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Day v. United States

United States District Court, S.D. Indiana, Indianapolis Division

May 25, 2018

DAVID DAY, Petitioner,



         This matter is before the Court on pro se Petitioner David Day's (“Day”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Dkt. [1]). Day seeks resentencing pursuant to § 2255 on his conviction for Conspiracy to Commit Wire Fraud, a violation of 18 U.S.C. §§ 1343, 1349. He contends that his trial attorneys' were ineffective, thus requiring his sentence to be vacated and a new sentencing hearing to be held. For the reasons explained below, Day's motion for sentencing relief is denied, and a certificate of appealability is also denied.


         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The scope of relief available under § 2255 is narrow, limited to “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal citations omitted).


         On September 10, 2013, Day, along with several co-defendants, was charged in a thirty-four count Indictment. United States v. Day, et al., No. 1:13-cr-00185-TWP-DML-1 (hereinafter “Crim. Dkt.”), Dkt. [1] (S.D. Ind. Sept. 10, 2013). Day was charged in count one with Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. §§ 1343, 1349. Count three charged Day with Making False Statements in Loan and Credit Applications in violation of 18 U.S.C. § 1014. The Government eventually dismissed count three in exchange for Day's guilty plea to count one. The fraud involved Day and a co-defendant procuring unsuspecting victims' social security numbers and assigning them to individuals and providing instruction to those individuals to open retail lines of credit (using the stolen social security numbers) to purchase assets including automobiles, jewelry, and other goods. Crim Dkt. 862 at 48.

         Day was initially represented by Federal Community Defender Monica Foster (“Foster”), but on December 12, 2014, Day retained attorneys John M. Christ (“Christ”) and John M. Schwartz (“Schwartz”) (collectively, “trial counsel”). Crim. Dkts. 579, 580. Thereafter, Foster withdrew as Day's attorney. Crim. Dkt. 588.

         A. Plea Offers

         1.Government's June 2014 Offer

         In early June 2014, the Government relayed an initial plea offer to Foster. Day would plead guilty under Rule 11(c)(1)(B) (which allows the parties to make recommendations as to the defendant's sentence, but does not bind the Court). Under the terms of the agreement, Day would, among other things, plead guilty to count one, waive his right to appeal the conviction and sentence, and waive his right to challenge his conviction and sentence in a § 2255 motion (except claims of ineffective assistance of counsel). See Dkt. [18]-1, ¶ 4. In exchange, the Government would move to dismiss count three, advise the Court of the nature, extent and timing of his acceptance of responsibility and cooperation with law enforcement, and recommend a sentence at the low end of the United States Sentencing Guidelines (the “Sentencing Guidelines” or “U.S.S.G.”) range. The parties would stipulate that Day's total offense level was 24 under the Sentencing Guidelines, calculated as follows: pursuant to § 2B1.1(a)(1), Day's base offense level was 7; 14 levels were added pursuant to § 2B1.1(b)(2)(A)(i) because the actual loss attributable to Day was greater than $400, 000.00 but less than $1, 000, 000.00; two levels were added pursuant to § 2B1.1(b)(2)(A)(i) because there were more than 10 victims; two levels were added pursuant to § 2B1.1(b)(11)(C)(i) because the offense involved the unauthorized transfer or use of identification unlawfully produced; two levels were added pursuant to § 3B1.1(c) because Day was an organizer, leader, manager, or supervisor in the criminal activity; and three levels were subtracted pursuant to § 3E1.1(a) and (b) with the understanding that Day would clearly demonstrate acceptance of responsibility for the offense. No stipulation would be made as to his criminal history category. However, with a Criminal History Category I, Day's guideline range would have been 51-63 months.

         2. September 2014 Counter-Offer by Foster

         On or around September 2, 2014, prior to her withdrawal from the case, Foster presented a counter-offer. See Dkt. [18]-1, ¶ 5. She requested a plea deal wherein Day would plead guilty to count one and, in exchange, the Government would agree to a 40-month term of imprisonment under a binding Rule 11(c)(1)(C) plea agreement. Under the terms of the proposed agreement, the Government would also agree to a guideline calculated range of 46-57 months. The Government did not respond to Foster's counter-offer.

