United States District Court, N.D. Georgia, Atlanta Division
STANLEY J. KOWALEWSKI, Movant,
UNITED STATES OF AMERICA, Respondent.
Richard W. Story United States District Judge
before the Court is the Magistrate Judge's Report and
Recommendation (R&R) recommending that Movant's
motion to vacate pursuant to 28 U.S.C. Â§ 2255 be denied and
the case dismissed. [Doc. 231]. Movant has filed his
objections in response to the R&R. [Doc. 237].
district judge has broad discretion to accept, reject, or
modify a magistrate judge's proposed findings and
recommendations. United States v. Raddatz, 447 U.S.
667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the
Court reviews any portion of the Report and Recommendation
that is the subject of a proper objection on a de
novo basis and any non-objected portion under a
"clearly erroneous" standard. "Parties filing
objections to a magistrate's report and recommendation
must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be
considered by the district court." Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).
forth in more detail in the R&R, Movant was convicted in
this Court after a jury trial of twenty-two counts of wire
fraud, one count of conspiracy to obstruct a Securities and
Exchange Commission (SEC) proceeding, and one count of
obstruction of an SEC proceeding based on false testimony and
altered documentation. Oversimplifying, Movant operated an
investment fund from which he improperly diverted funds and
later lied to the SEC when it investigated. See
United States v. Kowalewski, 708 Fed.Appx. 605,
607-08 (11th Cir. 2017) (providing a more thorough
description of the evidence presented at trial viewed in the
light most favorable to the government).
§ 2255 motion, Movant asserts four claims of ineffective
assistance of trial/appellate counsel. Specifically, Movant
contends that trial/appellate counsel were deficient for (1)
unsuccessfully seeking a continuance so that he could retain
new counsel and failing to raise the Sixth Amendment issue on
appeal, (2) failing to object when the Court conducted an
October 13, 2015 pretrial conference and an October 21, 2015
telephonic conference outside his presence, (3) urging him
not to testify at trial, and (4) failing to call certain
R&R, the Magistrate Judge concludes that Movant is not
entitled to relief. With regard to his first claim that trial
counsel failed to secure a continuance so that Movant could
secure new counsel, trial counsel sought the continuance two
weeks before the trial was to commence, and this Court denied
that motion based on the fact that Movant had not yet hired
counsel, that it seem unlikely that Movant would be able to
afford retained counsel,  and that, given the eleventh-hour
nature of the request, it appeared that Movant was attempting
to "manipulate the system." [Doc. 219 at 4-5].
the reviewing the claim, the Magistrate Judge concluded that,
because this Court had a reasonable basis to reject the
motion and because Movant had not presented a convincing
argument that he contends that would have led this Court to
grant his motion, Movant could not establish that his counsel
respect to Movant's claim that his counsel failed to
raise a Sixth Amendment right to counsel of choice claim in
his appeal, the Magistrate Judge concluded that, given the
last-minute nature of the request, Movant cannot establish
that the Eleventh Circuit would have granted relief.
response to Movant's claim that trial counsel should have
objected to his absence from an October 13, 2015, pretrial
conference and an October 21, 2015, telephonic conference,
the Magistrate Judge pointed out that criminal defendants do
not have a right to appear at every pretrial conference or
hearing. "The presence of a defendant is a condition of
due process to the extent that a fair and just hearing would
be thwarted by his absence, and to that extent only."
United States v. Gagnon, 470 U.S. 522, 526 (1985).
The Magistrate Judge concluded that Movant had failed to
establish that his presence at either of the conferences
would have changed anything, and he is thus not entitled to
his claim that trial counsel convinced him not to testify,
the Magistrate Judge explained that such a claim requires a
demonstration that "the action or inaction of the
attorney deprived the defendant of the ability to choose
whether or not to testify in his own behalf," United
States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992),
and that "counsel's advice that defendant not
testify, without more, does not demonstrate deficient
performance," [Doc. 231 at 13]. The record clearly
demonstrates that Movant was well aware of his right to
testify and that he decided not to. He admits that "he
understood his constitutional right to testify and the right
he had to 'overrule his attorneys' advice not to
testify." [Doc. 227 at 5]. Moreover, this Court
carefully explained Movant's right to testify to him at
trial, and Movant indicated that he understood. [Doc. 213-7
at 60-61]. As the decision not to testify was his and his
alone, Movant cannot demonstrate that his trial counsel was
deficient for advising Movant not to testify.
with respect to his claim that his trial counsel failed to
call certain witnesses to testify, the Magistrate Judge
pointed out that the decision of whether to call a certain
witness to testify is a strategic decision that courts
generally will not second guess. Waters v. Thomas,
46 F.3d 1506, 1512 (11th Cir. 1995). The Magistrate Judge
found that Movant had failed to proffer testimony that was
sufficient to overcome the strong presumption that trial
counsel's strategic decisions were reasonable.
objections, Movant contends that the Magistrate Judge erred
in not holding a hearing on his claims that his counsel was
deficient for (1) unsuccessfully seeking a continuance so
that he could retain new counsel and failing to raise the
Sixth Amendment issue on appeal, (2) urging him not to
testify at trial, and (3) failing to call certain
witnesses. Movant points out that this 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).
respect to his claim that this Court violated his Sixth
Amendment right in failing to allow him time to secure new
counsel, it is clear that no hearing is necessary. As was
pointed out by the Magistrate Judge, almost two years passed
between Movant's indictment and the trial, and he had
ample time to retain private counsel. Given the fact that
Movant waited until just two weeks before the trial to seek
the continuance and this Court's wide discretion in
managing its docket, it is clear that Movant cannot
demonstrate that this Court committed reversible error in
declining to grant the continuance.
this Court notes that in a declaration attached to his
objections, Movant admits that he did not have, and would not
have been able to secure, funds to hire retained counsel.
According to his declaration, he needed money from his
friend, Dwain Kendall to pay the attorney. [Doc. 237-1 at 1].
Kendall was willing to give him the funds, but Movant was
unaware of that fact because his (now ex-) wife lied to him
and told him that Kendall wanted no contact with Movant.
[Id.]. Kendall tried to reach Movant, but was
unsuccessful until after Movant began serving his sentence
after the trial. [Id.]. Accordingly, even if this