United States District Court, W.D. North Carolina, Charlotte Division
SEAN F. MESCALL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1), and Motion to Order
Government to Respond, (Doc. No. 2). The § 2255 Motion
to Vacate will be denied and the Motion to Order the
Government to Respond will be denied.
September 9, 2009, the Commodities Futures Trading Commission
brought a civil action against Petitioner, charging him with
operating the Ponzi scheme. On September 16, 2009, the Court
issued a preliminary injunction forbidding the movement of
assets, appointing a receiver, and requiring Petitioner to
cooperate fully with the receiver. Petitioner violated the
preliminary injunction, and the Court found him in contempt.
The Court stayed imposition of civil contempt sanctions and
referred the matter to the U.S. Attorney for possible
criminal contempt proceedings. Petitioner was charged with
and convicted of criminal contempt, in violation of 18 U.S.C.
§ 401(3) (2012), case number
3:10-cr-121. He pled guilty and, in a
judgment dated May 18, 2011, he was sentenced to 27
months' imprisonment followed by three years of
supervised release. (Case No. 3:10-cr-121, Doc. Nos. 10, 15).
He did not appeal or seek post-conviction relief in that
November 22, 2011, the Government charged Petitioner with a
single count of wire fraud by Bill of
Information in criminal case number
3:11-cr-379. The wire fraud was alleged to
have occurred from 2006 through September, 2010, via an email
transmitted on or about October 31, 2008, from Petitioner to
victim “MB.” (Case No. 3:11-cr-379, Doc. No. 1).
Petitioner signed a plea agreement on November 17, 2011, but
did not go forward with a Rule 11 hearing. (Id.,
Doc. No. 3); see (Case No. 3:12-cr-215, Doc. No. 64
at 13-14). It became apparent by early 2012 that Petitioner
had changed his position of cooperation and began contesting
the wire fraud charge. See (Case No. 3:11-cr-379,
Doc. No. 5) (letter from Petitioner notifying the Court that
counsel was refusing to raise a double jeopardy issue that
Petitioner believed to be meritorious). On January 8, 2015,
the Government dismissed the case without prejudice.
(Id., Doc. Nos. 8, 9).
Petitioner failed to plead guilty in case number 3:11-cr-379,
the Government brought charges before the Grand Jury in case
number 3:12-cr-215. The Indictment filed on
June 20, 2012, charged Petitioner with: (1) securities fraud
from in or about 2006 through in or about 2010; (2) wire
fraud from in or about 2006 through in or about 2010
involving an email transmitted on or about October 3, 2007,
to victim “DR;” and (3) money laundering on or
about November 27, 2009. (Case No. 3:12-cr-215, Doc. No. 1).
Petitioner was arrested on June 22, 2012, and his initial
appearance with counsel occurred that same day. On July 18,
2012, Petitioner's counsel, Assistant Public Defender
Peter Adolf, moved to continue the trial date because the
case was not ready for trial pursuant to 18 U.S.C. §
3161(c)(2). (Id., Doc. Nos. 6). The Court granted
the continuance in a written Order finding that the ends of
justice served by the granting of such continuance outweigh
the best interests of the public and the defendant in a
speedy trial. (Id., Doc. Nos. 6, 7).
August 25, 2012, Petitioner filed a pro se Motion to
excuse appointed counsel and represent himself at
trial. (Id., Doc. No. 9). At a hearing
before Magistrate Judge Keesler, Petitioner explained that he
wanted to pursue a double jeopardy argument with regards to
his contempt case. See (Id., Doc. No. 64 at
9). Judge Keesler granted Petitioner's motion to excuse
counsel and represent himself after conducting a thorough
colloquy about the consequences of proceeding pro
se, including the difficulty of conducting discovery
while incarcerated and negotiating a plea on his own behalf.
The prosecutor noted that the parties had discussed asking to
reset the upcoming trial in light of the voluminous discovery
and complexity of the case. (Id., Doc. No. 64 at 3).
Petitioner requested that the Court reset the October 1 trial
date “until springtime like [the prosecutor] was
talking about earlier.” (Id., Doc. No. 64 at
19). Judge Keesler appointed Mr. Adolf to serve as standby
counsel with Petitioner's consent. (Id., Doc.
No. 64 at 23).
September 17, 2012, Petitioner filed a pro se
“Unopposed Motion for Status Conference” in which
he requested a continuance of the trial date, which the Court
granted in a written Order again making findings that the
ends of justice served by the granting of such continuance
outweigh the best interests of the public and the defendant
in a speedy trial. (Id., Doc. Nos. 13, 14).
October 9, 2012, Petitioner filed a pro se pleading
arguing that the Fifth and Sixth Amendments require dismissal
of the charges in case number 3:12-cr-215, because Petitioner
was already convicted of criminal contempt for the same
conduct in case number 3:10-cr-121. (Id., Doc. No.
15); see (Id., Doc. No. 20). The Court
denied Petitioner's motion, finding that his prosecution
for securities fraud, wire fraud, and money laundering was
not barred by his earlier criminal contempt conviction.
United States v. Mescall, 2012 WL 12829999 (W.D.
