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United States v. Conley

United States District Court, E.D. Kentucky, Central Division, Frankfort

December 1, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
TIMOTHY ALEXANDER CONLEY, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          Gregory F.Van Tatenhove United States District Judge

         This matter is before the Court upon Movant Timothy Alexander Conley's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [R. 153.] Consistent with local practice, this matter was referred to Magistrate Judge Robert E. Wier, who filed a Recommended Disposition recommending that Conley's motion be denied. [R. 159.]

         Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service to register any objections to the recommended disposition or else waive his rights to appeal. In order to receive de novo review by this Court, any objection to the report and recommendation must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific objection “explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic.” Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (citation omitted). A general objection that fails to identify specific factual or legal issues from the report and recommendation, however, is not permitted, since it duplicates the Magistrate's efforts and wastes judicial economy. Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).

         Defendant Conley filed timely objections to the Recommended Disposition. [R. 163.] Conley's four objections are sufficiently definite to trigger the Court's obligation to conduct a de novo review. See 28 U.S.C. § 636(b)(1)(c). The Court has satisfied that duty, reviewing the entire record, including the pleadings, the parties' arguments, relevant case law, and statutory authority, as well as applicable procedural rules. For the following reasons, Conley's objections will be OVERRULED.

         I

         Judge Wier's Recommended Disposition accurately sets forth the factual and procedural background of the case. Below, the Court mentions the key facts to frame its discussion and analysis, but, chooses to incorporate Judge Wier's discussion of the record into this Order.

         Mr. Timothy Alexander Conley was indicted, along with two co-defendants, on December 5, 2013, for honest services mail fraud in violation of 18 U.S.C. § 1341, theft or bribery concerning programs receiving federal funds in violation of 18 U.S.C. §§ 666(a)(1)(A) & 2, and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). [R. 1.] On August 26, 2014, Conley pled guilty to Count 3, which encompassed a violation of 18 U.S.C. § 1341, honest services mail fraud. [R. 87.] A Presentence Investigation Report (“PSR”) was prepared in which Conley's recommended Sentencing Guideline Range was determined to be 70 to 87 months based on a total offense level, subsequent a three-level acceptance of responsibility reduction, of 27 and a criminal history category of I. [R. 134.] The defendant filed no objections to the PSR. [See id.] Although the Government moved for an upward departure [R. 117], that motion was denied, and on January 27, 2015, the Court sentenced Mr. Conley to 87 months imprisonment followed by three years of supervised release. [R. 127.] Conley filed a timely appeal to the Sixth Circuit Court of Appeals, which subsequently dismissed the appeal on June 2, 2016, because Conley's plea agreement contained a waiver of appeal. [R. 152.] Conley did not file a petition for a writ of certiorari with the United States Supreme Court. [R. 159.]

         On September 6, 2016, Conley, through counsel, filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. [R. 153.] Conley's motion was referred to Judge Robert E. Wier to review and prepare a Recommended Disposition. Conley based his motion on the overall effect that McDonnell v. United States, 136 S.Ct. 2355 (2016), has on his case. [Id. at 1.] Conley did not request, and the Magistrate Judge did not hold, an evidentiary hearing on this motion. [R. 159 at 31.] On February 16, 2017, Judge Wier filed a Recommended Disposition calling for Conley's motion to be denied. [Id. at 32.] Conley filed objections to Judge Wier's Recommended Disposition pursuant to his rights under 28 U.S.C. § 636 (b)(1).[1][R. 163.]

         II

         The Court finds that Conley raised four objections to Judge Wier's Recommended Disposition that are adequately specific to trigger de novo review by this Court. See U.S.C. § 636(b)(1)(c); Mira, 806 F.2d at 637. Conley objects to the Magistrate's finding that (A) McDonnell neither applies to the merits of Conley's case nor renders Conley's conviction void; (B) Conley's plea was entered knowingly, voluntarily, and intelligently; (C) Conley did not receive ineffective assistance of counsel prior to his conviction and sentencing; and (D) Conley should not receive a reduction based on an “official acts” sentencing enhancement. [R. 163.] While the objections raised initially formed, without much substantive difference, the basis for Conley's § 2255 Motion, the Court nonetheless addresses Conley's objections in turn.

