Ayers v. United States of America Do not docket in this case. File only in 4:15-cr-00212-1., No. 4:2018cv00204 - Document 4 (S.D. Tex. 2019)
Court Description: Memorandum Opinoin and ORDER denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255).(Signed by Judge Gray H Miller) Parties notified.(kpicota, 4)
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Ayers v. United States of America Do not docket in this case. File only in 4:15-cr-00212-1. Doc. 4 United States District Court Southern District of Texas ENTERED April 22, 2019 IN TH E U M TED STATE S D ISTRIC T C O UR T FO R TIIE SO W IIER N DISTR ICT O F TEX AS H O USTO N D IVISIO N David J. Bradley, Clerk UNITED STATES OF A MERICA CRIMINAL ACTION 11-15-212 CIVIL ACTION 11-18-0204 AVERY LAM ARR AYERS M EM ORANDI;M O PIM ON AND O RDER D efendantA very Lam arr A yers,proceeding pro se,filed a m otion to vacate,set aside,orcorrecthissentenceunder28 U .S.C.j 2255. (DocketEntriesNo.120,121). TheGovernmentfiled amotion forjudgmenton therecord (DocketEntryNo.130),to which Defendantfiled a response (DocketEntry No.134). Having reviewed the section 2255 motion,the motion for judgment and the response,therecord,andtheapplicablelaw,theCourtGRANTSthemotionforjudgment, DEN IES thesection 2255 m otion,and D ISM ISSES thislawsuitforthereasonsthatfollow . Background and Claim s On June 18,2015,Defendantpleaded guilty to the charge ofconspiracy to com m it w ire fraud. On Septem ber 18,2015,the Courtsentenced him to 60 m onths'imprisonm ent in custody ofthe FederalBureau ofPrisons followed by three years'supervised release. Defendantwas also ordered to pay restitution in an amountof$357,000.00. Defendant appealed,arguingthattheCourterroneously deniedhim an adjustmentforacceptanceof responsibility.TheFifthCircuitCourtofAppealsrejectedtheargumentandaffirmedthe conviction,pointedly rem arking thatDefendanthad ûlsoughtto m inim ize his role and the Dockets.Justia.com duration ofhisinvolvem entin thefraudulentschem e.''Unitedstatesv.Ayers,669 F.App'x 202,202 (5th Cir.2016). lntheinstanttim ely-filed section 2255m otion,D efendantraisesthefollow ingclaim s forhabeasrelief: TrialcounselfailedtoobjecttotheGovemment'sinsufûcientfactual basisto supporta Gnding ofguilt;and Appellate counsel failed to challenge the Govem m ent's insufficient factualbasisto supporta finding ofguilt. TheGovernm entarguesthattheseclaim sarew ithoutm eritand thatthesection 2255 m otion should be denied. In his reply,Defendantraised an additionalclaim ,arguing that,underthe Suprem e Court'srecentdecision inMccoy v.Louisiana, U.S. ,138S.Ct.1500(2018),trial counsel's failure to recognize D efendant's autonom y regarding innocence constituted structuralerrorrequiring anew trial.D efendantdidnotseek leaveto supplem enthissection 2255 m otion with thisnew claim . LegalStandards G enerally,there are fourgroundsupon which a defendantm ay m ove to vacate,set aside,orcorrecthissentencepursuantto section 2255: (1)the imposition ofa sentence inviolationoftheConstitmion orthelawsoftheUnited States' ,(2)alack ofjurisdiction ofthe districtcourtthatimposed the sentence;(3)theimposition ofa sentence in excess ofthemaximum authorizedbylaw;and (4)thesentenceisotherwisesubjecttocollateral attack.28 U.S.C.j2255;United Statesv.Placente,81F.3d 555,558 (5th Cir.1996). Section 2255 is an extraordinary m easure,and calm ot be used for errors that are not constitutionalorjurisdictionalifthoseerrorscould havebeen raised on directappeal. United States v.Stumph 900 F.2d 842,845 (5th Cir.1990). lfthe error isnotof constitutionalorjurisdictionalmagnimde,themovantmustshow theerrorcouldnothave been raised on directappealand would,ifcondoned,resultin a com plete m iscarriage of justice. United Statesv.Smith,32F.3d 194,196(5th Cir.1994). The pleadings of a pro se prisoner litigant are review ed under a less stringent standard than those drafted by an attorney,and are provided aliberalconstruction. Haines