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Sandford v. United States

United States District Court, N.D. Mississippi, Delta Division

September 25, 2017

BOBBIE LOUIS SANDFORD PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT Civil Action No. 3:15cv190-LG

          ORDER DENYING MOTION FILED PURSUANT TO 28 U.S.C. §2255

          LOUIS GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE

         BEFORE THE COURT is the Motion [44] under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence filed by the petitioner Bobbie Louis Sandford.[1] After carefully reviewing the submissions of the parties and Sandford's trial counsel, the record in this matter, and the applicable law, the Court finds that the Motion should be denied. Since Sandford has failed to satisfy the Strickland test for ineffective assistance of counsel, his § 2255 Motion must be denied.

         BACKGROUND

         Sandford was indicted for engaging in a fraudulent scheme whereby he convinced two friends - Mr. Larson and Mr. Bayliss - to give him over $489, 000 over a period of several years. On October 17, 2012, Sandford agreed to plead guilty to one count of wire fraud and one count of money laundering pursuant to a written plea agreement with the Government. He also agreed to waive his right to appeal his sentence or to attack his sentence collaterally under § 2255. Three additional counts of the indictment were dismissed pursuant to the terms of the plea agreement. The presentence investigation report provided for a guideline range of 41 to 51 months. Chief Judge Sharion Aycock sentenced Sandford to 120 months imprisonment and three years of supervised release. Sandford appealed the sentence and the Fifth Circuit affirmed.

         Sandford now asks the Court to vacate his sentence based on grounds that his attorney provided ineffective assistance by: (1) failing to advise Sandford of potential affirmative defenses to the wire fraud charge; (2) assuring Sandford that he would receive a sentence of no more than thirty-six months imprisonment;[2] (3) failing to challenge the indictment on the basis that it did not protect Sandford from double jeopardy; (4) failing to challenge the indictment on the basis that Sandford's actions did not violate the federal money laundering statute; and (5) failing to file a motion to recuse Chief Judge Sharion Aycock.[3]

         DISCUSSION

         28 U.S.C. § 2255(a) provides four grounds for relief: (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 such sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and (4) that the sentence is otherwise “subject to collateral attack.” A defendant may, as part of a plea agreement, waive the right to seek post-conviction relief, including relief pursuant to § 2255. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).

         Where, as here, a defendant has pleaded guilty and waived his right to file a motion pursuant to § 2255, the only ineffective assistance of counsel claim to survive the waiver is one claiming the ineffective assistance “directly affected the validity of waiver or the plea itself.” United States v. White, 307 F.3d 336, 343 (5th Cir. 2002). Thus, the Court asks “whether the plea or waiver itself was knowing and voluntary, and whether the issue challenged on appeal may properly be the subject of waiver. If the answer to both questions is ‘yes, ' then the guilty plea sustains the conviction and sentence and the waiver can be enforced.” Id. at 343-44.

         Where the waiver does not apply and the defendant may proceed with his ineffective assistance of counsel claim, he must satisfy the two-prong test set forth in Strickland v. Washington, 468 U.S. 668 (1984), to establish that he is entitled to relief. Specifically, he “must show (1) that his counsel's performance was deficient, and (2) that the deficient performance prejudiced his defense.” Woodward v. Epps, 580 F.3d 318, 325 (5th Cir. 2009). “[T]o establish deficient performance, a [defendant] must demonstrate that counsel's representation fell below an objective standard of reasonableness.” Id. (citation, quotation marks, and brackets omitted). “With respect to guilty pleas, the prejudice requirement ‘focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.'” United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000) (citation omitted). A defendant “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.

         I. FAILURE TO ADVISE OF POTENTIAL AFFIRMATIVE DEFENSE

         Sandford argues that he would not have pled guilty if his attorney had told him about exculpatory documents that would have formed the basis for a potential affirmative defense as to the two counts of wire fraud included in the indictment. According to Sandford, “[t]he documents show that contrary to the allegations in the indictment's count one and two, Mr. Larson and Mr. Bayliss were lending money to Mr. [Sandford].” (Mot. at 10, ECF No. 44). Sandford further claims that he repaid Mr. Bayliss in full and he was in the process of repaying Mr. Larson.

         First, actual or intended repayment is not necessarily a defense to a charge of wire fraud. United States v. Daniel, 329 F.3d 480, 488 (6th Cir. 2003). A conviction of wire fraud requires proof of the specific intent to defraud or deceive. United States v. Rivera, 295 F.3d 461, 466 (5th Cir. 2002). To prove this intent, “[i]t is sufficient that the defendant by material misrepresentations intends the victim accept a substantial risk that otherwise would not have been taken.” Daniel, 329 F.3d at 488. Thus, the Government would only have been required to prove that Sandford intended to deprive his victims of money in the short-term. See Id. Sandford essentially admitted this intent when he gave the following testimony during the sentencing hearing:

[by the Government]
Q: Mr. Sandford, you don't dispute the fact that you've told Mr.
Baylis and Mr. Larson a long string of lies in order to get money from them, haven't you?
A: Yes, sir.
Q: That's right? You don't dispute that? You admit you've done that?
A: Yes, sir.

