 247, 248). For the reasons discussed in more detail below, the undersigned also RECOMMENDS that the Motion for Judgment on the Pleadings (Doc. 237) be DENIED and that the Motion to Unseal be GRANTED.

         I. Background[3]

         On December 20, 2013, following a jury trial, David Petersen and two co-defendants were each convicted of conspiracy to commit securities and wire fraud, in violation of 18 U.S.C. § 371; aiding and abetting securities fraud, in violation of 15 U.S.C. § 77q; and 18 counts of wire fraud, in violation of 18 U.S.C. § 1343. (See Docs. 99 & 100.) As the Court of Appeals for the Eleventh Circuit observed, “Defendants operated a classic Ponzi scheme between 2009 and 2012.” (Doc. 201, at 2.) All offenses of conviction related to Petersen's involvement in this scheme, which defrauded investors out of millions of dollars while enriching the defendants.

         On May 29, 2014, this Court sentenced Petersen to a term of imprisonment of 60 months as to each of Counts One through Twenty, said terms to run concurrently. (Doc. 149.) On direct appeal, Petersen raised numerous assignments of error, including sufficiency of the evidence, material variance between the Indictment and the evidence at trial, prosecutorial misconduct, Brady[4] violation, denial of minor role adjustment, erroneous calculation of loss amount, and insufficient time for appellate counsel to review the record.

         In a per curiam opinion dated October 23, 2015, the Court of Appeals affirmed Petersen's conviction and sentence. (Doc. 201.) Among other conclusions, the appeals court opined that (i) “these false financial statements [Petersen] prepared were crucial to recruiting investors and keeping them in the dark;” (ii) “Petersen was necessarily aware that the account statements he was creating contained false information” and “clearly knew that he had received a substantial sum of money skimmed from the investments;” (iii) any variance as to the role of a New York real estate mogul “could not have affected Petersen's ability to prepare an adequate defense” because evidence of Petersen's guilt did not stem from “anything specifically related to this investor;” (iv) the Government did not prove up a different conspiracy omitting the fugitive defendant, Tim Durkin, but rather “mentioned Durkin's participation in the scheme throughout the trial;” (v) there was “nothing improper” about the testimony or investigation of the lead investigative agent, whom defendants cross-examined vigorously; (vi) even if the Government had not zealously sought extradition of Durkin, “Petersen failed to articulate how the outcome of his trial would have been different absent this alleged misconduct, given the ample evidence supporting his conviction;” and (vii) “Petersen supplies no facts or legal arguments to support his Brady claim.” (Doc. 201, at 9-14.)

         Following the Court of Appeals' ruling, Petersen filed a number of unsuccessful motions in this District Court. First, he filed a Motion for Immediate Disclosure of Favorable Evidence (Doc. 202), which this Court denied via Order (Doc. 207) dated December 29, 2015 as an improper post-conviction fishing expedition. Second, Petersen filed a Motion for Reconsideration and Clarification (Doc. 209), which this Court denied via Order (Doc. 209) dated January 29, 2016 on the grounds that Petersen had failed to demonstrate the existence of the elements of a Brady violation with respect to the challenged Securities and Exchange Commission (“SEC”) investigative records. Third, Petersen filed a Motion to Compel Production of Grand Jury Material (Doc. 210), which this Court denied via Order (Doc. 211) dated February 2, 2016 because Petersen had failed to meet his burden of showing a compelling and particularized need for disclosure, or otherwise to establish exceptional circumstances.

         On May 23, 2016, Petersen filed a motion for a new trial pursuant to Fed. R. Crim. P. 60. (Doc. 218). On July 26, 2016, in a detailed order, the District Court denied the motion. (Doc. 224). Shortly thereafter, Petersen filed a Notice of Appeal. (Doc. 227).[5] On March 20, 2017, while his appeal of the district court's denial of his Rule 33 motion was pending, Petersen filed the instant motion pursuant to 28 U.S.C. § 2255, raising a myriad of claims of ineffective assistance of counsel. (Doc. 237). The Court withheld ruling on the § 2255 motion while Petersen's appeal of the District Court's order denying his motion for new trial remained pending before the Court of Appeals. On September 13, 2017, the Court of Appeals affirmed the District Court's denial of Petersen's motion for new trial, and the mandate issued October 12, 2017.

         II. Legal Standards

         Title 28 U.S.C. § 2255 “permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence.” Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). Specifically, § 2255 provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence ... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

28 U.S.C. § 2255(a)-(b).

         “Once the defendant's chance to appeal has been waived or exhausted, ” a court is “entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum.” United States v. Frady, 456 U.S. 152, 164 (1982). “[A] collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. At 165 (collecting cases)). “Because collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a defendant must assert all available claims on direct appeal, and (2) relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.” Id. at 1232 (internal citations, quotations, and footnote omitted).

Once a petitioner files a § 2255 motion, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” [28 U.S.C.] § 2255(b). A petitioner is entitled to an evidentiary hearing if he “alleges facts that, if true, would entitle him to relief.” Aron[ v. United States], 291 F.3d [708, ] 715[ (11th Cir. 2002)] (quoting Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir. 1989)). “[A] petitioner need only allege-not prove-reasonably specific, non-conclusory facts that, if true, would entitle him to relief.” Id. at 715 n.6. However, a district court need not hold a hearing if the allegations are “patently frivolous, ” “based upon unsupported generalizations, ” or “affirmatively contradicted by the record.” Holmes, 876 F.2d at 1553 (quoting United States v. Guerra, 588 F.2d 519, 520-21 (5th Cir. 1979)); see, e.g., Lynn v. United States, 365 F.3d 1225, 1239 (11th Cir. 2004) (“Because the ... affidavits submitted by Lynn amount to nothing more than mere conclusory allegations, the district court was not required to hold an evidentiary hearing on the issues and correctly denied Lynn's § 2255 motion.”).