v.Kerner,404U .S.519 (1972). Nevertheless,apro selitigantisstillrequiredtoprovide sufficientfactsto supporthisclaim s,and Hm ere conclusory allegations on a criticalissue are insufficientto raise a constim tionalissue.'' United States v.Pineda,988 F.2d 22,23 (5th Cir.1993). Accordingly,tElalbsentevidence in the record,acourtcarmotconsider a habeas petitioner'sbald assertion on a criticalissue in hispro se petition . ..to be of probativeevidentiary value.'' Rossv.Estelle,694 F.2d 1008,1011(5th Cir.1983). IneffecdveAssistanceof Counsel The Sixth Am endm entguarantees a crim inaldefendantthe effective assistance of counsel,both attrialand on appeal. Strickland v.Washington,466 U.S.668 (1984); Evitts v.Lucey,469 U.S.387,396 (1985). To successfully state a claim ofineffective assistance of counsel, the prisoner m ust dem onstrate that counsel's perform ance w as deficientandthatthedeficientperformanceprejudiced hisorherdefense.f#.at687.A failure to establish either prong of the Strickland test requires a finding thatcounsel's performance was constitutionally effective. 1d.at696. In determ ining whethercounsel'sperformance isdeficient,courtst4indulgea strong presum ption thatcounsel'sconductfallsw ithin the w ide range ofreasonable assistance.'' Strickland,466U.S.at689.Toestablishprejudice,adefendantmustshow thatGthereis a reasonable probability that,but for counsel's unprofessional errors, the resultof the proceeding would havebeen different. A reasonableprobability isa probability sufficient to underm ine confidence in the outcom e.'' Id.at694. Review ing courtsm ustconsider the totality ofthe evidence before the finderoffactin assessing whether the resultwould likely have been differentabsentcounsel'salleged errors. Id.at695-96. Toshow prejudiceinthesentencingcontext,adefendantmustdemonstratethatthe alleged deficiency of counsel created a reasonable probability that his or her sentence would have been lessharsh. See Glover v. United States,531 U .S. 198,200 (2001) (holding Gthatifan increasedprison term didflow from an error(ofcounsellthepetitioner hasestablishedStricklandprejudice'').OnecannotsatisfythesecondprongofStrickland withmerespeculationandconjecture.Bradfordv.Whitley,953F.2d 1008,1012(5thCir. 1992).Conclusory allegationsareinsufficientto obtain reliefundersection 2255.M iller v.Johnson,200 F.3d 274,282 (5th Cir.2000)(holding thatGconclusory allegationsof ineffective assistance of counseldo not raise a constim tional issue in a federalhabeas Proceeding''). 4 These sam e standards apply to counsel's perform ance on appeal. D efendantmust demonstratethat,butforcounsel'sfailuretoraiseacertainobjectionorargumentonappeal, there isa reasonableprobability thatthe resultofthe appealw ould have been different. Analysis TrialCounsel Defendant complains that trial counsel failed to object to the Government's insufficientfactualbasis to supporthisplea of guilty. He argues thatthe Governm ent's factualbasis,even accepted astrue,did notestablish the crim inaloffense charged. A s an initialconsideration,the Courtnotes thatD efendantwaived this claim by arguing on directappealthathe had adm itted a1lofthe necessary elem ents ofthe charged offense. Indeed, the Fifth Circuit stated in its decision that, RA yers argues thathe is entitled to the reduction because he tim ely pleaded guilty and adm itted a11ofthe essential elem ents ofthe conspiracy offense.'' 