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Franklin v. United States

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

October 29, 2018

HARVEY ANDRE FRANKLIN, SR. MOVANT
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION

          SHARION AYCOCK, U.S. DISTRICT JUDGE

         This matter comes before the court on the motion of Harvey Andre Franklin, Sr., through counsel, to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has responded to the motion; Franklin has replied, 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.

         Habeas Corpus Relief Under 28 U.S.C. § 2255

         The writ of habeas corpus, a challenge to the legal authority under which a person may be detained, is ancient. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass, Historical Aspects of Habeas Corpus, 9 St. John's L.Rev. 55 (1934). It is “perhaps the most important writ known to the constitutional law of England, ” Secretary of State for Home Affairs v. O'Brien, A.C. 603, 609 (1923), and it is equally significant in the United States. Article I, § 9, of the Constitution ensures that the right of the writ of habeas corpus shall not be suspended, except when, in the case of rebellion or invasion, public safety may require it. Habeas Corpus, 20 Fed. Prac. & Proc. Deskbook § 56. Its use by the federal courts was authorized in Section14 of the Judiciary Act of 1789. Habeas corpus principles developed over time in both English and American common law have since been codified:

         The statutory provisions on habeas corpus appear as sections 2241 to 2255 of the

1948 Judicial Code. The recodification of that year set out important procedural limitations and additional procedural changes were added in 1966. The scope of the writ, insofar as the statutory language is concerned, remained essentially the same, however, until 1996, when Congress enacted the Antiterrorism and Effective Death Penalty Act, placing severe restrictions on the issuance of the writ for state prisoners and setting out special, new habeas corpus procedures for capital cases. The changes made by the 1996 legislation are the end product of decades of debate about habeas corpus.

Id.

         Section 2255 Proceedings

          Section 28 U.S.C. § 2255 permits an inmate serving a sentence after conviction of a federal crime “to move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). As with the writ of habeas corpus, see 28 U.S.C. §§ 2241, 2254, a § 2255 motion sets forth only four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Thus, a prisoner must claim either a constitutional violation or want of subject matter jurisdiction to invoke 28 U.S.C. § 2255. In the absence of constitutional or jurisdictional defects, a federal prisoner may invoke § 2255 only if the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979).

         The district court must first conduct a preliminary review of a section 2255 motion, and “[i]f it plainly appears from the motion, any attached exhibits, and the record of the prior proceeding that the moving party is not entitled to relief, the judge must dismiss the motion.” Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then require the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Rules Governing Section 2255 Proceedings, Rules 6-7.

         After reviewing the government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must decide whether an evidentiary hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8. Under the statute, an evidentiary hearing must be held unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). However, the court need not hold an evidentiary hearing if the prisoner fails to produce “independent indicia of the likely merit of [his] allegations.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).

         Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. See Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain “structural” errors, relief follows automatically once the error is proved. See Burgess v. Dretke, 350 F.3d 461, 472 (5th Cir. 2003). For other errors at the trial court level, the court may grant relief only if the error “had substantial and injurious effect or influence” in determining the outcome of the case. Brecht v. Abrahmson, 507 U.S. 619, 637 (1993); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht's harmless error standard in a § 2255 proceeding). If the court finds that the prisoner is entitled to relief, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         Facts and Procedural Posture[1]

         In July 2009, the defendant, Harvey Franklin, became the superintendent of Greenville, Mississippi, Public Schools (“GPS”). Change of Plea Tr., p.21. In January 2010, GPS entered into a consulting services contract with Teach Them to Read, Inc. d/b/a Early Detection Necessary Action[2] (“Teach Them to Read”) a company owned and controlled by Edna Cochran Goble. Id. The stated purpose of the consulting contract was to assist GPS in an early intervention reading program that identified and accelerated “at-risk” reading students. Id. at 22. GPS eventually paid Teach Them to Read a total of approximately $1.4 million in a period of approximately eighteen months. The source of funds for all of GPS payments to Teach Them to Read was federal grant money. Id.

