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Terry v. United States

United States District Court, N.D. Alabama, Northeastern Division

July 19, 2018




         It has been said that in the closing weeks and months of World War II, when the Axis forces became particularly desperate, they began firing everything which was available to them as part of their bombardments of the Allies. This reportedly led to the coinage of the hyperbolic phrase “everything except the kitchen sink” (or including the kitchen sink).

         This case is before the court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, filed under 28 U.S.C. § 2255. (Case No. 5:16-cv-08156-RDP (“Civil Docket”), Docs. # 1, 2). The Government has responded to Petitioner's Motion to Vacate, and Petitioner has submitted a reply. (Id., Docs. # 6, 7). Petitioner also has filed several requests for discovery. (Id., Docs. # 7 at 4-5, 8 at 1-6). Petitioner's Motion to Vacate is ripe for decision. It quite literally includes everything but the kitchen sink.[1] After careful review, and for the reasons explained below, the court concludes that Petitioner's Motion to Vacate is due to be denied without an evidentiary hearing, and his requests for discovery are due to be denied.

         I. Procedural and Factual History

         To address Petitioner's ineffective-assistance-of-counsel claims against three of his retained attorneys, the court must discuss in some detail the lengthy proceedings that occurred between his indictment in October 2012 and the Eleventh Circuit's affirmance of his convictions and sentences in August 2015. Suffice it to say that Petitioner has gone through five sets of attorneys (including his appellate counsel) and set forth a number of frivolous and disingenuous positions in his criminal case and this litigation. Nevertheless, the court will carefully consider each of his arguments.

         A. The Charges Against Petitioner and Representation by Henry Frohsin and Ron Brunson

         In October 2012, a grand jury indicted Petitioner on: (1) five counts of wire fraud, in violation of 18 U.S.C. § 1343; (2) five counts of knowingly making false statements to the Small Business Administration (“SBA”), in violation of 15 U.S.C. § 645(a); (3) three counts of knowingly making false statements to financial institutions, in violation of 18 U.S.C. § 1014; and (4) one count of engaging in a monetary transaction in criminally derived properly valued at over $10, 000, in violation of 18 U.S.C. §§ 1957 and 2. (Case No. 5:12-cr-00455-RDP-TMP (“Criminal Docket”), Doc. # 1). The indictment charged Petitioner with submitting fraudulent documentation to the SBA from June 2003 to October 2008 in to be awarded government contracts. (Id. at ¶¶ 14-15). Specifically, it alleged that Petitioner had submitted false tax returns, false tax documents, and forged performance and payment bonds, among other documents. (Id. at ¶¶ 16-18, 20-24).

         In December 2012, attorneys Brunson, Frohsin, and Carrie Motes filed a motion to dismiss Counts One through Nine of the Indictment as time-barred under a five-year statute of limitations. (Id., Doc. # 15). These attorneys also filed a motion to suppress evidence discovered during a warrantless search of a residence at 320 Coulter Road, New Market, Alabama (“Coulter Road Residence”). (See id., Doc. # 16). Prior to the search, law enforcement were given consent by a woman at the property, Michelle Vandergrift. (Id. at 1). Petitioner argued in that motion that he was the owner of the Coulter Road Residence on the date that officers searched it. (Id.). He contended that his purported common-law wife, Vandergrift, never resided at the Coulter Road Residence, lacked joint access or control over the Residence, and lacked common authority over the Residence. (Id. at 2). Therefore, he claimed that she lacked authority to consent to a search of the Coulter Road Residence. (Id.).

         The Government responded that Counts One through Nine of the Indictment were timely because the limitations period had been tolled by the Wartime Suspension of Limitations Act (“WSLA”), 18 U.S.C. § 3287. (Id., Doc. # 18 at 1). It claimed that the United States was “at war” for purposes of the WSLA once Congress authorized the use of military force in 2001 and 2002 for combat in Afghanistan and Iraq, even though there was no formal declaration of war. (Id. at 7-12). Moreover, it explained why the offenses charged in Counts One through Nine were within the scope of the WSLA. (Id. at 12-14). And, it stated that the conditions for terminating the WSLA's suspension period had not been met. (Id. at 14-18). In the alternative, the government explained why the limitations periods for Petitioner's charges were suspended by operation of a 2008 amendment to the WSLA. (Id. at 18-21).