669 F.App'x at202. As a result,he m ay nothere take the opposite tack and contend thata11of the essential elem ents of the conspiracy offense werenotpresented and adm itted atthe pleahearing. H isclaim warrantsno relief. Regardless,the argum enthas no m erit. The record shows that,during the plea hearing,this Courtsum m arized the elem entsofthe offense ofconspiracy asfollows: Now in order for the Governm ent to prove this charge againstyou, the Governm ent has to prove the follow ing three things beyond a reasonable doubtw ith respectto the conspiracy charge:firstofall,thatyou and atleast one otherperson m ade an agreem entto com m itthe crim e ofw ire fraud as charged in theindictm ent;second thatyou knew theunlaw fulpurposeofthis agreementandthatyoujoineditwillfully,thatis,with intenttofurtherthe unlawfulpurpose;and third,thatone ofthe conspiratorsduring the course of thisconspiracy u owingly com m itted one of the overtactsdescribed in theinformationtoaccomplish someobjectoftheconspiracy. (DocketEntry No.60,p.5).Defendantacu owledged hisunderstanding,and theCourt then summarized the substantive elements of wire fraud, the objectoffense of the conspiracy,asfollow s' . Now , the substantive crim e of w ire fraud requires that the G overnm ent prove the follow ing four things: thatis,num ber one,thatyou u ow ingly devised or intended to devise a schem e to defraud as charged in the inform ation; second,that the schem e to defraud em ployed false m aterial representations orfalse m aterialpretensesorfalsem aterialprom ises;third, that you transm itted or caused to be transm itted by way of w ire com m unications in interstate com m erce any writing for the purpose of executing such a schem e;and fourth,thatyou acted with the specific intent to defraud. Those are the substantive elem ents ofthe crim e ofwire fraud. f#.,pp.5-6. D efendantagain acu owledged hisunderstanding. 1d.,p.6. The Court asked the prosecutorto sum m arize the factsthatshe believed the G overnm entcould prove ifthe case were tried. The prosecutor setforth the follow ing facm albasis: THE GOVERN M ENT : Yes,your H onor.If this case w entto trial,the United States w ould prove beyond a reasonable doubt that on or about January 21st of 2015, co-conspirators circulated a fraudulent invoice to lm pact 0i1and G as located in the U nited K ingdom via e-m ailrequesting paym ent in the amount of $357,000 on services rendered by M inas & H idrocarbonetos. Itwas partofthe conspiracy thatthe co-conspirators w ould use deceptive e-m ail accounts to deceive Im pact Oi1 and Gas into believing they were actually thecompany called M inas.Itw asfurtherpartofthe conspiracy that the co-conspiratorswould and did e-m ailIm pactO i1and Gasfabricated and illegitim ate invoices for paym ent on services rendered by M inas on somethingcalledtheAGC project. One day before,on January 20th of 2015,this D efendant, Avery Ayers, registered in the Harris County clerk's office on January 20th of 2015 a 6 dum m y com pany doing businessasM inas;and then again on the sam e day, thisD efendant,A yers,opened a Com erica bank accountending in 6718 in the nam e of Avery Ayers,doing business asM inas & H idrocarbonetosG B SARL,ata Com erica bank located at370 G reensRoad in H ouston,Texas, in which the funds were then deposited. On or aboutJanuary 23,2015,co-conspiratorsdirected lm pactOi1and Gas in the United Kingdom to make a $357,000 wire payment into Ayers's Com erica bank accountending in 6718. On January 20th of2015,A yersopened the Com ericabank account6718 in the nam e ofAvery A yers,doing businessasM inas& H idrocarbonetoswith hundred dollarsin U nited Statescurrency. The addressassociated with Avery A yersw asrecorded as55380 W est34th Street,Num ber255 located in H ouston,Texas.This is a know n addressfor Avery Ayers. There w ere no further transactions on the account tm til January 23rd of2015. OnJanuary23rd of2015,awirein theam ountof$357,000beforewirefees was credited to Avery Ayers's account ending in 6718 as m entioned up above. However, the address on the incom ing w ire was listed with a differentaddresscom ing from GuineaBissau and did notm atch therecorded addressthatthe D efendant,A very A yers,opened here in H ouston.Thew ire was credited to the accountbecause ofthe D BA m atching the com pany that itwas supposed to be going to initially. The transactions that Avery Ayers conducted from this wire w ere, one, withdrawalofcash in the amountof$9800 in United Statescurrency.He purchased