United States District Court, N.D. Mississippi, Eastern Division
MICHAEL P. MILLS, District Judge.
This matter comes before the court on the motion of Peter Bernegger to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has responded to the motion, and the matter is ripe for resolution. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be denied.
Facts and Procedural Posture
Petitioner Peter Bernegger was charged in five counts of a six-count Superseding Indictment alleging mail fraud, wire fraud, conspiracy to commit mail and wire fraud, and bank fraud. Bernegger's business partner, Stephen Finch, was also charged in the Superseding Indictment ("Indictment"). The Indictment described a general scheme in which Bernegger and Finch made fraudulent misrepresentations to investors and potential investors to induce them to invest in various business ventures of Bernegger and Finch. Specific counts charged either Bernegger (Counts Two, Three, and Four) or Finch (Count One) with specific acts of mail fraud or wire fraud within the framework of the overall scheme. Count Five charged both Bernegger and Finch with conspiracy to commit acts of mail and wire fraud. Count Six charged Bernegger with bank fraud, alleging that he also made fraudulent misrepresentations to a local bank in order to secure a loan for the business. The defendants proceeded to trial on November 2, 2009. On November 12, 2009, Finch was acquitted of all charges while Bernegger was convicted on Counts Three, Four, and Six. On May 13, 2010, Bernegger was sentenced to 70 months in prison and ordered to pay restitution in the approximate amount of $2.2 million. Bernegger appealed his conviction to the Fifth Circuit, which issued an order dated October 20, 2011, affirming the conviction and the length of the sentence, but modifying the amount of restitution by reducing it to $1, 725, 000.00. On February 12, 2012, Bernegger filed the present motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, and he has added or amended claims numerous times since then.
Scope of § 2255 Review
There are four grounds upon which a federal prisoner may seek to vacate, set aside, or correct his sentence: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose the sentence; (3) that the sentence exceeds the statutory maximum sentence; or (4) that the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255; see United States v. Cates, 952 F.2d 149, 151 (5th Cir.1992). The scope of relief under § 2255 is the same as that of a petition for a writ of habeas corpus. Cates, 952 F.2d at 151.
A defendant seeking relief under 28 U.S.C. § 2255 may not do so to raise issues that could have been raised on appeal. United States v. Walling, 982 F.2d 447, 448-449 (10th Cir. 1992). A petitioner may not raise constitutional issues for the first time on post-conviction collateral review unless he shows cause for failing to raise the issue on direct appeal and actual prejudice resulting from the error. United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992), cert. denied, 506 U.S. 1007 (1992); United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). The burden of showing "cause, " an "objective factor external to the defense, " rests with the petitioner. McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991). No other types of errors may be raised on collateral review unless the petitioner demonstrates that the error could not have been raised on direct appeal, and if not corrected, would result in a complete miscarriage of justice. Pierce, 959 F.2d at 1301; Shaid, 937 F.2d at 232. Further, if a claim is raised and considered on direct appeal, a defendant is may not raise the issue in a later collateral attack. Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979).
Bernegger's § 2255 Claims
In the instant § 2255 motion, Bernegger makes the following claims for relief, which the court has restated for brevity and clarity:
1. He was denied a trial by jury as to Count 1 of the indictment because that count was excluded from the Form of the Verdict submitted to the jury.
2. He was denied the right to a public trial because the court excluded Count 1 from the Form of the Verdict submitted to the jury.
3. The court violated Fed. R. Crim. P. 48(a) by excluding Count 1 of the indictment from the Form of the Verdict submitted to the jury.
4. Various acts characterized as "fraud upon the court" divested the court of subject matter jurisdiction. The "fraud" centered around excluding Count 1 of the indictment from the Form of the Verdict submitted to the jury.
5. The government committed various violations under Brady and Fed. R. Crim. P. 16(a) and 16(c).
6. The judge presiding over the case was biased against Bernegger for a variety of reasons.
7. Violation of Brady by suppressing FBI test results showing that We Gel actually produced a useable protein product.
8. The promulgation of an FBI "victim letter" two years before Bernegger was indicted in this matter.
9. Violation of the confrontation clause due to the illness and ultimate death of Leo Bieneck, one who accused Bernegger of fraud.
