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Walterman v. United States

United States District Court, Eighth Circuit

October 8, 2013

LEON WALTERMAN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

ORDER

LINDA R. READE, Chief District Judge.

I. INTRODUCTION AND PROCEDURAL HISTORY

The matter before the court is Leon Walterman's ("the movant") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 ("motion") (civil docket no. 1). The movant filed the motion on January 31, 2012. On April 26, 2012, the movant moved to amend the motion (civil docket no. 4), and on April 27, 2012, the court granted the motion to amend. See April 27, 2012 Order (civil docket no. 5). On February 28, 2013, the court directed the government to brief the claims that the movant included in the motion. See February 28, 2013 Order (civil docket no. 6) at 1. On March 15, 2013, Jan Mohrfeld Kramer, the movant's defense attorney, filed an affidavit (civil docket no. 8) and on April 24, 2013, Kramer filed a supplemental affidavit (civil docket no. 9). On May 3, 2013, the government filed a resistance to the motion (civil docket no. 12). On May 21, 2013, the movant filed a reply to the government's resistance (civil docket no. 14).

II. EVIDENTIARY HEARING

A district court is given discretion in determining whether to hold an evidentiary hearing on a motion under 28 U.S.C. § 2255. See United States v. Oldham, 787 F.2d 454, 457 (8th Cir. 1986). In exercising that discretion, the district court must determine whether the alleged facts, if true, entitle the movant to relief. See Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996). "Accordingly, [a district court may summarily dismiss a motion brought under 28 U.S.C. § 2255 without an evidentiary hearing] if (1) the... allegations, accepted as true, would not entitle the [movant] to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998) (stating that an evidentiary hearing is unnecessary where allegations, even if true, do not warrant relief or allegations cannot be accepted as true because they are contradicted by the record or lack factual evidence and rely on conclusive statements); United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973) (stating that no evidentiary hearing is necessary where the files and records of the case demonstrate that relief is unavailable or where the motion is based on a question of law). Stated differently, the court can dismiss a 28 U.S.C. § 2255 motion without a hearing where "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); accord Standing Bear v. United States, 68 F.3d 271, 272 (8th Cir. 1995) (per curiam).

The court concludes that it is able to resolve most of the movant's claims from the record. See Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (holding that "[a]ll of the information that the court needed to make its decision with regard to [the movant's] claims was included in the record" and, therefore, the court "was not required to hold an evidentiary hearing" (citing Rule Governing Section 2255 Proceedings 8(a) and United States v. Raddatz, 447 U.S. 667, 674 (1980))). The evidence of record conclusively demonstrates that the movant is not entitled to the relief sought on all of his claims except his failure to file a notice of appeal claim. Specifically, it indicates that, except for his failure to file a notice of appeal claim, the movant's assertions fail because counsel represented the movant in a manner that comports with the requirements of the Sixth Amendment. As such, the court finds that there is only a need to conduct an evidentiary hearing on the movant's failure to file a notice of appeal claim.

III. ANALYSIS

The court concludes that counsel's conduct fell within a wide range of reasonable professional assistance, Strickland v. Washington, 466 U.S. 668, 689 (1984), and counsel's performance did not prejudice the movant's defense, id. at 692-94. Thus, the movant has failed to establish an ineffective assistance of counsel claim. See id. at 687 (holding that, to establish an ineffective assistance of counsel claim, the movant must first "show that counsel's performance was deficient" and then "show that the deficient performance prejudiced the defense"); see also Morelos v. United States, 709 F.3d 1246, 1249-50 (8th Cir. 2013) ("To succeed on a claim of ineffective assistance of trial counsel, a defendant must prove 1) [the defendant's] attorney's performance was... deficient... and 2) [the defendant] suffered such prejudice stemming from the deficient performance there is a reasonable probability the proceeding would have had a different result." (citing United States v. Taylor, 258 F.3d 815, 818 (8th Cir. 2001))).

In the motion and memorandum in support of the motion (civil docket no. 1-1), the movant makes several specific claims to support his contention that the court should vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The movant alleges that his attorney, Jan Mohrfeld Kramer ("Kramer"): (1) advised him to enter a guilty plea that was not knowing or intelligent; (2) failed to advise him on his alleged factual innocence on the money-laundering count; (3) failed to challenge enhancements in the guideline calculation on the money-laundering count; (4) failed to challenge calculation of his annual earnings at sentencing; (5) failed to argue several 3553(a) factors; (6) was ineffective through the cumulative effect of issues 1-5; and (7) failed to file an appeal on issues 1-6. The court will address each of these arguments in turn.

A. Knowing and Intelligent Guilty Plea

First, the movant claims that his guilty plea was not knowing and intelligent. Specifically, the movant contends Kramer was ineffective because she failed to inform the movant of the specific charges against him and the charges' essential elements, failed to ascertain the best plea that the prosecution was prepared to offer, failed to analyze strategic options that were available to the movant, failed to inform the movant of potential benefits of alternate options and failed to inform the movant of the existence of Rule 11(c)(1)(C). Memorandum in support of motion at 4-5.

The movant cannot show that he unknowingly and involuntarily pled guilty. The record shows that the movant was informed of the elements of the charges against him. See Affidavit of Jan Mohrfeld Kramer (civil docket no. 8) at 6-8; Plea Hearing Transcript (criminal docket no. 36) at 13-19. Further, at the change of plea hearing, the court informed the movant of the crimes and their elements, and the movant indicated that he understood. Plea Hearing Transcript at 13-19. Additionally, the movant is unable to show that Kramer's "advice [fell outside] the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)) (internal quotation marks omitted). Specifically, Kramer attests that she underwent extensive plea negotiations with the government, analyzed all of the strategic options available and discussed all of the options with the movant. See Affidavit of Jan Mohrfeld Kramer at 8-9. Further, Kramer attests that she was "aware that the U.S. Attorney's Office in the Northern District of Iowa rarely agrees to plea agreements pursuant to [Federal Rule of Criminal Procedure] 11(c)(1)(C)." Id. at 10. This strategic decision to not pursue a Rule 11(c)(1)(C) plea agreement clearly falls within "the range of competence demanded of attorneys in criminal cases." Lockhart, 474 U.S. at 56 (quoting McMann, 397 U.S. at 771) (internal quotation marks omitted). Thus, the court finds that the movant has not shown that Kramer's performance was deficient. Furthermore, the movant has not established a reasonable probability that, but for counsel's allegedly deficient performance, he would not have pled guilty. See id. at 59. Therefore, this claim fails for the additional reason that the movant has failed to show prejudice. See United States v. Orr, 636 F.3d 944, 952 (8th Cir. 2011) (noting that counsel's strategic choices at trial are "virtually unchallengeable" (quoting Strickland, 466 U.S. at 690)).

B. Alleged Factual Innocence on Money-Laundering Count

Second, the movant argues that Kramer was ineffective because she failed to advise the movant of his alleged factual innocence on the money-laundering count. Specifically, the movant argues that Kramer failed to advise him that money-laundering proceeds under the statute are calculated as profits rather than gross receipts. However, as detailed in her affidavit, Kramer believed that the movant's case was more analogous to United States v. Rubashkin, 655 F.3d 849 (8th Cir. 2011) than to United States v. Santos, 553 U.S. 507 (2008). See Affidavit of Jan Mohrfeld Kramer at 12-13. Because Kramer's reliance on Rubashkin -an Eighth Circuit case interpreting Santos ...


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