a cashier'scheck num ber ending in 4228 in the am ountof9800. H epurchased anothercashier'scheck ending in 4229 in the am ountof9800. He purchased anothercashier'scheck ending in 4230 in the am ountof5400. H epurchased anothercashier'scheck ending in 4231in the am ountof2500. Healsoconductedan innerN c)banktransferin theamountof$50,000 into another account ending in 7408 titled Avery Ayers, doing business as Yoseph Pinto.H e opened thatbank accounton January 5th of2015 atthe sam e banking location. Com erica bank located atthe 370 Greens Road,H ouston,Texas,address asked Ayers to provide proof show ing thathe was acm ally entitled to the wire.A yersbroughta fictitious letter to them purportedly from the Im pact O i1and Gasin the U nited K ingdom which stated,quote,ttThese ftm ds will be used atyourdiscretion to establish a sm alloffice,m oving and research expenses,and payoutsto fam ilies in Texas and Louisiana w ith gasand oil rights on theirproperty.'' Once Com erica realized the wire wasa fraud,they notified the HSBC bank thatthewire came from .Because Ayerswithdrew $50,000 and transferred it into his Yoseph Pinto account, H SBC was unable to recall the w ire because the fullfunds were notavailable.Com erica requested Ayers rd/ll?' n thehmdshewithdrew,butherefused. The Defendant agrees and stipulates that, while he m ay not have had u ow ledge ofthe entire fraud conspiracy,he did,in fact,com m itthe overt actslisted above in furtherance ofthe fraud and deliberately blinded him self to thefraud schem ew hileaccepting thefundsthatw ere obtained from fraud. Thetotalam ountAyerskeptwasapproxim ately $37,300.Ayersattempted to w ithdraw the restofthe w ire transfer;butdue to the fraud alert,the bank froze thefunds.DefendantAyersalso agreesthatthe $357,000 wired into his accountoccurred due to a fraudulent schem e and thatthe funds should be returned to the victim s,lm pactOi1and Gas. ld.,pp.22-26,em phasis added. The Courtasked D efendantwhetherthe Governm ent's factualstatem entwas true. The follow ing exchange occurred: TH E DEFEN DA NT: Your Honor,the only partthat1have a - that1 think isnottrue iswhere itsays GAyersrefused.'' Idid notrefuse,sir.It's justthatwhenlspokewithComericaandIwasnotunderstandingwhatwas going on,Iw anted to go outand seek legaladvice when they sentm e the form because the form w asnotcorrectthatthey had sentm e. D EFEN SE COU N SEL : Judge,that's in the - on the second page,the second to lastparagraph - THE CO URT: Right. DEFEN SE COU NSEL : - is where thatsentence com es from . 8 TH E COU RT: I see. THE GOV ERN M EN T: Y ourH onor,I'm 111- ltake dispute w ith the fact thathe did notknow .That'sgoing to cause issue here w ith the entire facm al basisIjustread becauseIdobelieve thathedid know,and wddo havea witness thatwould come in here to courtand fcuçftfy thathe wl'asked to rdflfm thefundsand hesaid,Gskrd,okay''butthen f/ld. yneverheardfrom him .And l/ley attempted severaltim es to contacthim to rdfl/?' n the money, and he neverdid. And w e stand before you today w ith stillthe ftm ds thathe withdrew still m issing.And in fact,he actually m ade a claim to the m oney with H om eland Security Investigations. So,Im ean,I take dispute w ith him standing here and saying thathe didn'tknow because that'sgoing to cause issue down the road if he isn't going to fully acu ow ledge the conspiracy that he was involved 1 . DEFEN SE COUN SEL: Judge, and the only thing I w ould say is that clearly I think there's a factual dispute. W e had raised this with (the Governmentlbefore today thattherewasa disagreem entasto whetherthat wasaccurate ornot.Idon'tthink thataffects whether the factualproffer is sufficient to support a11 the elem ents that are necessary for the case or whether the Courtcan continue to take a plea and w e can argue aboutitat sentencing.It'show everthe Courtwantsto handle it. THE CO URT: Allright.M r.Ayers,so,whatyou'resaying isthe bank askedyoutore/ffm thefunds,correct?lsthatright? THE DEFENDANT: (No response.) THE CO URT: Y esorno? THE D EFEND AN T: THE CO URT: She sentme a letter. A 11right. THE DEFEN DA NT : I'lldrop it,yourH onor.It's noproblem .FJI/y is correct.I'lljustleave itlikeitis. THE CO URT: A 11right.ButIw antto m ake sure thatthat'saccurate. They asked you to return the ftm dsbutyou have notdone that;isthatright? 