Winthrop-Redin, 767 F.3d at 1216 (footnote omitted). Accord, e.g., Diveroli v. United States, 803 F.3d 1258, 1263 (11th Cir. 2015). The Court must “liberally construe pro se filings, including pro se applications for relief pursuant to § 2255.” Winthrop-Redin, 767 F.3d at 1215.

         III. Analysis

         Petersen's grounds for relief fall into three categories: 1) prosecutorial misconduct, 2) ineffective assistance of counsel, and 3) failure of the district court to act properly. These categories of relief are addressed in turn.

         A. Allegations of Prosecutorial Misconduct

         Petersen's prosecutorial misconduct claims are procedurally barred. In his first appeal Petersen raised several claims of prosecutorial misconduct. All were rejected on the merits by the Court of Appeals for the Eleventh Circuit. Petersen later filed a Fed. R. Crim. P. 33 Motion for New Trial, raising additional claims of prosecutorial misconduct. In a detailed ruling, this Court denied the motion, rejecting Petersen's claims of misconduct. (Doc. 218). The Court of Appeals affirmed that ruling. (Doc. 247). When comparing the claims presented in the § 2255 motion, and those claims raised on direct appeal and in Petersen's Rule 33 motion, with the Court of Appeals' orders affirming the district court, it is clear that Petersen's arguments pertaining to prosecutorial misconduct have been raised and rejected.[6] His attempts to re-argue these claims on collateral review fails. As these arguments were raised on direct appeal, they are procedurally barred. Wilson v. United States, 2017 WL 3225903, at *1 (11th Cir. Feb. 23, 2017), cert. denied, 138 S.Ct. 196 (2017)(citing United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000)).

         To the extent some of his claims of prosecutorial misconduct are newly raised, the claims were available to be raised on appeal, but Petersen did not raise them. Thus, Petersen is also procedurally barred from raising them now.

         The procedural default doctrine reflects the “general rule” that “claims not raised on direct appeal may not be raised on collateral review.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Reed v. Fairley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) (“ ‘[T]he general rule is that the writ of habeas corpus will not be allowed to do service for an appeal.' ”). To adequately preserve a claim, a Defendant must raise it both before the trial court (whether by motion, objection, or otherwise) and also on direct appeal. See Murray v. Carrier, 477 U.S. 478, 490-92 (1986). United States v. Johnson, 988 F.2d 941, 945 (9th Cir.1993) (If a defendant “could have raised” the supposed constitutional violation previously, he defaults on the opportunity to pursue the claim for the first time pursuant to § 2255). The procedural bar applies to claims of prosecutorial misconduct, where the claims were available to be raised previously but were not. See Lynn v. United States, 365 F.3d 1225, 1234-37 (11th Cir.2004) (dismissing § 2255 allegations of prosecutorial misconduct and other violations on grounds of procedural default where claims were based in large part on facts previously in the record but were never raised below).

         An exception to the procedural bar rule is where a petitioner can show “cause and actual prejudice.” Lynn, 365 F.3d at 1234 (citing Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)) (“A defendant can avoid a procedural bar only by establishing one of the two exceptions to the procedural default rule. Under the first exception, a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error.”). Alternatively, a petitioner can escape the procedural bar rule where he can show that he is actually innocent and that a failure to address the unpreserved claims would result in a fundamental miscarriage of justice. Lynn, 365 F.3d at 1234-35 (quoting Mills v. United States, 36 F.3d 1052, 1055 (11th Cir.1994) (“Under the second exception, a court may allow a defendant to proceed with a § 2255 motion despite his failure to show cause for procedural default if ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.' ”).

         The Eleventh Circuit has stated that this standard requires a showing that the alleged errors “probably resulted in the conviction of one who is actually innocent.” Mills, 36 F.3d at 1055-56 (citing Murray, 477 U.S. at 496). These exceptions do not apply. As the Court of Appeals observed, the evidence presented in support of Petersen's conviction was “more than adequate.” (Doc. 201 at 7). As for “cause and actual prejudice, ” Petersen does not allege any cause at all for having failed to preserve his prosecutorial misconduct claims. Accordingly, the undersigned RECOMMENDS that Petersen's prosecutorial misconduct claims be DENIED as they are procedurally barred.[7]

         B. Claims of Ineffective Assistance of Counsel

         Though he has re-categorized his claims as claims of ineffective assistance of counsel, Petersen raises nearly all of the same arguments this Court and the Court of Appeals have previously considered and rejected. In order to establish a claim of ineffective assistance of counsel, a petitioner is required to show (1) that his attorney's representation fell below “an objective standard of reasonableness” and (2) that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Jones v. United States, 478 F. App'x. 536, 539-40 (11th Cir. 2011) (“To make a successful claim of ineffective assistance of counsel, a defendant must show that: (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced his defense.”).[8] “The burden of persuasion is on a section 2255 petitioner to prove, by a preponderance of the competent evidence, both that counsel's performance was unreasonable, and that [ ]he was prejudiced by that performance.” Demar v. United States, 228 F. App'x. 940, 950 (11th Cir. 2007) (quotation marks, brackets and citations omitted); see also ...


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