N.C. Dec. 4, 2012).
case proceeded to a jury trial in December 2012, at which
Petitioner represented himself, and resulted in guilty
verdicts on all three counts. (Case No. 3:12-cr-215, Doc. No.
Presentence Investigation Report (“PSR”) scored
the base offense level as 31 because the offense involved
money laundering, and the most serious underlying offenses
had an offense level of 31. (Id., Doc. No. 46 at
¶ 21). Two levels were added because Petitioner was
convicted of violating 18 U.S.C. § 1956, and two more
levels were added for sophisticated means. (Id.,
Doc. No. 46 at ¶¶ 22, 23). Two levels were added
for obstruction of justice, resulting in a total offense
level of 37. (Id., Doc. No. 46 at ¶¶ 26,
30). Petitioner had two criminal history points and a
criminal history score of two, and two points were added
because Petitioner committed the instant offense while under
a sentence for driving while intoxicated, resulting in a
total criminal history score of four and a criminal history
category of III. (Id., Doc. No. 46 at ¶¶
38-40). The resulting guidelines imprisonment range was
262-327 months. (Id., Doc. No. 46 at ¶ 59).
the matter came before the Court for sentencing, Petitioner
requested counsel's assistance. The Court reset
sentencing to give Mr. Adolf time to file written objections.
Counsel argued that: the four-level enhancement for gross
receipts over $1, 000, 000 does not apply because the funds
came from individuals, and not from the financial
institutions themselves; the sophisticated means enhancement
does not apply; Petitioner should receive a reduction for
acceptance of responsibility because he only went to trial to
preserve his double jeopardy objection; the enhancement for
obstruction of justice is double-counting due to his contempt
conviction in case number 3:10-cr-121; and the criminal
history score over-represents the seriousness of his criminal
record. (Id., Doc. No. 48).
sentencing again came before the Court on October 30, 2014,
Petitioner stated that he had read the PSR and discussed it
with counsel. (Id., Doc. No. 70 at 1). The Court
sustained counsel's objections with regards to acceptance
of responsibility and granted a two-level reduction, and
overruled the other objections. (Id., Doc. No. 70 at
17). The adjusted offense level was 35 and the criminal
history category remained III, resulting in a corrected
guideline range of 210-262 months' imprisonment.
(Id., Doc. No. 70 at 21).
counsel argued that the criminal history category
overrepresented Petitioner's prior record, that
Petitioner immediately told counsel it was a Ponzi scheme,
and that Petitioner would not have gone to trial but for the
double jeopardy issue. (Id., Doc. No. 70 at 29).
Counsel noted the case's unusual procedural history,
stating that, “when Mr. Mescall first came in, whenever
it was four years ago or so, he was charged with contempt,
and in state court they were prosecuting the underlying
fraud. There were decisions why the government did that. But
at some point while he was serving the sentence for the
contempt, the government changed its mind and they're
entitled to do that.” (Id., Doc. No. 70 at
29-30). If Petitioner had pled guilty, he would have been
looking at considerably less time - perhaps three levels
lower with a range of 151 to 188 months' imprisonment.
Taken along with Petitioner's overrepresented criminal
history, counsel argued, a 10-year sentence would be
appropriate. The Government requested a guideline sentence.
(Id., Doc. No. 70 at 34).
Court agreed with defense counsel that a criminal history
category of III overrepresented Petitioner's prior record
and instead relied on a criminal history category of II. In
addition, the Court granted Petitioner credit for the
27-month sentence he had served for the contempt conviction
in case number 3:10-cr-121 because it was part of the
relevant conduct in the instant criminal case. (Id.,
Doc. No. 70 at 38). The Court therefore imposed a sentence of
168 months as to each count (195 months minus 27),
concurrent, followed by three years of supervised release and
$1, 248, 812.90 in restitution. (Id., Doc. No. 70 at
41-42); (Id., Doc. No. 55).
argued on direct appeal, through new appointed counsel, that
the convictions were for the same conduct as the criminal
contempt conviction and thus obtained in violation of double
jeopardy. The Fourth Circuit affirmed, concluding:
[A]pplication of the Blockburger [v. United States,
284 U.S. 299, 304 (1932), ] test compels the conclusion that
there was no double jeopardy violation. Criminal contempt has
as an element the willful violation of a court order,
… while the other offenses do not. Additionally, wire
fraud contains an element - use of a wire communication
… - that criminal contempt does not; securities fraud
contains an element - engaging in fraud in connection with
the purchase or sale of a security … - that criminal
contempt does not; and money laundering contains an element -
a financial transaction designed to conceal proceeds of an
unlawful activity … - that criminal contempt does not.
United States v. Mescall, 624 Fed.Appx. 103, 104
(4th Cir. 2015).
