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United States v. Guzman

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

August 29, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
JOHN GUZMAN, Defendant/Petitioner.


          Joseph M. Hood Senior U.S. District Judge.

         This matter is before the Court on federal prisoner, John Guzman's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [DE 93]. In his motion, Guzman argues that his counsel was ineffective during his trial and on appeal. [DE 93-1]. In this case, the record refutes Guzman's claims of ineffective assistance of counsel at trial and on appeal that were properly presented in his § 2255 motion. Thus, Guzman's petition for relief under § 2255 is DENIED and the Court declines to grant an evidentiary hearing, or issue a certificate of appealability.

         I. Procedural and Factual Background

         On May 5, 2016, Guzman was indicted on nine (9) separate counts of bank fraud in violation of 18 U.S.C. § 1344(1). Mr. H. Wayne Roberts was subsequently appointed CJA counsel for Guzman. Guzman entered a plea of not guilty on all nine (9) counts.

         On November 18, 2016, after a one-week jury trial, Guzman was found guilty on all nine (9) counts. [DE 42]. As a result, Guzman was sentenced to a term of imprisonment of fifty (50) months on each of the nine counts to run concurrently. [DE 60]. Guzman is currently serving his sentence at Federal Medical Center (“FMC”) in Lexington, Kentucky. [Id.].

         Guzman appealed the district court's denial of Guzman's motion for judgement of acquittal. [DE 64]. Counsel, H. Wayne Roberts, was appointed as counsel for Guzman in his appeal. On direct appeal, Guzman argued that there was insufficient evidence to convict him of bank fraud under 18 U.S.C. § 1344(1). [DE 91 at 5, PageID #1377]. On April 25, 2018, the Sixth Circuit found that Guzman's convictions were supported by the evidence and affirmed the district court. [Id. at 9, PageID #1381].

         On September 24, 2018, Guzman filed the instant motion. [DE 93]. Guzman states that the sole ground for his motion to vacate his sentence is that his trial and appellate counsel provided ineffective assistance.[1] [DE 93 at 4, PageID #1389].

         Guzman makes four arguments in support of his ineffective assistance claim. [DE 93-1 at 2-13, PageID #1400-11]. First, Guzman argues that his counsel was ineffective for failing to interview, investigate, and call certain witnesses. [Id. at 1402-04]. Second, he argues that his counsel was ineffective for failing to request the United States to turn over allegedly-suppressed evidence. [Id. at 6-8, PageID #1404-06]. Third, Guzman claims his counsel was ineffective for failing to argue that the trial court inaccurately and confusingly explained the elements of the crime he was charged with. [Id. at 8-9, PageID #1406-07]. Fourth, Guzman argues that counsel was ineffective for failing to raise certain issues on appeal that Guzman wanted to raised, including questions of counsel's own ineffectiveness. [Id. at 9-13, PageID #1407-11].

         The United States responded in opposition to Guzman's motion, [DE 99], and Guzman replied in support. [DE 102]. This matter was subsequently submitted to the Magistrate Judge Edward B. Atkins, [DE 103], who recommended that the Guzman's motion be denied with prejudice. [DE 112].

         On June 10, 2019, Guzman filed objections to Magistrate Judge Atkins's Recommended Disposition. [DE 113]. Guzman “objects to the R&R in its entirety but will deal with it on a point by point basis.” [DE 113 at 2, PageID #1639]. First, Guzman alleges that his counsel was ineffective for failing to interview and call “promising witnesses[, ]” that would have changed the outcome of his trial. [DE 113 at 2, PageID #1639]. Second, Guzman objects, [DE 113 at 4, PageID #1641], to the Magistrate Judge's Recommended Disposition, [DE 112 at 9-12, PageID #1624-27], as it relates to Guzman's allegation that his counsel failed to file a motion for suppressed evidence. [DE 93-1 at 7-8, PageID #1405-06]. Third, Guzman objects to the Magistrate Judge's recommendation, again arguing that his counsel was ineffective because his counsel failed to object to the trial court's jury instructions and explanations and failed to raise that argument on appeal. [DE 113 at 4-9, PageID #1641-45]. Finally, Guzman also claims he was denied effective assistance of counsel during his appeal. [DE 93-1 at 9-13, PageID #1407-11].[2] We will review each of Guzman's objections in turn.


