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Burke v. United States

United States District Court, D. Connecticut

July 11, 2019

TIMOTHY W. BURKE Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          RULING ON § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          Michael P. Shea, U.S.D.J.

         Timothy 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.

         I. Background

         Burke 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.

         On 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.

         II. Legal Standards

         A. Section 2255 Petition

         Section 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].”).

         “To 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 at 214.

         B. Ineffective Assistance of Counsel

         To 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).

         The 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).

         The 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.

         III. Discussion

         Burke 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.

         A. Ineffective Assistance in Connection with Guilty Plea to Tax Evasion

         Burke 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 trial.

         Burke 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.

         I find 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.

         “Willfulness . . . 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 hearing:

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 ...

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