         The Government also argued that the search of the Coulter Road Residence fully comported with the Fourth Amendment because Vandergrift had consented to the search after obtaining sole authority over the Residence. (See id., Doc. # 19 at 7). Alternatively, it contended that Vandergrift held common authority over the Coulter Road Residence because she had been Petitioner's common-law wife for thirteen years, Vandergrift and Petitioner had purchased the Coulter Road Residence during that marriage, and Vandergrift had kept some personal belongings at the Residence. (Id.). Finally, it contended that, in any event, the consent search did not violate the Fourth Amendment because the officers conducting the search reasonably believed that Vandergrift had authority to consent to a search. (Id. at 7-8).

         In a counseled reply brief, Petitioner argued that the WSLA did not apply to Counts One, Two, Three, Four, Five, Eight, and Nine because the offenses described in those counts occurred after the end of hostilities in Afghanistan and Iraq. (Id., Doc. # 21 at 2-3). He also claimed that the WSLA did not apply to Counts Six and Seven because no binding authority had established that the WSLA applied during periods of hostility outside of a declared war, the charges resulted from a four-year investigation by law enforcement, and the investigation had not been impeded by the United States' foreign military operations. (Id. at 3-4).

         In January 2013, the court held a suppression hearing and oral argument on Petitioner's motion to dismiss. (Id., Doc. # 34). Janet Shivers, an agent with the U.S. Army's Criminal Investigation Command, testified about the circumstances surrounding Vandergrift's grant of consent to search the Coulter Road Residence. (Id. at 3-57). On cross-examination, Brunson asked Shivers whether she knew that the divorce decree Vandergrift presented had been awarded in a default judgment. (Id. at 36). Shivers testified that Vandergrift had disclosed “that she was awarded the property because [Petitioner] did not show up for court.” (Id. at 36-37). And, she explained that another agent had examined probate records for the Coulter Road Residence and had found a copy of the divorce decree. (Id. at 37). She conceded, though, that she was unaware of a deed transferring the Residence to Vandergrift. (Id.). Brunson questioned Shivers about whether Vandergrift claimed to have lived at the Coulter Road Residence. (Id. at 38). Shivers responded that Vandergrift claimed to have spent time at the Residence, but did not claim to have lived there. (Id.). Brunson asked Shivers whether Vandergrift had discussed a plan to change the locks on the Residence between their visit to the Residence on July 19, 2012, and the search that occurred on July 23, 2012. (Id. at 39) Shivers denied any knowledge of such a plan. (Id.).

         Brunson questioned Shivers about the officers' decision to not conduct the search on July 19th after observing Petitioner's car at the Coulter Road Residence. (Id. at 41-42). Shivers candidly stated that they wanted to search the Residence while Petitioner was not present. (Id. at 43). Brunson asked whether agents found any of Vandergrift's property at the Residence, and she explained that they found some pictures of Vandergrift and her son there. (Id. at 48-49). She denied finding any furniture or clothing owned by Vandergrift there, but explained that she was not looking for those items but documents instead. (Id. at 49-50).

         Mark Wilson, a special agent for the Internal Revenue Service, testified about the IRS's investigation into Petitioner. (Id. at 59-80). On cross-examination, Frohsin asked Wilson about a 2010 interview with Vandergrift, and Wilson affirmed that Vandergrift claimed to have never been married during that interview. (Id. at 66-67). Wilson also confirmed that, during her 2010 interview, Vandergrift claimed to have been separated from Petitioner for approximately three years. (Id. at 67-68). Wilson explained that he later obtained mortgage documents in which Vandergrift referred to Petitioner as her husband. (Id. at 70). Moreover, Petitioner told Wilson that “he was in a divorce battle, ” and Wilson saw the divorce decree prior to the search. (Id. at 71). Frohsin asked Wilson whether he checked court records prior to the search to determine whether a deed had been entered; Wilson testified that he had not. (Id. at 74).