(Tr. at 104, ECF No. 38).

         Furthermore, Sandford's attorney has provided a very thorough affidavit in which he testifies that he discussed all of the evidence with Sandford. Sandford's attorney also explains why each of the allegedly exculpatory documents cited by Sandford were not useful to Sandford's defense. For example, the two promissory notes that Sandford relies on are identical even though they allegedly came from two different persons, and Sandford had crossed through the portions of the promissory notes that required him to make payments. Sandford claims that a cashier's check made payable to Attorney Ross Barnett proves that he was truly paying an attorney to overturn his prior rape conviction, but Sandford's trial attorney notes that he interviewed Mr. Barnett, who stated that Sandford never paid him a dime. Sandford admitted during his change of plea hearing that he returned the cashier's checks and cashed or deposited them in his own account by endorsing them “not used for intended purpose.” (Tr. at 18, 20, ECF No. 39).

         In addition, even if the payments were made to Sandford pursuant to a loan, Sandford would not have needed his attorney to inform him of this. Sandford would surely have been aware of any agreement to repay the funds, and many of the alleged exculpatory documents that Sandford relies on were authored and/or signed by Sandford. (See Mot., Ex. B, C, D, F, J, K, L, ECF No. 44-1). A review of the transcript of Sandford's change of plea hearing casts even further doubt on Sandford's claims that he was unaware of three of the alleged exculpatory documents - a life insurance policy and two promissory notes - because Sandford asked his attorney during the change of plea hearing to mention these documents in an attempt to counter the factual basis. (Tr. at 19-20, ECF No. 39). Since Sandford cannot demonstrate that he was unaware of this alleged affirmative defense or evidence, he cannot demonstrate that he would not have pled guilty if his attorney had informed him of the alleged defense and evidence.

         Sandford's attorney provided a vigorous defense against the charges and effectively represented Sandford during his change of plea hearing and at sentencing. Sandford agreed to the factual basis for his plea and admitted his guilt under oath. Therefore, this argument is without merit.

         II. ASSURANCES OF A SENTENCE OF NO MORE THAN THIRTY-SIX MONTHS

         Sandford claims that his attorney told him he would receive a sentence of no more than thirty-six months upon pleading guilty. Sandford also claims that his attorney “[a]dvised him that the plea hearing would be confusing, that he should agree to everything the judge said, and that he would handle the situation.” (Mot. at 16, ECF No. 44). Sandford has produced two affidavits signed by his daughter Diane Sanford on October 26, 2015. (Mot., Ex. N. ECF No. 44-1). In the first affidavit, she testifies: “I Diane Sanford, met and spoke to attorney Greg Parks, and he mentioned to me if my dad Bobby Sanford pled guilty to his charge with the federal point system he would serve 3-4 years.” (Id.) In the second affidavit, she testifies:

I've personally met and spoke [sic] with attorney Greg Parks at his office . . . and during those conversations Mr. Parks repeatedly [sic] assured me that if my dad pled guilty to the charges, he would serve 3-4 years, using the federal point system. Mr. Parks also encourage [sic] me and my family to get as many character letters as possible because that would help reduce his sentence even more.

(Id.)

         Sandford's former attorney disputes these allegations, providing the following testimony by affidavit: “While I reviewed sentencing guidelines with Sandford at length, it was explained that the Guidelines are advisory and the court has the discretion to impose a sentence of zero days in custody up to the statutory maximum.” (Parks Affidavit, ECF No. 76).

         At the change of plea hearing, the Court thoroughly addressed Sandford's ability to understand the change of plea proceedings, and she ensured that Sandford was not promised a particular sentence in exchange for pleading guilty. First, Sandford is an educated man, holding a four-year college degree. (Tr. at 4, ECF No. 39). As such, he was capable of understanding the proceedings and the questions asked of him. During the plea colloquy, Sandford stated that he had discussed the plea with his attorney and that he was satisfied with his attorney's representation. Id. Sandford also affirmed his understanding that, should he go to trial, he had the right to: (1) maintain his innocence, (2) a public and speedy trial, (3) appointed counsel upon a showing of indigence, (4) a presumption of innocence, (5) cross-examine government witnesses, (6) call witnesses using subpoena power, (7) testify or not testify, and (8) appeal both his conviction and sentence. (Id. at 4-7). Sandford likewise stated that he understood the consequences of pleading guilty, including waiver of the rights just discussed. Sandford acknowledged that, if he pled guilty, the court would adjudicate him guilty, sentence him based upon the finding of guilt, and that he would lose his right to a jury trial. (Id. at 7-8).

         Then, the Court made sure that Sandford had spoken with his attorney about ...


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