         Franklin had known Goble for a number of years prior to 2009 and had advocated for the use of her reading products in public school systems in Georgia before he took the position as Superintendent in Greenville. Id. While Franklin was the superintendent of GPS, and GPS was paying over $1 Million to Goble's company, Teach Them to Read, Goble paid thousands of dollars to remodel Franklin's home in Greenville in the form of direct payments to contractors and suppliers, as well as payments to Franklin's American Express credit card account. Id. Goble also paid for tuition and lodging expenses for Franklin's daughters to attend college, Tulane University and Drexel University. Id. Goble also paid in full a promissory note on a 2010 Ford F-150 for Franklin's personal use for approximately $36, 068. Id. The payments by Goble to Franklin were made while Franklin was using his position as Superintendent of GPS to advocate for the use of Goble's reading products in GPS, which paid Goble approximately $1.4 million. Id. at 23.

         In addition to these kickback/bribery payments Goble made to Franklin, the actual value of the services and products provided by Goble to GPS was far lower than the amounts charged to GPS and paid to Teach Them to Read (Goble's company). Id. For example, at Franklin's recommendation, GPS purchased 851 “reading units” from Teach Them to Read at a cost of $900 each - a total of $765, 900. Id. The reading units consisted of a small plastic bin containing reading materials and an outline. Id; see also, Sentencing Hearing, Gov't Exhibit #2. Franklin maintains that the reading units provided some value to GPS students; however, he admitted during his plea hearing that the actual value of the reading units was substantially less than the $900 GPS paid for each unit. Id. GPS thus used federal grant funds to purchase the reading units at an inflated price. Id. Goble then used the funds she received as a result of the inflated prices to pay kickbacks/bribes to Franklin. Id.

         On August 2, 2012, Mr. Franklin pled guilty to a three-count Information charging: (1) Conspiracy to Receive a Bribe (18 U.S.C. § 371 & 666(a)(1)(B)); (2) Federal Programs Bribery (18 U.S.C. § 666(a)(1)(B)); and (3) Embezzlement (18 U.S.C. § 641). Despite Franklin's claims to the contrary in his § 2255 Petition, his Plea Supplement included the standard language regarding cooperation and the possibility of a 5K1.1 Motion for Downward Departure:

COOPERATION:
(a) Agreement to Cooperate: The defendant agrees to cooperate with the United States Attorney by giving full and truthful statements to any and all agents assigned to interview defendant as to any and all knowledge defendant may have of other persons involved in any way in the offenses charged and all other criminal offenses, and to give full and truthful testimony in any federal proceedings, including any federal grand jury, trial or other hearing, to which defendant is subpoenaed. The defendant understands that a false statement to a federal agent or a failure to testify truthfully would subject the defendant to prosecution for false statement or perjury.
(b) Sentence Departures and Reductions: The United States Attorney may before sentencing move the Court for a downward departure under § 5K1.1 of the United States Sentencing Guidelines based upon substantial assistance or may file after sentencing a Rule 35 motion to reduce sentence based upon defendant's cooperation. The defendant understands that the decisions whether to move for downward departure or to reduce sentence are entirely in the discretion of the United States Attorney, not the defendant or defendant's attorney, and that the Court can deny in whole or in part either or both of such motions.

See Plea Supplement, pp. 2-3 (emphasis added) (Government Exhibit #1). In entering his guilty plea, Mr. Franklin agreed with the government's factual basis and admitted the facts as described above.[3] During the hearing, the court told Franklin that his guilty plea could result in his liability to pay restitution. Change of Plea Tr., p.14.

         As the victim in this case, the Department of Education requested that Franklin be required to repay the entire amount of federal grant money that GPS paid to Goble: $1, 433, 247. The United States Probation Service prepared a Pre-Sentence Investigation Report (“PSR”), concluding that the amount of restitution applicable to Franklin should be $1, 433, 247, or the total amount of federal grant money that GPS paid to Goble. Prior to his sentencing hearing, Franklin's defense counsel filed objections to his PSR and a thorough Sentencing Memorandum urging the court to impose a sentence below the Guidelines range.

         The PSR calculated Franklin's recommended guideline range based on the amount of the bribes paid to Franklin, $272, 294, a much lower figure than the amount of the grant money: $1, 433, 247. See PSR ¶ 16. For this reason, Mr. Franklin's complaints about the restitution amount, both on appeal and in his § 2255 petition, have no bearing on the length of his sentence. Instead, the calculations affect only the amount of restitution ordered by the court. Franklin's defense counsel objected to the amount of restitution at sentencing, arguing that Goble's reading program had provided some value to GPS - and that value should be deducted from the total amount of restitution owed. The court held a sentencing hearing for Mr. Franklin on November 13, 2013.