         3. December 2014 Plea Offer

         Day's retained counsel entered their appearances on December 12, 2014-45 days before the scheduled trial date of January 26, 2015. On December 17, 2014, the Government mailed its prior June 2014 plea offer to Day's new attorneys.

         On January 15, 2015, eleven days before trial, and without the benefit of a written plea agreement, Day filed a petition to enter a plea of guilty to count one. Crim. Dkt. 627; Crim Dkt. 849 at 4; Crim. Dkt. 862 at 3-4. He did so with the understanding that the Government would move to dismiss count three of the Indictment, and he would waive his right to appeal and collaterally attack his conviction and sentence in a § 2255 motion (excluding claims of ineffective assistance of counsel). Crim. Dkt. 764; Crim Dkt. 849 at 4; Crim. Dkt. 862 at 6-8. Because Day plead guilty without the benefit of a written plea agreement, there were no other concessions or agreements by or between the parties regarding his plea of guilt.

         In his petition to enter a plea of guilty, Day stated that he and his attorneys had discussed the charges in the Indictment, the facts and circumstances concerning the charges, and possible defenses. Crim. Dkt. 764. He stated that his attorneys had advised him that the statutory punishment for conspiracy to commit wire fraud is a maximum of twenty years. He further stated that his attorneys had “done all that anyone could do to counsel and assist” him and that he understood the proceedings in the case. He acknowledged that he was guilty and made “no claim of innocence.” Day's trial counsel certified that the plea was consistent with the advice they provided to Day, and that he was entering his plea of guilty “voluntarily and understandingly.” B. Plea Hearing Day's change of plea hearing was held on January 16, 2015. Crim. Dkt. 849. At the hearing, Day swore under oath that he: (1) had fully discussed with his attorneys the charges in the Indictment and possible defenses, id. at 7; (2) understood that he was facing a possible 20-year sentence, id. at 7, 9; (3) was satisfied with the representation and advice his attorneys provided, id. at 9; (4) was entering his plea of guilty of his own free will because he was in fact guilty, id. at 9-10; (5) understood the many rights his plea of guilty relinquished, id. at 10-13; (6) discussed with his attorneys the factors the judge would consider in sentencing him, id. at 14-15; (7) reviewed with his attorneys the Sentencing Guidelines as they applied to him, id. at 15-16; and (8) understood the judge would consider the non-binding Sentencing Guidelines range in determining his sentence, id. at 15-16.

         The judge advised Day that she would use her “discretion to fashion a sentence within the statutory range . . . of up to 20 years.” Id. at 14. Additionally, the judge advised him that if the Court sentenced him outside the guideline range or to a different sentence from that recommended by either party, he would not be allowed to withdraw his guilty plea. Id. at 15-16. After hearing testimony establishing a factual basis for Day's guilty plea to count one, id. at 17-25, and Day's agreement as to the truth of the factual testimony, id. at 25-26, the Court accepted his guilty plea as to count one and Day was adjudged guilty of Conspiracy to Commit Wire Fraud, id. at 27. The matter was scheduled for sentencing hearing on April 24, 2015.

         C. Day's Assistance

         In April 2015, the Government advised Day's retained counsel of its willingness to move for a reduction under Sentencing Guidelines § 5K1.1, should Day continue to provide substantial assistance in the investigation of the offenses at issue and other investigations that had come to light as a result of a proffer meeting with Day. See Dkt. [18]-1 at 15-16. This meeting and Day's agreement to cooperate with the Government were memorialized in email communications between the Government and counsel Christ. Indeed, Day made specific requests in the email communications regarding the sealing of documents that would be filed with the Court to continue the sentencing hearing in an effort to allow for his full cooperation. The Court granted a continuance of the sentencing hearing which was rescheduled for November 24, 2015.

         On November 17, 2015, a few days before his sentencing hearing, Day filed a waiver of his appeal rights and his right to challenge his sentence or conviction in a § 2255 motion, excluding claims of ineffective assistance of counsel. Crim. Dkt. 764. Also on that day, the Government filed a sealed motion pursuant to Sentencing Guidelines § 5K1.1 and recommended a 2-level reduction in Day's total offense level. Crim. Dkt. 765.

