United States District Court, N.D. Alabama, Northeastern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
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).
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. 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.
Procedural and Factual History
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.
The Charges Against Petitioner and Representation by Henry
Frohsin and Ron Brunson
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).
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.
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).
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).
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
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.).
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).
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).
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).
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).
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).
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).
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).
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.).
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).
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).
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).
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).
Representation by Robert Tuten and Howell Riggs
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.).
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).
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
August 15, 2013, Petitioner entered into a plea agreement
with the Government. (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 ...