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Crawford v. United States

United States District Court, D. Delaware

March 13, 2017

GARY CRAWFORD, aka Gary Taxes, Movant/Defendant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff. Civ. Act. No. 15-553-RGA

          Gary Crawford. Pro se Movant.

          Shannon Thee Hanson, Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for respondent.

          MEMORANDUM OPINION

          ANDREWS, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Movant Gary Crawford's pro se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (D.I. 73; D.I. 75) The Government filed an Answer in Opposition. (D.I. 80) For the reasons that follow, the Court will deny Movant's § 2255 Motion.

         I. BACKGROUND

         Movant was the leader and organizer of a large tax fraud conspiracy involving the electronic filing of hundreds of false federal income tax returns for the 2008 tax year. (D.I. 48 at 2) On November 1, 2011, a federal grand jury returned a thirty-six count indictment charging Movant with: (1) conspiracy to defraud the United Sates, with respect to false claims, in violation 18 U.S.C. § 286 (Count One); (2) making false claims, in violation of 18 U.S.C. § 287 (Counts Two - Eighteen); (3) conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349 (Count Nineteen); and (4) wire fraud, in violation 18 U.S.C. § 1343 (Counts Twenty - Thirty-Six). (D.I. 3) On April 11, 2012, Movant pled guilty to Count One of the Indictment, charging him with conspiracy to defraud the United States, with respect to false claims, in violation of 18 U.S.C. § 286. (D.I. 25; D.I. 69) The Court sentenced Movant to ninety-seven months of incarceration. (D.I. 62)

         Movant appealed, and counsel filed a merits brief in the Third Circuit asserting one claim that the District Court erred in applying a two-level enhancement under U.S.S.G. § 3B1.3 for use of a "special skill." See United States v. Crawford, C.A. 13-3960, Electronic Br. on Behalf of Appellant Gary Crawford (3d Cir. Dec. 30, 2013). The Government moved for a summary affirmance, contending that the appeal was baseless because the Court had not applied a "special skill" enhancement. (D.I. 80 at 2) In February 2014, counsel filed a response, seeking to substitute an Anders brief for the merits brief. See United States v. Crawford, C.A. 13-3960, Response filed on Behalf of Appellant Gary Crawford With Request to Withdraw Op. Br. and Leave of Court to File Motion to Withdraw as Counsel and an Anders Br. (3d Cir. Feb. 4, 2014). The Third Circuit directed Movant to file any response to the Government's summary affirmance motion and his counsel's response and Anders brief. See United States v. Crawford, C.A. 13-3960, Order (3d Cir. Mar. 27, 2014). On June 13, 2014, the Third Circuit dismissed Movant's appeal after he filed a response indicating he wished to withdraw his claim. (D.I. 72)

         On June 18, 2015, Movant filed a § 2255 Motion, followed by an Amended § 2255 Motion on August 3, 2015. (D.I. 73; D.I. 75) The Government filed an Answer in Opposition. (D.I. 80) Movant filed a Response. (D.I. 83)

         II. DISCUSSION

         Movant's timely filed § 2255 Motion and Amended § 2255 Motion appear to assert the following grounds for relief:[1] (1) the Court incorrectly calculated his advisory guidelines range; (2) the Government engaged in misconduct by failing to provide the defense with potential impeaching evidence contained in the interview notes, in violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) defense counsel provided ineffective assistance during the pre-trial/pre-plea phase by failing to adequately investigate the case, to obtain full discovery, to make himself available, to articulate a defense, and to file any pre-trial motions; (4) defense counsel provided ineffective assistance during the sentencing hearing by failing to object to the loss amount and enhancements; and (5) defense counsel provided ineffective assistance on appeal by asserting a frivolous argument and unilaterally changing the argument raised on appeal without Movant's agreement.

         In response, the Government contends that Claim One should be denied as procedurally barred or for not being cognizable on § 2255 review; Claim Two should be denied as procedurally barred, waived as a result of the guilty plea, or as meritless; and Claims Three, Four, and Five should be denied as meritless. For the following reasons, the Court will deny all five claims.

         A. Claims One and Two: Procedurally Barred

         If a movant fails to raise a claim on direct appeal, that claim is procedurally defaulted and cannot thereafter be reviewed pursuant to 28 U.S.C. § 2255 unless the movant demonstrates cause for the default and prejudice resulting therefrom, or that he is actually innocent. See Bousley v. United States, 523 U.S. 614, 621-23 (1998). To establish cause for a default, a movant must demonstrate that "some objective factor external to the defense impeded counsel's efforts to raise the claim." United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). An attorney's failure to preserve or raise a claim on direct appeal can constitute cause for a movant's procedural default only if the attorney's failure amounts to constitutionally ineffective assistance of counsel. See Hodge v. United States, 554 F.3d 372, 379 (3d Cir. 2009). To establish prejudice, a movant must show that "that the errors at his trial... worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis omitted). Notably, if the movant fails to demonstrate cause, a court is not required to determine if the movant was prejudiced by the default. See Smith v. Murray, 477 U.S. 527, 533 (1986).

         In Claim One, Movant contends that the court improperly applied the two-level Guideline enhancement for obstruction of justice, as well as the one-level enhancement beyond the stipulated loss amount. In Claim Two, Movant appears to contend that the Government engaged in prosecutorial misconduct and/or violated Brady by providing the defense (or the probation officer who drafted the PSR) with a revised version of Special Agent Carpenter's "post-interview notes or notebook" dated November 2, 2011, instead of with the original "true copy" of those notes. (D.I. 75 at 17) According to Movant, the Government "suppressed this substantial exculpatory information from the defense causing [defense counsel] to believe in his client's guilt as shown in that letter where it was talked about previously and described throughout the court transcripts." (D.I. 75 at 19) Movant argues that defense counsel's actions were a direct result of the Government's suppression of evidence. Id. Therefore, in Movant's opinion, he was prejudiced by the alleged suppression of the original "non-revised" post-interview notes.

         Since Movant voluntarily withdrew his direct appeal, the Third-Circuit has not had an opportunity to review the merits of his arguments. Consequently, Claims One and Two are procedurally defaulted.

         Movant attempts to establish cause for his default by asserting he could not have filed a pro se appellate brief because he was initially represented by counsel on direct appeal. This argument is unavailing. The Third Circuit provided Movant with an opportunity to respond to counsel's Anders brief, but instead of responding, Movant voluntarily chose to withdraw his appeal. Thus, the fact that Movant was represented by counsel during his short-lived appeal does not constitute cause for his default of Claims One and Two.

         Given Movant's failure to establish cause, the Court does not need to address the issue of prejudice. The Court also notes that Movant's default of the instant claims cannot be excused under the miscarriage of justice exception to the default doctrine, because he has not provided new reliable evidence of ...


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