         Vandergrift testified about her relationship with Petitioner, her personal property at the Coulter Road Residence, and her use of the Coulter Road Residence with Petitioner, among other things. (Id. at 81-138). On cross-examination, Brunson asked Vandergrift whether Petitioner had received notice of the divorce decree, and she responded that he had been mailed a copy. (Id. at 101-02). Brunson asked her about a state-court hearing during the week before the search where a judge had denied her a writ of possession for the Coulter Road Residence. (Id. at 108). Vandergrift explained that the judge had decided to wait before issuing a writ of possession, so she had hired private security to obtain control of the Residence. (Id.). Vandergrift could not recall whether she mentioned her difficulty in obtaining a writ of possession and assistance from the Madison County Sheriff's Office to investigators during her July 19th proffer interview. (Id. at 109-10). Nor did she recall whether she discussed her plan to provide officers access to the Coulter Road Residence with a garage door opener, rather than a key. (Id. at 110). She conceded, though, that she did not have a key to the Residence on July 19th, when officers first visited the Residence. (Id. at 111). She could not recall whether she informed law enforcement officials of her plan to change the locks at the Residence before she did so. (Id. at 113).

         Brunson then asked Vandergrift whether Petitioner had stayed at the Residence overnight before, and she conceded that there were living accommodations at the Residence. (Id. at 114-15). She testified that the Residence contained a refrigerator, sink, and toaster oven. (Id. at 115). And, she stated that Petitioner's brother and a friend had lived at the Residence for a period of time. (Id.). She conceded that sheriffs had refused to assist her in obtaining possession of the Residence in May 2012 due to incorrect legal papers. (Id. at 118-19). She also observed sheriffs at the scene of the search on July 23rd. (Id. at 120). She estimated that she last spent time at the Residence between May 2009 and the end of 2009 because she discovered Petitioner's girlfriend would visit there in early 2010. (Id. at 123).

         After oral argument, the court orally ruled on both motions. The court denied Petitioner's suppression motion because it found it was reasonable for the searching officers to conclude that Vandergrift gave them valid consent to search the Coulter Road Residence. (Id. at 198-200). The court credited the officers' testimony as to why they decided not to search the residence on July 19th. (Id. at 190-91). The court found that the searching officers lacked knowledge “of any limitations the sheriff's department had de facto imposed on Miss Vandergrift or that the judge might have imposed by setting it for a hearing, continuing a hearing, staying things, allowing an appeal or any of that state court activity.” (Id. at 191-92). Moreover, a reasonable official in their position would have been aware of the final divorce decree granting Vandergrift ownership of the Coulter Road Residence, and Vandergrift acted in accordance with that possession when she provided officers a key to the Residence on July 23rd. (Id. at 193). And, a reasonable official would have recognized that Vandergrift likely had common authority over the property before the divorce decree because such a decree only would have been issued if Vandergrift and Petitioner had been married. (Id. at 193-94).

         The court also found that Vandergrift had not abandoned the Residence. First, the court determined that Vandergrift had used and visited the property before she avoided it due to her belief that Petitioner was “entertaining” another woman at the Residence. (Id. At 194-96). Second, the court found that no one permanently resided at the Residence. (Id. at 195). Several pieces of evidence buttressed that finding:

There were no closets. The kitchen was ill-equipped for a long-term living situation. That's not to say somebody couldn't have been there, but I haven't heard any evidence to suggest that anyone regularly resided at the residence. It was more of a farm; a place for the family to visit, where recreational activities and other things could occur and that both Mr. Terry and Miss Vandergrift took advantage of that from time to time until Miss Vandergrift decided that she did not want to meet the mistress there.

(Id.). Third, the court found no evidence that Vandergrift had informed the searching officers of her reasons for avoiding the Coulter Road Residence. (Id. at 195-96).

