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United States v. Monsegue

United States District Court, S.D. Georgia, Savannah Division

March 24, 2017

FRANK D. MONSEGUE, Sr., Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Movant Frank Monsegue, proceeding pro se, moves under 28 U.S.C. § 2255 to vacate the sentence this Court imposed following his guilty plea to wire fraud conspiracy, theft of government property, and aggravated identity theft. Doc. 116;[1] see docs. 3 (indictment), 29 (superseding indictment), 109 (minute entry), 110 (judgment for 87 months' imprisonment), 111 (signed post-conviction certification declining to appeal conviction). He claims that numerous errors by the Court, Government, and his attorney resulted in a significantly higher sentence than he would have otherwise received. See doc. 116.

         I. BACKGROUND

         Movant seeks, essentially, to relitigate the case that he nearly took to trial. He argues, among other things, that his plea was made unknowingly and involuntarily and that counsel was deficient. Though he contends otherwise, the record shows that Monsegue was provided with quite a bit of information prior to his conviction. At his initial appearance hearing, movant affirmed he had received a copy of the indictment, the Court reviewed the charges against him, and movant represented that he understood the charges he was facing. Doc. 118 at 3-7. Although Monsegue initially chose to plead not guilty, docs. 119 & 120, he changed his mind midway through voir dire of the jurors for his trial. Doc. 121 at 17 (counsel gave a note to the Court indicating that movant "now wishes to change his plea."). He then vacillated again, see doc. 125 at 6 ("Your Honor, we do not have an agreement. The defendant has changed his mind."), because he was "not prepared" to be taken immediately into custody, id. at 7, but after counsel conferred again on the proposed plea agreement, Monsegue (again) elected to enter a last-minute plea of guilt while the empaneled jury waited in the wings. Doc. 75 (Rule 11 hearing) at 4.

         At his plea hearing, the Court reviewed the charges in the initial and superseding indictment, and confirmed Monsegue had reviewed the charges with counsel and understood what the Government would have to prove to convict him of those charges. Doc. 75 at 8, 13-17. The Court then explained the rights he was giving up by pleading guilty, including the rights to a trial, to put forth a defense, and to remain silent. Movant swore that he understood. Id. at 10-11.

         The Court also explained the possible sentences he could face for pleading guilty and that he would be sentenced under the advisory Sentencing Guidelines. Monsegue testified that counsel had gone over the Guidelines information with him and that he understood. Doc. 75 at 17-19. He represented to the Court that he had not been forced or pressured into pleading guilty (id. at 21 & 24), that he was pleading guilty because he was, in fact, guilty (id. at 22), and that he was satisfied with his attorney's representation (id. at 13).

         The Court concluded that Monsegue understood "the substance and meaning of the charges, the consequences of his plea, and the facts which the Government must prove and which, by his plea of guilty, admits all the essential elements of the offense." Doc. 75 at 24. It further concluded that he had "engaged in this proceeding with intelligence and competence" and that he had "offered his plea of guilty as a matter of his own free choice." Id.; see also Id. at 5 (cautioning Monsegue that "if you ever seek to undo or set aside what occurs here today, you're going to be confronted by the answers you give me"); Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) ("Solemn declarations in open court carry a strong presumption of verity."); United States v. Spitzer, 785 F.2d 1506, 1514 n. 4 (11th Cir. 1986) ("[I]f the Rule 11 plea-taking procedure is careful and detailed, the defendant will not later be heard to contend that he swore falsely.").

         Vacillating yet again, Monsegue unsuccessfully attempted to withdraw his guilty plea several times. He also missed his sentencing hearing (apparently due to counsel's failure to notify him), and fled to New York when a bench warrant was issued for his arrest. See doc. 122 at 7-10, 19-20. The Court sentenced him to 87 months, with credit for time served, and ordered $432, 583.86 in restitution to the Internal Revenue Service, to be paid jointly and severally with his codefendant. Id. at 24.

         II. ANALYSIS

         Monsegue presents three categories of claims: (1) pre-plea claims, (2) post-plea and sentencing errors, and (3) ineffective assistance of counsel. Doc. 116.[2] All of them fail.

         Four sets of governing principles must be applied here. First, Monsegue "bears the burden of establishing the need for § 2255 relief, as well as that of showing the need for an evidentiary hearing." Mikell v. United States, 2011 WL 830095 at * 2 (S.D. Ga. Jan. 26, 2011); see also Williams v. Allen, 598 F.3d 778, 788 (11th Cir. 2010). He thus must demonstrate that any claimed error constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979) (quotes and cite omitted).

         Second, any claims not raised on direct appeal are procedurally defaulted, Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004), though claims of ineffective assistance of counsel (IAC)[3] generally are not. Massaro v. United States, 538 U.S. 500, 504 (2003). Third, "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985); Lalani v. United States, 315 F.App'x 858, 860-61 (11th Cir. 2009).

         And fourth, a defendant who enters an unconditional plea of guilty "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973) (emphasis added). That is, "[a] defendant's plea of guilty, made knowingly, voluntarily, and with the benefit of competent counsel, waives all non-jurisdictional defects in that defendant's court proceedings." United States v. Pierre, 120 F.3d 1153, 1155 (11th Cir. 1997); see aiso United States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003). The bar applies both on appeal and on collateral attack. See United States v. Broce, 488 U.S. 563, 569 (1989). "A defendant who wishes to preserve appellate review of a non-jurisdictional defect while at the same time pleading guilty can do so only by entering a 'conditional guilty plea' in accordance with Federal Rule of Criminal Procedure 11(a)(2)." Pierre, 120 F.3d at 1155.

         Defendants who have entered an unconditional guilty plea therefore may challenge their pre-plea constitutional claims only by showing that the advice they received from counsel undermined "the voluntary and intelligent character of the plea." Tollett, 411 U.S. at 267. This includes

defects in the procedure by which the plea was received or circumstances which make the plea other than voluntary, knowing and intelligent. It also includes cases where the guilty plea was induced through threats, misrepresentations, or improper promises, such that the defendant cannot be said ...

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