         D. Presentence Investigation Report

         The United States Probation Office completed a presentence report (“PSR”) in preparation for Day's sentencing hearing. Crim. Dkt. 704. Applying the 2014 edition of the Sentencing Guidelines, the PSR writer determined that Day's criminal history score was a Category I and his base offense level was 7. Id. at ¶ 31. However, the probation officer determined that several adjustments applied which significantly increased Day's offense level. Because his offense resulted in a total loss of more than one million dollars, his offense level increased by 16 levels. U.S.S.G. § 2B1.1(b)(1)(I). Id., ¶ 32. Another six levels were added because his offense involved 62 victims, U.S.S.G. § 2B1.1(b)(2)(B), and because the offense involved the use of social security numbers to obtain loans, U.S.S.G. § 2B1.1(b)(11)(C)(i). Id., ¶¶ 33, 34. Four levels were added because he was an organizer or leader of the criminal activity that involved five or more participants, U.S.S.G. § 3B1.1(a). Id., ¶ 36. The upward adjustments increased Day's offense level to 33. The Government's motion under Sentencing Guidelines § 5K1.1, recommended a two-level downward departure for substantial assistance for a total offense level of 31. Dkt. [766]. The PSR noted a Criminal History Category I and an offense level of 31 which would result in a Sentencing Guidelines range of 108 to 135 months of imprisonment. Id. The final PSR was docketed on November 19, 2015, however the preliminary PSR filed March 20, 2015 contained the same Sentencing Guideline calculations. Dkt. [704].

         E. Sentencing Hearing

         Day's sentencing hearing was held as scheduled on November 24, 2015. At the hearing, the Court adopted without objection from Day's counsel most of the findings recommended by the probation officer in Day's PSR. Crim. Dkt. 862 at 10-11. Following evidence and argument, the Court determined that Day had accepted responsibility for his criminal conduct and was entitled to a two-level reduction in his offense level. Id. at 15. The Court accepted the Government's recommendation in their motion under § 5K1.1 for a two-level reduction based on Day's substantial assistance. With an offense level of 29, the advisory Sentencing Guideline range was 87-108 months. The Court sentenced Day to 92 months imprisonment and ordered restitution to his victims. Id. at 44-45. Judgment was entered on December 7, 2015. Crim. Dkt. 780.

         In exchange for concessions made by the Government, and in keeping with the written waiver filed on November 17, 2015, Day expressly waived his right to appeal and agreed “not to contest the conviction or sentence or the manner in which it will be determined in any collateral attack, including but not limited to an action brought under Title 28, United States Code § 2255”, excluding any claims of ineffective assistance of counsel. Crim. Dkt. 862 at 6-7.

         Day filed his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on January 3, 2017, and this action was opened. The Government has responded in opposition, and Day has replied.


         Day seeks relief pursuant to § 2255 arguing that his trial counsel provided ineffective assistance for: (1) improperly advising Day to reject the Government's initial plea offers despite lacking experience in federal criminal defense work, failing to review the discovery, and lacking a good faith basis in their advisements (2) failing to object to sentencing enhancements related to loss and managerial role; (3) failing to argue for sentencing under the 2015 Sentencing Guidelines and not the 2014 Sentencing Guidelines; and (4) failing to represent Day at his interview with the probation officer for preparation of the PSR and failing to follow up and argue against the denial of the additional one-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.

         In his supplemental petition, Dkt. [9], Day fails to include his claim that his counsel was ineffective for failing to argue for sentencing under the 2015 Guidelines and not the 2014 Guidelines. The Court agrees with the Government's argument that Day has waived this claim and thus, the Court need not address the merits of this claim. In their response, the Government asserts that in his appellate waiver, Day specifically waived his rights to challenge his sentence under the Guidelines in a § 2255 motion and trial counsel was not ineffective.

         A. Waiver of § 2255 Motion

         The Government argues that Day waived his claim that trial counsel was ineffective by their alleged failure to seek reductions in his offense level based on his role in the offense (§ 3B1.1), the monetary loss amount (§ 2B1.1(b)), and his acceptance of responsibility (§3E1.1), because Day's ineffective assistance ...

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