9 TH E DEFEN DA N T: The fundsw ere seized,sir. TH E COURT: Okay,that's fine. A 11right.I think thatthe proffer, basically,establishesallthe elem ents. f#.,pp.26-28,em phasis added. The plea hearing continued: TH E COURT: And so,therefore,the Courtisgoing to find thatthere's a factualbasis for the plea. So,1etm e ask you atthistim e,M r.Ayers,whatis yourplea to the charge againstyou in Count1ofthe superseding crim inalinform ation,guilty ornot guilty? TH E D EFEND AN T: Guilty,your Honor. TH E COU RT : D o you state here in courtunder oath that each and every allegation in Count 1 ofthe superseding crim inalinform ation istrue and correct? TH E D EFEND AN T: TH E COU RT : and voluntarily? Y es,sir. And areyou m aking thisplea ofguilty to Count1 freely TH E D EFEN D AN T: Y es,sir. f#., p. 28. The Court accepted D efendant's guilty plea and the case w as set for sentencing. Defendantnow arguesthatcounselshould have objected to the Government's factualbasisbecause itdid notsupportthe plea. Specifically,he claim s thatthe factual basisdid notpresentevidence ofa çispecific intentto defraud''on hispartforpurposesof the conspiracy. 10 The record clearly shows above that this Court found on the record that the Governm entpresented afactualbasisfortheconspiracy offense.Consequently,D efendant doesnotestablish that,had counselraised Defendant'ssuggested objection,the Court wouldhavegranted-orwouldhavereversiblyerredinnotgranting-counsel'sobjection to the factualbasis. N o ineffective assistance ofcounselunder Strickland is shown. M oreover, as shown by the above hearing excerpts, the Governm ent relied on D efendant'st4willfulblindness''to the transactionsand schem esw hen hebecam e involved ia the conspiracy. lndeed, D efendant stipulated that, Rwhile he naay not have had u ow ledgeoftheentire fraud conspiracy,he did,in factcom m itthe overtactslisted above in f' urtherance of the fraud and deliberately blinded him self to the fraud schem e while accepting thehm dsthatwereobtained from fraud.'' (DocketEntry No.60,p.25). After initially arguing he w as Ssunaw are''of the balzk fraud,Defendantsubsequently adm itted under questioning by the Courtthatthe bank had,indeed,senthim a letterregarding the funds. Defendantimmediately withdrew hisobjection andtold theCourt,ttl'11drop it, yourHonor.It'snoproblem .Thisiscorrect.1'11justleaveitlikeitis.'' The Courtfound a sufficientfactualbasisfortheplea,and D efendantacknowledged on the record that each and every allegation in CountOne of the superseding crim inal inform ation was true and correct. The Court has reviewed the record in light of D efendant's argum ents in thisproceeding,and again finds thatthe evidence and factual basis were sufficientto support the plea. Accordingly,D efendant show s no deficient perfonnance by trialcounsel. See Clark v.Collins,19 F.3d 959,966 (5th Cir.1994) 11 (ççFailure to raise meritless objections is not ineffective lawyering; it is the very opposite.'');accord United States v.Kimler,167 F.3d 889,893 (5th Cir. 1999) (t<An attorney's failure to raise a m eritlessargum ent ...cannotform the basisofa successful ineffective assistance ofcounselclaim because theresultofthe proceeding w ould nothave been differenthad theattorney raised the issue.''). Habeasreliefisunwarranted. Appellate Counsel Defendant next com plains that appellate counsel w as ineffective in failing to challenge the facttzalbasisforthe guilty plea. According to Defendant,appellate counsel should have argued thatthe Governm entdid notpresenta sufficientfactualbasis for the conspiracy offense