United States District Court, E.D. Louisiana
ORDER AND REASONS
IVAN L.R. LEMELLE, District Judge.
I. NATURE OF MOTION AND RELIEF SOUGHT
Before the Court is Defendant Mark Titus's Motion for Post-Conviction Relief under 28 U.S.C. § 2255. (Rec. Doc. 249). Titus seeks to have his conviction and sentence for Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. § 371 vacated on two grounds of alleged ineffective assistance of counsel. (See Rec. Doc. 249-1). Titus further requests that the Court hold an evidentiary hearing for purposes of judging the validity of his claims of ineffective assistance. (Rec. Doc. 250). The Government opposes the motion for post-conviction relief. (Rec. Docs. 256). For the reasons that follow, IT IS ORDERED that Titus's motions are DENIED.
II. FACTS AND PROCEDURAL HISTORY
Titus's conviction and sentence are the result of extensive litigation in this section of court spanning the better part of three years; familiarity with the facts and parties is presumed. Briefly, however, Mark Titus was sentenced on October 10, 2012, to a term of 60 months imprisonment, after pleading guilty to a charge of Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. § 371. (Rec. Doc. 72). That plea was entered pursuant to an agreement under which the Government declined to charge Titus with additional offenses in return for his cooperation in an investigation into alleged fraud perpetrated by his brother-in-law, Dominic Fazzio, in connection with the so-called "River Birch Probe." See United States v. Fazzio, Civil Action No. 11-157(C) (E.D. La. 2011).
In these post-conviction proceedings, Titus raises two claims of ineffective assistance of counsel. He first argues that his retained trial counsel, James Ardoin, provided constitutionally deficient assistance in connection with Titus's guilty plea. This claim concerns allegations that Assistant United States Attorneys negotiating on behalf of the Government made representations to Titus's original counsel, Paul Villalobos, and a private investigator retained by Titus to assist with the proceedings, Tim Wilson, that the Government did not intend to pursue forfeiture of Titus's assets in the event he pled guilty. Titus claims Ardoin was made aware of these alleged assurances at the time he was retained to represent Titus and further that he knew that the Government's abstention from forfeiture was a motivating factor for Titus to plead guilty.
When the Government subsequently initiated civil forfeiture proceedings, Titus argues Ardoin labored under a conflict of interest while litigating a motion to withdraw Titus's guilty plea, which Ardoin filed shortly before Titus's sentencing hearing. ( See Rec. Doc. 58). In order to explain the failure to file the motion until that relatively advanced stage of the proceedings, Ardoin argued to the Court that his client had only recently made him aware of the alleged side agreement with the Government. According to Titus, Ardoin's representations concerning late discovery of the side-agreement claim were untrue and caused the Court to disbelieve Titus's allegations, dismissing them as eleventh-hour fabrications. Titus claims effective litigation of the motion to withdraw his plea would have required Ardoin to admit to misleading the Court and breaching his professional responsibilities to his client. Accordingly, Titus argues Ardoin was the subject of a conflict of interest, which resulted in constitutionally deficient representation and prejudice to his client. Titus further argues Ardoin performed deficiently in failing to ensure Wilson's appearance for live testimony at the hearing on the motion to withdraw plea; ostensibly out of fear that Wilson would confirm Ardoin's prior knowledge of the side-agreement claim.
Titus's second ineffective-assistance claim concerns Ardoin's litigation of the civil forfeiture proceedings themselves. According to Titus, Ardoin failed to timely inform him when the Government moved for a preliminary order of forfeiture and further failed to file a response after the Court granted the defense additional time to oppose the Government's forfeiture motion. For reasons discussed below, these claims are precluded in this phase of the proceedings.
III. CONTENTIONS OF MOVANT
A. Litigation of the Motion to Withdraw Guilty Plea
As to his first claim, Titus argues he is able to satisfy both elements of the Strickland standard applicable in the Fifth Circuit to ineffective-assistance-of-counsel claims relating to alleged conflicts of interest. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Beets v. Scott, 65 F.3d 1258, 1260 (5th Cir. 1995)(en banc). These require Titus to establish: (i) that his counsel's performance fell below an objective standard of reasonableness, and (ii) that he suffered prejudice as a result of this deficient performance ( i.e., that the result of the proceedings would have been different but for counsel's unprofessional errors).
As to the first element, Titus argues Ardoin's performance fell below an objective standard of reasonableness when he violated his duty of loyalty by placing his own interests above those of his client. According to Titus, Ardoin's representations to the Court in an October 5th letter, explaining the circumstances surrounding the filing of the motion to withdraw the plea, made it look as though Titus was lying about the alleged side agreement with the Government. (Rec. Doc. 64-3). Titus further argues Ardoin performed deficiently in failing to seek a continuance of the sentencing hearing, at which the Court set argument on the motion to withdraw plea, when it was evident that Wilson, the private investigator retained by Titus, would be unable to appear to testify.
