United States District Court, D. Delaware
David Matusiewicz. Pro se movant.
Jamie M. McCall, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for respondent.
GREGORY M. SLEET, District Judge.
Movant David Matusiewicz ("Matusiewicz") filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (D.I. 49) The government filed its answer in opposition. (D.I. 64) For the reasons discussed, the court will deny Matusiewicz's § 2255 motion without holding an evidentiary hearing.
In April 2008, Matusiewicz was indicted and charged with one count of bank fraud (count one) and one count of making a false statement on a bank loan application (count two). (D.I. 2; D.I. 3) On July 16, 2009, a federal grand jury returned a First Superseding Indictment, re-charging Matusiewicz with counts one and two, and also charging him with one count of engaging in an illegal monetary transaction (count three) and one count of international parental kidnapping (count four). (D.I. 25; D.I. 26)
On September 3, 2009, Matusiewicz pled guilty to counts one and four of the First Superseding Indictment. (D.I. 29) The offense conduct centered around Matusiewicz's kidnapping of his three minor daughters on or about August 26, 2007, which involved his taking them from the United States to Nicaragua, in contravention of the joint custody order with his ex-wife, Ms. Belford. (D.I. 64 at 2) Matusiewicz told Ms. Belford that he was taking the children on a two-week vacation to Disney World, but instead he took them in a motor home to Central America. Matusiewicz kept the children in Nicaragua until his apprehension in March 2009. Id.
To facilitate the kidnapping, Matusiewicz committed bank fraud by forging Ms. Belford's signature on several mortgage documents concerning the former marital home - Ms. Belford was listed on the deed. (D.I. 64 at 2) Matusiewicz secured a $249, 000 home equity loan as a result of the bank fraud, and then transferred the money to a bank account in New Zealand. Following his arrest, the government, with the help of international legal authorities, was able to secure the return of the $249, 000 from the owner of the New Zealand account. Id.
On December 10, 2009, the court sentenced Matusiewicz to a total of forty-eight months of imprisonment, representing a term of forty-eight months for count one running concurrently with a term of thirty-six months for count four, followed by five years of supervised release, and $9, 674 restitution. (D.I. 43) Matusciewicz appealed, and the Third Circuit Court of Appeals affirmed his judgment of conviction. See United States v. Matusiewicz, 402 F.Appx. 723 (3d Cir. 2010).
The court construes Matusiewicz's timely filed § 2255 motion as presenting the following four ineffective assistance of counsel claims: (1) defense counsel failed to file formal motions for a variance or downward departure; (2) defense counsel failed to advise Matusiewicz of "all of the facts and law relevant to his decision to plead guilty" and failed to pursue a "more favorable plea agreement" under Federal Rule of Civil Procedure 11 (c)(1)(C); (3) counsel failed to move for suppression of evidence and failed to move for dismissal of the indictment; and (4) counsel represented Matusiewicz while operating under a conflict of interest. The government contends all four grounds for relief should be denied.
Matusiewicz has properly raised his ineffective assistance of counsel allegations in a § 2255 motion. See Massaro v. United States, 538 U.S. 500 (2003). As a general rule, ineffective assistance of counsel claims are reviewed pursuant to the two-pronged standard established in Strickland v. Washington, 466 U.S. 668 (1984). Under the first ("performance") prong of the Strickland standard, Matusiewicz must demonstrate that "counsel's representation fell below an objective standard of reasonableness, " with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the second ("prejudice") prong of the Strickland standard, Matusiewicz must demonstrate a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. Id. at 694; United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994). In the context of a guilty plea, a petitioner satisfies Strickland's prejudice prong by demonstrating that, but for counsel's error, there is a reasonable probability he would have insisted on proceeding to trial instead of pleading guilty. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). Notably, a court can choose to address the prejudice prong before the performance prong, and reject an ineffectiveness claim solely on the ground that the defendant was not prejudiced. See Strickland, 466 U.S. at 668. Finally, although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that counsel's representation was professionally reasonable. Id. at 689.
The court will review Matusiewicz's claims in seriatim.
A. Claim One: Counsel Provided Ineffective Assistance During Sentencing
Matusiewicz contends that defense counsel was ineffective for failing to raise the following arguments in formal motions for a downward departure and/or a variance: (1) Matusiewicz removed his daughters from the United States because he believed they had been sexually abused; (2) WSFS suffered no actual loss; (3) WSFS was partly responsible for the fraud because its employees improperly notarized ...