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Harrison v. United States

United States District Court, M.D. North Carolina

February 19, 2019

BRUCE GREGORY HARRISON, III, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. PATRICK AULD, UNITED STATES MAGISTRATE JUDGE

         This 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).[1] For the reasons that follow, the Court should deny relief.

         INTRODUCTION

         The 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).

         DISCUSSION

         Petitioner 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)).

         Ground One

         Ground 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 allegations:

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 [Superseding I]ndictment.”));
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]”)); and
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.”)).

         All of 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].”).

         Second, 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 of] ...

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