United States District Court, M.D. North Carolina
RECOMMENDATION OF UNITED STATES MAGISTRATE
PATRICK AULD, UNITED STATES MAGISTRATE JUDGE
case comes before the undersigned United States Magistrate
Judge for a recommended ruling on Petitioner's
“Motion to Vacate, Set Aside, or Otherwise Correct a
Sentence by an Individual in Federal Custody, pursuant to 28
U.S.C. [§] 2255” (“Section 2255
Motion”) (Docket Entry 150). For the reasons that follow,
the Court should deny relief.
Court (per now-retired United States District Judge James A.
Beaty, Jr.) entered a Judgment sentencing Petitioner, inter
alia, to serve 144 months in prison and to pay $43, 207,
976.81 in restitution, following a jury's finding of
guilt on 63 payroll and individual tax-related charges.
(Docket Entry 127; see also Docket Entry 10
(Superseding Indictment); Docket Entry 60 (Verdict Sheet).)
The United States Court of Appeals for the Fourth Circuit
affirmed and the United States Supreme Court declined review.
United States v. Harrison, 541 Fed.Appx. 290 (4th
Cir. 2013), cert. denied, ___ U.S. ___, 135 S.Ct.
881 (2014). Petitioner then timely filed the Section 2255
Motion, which (nominally) presents four grounds for relief
(all alleging ineffective assistance of counsel) (see Docket
Entry 150 at 3-14), supported by his affidavit (see
Id. at 18-19). The United States responded (Docket
Entry 161) and Petitioner replied (Docket Entry 163).
possessed a federal constitutional right to effective
assistance of counsel in his criminal case in this Court.
See U.S. Const. amend. VI; McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970). To establish an ineffectiveness
claim, Petitioner must show that his counsel's
performance fell below a reasonable standard for defense
attorneys and that prejudice resulted. See Strickland v.
Washington, 466 U.S. 668, 687-94 (1984).
“Surmounting Strickland's high bar is never an easy
task. . . . [T]he standard for judging counsel's
representation is a most deferential one.”
Harrington v. Richter, 562 U.S. 86, 105 (2011)
(internal quotation marks omitted); see also United
States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014)
(“To meet th[e prejudice] element . . ., [the
defendant] would have to show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different and that the result of the proceeding was
fundamentally unfair or unreliable.” (internal
quotation marks omitted)).
One of the Section 2255 Motion asserts that “Petitioner
recived [sic] ineffective assistance of counsel at the trial,
sentencing and appellate level” (Docket Entry 150 at 3
(emphasis added)) and offers these specific, supporting
1) “trial counsel  failed to object to the testimony
introduced by Rob Patterson which was solicited by the
prosecution, [about conduct] uncharged in the [Superseding
I]ndictment [that constituted] a ‘non-illegal'
event pursuant to statute” (id. at 5 (emphasis
added) (citing Docket Entry 92 at 140); see also Id.
at 2 (“Petitioner . . . was ‘surprised' at
trial with ‘uncharged and non-illegal conduct',
whereby the prosecution elicited testimony regarding [Federal
Unemployment Tax Act (“FUTA” or
“F.U.T.A.”)] taxes. Not only was [he] deprived of
Due Process when the Government effectively constructively
amended his [Superseding I]ndictment and varied from the
charges, [but also] he was deprived of effective counsel
under the Sixth Amendment when [trial] counsel did not object
. . . .”), 5 (“[T]he government got to benefit
[by] introducing an entirely separate and non[-]charged
matter into the mix and Petitioner's [trial] counsel
failed to defend such, although there is no basis in law for
such, effectively varying from the [Superseding I]ndictment
and constructively amending the charges and varying from the
2) “the government [brought] the FUTA taxes into
sentencing where sentencing counsel  failed to raise [a]
question” (id. at 5 (emphasis added); see also
Id. at 2 (stating that sentencing counsel
“failed to adequately argue that failure to pay [FUTA
taxes] . . . is a ‘non-criminal event, '”
describing “main question to be answered [a]s: Can 
Petitioner's sentence be enhanced for conduct that does
not give rise to criminality, or [was not] charged in an
indictment[ and] proved to a jury, or was a subsequent tax
amount to be found by special verdict by the jury?, ”
and asserting that Petitioner “was deprived of
effective counsel under the Sixth Amendment when counsel did
not . . . defend at sentencing [as to FUTA taxes]”));
3) “[a]ppellate counsel  failed to properly address
those [FUTA tax-related] claims as well, although he was
directed to do so” (id. at 5 (emphasis added); see also
Id. at 2 (“The matter was further exacerbated
when appella[te] counsel declined to argue [FUTA tax-related
issues] on appeal. . . . [Petitioner] was deprived of
effective counsel . . . when counsel did not . . . address
[FUTA tax-related issues] during appeal.”)).
