United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
On July 30, 2013, the Court sentenced defendant to 21 months in prison. This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #40) filed September 30, 2013. For reasons stated below, the Court overrules defendant's motion.
On November 30, 2012, before Magistrate Judge James P. O'Hara, defendant pled guilty to embezzlement from the Credit Union of Leavenworth County in violation of 18 U.S.C. § 657. As part of the factual basis for the guilty plea, the parties agreed that the government had evidence that an accounting firm (J. Tenbrink & Associates) had determined that defendant stole approximately $304, 000.00 from 23 Credit Union members. See Plea Agreement (Doc. #19) filed November 30, 2012, ¶ 2. The Credit Union initially determined that it was missing $79, 000.00 cash from its vault. Defendant admitted taking $79, 000.00 cash from the vault, but denied that the Credit Union or its members suffered additional losses. The Plea Agreement provided that "if the parties are unable to agree on the embezzlement/loss amount prior to sentencing, each party reserves the right to present evidence at the sentencing hearing." See id., ¶ 1.
Defendant retained Michael D. Peroo, a certified public accountant ("CPA"), to review the audit by J. Tenbrink & Associates and to "reconstruct" defendant's transactions to determine the loss amount. Peroo reviewed the financial records of the Credit Union, the reports from J. Tenbrink & Associates (including the annual audits of the Credit Union for 2010 and 2011), and the fraud audit and bond claim. Peroo also interviewed defendant and had her explain the various transactions. Peroo issued a 22-page report that included analysis of the bond claim report, the Credit Union vault balancing worksheets, checks written to Country Club Bank, various ledger transactions for vault cash, transactions which defendant conducted on victim accounts and documents which defendant prepared. Peroo found that "excluding the audit fee, the loss reported by the Credit Union's auditors amounted to $286, 200 of which the defendant admitted to only $79, 000, which does correspond to the difference in the cash count at the time she reported her activities. This loss would have reduced the equity of the Credit Union by 27%, this is significant and the Credit Union should have noticed this type of loss." Report Of Michael D. Peroo, CPA, PA, attached to Sentencing Memorandum (Doc. #35).
The Court held parts of the sentencing on May 7 and 8, 2013, then granted defendant's motion to continue so that defendant and her counsel could further investigate and review the Credit Union's fraud audit report. At sentencing, the Court heard testimony from defendant and a CPA at J. Tenbrink & Associates. The Court overruled defendant's objection to the loss amount of $329, 602.55, as calculated in the presentence report. On July 30, 2013, the Court sentenced defendant to 21 months in prison and ordered restitution in the amount of $329, 602.55. Specifically, the Court ordered defendant to pay $28, 002.55 to the Credit Union and $301, 700.00 to CUNA Mutual Group (the Credit Union insurance carrier). Defendant did not appeal. E. Roger Horsky represented defendant as retained counsel throughout this proceeding.
On September 30, 2013, defendant filed a pro se motion to vacate her sentence under 28 U.S.C. § 2255. Liberally construed, defendant's motion alleges that Horsky provided ineffective assistance because (1) he did not conduct any pretrial investigation to make an informed evaluation of viable defenses (Sections 12.A. and 12.C. of defendant's motion), (2) he did not ensure that defendant's guilty plea was voluntary and knowing (Section 12.B.) and (3) he did not prepare for sentencing or adequately object to the amount of restitution (Sections 12.C. and 12.D.). See Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #40) at 4-5.
The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).
To establish ineffective assistance of counsel, defendant must show that (1) the performance of counsel was deficient and (2) the deficient performance was so prejudicial that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). To meet the first element, i.e. counsel's deficient performance, defendant must establish that counsel "made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In other words, defendant must prove that counsel's performance was "below an objective standard of reasonableness." United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992). The Supreme Court recognizes, however, "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; see United States v. Rantz, 862 F.2d 808, 810 (10th Cir. 1988).
I. Inadequate Investigation (Claim 1)
Defendant argues that Horsky did not conduct any pretrial investigation to make an informed evaluation of viable defenses. See Motion Under 28 U.S.C. § 2255 (Doc. #40) at 7. At the plea hearing, defendant conceded that the government had evidence that she committed the crime of embezzlement from a credit union. See Plea Agreement (Doc. #19) ¶ 2. Defendant disputes the amount of restitution, but she has not cited any potential legal or factual defense to the charge of embezzlement. Defendant claims that Horsky accepted the government's version of the facts and never questioned or investigated whether they were true. See Motion Under 28 U.S.C. § 2255 (Doc. #40) at 7.
When law enforcement officers initially interviewed defendant in January of 2012, she admitted taking money from the credit union vault and member accounts as far back as 2007. See Presentence Investigation Report (Doc. #27) ¶ 16. She also admitted using money from customer accounts to offset the loss in the vault. See id. In her motion to vacate, defendant concedes that she repeatedly said that she took $79, 000.00 in cash from the credit union. See Motion Under 28 U.S.C. § 2255 (Doc. #40) at 9. In light of defendant's admission of guilt, counsel's decision not to further investigate factual or legal defenses was reasonable. Defendant has not shown that counsel's decision not to investigate was uninformed. See Hooper v. Mullin, 314 F.3d 1162, 1170-71 (10th Cir. 2002).
Even if counsel was deficient for failing to investigate potential defenses, defendant has not alleged prejudice from counsel's error. To show prejudice in the guilty plea context, defendant must show a reasonable probability that but for counsel's errors, she would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); United States v. Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002); Miller v. Champion, 262 F.3d 1066, 1068-69 (10th Cir. 2001). As part of her proof, defendant must show that "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000)). Here, defendant has not alleged or shown a reasonable probability that if ...