         At the hearing, the government called Agent La'Trishia Stallings to testify in support of the government's request for restitution. Sentencing Hearing Tr., p.8. Agent Stallings is a Special Agent with the United States Department of Education, Office of Inspector General and was one of the primary investigators on this case. Id. Agent Stallings explained that she was unable to determine an exact value for the reading program provided to GPS by Goble. Id. at 14. The only other school district that used Goble's program as extensively as GPS was the Walton County School District in Georgia. Id. at 26. The information from Walton County was, however, tainted - because when Walton County used Goble's program, Franklin was an assistant superintendent in Walton County and was the Director of Curriculum, advocating on behalf of Goble. Id. at 26. Thus, Mr. Franklin advocated for Goble's reading curriculum at both schools.

         Agent Stallings contacted a large school district in Mississippi, the Desoto County Public School District, and determined that despite being much larger than GPS, Desoto County spent only approximately $200, 000 on a comprehensive reading program for its elementary schools. Id. at 17-18. Agent Stallings also contacted other reputable vendors that offered interventional reading programs to public school districts in Mississippi. She determined that other vendors could have provided a supplemental reading program to GPS for considerably less than the $1.4 million charged by Goble. Id. at 19.

         Goble also charged GPS separately for consulting days. Agent Stallings testified that Goble's consulting rate of $1, 600 per day was similar to the daily rate of other vendors; however, the other vendors would typically only charge for 3-5 days of consulting as opposed to the 122 days Goble charged to GPS. Id. Agent Stallings also spoke with teachers and administrators at GPS, and they provided estimates of the actual value of the reading units (i.e. Gov't Exhibit #2) from as low as $50 to $250. Id. at 21. Agent Stallings explained that these values were estimates based on the opinions of the GPS employees. Id.

         After hearing the testimony of Agent Stallings, the court found that the reading units were clearly not worth the $900 to $1, 400 charged to GPS by Goble: “I am looking at a Tupperware box on the exhibit table [Gov't Exhibit #2], a box that I could - a plastic box I could go to Wal-Mart and purchase, and there are some leaflets and some documents and appears to be some copies of some books in there. I just cannot fathom that that box of papers is worth $900.” Id. at 59-60. The court noted that any value assigned to the reading units was speculation, and that the court was inclined to order restitution in the entire amount paid to Goble. The court then gave Mr. Franklin an opportunity to demonstrate that the reading units did have some value, and Franklin testified as to his opinion of the value of the units.

         He stated that, in his opinion, the actual value of the reading units ranged from $400 -$1, 600 per unit and that the $900 per unit charge was an average of the actual value of the units. Id. at 71. Mr. Franklin also testified that the units had an intangible value beyond the physical contents of each box, value arising from the knowledge and expertise that Goble provided to GPS in addition to the reading units. Id. at 72-73. However, on cross-examination, Mr. Franklin acknowledged that GPS also Goble separately for her consulting time, 122 days at $1, 600 per day, in addition to the cost of the reading units. Id. at 74. Franklin also admitted that the $400 -$1, 600 value he attributed to the reading units was merely his opinion. Id. at 75.

         During his testimony, Mr. Franklin refused to acknowledge something he had previously admitted, in his factual basis, that “the actual value of the services and products provided by Goble to the Greenville Public Schools was substantially lower than the amounts charged to the Greenville Public Schools and paid to Teach Them to Read, Goble's company.” Id. at 74-75.

         After hearing the testimony of Agent Stallings and Mr. Franklin, the court granted Franklin's objection to the PSR and reduced his restitution by $232, 000 based on an estimated value of $250 per unit for 928 reading units. Id. at 94. The court rejected the argument that Goble's reading program provided a monetary value to GPS in the form of increased test scores: “And so I totally reject the idea that some abstract, arbitrary figure should be assessed for any value that the Greenville School District may have received by way of the increase in their test scores.” Id.

         The court sentenced Mr. Franklin to a within-guideline sentence of 76 months imprisonment and ordered him to pay $1, 201, 247 in restitution, including an immediate payment of $75, 000. Id. at 98. The court entered judgment on November 18, 2013. On November 21, 2013, Mr. Franklin filed a Motion to Reconsider the order of the $75, 000 lump sum payment. On November 29, 2013, Franklin filed a notice of appeal. On ...


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