these claims fall short. First, Petitioner can show neither
that his trial counsel acted unreasonably by foregoing an
objection to the evidence concerning FUTA taxes, nor that
prejudice resulted from that election, given that (on appeal)
Petitioner “argue[d] that the Government constructively
amended the [Superseding I]ndictment by presenting evidence
that he failed to pay [FUTA taxes], ”
Harrison, 541 Fed.Appx. at 292, and the Fourth
Circuit “reject[ed that] contention, ” id.; see
also Id. (“[T]here was no constructive
amendment in this case. . . . [Petitioner] contends such an
amendment occurred in this case because the Government
presented evidence that he also failed to pay [FUTA taxes]
that w[ere] not charged in the [Superseding I]ndictment. This
evidence, however, was admitted . . . simply to show that
[his] staffing agencies were still in operation in the years
he failed to submit payroll taxes.”). In other words,
the Fourth Circuit's ruling establishes that an objection
at trial to the FUTA tax evidence would have failed and thus
any related ineffectiveness claim fails. See Oken v.
Corcoran, 220 F.3d 259, 269 (4th Cir. 2000)
(“[C]ounsel [i]s not constitutionally ineffective in
failing to object . . . [if] it would have been futile . . .
.”); see also United States v. Robinette, No.
98-50733, 213 F.3d 636 (table), 1999 WL 1706626, at *1 (5th
Cir. Apr. 12, 2000) (unpublished) (“The issue
underlying [the] ineffective-assistance-of-counsel claim . .
. was decided . . . on appeal . . . . Because th[e appeals]
court has determined that [the underlying issue lacked
merit], counsel's failure to raise [it at trial] . . .
did not constitute deficient performance and did not
prejudice [the petitioner].”).
Petitioner cannot make out an ineffectiveness claim against
his sentencing counsel regarding FUTA taxes. As the United
States has explained, “[t]axes pursuant to [FUTA]
played no part at sentencing.” (Docket Entry 161 at
2-3; see also Id. at 5-6 (“FUTA returns were
never introduced at sentencing, nor were FUTA taxes ever
considered in tax loss calculations.” (citing Docket
Entry 113-1 at 2 (documenting, in “Tax Loss Computation
for Guidelines Purposes, ” total of $43, 961, 921.09,
without reference to any FUTA taxes))); Docket Entry 135 at
13-36 (setting forth testimony by case agent regarding tax
losses totaling $43, 939, 229.81, none of which included
unpaid FUTA taxes), 44 (“The Court will find that by
the preponderance of the evidence the total loss would be . .
. $43, 939, 229.81[.]”).) Further, to the extent Ground
One more generally alleges that Petitioner's sentencing
counsel should have objected to the inclusion in the tax loss
calculation under the Sentencing Guidelines of any sums
associated with conduct beyond what the United States
specifically “charged in [the Superseding I]ndictment[
and] proved to a jury” (Docket Entry 150 at 2), that
claim provides no basis for collateral relief, because:
A) Petitioner's sentencing counsel made just such an
objection (see Docket Entry 135 at 6 (“object[ing] to
the amount of loss” and contending it “should be
a 26-level enhancement [under U.S.S.G. §§
2T1.1(a)(1), 2T4.1(K), for more than $7, 000, 000, but not
more than $20, 000, 000, rather than a] 28-level enhancement
[under U.S.S.G. §§ 2T1.1(a)(1), 2T4.1(L), for more
than $20, 000, 000 but not more than $50, 000, 000]”),
38-39 (arguing that tax loss under Sentencing Guidelines
should not exceed “total for payroll taxes owed by all
companies for all quarters [charged in Superseding Indictment