and guilty plea. The Courthasdeterm ined here,as itdid atthe plea hearing,thatthe evidence and factualbasisw ere sufficientto supporttheplea. Consequently,appellate counselwasnot ineffective forfailing to raise m eritlessargum ents. Clark,19 F.3d at966.D efendantfails toestablishdeficientperformanceandactualprejudiceunderStrickland,andhabeasrelief isunw arranted. M ccoy v.Louisiana In hisresponse to the Governm ent'sm otion,Defendantaddsa new claim forrelief under M ccoy v. Louisiana, U .S. , 138 S. Ct. 1500 (2018). According to D efendant, defense counsel failed to honor his innocence ttautonom y,'' which was a structuralerror requiring a new trial. 12 TheSuprem e Courtdecided M ccoy on M ay 14,2018.D efendantin theinstantcase pleaded guilty on June 18,2015,nearly three yearsprior to the M ccoy decision. M ccoy w as a directappealcase,and the Suprem e Court m ade no m ention of its application to section 2255 proceedings. Thus, to the degree D efendant claim s that his plea and conviction are retroactively governed by M ccoy,his argum entlacks supportin current Suprem e Courtand Fifth Circuitauthority. Regardless, M ccoy exam ined the inherent tension betw een a capital m urder defendant'sinsistenceon hisinnocence,and an experienceddefenseattorney'sprofessional beliefthatan innocence defense w ould failgiven the overwhelm ing evidenceofguilt.The defendantinM ccoyexplicitlytoldhislawyernottoconcedeguilt;thelawyertoldthejury in his opening statem entthatthe evidence would reasonably show his clientcaused the individuals'deaths. 138 S.Ct.at1506. The Suprem e Courtconcluded thatthe attorney violated his client's Sixth Am endm entrights and held that <<a defendanthas the rightto insistthatcounselrefrain from adm itting guilt,even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.'' f#.at 1505.The M ccoy courtnoted that som e decisions are grounded in a defendant'sautonom y,and Gare reserved forthe client- notably,whetherto plead guilty, waivetherighttoajurytrial,testify in one'sownbehalf,and forgo anappeal.'' 1d.at 1508. Ifdefense counseloverrideshisclient'sautonom y asto these decisions,structural error occurs and a new trialis required. 13 lntheinstantcase,Defendant'sobjectivewasnotaninnocencedefense,butrather, a guilty plea. ltbecam e trial counsel's duty to m ake strategic choices to achieve that objectiveforDefendant. No competent,probativeevidenceappearsin the record that Defendantinstnlcted counselto m aintain hisinnocence and forego a plea,or thatcounsel ignored Defendant's autonom y as to any applicable decision. Thus,M ccoy does not supportD efendant's claim ofentitlem entto a new trial. M oreover,and asnoted above, Defendanthimselfwithdrew theobjectionhepersonallyraisedatthehearing,andagreed on the record thatthe indictm entand factualbasissetforth by the G overnm entwere true. Defendantwaivedhisobjectionastohistjoining theconspiracy,''pleaded guilty tothe indictm ent,and wasultim ately convicted and sentenced. The decision to plead guilty or go to trialw asD efendant'sdecision to m ake,and he chose to plead guilty. N o structural errorisshown,and M ccoy doesnotrescue D efendantfrom the consequencesofhisown decision. Evidendary H earing N o evidentiary hearing is required when ttthe m otion and the filesand records of thecase conclusively show thatthe prisonerisentitled to no relief.'' 28 U .S.C.j2255. H ere,the record conclusively show sthatD efendantisentitled to no relief,and no hearing isrequired. 14 Conclusion The Government'smotion forjudgmenton the record (DocketEntry No.130)is GRANTED.Defendant'ssection 2255motion(DocketEntriesNo.120,121)isDENIED, andthiscaseisDISM ISSED W ITH PREJUD ICE.A certificateofappealabilityisDENIED . The Clerk ofCourtis ORDERED to term inate the related civilcase in this m atter, C.A .No.14-18-0204. Signed atHouston,Texason April22,2019. e Gray .M iller Senl rU nited Sta s DistrictJudge 15
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