         Before addressing Conley's objections, the Court first analyzes the unraised issue of procedural default. Where a movant fails to raise a claim on direct appeal, the movant is procedurally defaulted from seeking § 2255 relief on that claim. Bousley v. United States, 523 U.S. 614, 621 (1998); Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003). A claim that could have been raised on direct appeal, but was not, “may be raised in habeas only if the defendant can first demonstrate either ‘cause' and actual ‘prejudice, ' or that he is ‘actually innocent.'” Bousley, 523 U.S. at 622; Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). In attempting to show cause for default, a defendant cannot rely on futility where bringing his claim on direct appeal would have been premature. See Bousley, 523 U.S. at 623 (citing Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982) (“[F]utility cannot constitute cause if it means simply that a claim was ‘unacceptable to that particular court at that particular time.'”)). “To establish actual innocence, petitioner must demonstrate that, ‘in light of all the evidence, ' ‘it is more likely than not that no reasonable juror would have convicted him.'” Bousley, 523 U.S. at 623 (citation omitted). In cases where the Government fails to argue default, as is true here, the Government may forfeit the right to defend on default grounds. Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000) (citing Trest v. Cain, 522 U.S. 87 (1997)). Although not required to do so, the Court may, on its own, raise the procedural default question in a habeas context. Elzy, 205 F.3d at 886.

         In Conley's appeal to the Sixth Circuit, he did not argue the effects McDonnell had on his case as McDonnell had not yet been decided. See Reply Brief, United States v. Conley, No. 15-5148 (6th Cir. May 12, 2016), ECF No. 31. Rather, Conley claimed his plea was entered without a full understanding as to the elements underlying honest services mail fraud, that his attorney at the time of his plea did not understand the elements of honest services mail fraud, and that during the plea colloquy there was never any statement made as to Conley's use of the mail in committing the offense of conviction. Id. at 3-5. While Conley's § 2255 Motion makes neither an argument of cause and actual prejudice, nor an assertion of actual innocence, his Objections to the Magistrate's Recommended Disposition does raise the question of innocence. [R. 163 at 9.] Given the unique posture of the case, the procedural default doctrine raises interesting concerns. However, the Court, like the Magistrate Judge, declines to sua sponte opine on the procedural default issue and, instead, addresses the merits of Mr. Conley's objections.

         A

         Mr. Conley first objects to Judge Wier's determination that McDonnell neither applies to the merits of Conley's case nor renders Conley's conviction void. [R. 163 at 3.] At the heart of Conley's § 2255 Motion, and his subsequent Objections to the Magistrate's Recommended Disposition, is the definition of “official acts” as that term relates to honest services fraud statutes. Although “official acts” has a statutory definition, [2] the McDonnell Court clarified that definition as follows:

[A]n “official act” is a decision or action on a “question, matter, cause, suit, proceeding, or controversy.” The “question, matter, cause, suit, proceeding, or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act, ” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding, or controversy, ” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act, ” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) - without more - does not fit that definition of “official act.”

136 S.Ct. at 2371-72. Thus, there are two requirements for an official act: (1) “the Government must identify a question, matter, cause, suit, proceeding, or controversy that may at any time be pending or may by law be brought before a public official;” and (2) “the Government must prove that the public official made a decision or took an action ‘on' that question, matter, cause, suit, proceeding or controversy, or agreed to do so.” McDonnell, 136 S.Ct. at 2368; see also 18 U.S.C. § 201(a)(3). The McDonnell Court went to great lengths to provide substantive meaning to the statutory language. As to the first requirement, the Court concluded that § 201(a)(3) requires a “focused and concrete” question, matter, cause, suit, proceeding, or controversy “involve[ing] a formal exercise of governmental power that is similar in nature to a lawsuit, administrative determination, or hearing.” Id. at 2370. Regarding the second requirement, the Court determined that § 201(a)(3) requires “that the public official must make a decision or take an action on that question or matter, or agree to do so.” Id. ...


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