         The court acknowledged that Vandergrift previously had denied her marriage to Petitioner, but noted she had explained her denial was intended to protect herself from a government investigation. (Id. at 196). It concluded that Vandergrift was not a government agent at the time she gave consent because she cooperated with law enforcement for her own advantage. (Id.). And, it credited Wilson's testimony that he believed a marriage had existed between Vandergrift and Petitioner because of the existence (and his review) of the state-court judge's divorce decree. (Id. at 197). Finally, it found that the sheriff's department played no role in determining whether Vandergrift had consented validly to the search. (Id. at 198-99).

         With regard to the motion to dismiss, the court found that the 2008 amendments to the WSLA applied to all of the counts in the Indictment except for Count Six. (Id. at 201). The amended suspension provisions did not apply to Count Six because the limitations period for that charge had expired prior to 2008. (Id. at 201-02). Under the 2008 WSLA amendments, the court found that (1) Congress authorized the use of military force in 2001 and 2002, and (2) “hostilities had not terminated because the President had not proclaimed them to be terminated, and there'd not been a joint resolution of Congress indicating that they [were] terminated.” (Id. at 202). The court recognized that Counts One through Five and Counts Seven through Nine charged Petitioner with crimes that were within the scope of the WSLA. (Id.).

         In January 2013, Petitioner waived his right to a speedy trial and requested additional time to review the voluminous discovery at issue. (Id., Doc. # 23). In February 2013, the court accepted Petitioner's waiver and continued the trial to May 2013. (Id., Doc. # 24 at 2). On April 24, 2013, the court set a pretrial conference for April 29, 2013. (Id., Doc. # 26).

         On April 26, 2013, Petitioner submitted a pro se motion to dismiss his defense counsel for cause and to continue the trial in order to seek new counsel. (Id., Doc. # 27 at 1). Petitioner claimed that Frohsin had refused to meet with him and had assigned the case to Brunson. (Id.). Moreover, Petitioner complained that his attorneys had endeavored to “get [him] to plead guilty” and falsely admit to committing crimes. (Id. at 1-2). According to Petitioner, his attorneys had failed to (1) review discovery materials and demand additional discovery required by law, (2) notify the Government of a damaged hard drive, (3) submit evidence at the suppression hearing proving Petitioner's use of the Coulter Road Residence, (4) prepare for trial or discuss trial strategy, and (5) issue subpoenas as requested by the Petitioner. (Id.). Petitioner wrote that his attorneys had directed witnesses with relevant information to not appear at the suppression hearing. (Id. at 1). Petitioner sought a continuance of the scheduled trial so that he could retain new counsel. (Id. at 2).

         On April 29, 2013, during a conference, Brunson explained that Frohsin and he were unable to effectively communicate with Petitioner. (Id., Doc. # 132 at 3). Brunson agreed that his firm could not continue to represent Petitioner. (Id.). The court continued Petitioner's trial and referred his motion to dismiss counsel to a Magistrate Judge. (Id., Minute Entry dated April 29, 2013).

         On May 14, 2013, Petitioner submitted a pro se motion to reopen his earlier suppression motion. (Id., Doc. # 28). Petitioner argued that his suppression motion should be reheard because his attorneys had rendered ineffective assistance. (Id. at 1). He stated that his attorneys should have called four witnesses who could have testified about his activities at the Coulter Road Residence. (Id. at 2). Additionally, he insisted that counsel should have submitted documents and photographs to show that he used the building as a residence. (Id.). On May 17, 2013, Robert Tuten appeared on Petitioner's behalf as his attorney. (Id., Doc. # 29). On May 29, 2013, the court terminated Petitioner's motion to dismiss counsel as moot because he had retained a new attorney. (Id., Doc. # 33). The court terminated attorneys Brunson and Motes that day. (Id., Docket Entry dated May 29, 2013).

