United States District Court, D. Connecticut
TIMOTHY W. BURKE Petitioner,
UNITED STATES OF AMERICA Respondent.
RULING ON § 2255 MOTION TO VACATE, SET ASIDE, OR
Michael P. Shea, U.S.D.J.
W. Burke seeks to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 on the ground that he received
ineffective assistance of counsel. For the reasons set forth
below, his motion is DENIED.
engaged in a long-running mail fraud scheme to obtain rent
proceeds that he was not entitled to accept or retain.
United States v. Burke et al, Dkt. 16-cr-29, ECF No.
154 (Final Pre-Sentence Report, “PSR”) at
¶¶ 11-22. He did this by deceiving distressed
homeowners into believing that he would negotiate with
mortgage lenders on their behalf and indemnify them for
mortgage losses, allowing them to believe that they could
walk away from mortgages that were “under water”;
he thereby gained control (but not ownership) of their
properties and advertised those properties for rent to
unsuspecting tenants. Id. He also had substantial
unpaid personal tax liabilities and committed affirmative
acts of evasion to avoid paying them. PSR at ¶ 23. On
April 27, 2016, a grand jury returned a second superseding
indictment charging him with conspiracy, mail fraud, wire
fraud, aggravated identity theft, tax evasion, money
laundering, and aiding and abetting. United States v.
Burke et al, Dkt. 16-cr-29, ECF No. 79 (Second
Superseding Indictment). On January 24, 2017, Burke pled
guilty to mail fraud, 18 U.S.C. § 1341, and tax evasion,
26 U.S.C. § 7201. United States v. Burke et al,
Dkt. 16-cr-29, ECF No. 131 (Plea Agreement). On April
28, 2017, I sentenced him to 108 months in prison for mail
fraud and 60 months in prison for tax evasion, to run
concurrently. United States v. Burke et al, Dkt.
16-cr-29, ECF No. 169 (Judgment). He is currently confined at
the United States Penitentiary in Lewisburg, Pennsylvania.
Attorney James Maguire, of the Federal Public Defender's
Office, represented Burke in his criminal case.
April 26, 2018, Burke, appearing pro se, sought collateral
relief by filing a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255 on the ground that
he received ineffective assistance of counsel from Attorney
Maguire. ECF No. 1.
Section 2255 Petition
2255 permits collateral challenges to federal convictions. 28
U.S.C. § 2255(a) (“A prisoner in custody under
sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the
United States . . . may move the court which imposed the
sentence to vacate, set aside or correct the
sentence.”). In deciding a Section 2255 motion, the
court must hold a hearing “[u]nless the motion and the
files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. §
2255(b). A petitioner is therefore not automatically entitled
to a hearing and no hearing is required “where the
allegations are vague, conclusory, or palpably
incredible.” Gonzalez v. United States, 722
F.3d 118, 130 (2d Cir. 2013) (internal quotation marks
omitted); see also Pham v. U.S., 317 F.3d 178, 184
(2d Cir. 2003) (“It is within the district court's
discretion to determine whether a hearing is warranted [in a
Section 2255 case].”).
warrant a hearing on an ineffective assistance of counsel
claim, the [petitioner] need establish only that he has a
plausible claim of ineffective assistance of counsel, not
that he will necessarily succeed on the claim.”
Puglisi v. United States, 586 F.3d 209, 213 (2d Cir.
2009) (internal quotation marks omitted). He “must set
forth specific facts supported by competent evidence, raising
detailed and controverted issues of fact that, if proved at a
hearing, would entitle him to relief.” Gonzalez, 722
F.3d at 131. In considering such a claim, the court must
“take into account admissions made by the [petitioner]
at his plea hearing, for solemn declarations in open court
carry a strong presumption of verity.” Id.
(internal quotation marks and alterations omitted). Finally,
the court “need not assume the credibility of factual
assertions . . . where the assertions are contradicted by the
record in the underlying proceeding.” Puglisi, 586 F.3d
Ineffective Assistance of Counsel
succeed on an ineffective assistance of counsel claim, a
petitioner must demonstrate that (1) “counsel's
performance was deficient” and (2) “the deficient
performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). The Supreme Court
has held that this two-part test applies to ineffective
assistance challenges to guilty pleas. Hill v.
Lockhart, 474 U.S. 52, 58 (1985).
performance prong requires a showing that
“counsel's representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at
688. Where the alleged error is a failure to investigate, the
“decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel's judgments, ” and
keeping in mind that “counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.”
Id. at 691. Where the alleged error is the decision
not to pursue a particular defense, it “does not
constitute deficient performance if . . . the lawyer has a
reasonable justification for the decision.” DeLuca
v. Lord, 77 F.3d 578, 588 n.3 (2d Cir.1996). Indeed,
“strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 588 (citing
Strickland, 466 U.S. at 690).
prejudice prong “focuses on whether counsel's
constitutionally ineffective performance affected the outcome
of the plea process.” Hill, 474 U.S. at 59. “The
likelihood of a different result must be substantial, not
just conceivable.” Harrington v. Richter, 562
U.S. 86, 112 (2011). “[T]he defendant must show that
there is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill, 474 U.S. at 59.
Where “the alleged error of counsel is a failure to
investigate or discover potentially exculpatory evidence, the
determination whether the error ‘prejudiced' the
defendant by causing him to plead guilty rather than go to
trial will depend on the likelihood that discovery of the
evidence would have led counsel to change his recommendation
as to the plea.” Id. “This assessment,
in turn, will depend in large part on a prediction whether
the evidence likely would have changed the outcome of a
trial.” Id. “Similarly, where the
alleged error of counsel is a failure to advise the defendant
of a potential affirmative defense to the crime charged, the
resolution of the ‘prejudice' inquiry will depend
largely on whether the affirmative defense likely would have
succeeded at trial.” Id.
makes three ineffective assistance of counsel claims.