United States Supreme Court denied certiorari on June 13,
2016. Mescall v. United States, 136 S.Ct.
filed the instant § 2255 Motion to Vacate on April 10,
2017. Construing the pro se pleadings liberally, he
appears to argue (renumbered): (1) the Court erred by: (A)
convicting and sentencing him in violation of double
jeopardy; and (B) convicting and sentencing him in violation
of his right to a speedy trial; (2) trial counsel was
ineffective for: (A) failing to raise the double jeopardy
issue; (B) failing to raise the speedy trial issue; and (C)
misadvising him about the effect of the criminal contempt
plea and failing to negotiate a plea encompassing the
criminal attempt as well as the three substantive charges;
and (3) appellate counsel was ineffective for failing to
raise the speedy trial violation on direct appeal. He
acknowledges that his speedy trial claim is procedurally
defaulted because it was not raised on direct appeal,
however, he argues that the default is excused by the
ineffective assistance of “pre-trial counsel.”
See (Doc. No. 1 at 9). He also acknowledges that the
Fourth Circuit rejected his double jeopardy claim on direct
appeal, but argues that its decision is not binding because
the Fourth Circuit did not “fully” consider his
double jeopardy argument and the controlling case law and
therefore rendered an erroneous ruling that, if applied in
these proceedings, would result in manifest injustice. (Doc.
No. 1 at 17). He requests an evidentiary hearing. (Doc. No. 1
MOTION FOR GOVERNMENT RESPONSE
has filed a pro se letter that is construed as a
Motion to Order the Government to Respond to the § 2255
Motion to Vacate. (Doc. No. 2). The Court concludes that
Petitioner's claims can be resolved on the face of the
record without requiring the Government to respond.
See Rules 4(b), 5(a), Rules Governing Section 2255
Proceedings for the United States District Courts. Therefore,
Petitioner's Motion is denied.
SECTION 2255 STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the 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.”
28 U.S.C. § 2255(a).
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the arguments presented by Petitioner can be
resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
Sixth Amendment to the U.S. Constitution guarantees that in
all criminal prosecutions, the accused has the right to the
assistance of counsel for his defense. See U.S.
Const. Amend. VI. To show ineffective assistance of counsel,
Petitioner must first establish deficient performance by
counsel and, second, that the deficient performance
prejudiced him. See Strickland v. Washington, 466
U.S. 668, 687-88 (1984). The deficiency prong turns on
whether “counsel's representation fell below an
objective standard of reasonableness ... under prevailing
professional norms.” Id. at 688. A reviewing
court “must apply a ‘strong presumption' that
counsel's representation was within the ‘wide
range' of reasonable professional assistance.”
Harrington v. Richter, 562 U.S. 86, 104 (2011)
(quoting Strickland, 466 U.S. at 689). The
Strickland standard is difficult to satisfy in that
the “Sixth Amendment guarantees reasonable competence,
not perfect advocacy judged with the benefit of
hindsight.” See Yarborough v. Gentry, 540 U.S.
1, 8 (2003). The prejudice prong inquires into whether
counsel's deficiency affected the judgment. See
Strickland, 466 U.S. at 691. A petitioner must
demonstrate “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. In
considering the prejudice prong of the analysis, a court
cannot grant relief solely because the outcome would have
been different absent counsel's deficient performance,
but rather, it “can only grant relief under …
Strickland if the ‘result of the proceeding
was fundamentally unfair or unreliable.'”
Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998)
(quoting Lockhart v. Fretwell, 506 U.S. 364, 369
(1993)). Under these circumstances, the petitioner
“bears the burden of affirmatively proving
prejudice.” Bowie v. Branker, 512 F.3d 112,
120 (4th Cir. 2008). If the petitioner fails to meet this
burden, a “reviewing court need not even consider the
performance prong.” United States v. Rhynes,
196 F.3d 207, 232 (4th Cir. 1999), vacated on other
grounds, 218 F.3d 310 (4th Cir. 2000).
Sixth Amendment right to the assistance of counsel during
criminal proceedings extends to the plea-bargaining process.
See Missouri v. Frye, 566 U.S. 134 (2012). Thus,
criminal defendants are “entitled to the effective
assistance of competent counsel” during that process.
Lafler v. Cooper, 566 U.S. 156, 162 (2012) (internal
quotation marks omitted); Merzbacher v. Shearin, 706
F.3d 356, 363 (4th Cir. 2013). As a general rule, defense
counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may
be favorable to the accused. Frye, 566 U.S. at 145.
To show prejudice from ineffective assistance of counsel
where a plea offer has lapsed or been rejected because of
counsel's deficient performance, defendants must
demonstrate a reasonable probability they would have accepted
the earlier plea offer had they been afforded effective
assistance of counsel, as well as a reasonable probability
the plea would have been entered without the prosecution
canceling it or the trial court refusing to accept it.
Id. at 147. It is necessary to show a reasonable
probability that the end result of the criminal process would
have been more favorable by reason of a plea to a lesser
charge or a sentence of less prison time. Id.
also applies in the context of appellate representation. To
show prejudice in such cases, a petitioner must show a
“reasonable probability ... he would have prevailed on
his appeal” but for his counsel's unreasonable
failure to raise an issue. Smith v. Robbins, 528
U.S. 259, 285- 86 (2000); see also United States v.
Mannino, 212 F.3d 835, 845-46 (3d Cir. 2000) (“The
test for prejudice under Strickland is not whether
petitioners would likely ...