         B. Representation by Robert Tuten and Howell Riggs

         During a May 29, 2013 conference, Tuten requested that the court rule on Petitioner's pro se motions. (Id., Doc. # 129 at 4-5). The Government responded that Petitioner was represented by counsel when he filed his motion to reopen the suppression proceedings. (Id.). The court explained that none of the information attached to the pro se motion was likely to make a difference in its suppression ruling, but offered to allow Petitioner's new counsel to file a brief in support of the motion to rehear if there were additional arguments for suppressing the evidence from the Coulter Road Residence. (Id. at 5). The court acknowledged that Petitioner had advanced a claim that his prior attorneys had rendered ineffective assistance. (Id. at 7). But, it recalled that Brunson and Frohsin “did an excellent job at the hearing.” (Id.). And, it recognized that “they did what they could with what they had.” (Id.). Ultimately, the court asked Tuten to review the suppression hearing transcript and decide whether he wanted to make supplemental arguments in support of the earlier-filed suppression motion. (Id. at 11). Tuten agreed to review the earlier proceedings. (Id.).

         On July 8, 2013, Tuten filed a supplement to Petitioner's pro se motion to reconsider. (Id., Doc. # 35). Tuten argued that Vandergrift was Petitioner's “former girlfriend” and that she had relied on a void order to justify her purported consent to search the residence. (Id. at 1). Tuten explained that the witnesses' testimony would show that Vandergrift “had no standing to consent and knew she had no standing to consent to the warrantless search as Defendant had resided at the residence for a long period of time with his new girlfriend and their young child.” (Id.). Tuten recounted Petitioner's claim that Vandergrift lacked standing to consent to a search of the Coulter Road Residence, even if she retained an ownership interest in the property. (Id. at 2). Four days later, Tuten amended the motion to clarify the status of the divorce proceedings and explain that the divorce decree entered by the state court might only be voidable, rather than void ab initio. (Id., Doc. # 37).

         The Government responded that the four proposed witnesses had no testimony to dispute Vandergrift's authority to consent to the search. (Id., Doc. # 38 at 6-8). The Government discounted Petitioner's ineffective-assistance claims because pre-trial strategy is a matter within the scope of counsel's judgment. (Id. at 8). Thus, defense counsel did not render ineffective assistance when they disregarded Petitioner's requests, and their actions could not rise to ineffective assistance because Petitioner's evidence was irrelevant. (Id. at 8-9). Finally, it explained that any subsequent action in the state-court divorce proceedings was irrelevant to what a reasonable official would have understood when Vandergrift gave consent to search the Coulter Road Residence. (Id. at 9-10). In August 2013, the court denied Petitioner's pro se and counseled motions to reopen the suppression proceedings. (Id., Doc. # 43 at 2).

         On August 15, 2013, Petitioner entered into a plea agreement with the Government.[2] (Id., Doc. # 45). According to the plea agreement, Petitioner would plead guilty to Counts One through Five and Seven through Fourteen of the Indictment. (Id., Doc. # 45 at 1). The Government stated in the factual basis that it could prove several instances of fraudulent conduct committed by Petitioner. First, Petitioner and Government Technical Services, LLC (“GTS”) submitted false, inaccurate tax documents to the SBA and those documents had not been filed with the IRS. (Id. at 4-5). Petitioner also falsely certified that GTS was not delinquent in its tax returns. (Id. at 5). Second, in 2006, Petitioner submitted an altered and forged bond to the U.S. Army in order to obtain a work contract and the surety on the face of the bond document had actually had denied GTS's bond application. (Id. at 7-8). Third, in March 2007, Petitioner submitted false and unfiled tax returns and financial statements to a FDIC-insured bank in order to obtain a $300, 000 line of credit. (Id. at 6). Fourth, in October 2007, Petitioner provided a federal land bank false tax returns in order to obtain a $140, 000 loan. (Id. at 6-7). Fifth, in April 2008, Petitioner provided Vandergrift false employment and tax documents that she used to obtain a $40, 000 loan. (Id. at 5). Petitioner then instructed Vandergrift to wire $20, 000 of the loan proceeds to a GTS subcontractor that had not been paid for work performed on a government contract. (Id.). Petitioner stipulated that the Government's factual basis was “substantially correct.” (Id. at ...

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