Specifically, he argues that Attorney Maguire (1) failed to
investigate and present exculpatory evidence concerning tax
evasion; (2) failed to investigate and present an affirmative
defense to mail fraud; and (3) failed generally to conduct a
reasonable pre-trial investigation of evidence that would
have exculpated or mitigated his wrongdoing. ECF No. 4 at 9.
He also argues that Attorney Maguire coerced him into
entering a guilty plea. I address each claim in turn.
Ineffective Assistance in Connection with Guilty Plea to Tax
pled guilty to tax evasion in violation of 26 U.S.C. §
7201. He acknowledged “substantial unpaid personal tax
liabilities . . . for tax years 1994 through 2012” and
stipulated that he “committed affirmative acts of
evasion including, but not limited to, utilizing LLCs to
acquire and possess assets, including real property, in order
to hinder potential creditors, including the IRS and tenants,
from discovering and seizing those assets.” Plea
Agreement at 15. He further stipulated that by
“engaging in these acts of evasion, [he] specifically
intended to defeat and not to pay the tax liabilities that he
knew were outstanding and that he knew he had a duty and
obligation to pay.” Id. He now argues that
Attorney Maguire failed to investigate and present
exculpatory evidence related to the tax evasion charge and,
consequently, led him to plead guilty rather than go to
explains that in 2010 he approached Attorney Anthony Parent
to file tax returns for the delinquent years and seek an
“offer in compromise” with the Internal Revenue
Service (“IRS”) to settle his overdue tax debt.
ECF No. 4 at 11, 23-24, 27. He asserts that he told Attorney
Maguire about his dealings with Attorney Parent and about the
five individuals in his own office who worked on collecting
and organizing his tax data over a No. of years. Id.
at 27-28 ¶ 14. He further states that he asked Attorney
Maguire to obtain testimony from Attorney Parent and his
staff, but that Attorney Maguire failed to do so.
Id. at 28-29 ¶ 16. In sum, Burke argues that if
there had been a trial, “it could have been shown . . .
that from at least 2007, and through 2012, [he] had made
voluminous bona fide efforts, at his own great expense, to
resolve his overdue tax problems.” Id. at 12.
At trial, he argues, “the government would not have
been able to prove, as a necessary element, [his] deliberate
and willful intent to evade or defeat a tax owed, in the face
of a plethora of verifiable efforts and expenditures on his
part to resolve his overdue taxes in the seven years between
his release from a prior incarceration and his arrest in this
case.” Id. at 14.
that it was reasonable for Attorney Maguire not to contact
Burke's proposed witnesses or pursue a defense based on
Burke's attempts to “resolve” his tax
liabilities because such actions do not negate criminal
liability for tax evasion. A person is guilty of tax evasion
if he “willfully attempts in any manner to evade or
defeat any tax imposed by [Title 26] or the payment
thereof.” 26 U.S.C. § 7201. “In order to
prevail on a charge of income tax evasion in violation of 26
U.S.C. § 7201, the government must prove (1) the
existence of a substantial tax debt, (2) willfulness of the
nonpayment, and (3) an affirmative act by the defendant,
performed with intent to evade or defeat the calculation or
payment of the tax.” United States v.
Josephberg, 562 F.3d 478, 488 (2d Cir. 2009). The first
and third of these elements were clearly established and
Burke does not now challenge them. See Plea Agreement at 19
(showing the existence of a substantial tax debt);
Id. at 15 (Burke stipulating that he
“committed affirmative acts of evasion including, but
not limited to, utilizing LLCs to acquire and possess assets,
including real property, in order to hinder potential
creditors, including the IRS and tenants, from discovering
and seizing those assets”). Although Burke also
previously admitted that his conduct was willful, see
Id. (Burke stipulating that “[b]y engaging in
these acts of evasion, [he] specifically intended to defeat
and not to pay the tax liabilities that he knew were
outstanding and that he knew he had a duty and obligation to
pay”), he now argues that Attorney Maguire should have
investigated and presented evidence that he did not willfully
evade paying taxes.
. . . requires the Government to prove that the law imposed a
duty on the defendant, that the defendant knew of this duty,
and that he voluntarily and intentionally violated that
duty.” Cheek v. United States, 498 U.S. 192,
201 (1991). Burke does not contest that the law imposed a
duty on him to pay taxes or that he knew of that duty. And
his retention of counsel to file delinquent tax returns and
seek an “offer in compromise” with the IRS does
not change the fact that he knowingly took steps to avoid
paying taxes that he knew he had an obligation to pay. He
made this clear in his sworn testimony at the change-of-plea
The Court: With regard to the tax evasion count, is it
correct that you were aware that you had tax obligations that
you did not pay between 1994 and 2012?
The Defendant: Yes.
The Court: Is it correct that you took steps to avoid having
to pay those obligations, including using a series of
different limited liability company names?
The Defendant: Yes, sir.
The Court: And you were aware that the steps you were taking
were designed to avoid your having to pay those taxes?
The Defendant: Yes, your Honor. I had approached an attorney
in 2010. His name is Anthony [Parent] in Wallingford, the IRS
Medic, and I retained his firm and paid a total of $18, 000
so that he could help me do - fix my tax situation.
The Court: Okay. But it remains the case that you were aware
that you had an obligation to pay taxes during ...