As to the issue of prejudice, Titus argues Ardoin's representations to the Court undermined the basis for the motion to withdraw his plea. Titus argues there is a reasonable probability the Court would have reached a different conclusion had Ardoin arranged for the Court to hear Wilson's testimony concerning the Government's alleged assurances. Titus also argues the Court would have ruled differently in denying credit for acceptance of responsibility had Ardoin properly represented the basis for the motion to withdraw plea, to the extent the Court made statements concerning Titus's last-minute protestations of innocence in denying a three-level reduction in the offense level used to calculate his applicable sentencing guideline range. Finally, and apparently in the alternative, Titus argues a recent Supreme Court case undermines the Fifth Circuit's requirement of a showing of prejudice for ineffective-assistance claims premised on attorney-client conflicts of interest. See Christeson v. Roper, No. 14-6873, 135 S.Ct. 891 (2015). Titus therefore requests that the Court vacate his conviction, allow a new hearing on his motion to withdraw plea, and hold a new sentencing hearing with different counsel.
B. Litigation of the Forfeiture Provision
As to the forfeiture issue, Titus argues Ardoin made no effort to negotiate favorable application of the forfeiture clause in Titus's plea agreement despite alleged assurances by Ardoin that the clause's failure to identify specific property would afford such an opportunity over the course of the ensuing proceedings. Further, Titus argues Ardoin failed to contest the Government's amended forfeiture motion despite the Court's having granted a continuance on a conditional grant of that motion, which afforded the defense 30 days to respond. According to Titus, had Ardoin performed adequate investigation, he would have discovered a viable defense (that the subject property was not purchased with tainted funds) and there is a reasonable probability the property could have been saved.
Importantly, Titus argues Fifth Circuit precedent precluding litigation of claims unrelated to the custodial aspects of a defendant's sentence via a Section 2255 motion ( e.g., the forfeiture claims presently at issue) ought to be reconsidered and that, alternatively, if such claims are not properly litigated via 2255 motions, Titus's claim should be treated as a request for a writ of error coram nobis. S ee United States v. Segler, 37 F.3d 1131, 1136-47 (5th Cir. 1995).
IV. CONTENTIONS OF OPPONENTS
A. Litigation of the Motion to Withdraw Guilty Plea
The Government counters that Ardoin's performance in litigating the motion to withdraw plea was not deficient and, in any event, Titus cannot meet his burden of showing prejudice under Strickland. As to the issue of performance, the Government contends the record reflects that Ardoin vigorously litigated Titus's claim of a secret side agreement with the Government. With respect to Titus's claims that Ardoin's October 5th letter to the Court "ambushed" his client at the sentencing hearing, the Government argues the entire letter, read in context, belies any such claim. According to the Government, Titus's only argument as to how Ardoin should have performed differently is that he should have insisted upon Wilson's appearance for live testimony on the allegations of a side agreement with the Government. However, because Titus cannot show any prejudice resulting from this failure, the Government contends Ardoin's performance in this respect is immaterial.
As to the issue of prejudice, the Government argues the Court simply did not credit Wilson's account regarding the secret side agreement, which account was embodied and presented to the Court in an affidavit submitted in connection with Titus's motion to withdraw his plea. In light of the "overwhelming evidence" presented by the Government against the existence of any such agreement, the Government contends Titus is unable to show that Wilson's live testimony creates a reasonable probability that the result of the proceedings would have been different. See Strickland, 466 U.S. at 694. This evidence included:
(1) Titus's sworn statement during his re-arraignment that no promises had been made to him other than those embodied in his written plea agreement,
(2) the affidavits of several Assistant United States Attorneys who worked on the case denying the existence of any such agreement, and
(3) evidence that Titus began transferring real property and engaging in structured transactions to move assets while avoiding reporting requirements following entry of his plea - actions the Government characterizes as inconsistent with the expected behavior of someone who believed himself to have a no-forfeiture agreement with the Government.
In light of the above, the Government contends Titus is unable to satisfy the Strickland standard and that his ineffective-assistance-of-counsel claim is without merit as to the litigation of his motion to withdraw plea. To the extent Titus argues he need not establish prejudice in the instant context, the Government argues this claim is incorrect and that, in any event, Fifth Circuit law requiring a showing of prejudice even in situations involving alleged attorney-client conflicts of interest remains binding ...