United States District Court, N.D. Mississippi, Delta Division
ORDER DENYING MOTION FILED PURSUANT TO 28 U.S.C.
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT is the Motion  under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence filed by the
petitioner Bobbie Louis Sandford. 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.
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.
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; (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.
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).
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.
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.
FAILURE TO ADVISE OF POTENTIAL AFFIRMATIVE DEFENSE
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.
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
[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).
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).
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
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.
ASSURANCES OF A SENTENCE OF NO MORE THAN THIRTY-SIX
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.
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.
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.
the Court made sure that Sandford had spoken with his
attorney about ...