10. Appellate counsel's decision not to pursue the propriety of the trial court's decision to close the courtroom to determine whether witness Kisner's testimony was subject to a valid confidentiality agreement.
11. Kisner's testimony as a victim should have been excluded because Kisner, himself, invested no money in Bernegger's companies; instead, Kisner's father was the actual investor.
12. The court failed to submit a jury instruction on the definition of "letter of intent."
13. The government committed Brady and Fed. R. Crim. P. 16 violations when investigators damaged two of Bernegger's computers beyond repair. Bernegger had thousands of documents on the computers which he believes would have exonerated him by showing robust business dealings, customers, and production of large amounts of useable product.
14. Counsel was ineffective by ignoring the government's stipulation that We Gel tried to make useable product, and indeed made some useable product. Counsel should have used the stipulation to defeat the government's claim that Bernegger and his companies had no viable product for sale.
15. The computation to determine Bernegger's sentencing range and restitution included amounts of money not supported in the trial record or Presentence Investigation Report.
16. Counsel was ineffective for failing to investigate Bernegger's dealings with various people, failing to use thousands documents Bernegger provided, failing to employ the investigator Bernegger recruited, and failing to call various witnesses Bernegger believes would have aided in his defense.
17. Counsel was ineffective in failing to challenge use of CPI investors to compute relevant conduct, as none of those investors was named in the indictment.
18. Counsel should have objected to use of the $100, 000 invested by Craig Trebatoski in computing loss and restitution, as Trebatoski was not a victim of fraud.
19. As Bernegger was not charged in Count 1 of the indictment, he could not be found guilty of any of the other charges, as none of those charges alleged as scheme to defraud.
20. Bernegger's sentence was improper because, without Count 1, the other counts failed to state a criminal charge.
21. Bernegger was improperly arraigned because the arraignment included all 6 counts of the indictment, while Bernegger was only charged with 5.
22. The indictment was improper because it charged 6 offenses, but Bernegger was actually only charged with 5.
23. The indictment was faulty because CPI was only mentioned in Count 1, under which Bernegger was not charged. In addition, We Gel was mentioned only in Counts 2, 3, 4, and 6, which failed to state a valid criminal charge because none of them included the element of a scheme to defraud. The jury found Bernegger not guilty of Count 5.
24A. Trial and appellate counsel were ineffective for failing to raise the issue of estoppel regarding the government's alleged initial position to charge Bernegger in Count 1 of the indictment, then later position that Bernegger was not charged in Count 1.
24B. Bernegger was denied the right to be present during all proceedings because he was out of the courtroom, but just happened to walk by, when the court removed Count 1 of the indictment from the Form of the Verdict submitted to the jury.
25. The government had ex parte communication with the court by suggesting that Count 1 of the indictment be removed from the Form of the Verdict outside Bernegger's presence.
26. The prosecutors lied regarding the government's original position as to whether Bernegger was charged in Count 1 of the indictment, as neither was present during earlier proceedings when that position was discussed.
27. Claim is missing and will not be considered.
28. The court did not submit Count 1 of the indictment to the jury in violation of the holdings in Booker and Apprendi.
29. Claim is missing and will not be considered.
30. Claim is missing and will not be considered.
31. The government violated Brady and Fed. R. Crim. P. 16 by suppressing an FBI report in which Agent James Burton interviewed alleged victim Clark Young, stating that Young wrote two personal checks and handed them directly to Bernegger - an act not constituting mail fraud. As a result, $75, 000 (the total amount of the checks), must be deducted from calculations regarding sentencing and restitution.
Categorizing Bernegger's Claims
To say the least, Mr. Bernegger's motion under 28 U.S.C. § 2255, along with its many addenda, supplements, and amendments, is lengthy. It took the court a great deal of time simply to create the above summary of his claims. The initial § 2255 motion is 170 pages, and the various additions total nearly that number. Bernegger's many claims can, however, be divided ...