         Generally, a prisoner has a statutory right to collaterally attack his conviction or sentence. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (“[B]oth the right to appeal and the right to seek post-conviction relief are statutory rights ....”). To be entitled to habeas relief under his 28 U.S.C. § 2255 claims, Garner must generally show that, inter alia, “there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b).

         In particular, “[t]o prevail on a motion under § 2255, a [petitioner] must prove ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'” Goward v. United States, 569 Fed.Appx. 408, 412 (6th Cir. 2014) (quoting McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012)).

         A habeas petitioner may object to a magistrate judge's report and recommendation. Fed.R.Civ.P. 72(b)(2). If the petitioner objects, “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). “Only those specific objections to the magistrate's report made to the district court will be preserved for appellate review.” Carson v. Hudson, 421 Fed.Appx. 560, 563 (6th Cir. 2011) (quoting Souter v. Jones, 395 F.3d 577, 585-86 (6th Cir. 2005).

         Since plaintiff proceeds pro se, his pleadings are held to a less stringent standard than those prepared by an attorney and are liberally construed in his favor. See Fazzini v. Northeast Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir. 2006); Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004).

         III. ANALYSIS

         A. Ineffective Assistance of Counsel

         An ineffective assistance of counsel claim under Strickland requires that a prisoner show (1) that his “counsel's performance was deficient measured by reference to ‘an objective standard of reasonableness'” and (2) “resulting prejudice, which exists where ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.'” United States v. Coleman, 835 F.3d 606, 612 (6th Cir. 2016) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).

         “To establish deficient performance, a petitioner must demonstrate that counsel's representation ‘fell below an objective standard of reasonableness.'” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688)). Courts have “declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that ‘[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'” Id. (quoting Strickland, 466 U.S. at 688) (alterations in Wiggins). Still, a court's review of this prong includes a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Petitioner carries the burden of establishing that “‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687).

         Prejudice results from a deficient performance when “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.'” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 693).

         Meeting “Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). The standard “must be applied with scrupulous care, lest ‘intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve.” Harrington, 562 U.S. at 105. “Even under de novo review, the standard for judging counsel's representation is a most deferential one” because “[u]nlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge.” Id.

         In the instant matter, Guzman's ineffective assistance of counsel arguments can be divided into trial claims and appeal claims. We will discuss each in turn.

         (1) Trial Ineffective Assistance of Counsel Claims.

         a. Failure to investigate and call potential witnesses.

         First, Guzman alleges that his counsel was ineffective for failing to interview and call “promising witnesses[, ]” that would have changed the outcome of his trial. [DE 113 at 2, PageID #1639]. As noted in the Magistrate Judge's Recommended Disposition, [DE 112 at 6-9, PageID #1621-24], Guzman claims that there were nine(9) people, who should have been interviewed and called as witnesses in his defense.[3] [DE 93-1 at 4-6, PageID #1402-04]. These persons include (1) Brad Lawson, (2) Tammie Luttrell, (3) Tim Wesley, (4) David Harrod, (5) Mike Lawson, (6) Mike Feldman, (7) Kristen Lambert, (8) Morris Chamness, and (9) David Vervile. [DE 93-1 at 5, PageID #1403].

         Guzman's claim fails because he made no showing that his counsel failed to interview, investigate, or call witnesses that would have offered testimony favorable to him. The law is clear that “[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005) (quoting Strickland, 466 U.S. at 691). Counsel's basic function is “to make the adversarial process work in the particular case.” Id. (quoting Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)).

         Guzman claims the testimony of the purported witnesses would have negated the element of intent on all nine (9) counts of bank fraud on which he was found guilty. [DE 93-1 at 6, PageID #1404]. Guzman takes issue with the fact that two witnesses, Brad Lawson and Tammie Luttrell, were subpoenaed, but neither were called to testify.[4] [Id. at 5, PageID #1403]. Next, he claims his counsel failed to investigate and/or interview the balance of the purported witnesses named above. [Id. at 6, PageID #1404]. Guzman set forth the particular facts to which each of these purported witnesses would allegedly testify, but has not attached affidavits supporting these claims. [Id. at 5, PageID #1403].

         Guzman's unsupported allegations must fail. In the instant case, Guzman offered no affidavits showing what these witnesses' testimony would have provided, let alone that their testimony would, in fact, be favorable to him. The ...

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