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United States v. Tahir

United States District Court, W.D. Oklahoma

May 8, 2018

TRINA TAHIR, Defendant.



          Before the Court is Defendant Trina Tahir's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence [Doc. No. 314]. Upon consideration of the Motion and supporting brief [Doc. No. 323], the government's response [Doc. No. 325], and the case record, the Court finds that Defendant is not entitled to relief and the Motion should be denied.[1]

         Factual and Procedural Background

         Defendant pleaded guilty on April 6, 2011, to a money laundering offense as charged in Count 12 of the Indictment, of engaging in a financial transaction involving proceeds of unlawful activity (wire fraud) in violation of 18 U.S.C. § 1956(a)(1)(B)(i). The plea agreement negotiated by Defendant's retained counsel, Stephen Jones and April Davis, provided for the dismissal of eight other charges at sentencing: Count 1, conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349; Counts 2, 6, 10 and 13, wire fraud in violation of 18 U.S.C. § 1343; and Counts 3, 7 and 14, additional instances of money laundering. All charges arose from a mortgage fraud scheme carried out through Defendant's real estate agency, T&T Realty, during 2006 and 2007. At the time, Defendant was a licensed real estate broker; codefendant Michael Gipson was a real estate agent employed by T&T Realty; and codefendant Derrick Smith was a real estate investor and proprietor of Mortgage Processing Service or MP Services.

         Mr. Gipson pleaded guilty to conspiracy as charged in Count 1 and wire fraud as charged in Count 8. Mr. Smith proceeded to trial on April 11, 2011, and a jury found him guilty of the conspiracy charge.[2] On August 30, 2011, Mr. Smith was sentenced to a 40-month term of imprisonment and ordered to pay restitution of $369, 355.54.[3] On October 26, 2011, Mr. Gipson was sentenced to concurrent four-month terms of imprisonment and ordered to pay restitution of $335, 070.55.

         After Defendant's presentence investigation report was completed on October 18, 2011, she moved to withdraw her guilty plea. Defendant claimed the plea was not knowing and voluntary because, unknown to counsel, she was over-medicating herself with prescription drugs for anxiety and depression when she entered it. Defendant's attorneys also expressed concern about her mental functioning, and then moved for a judicial determination of mental competency. After a lengthy process of outpatient and inpatient evaluations, and a March 2013 competency hearing, the Court found that Defendant was not suffering from a mental disease or defect that rendered her mentally incompetent to understand the criminal proceedings or assist in her defense, nor was she mentally incompetent when she entered her guilty plea. See Memorandum of Decision [Doc. No. 257] (sealed). As pertinent here, the Court found that Defendant was malingering, or exaggerating symptoms for secondary gain, in an effort to avoid her guilty plea after she learned that the presentence investigation report stated an advisory guideline range of imprisonment of 41 to 51 months.

         After the competency decision, Defendant discharged her original attorneys and, through new counsel, filed an amended motion to withdraw her guilty plea. Defendant asserted claims of ineffective assistance of counsel and coercion by Mr. Jones and Ms. Davis, and alleged that she was innocent of all charges because she “was not aware the acts [she] did were illegal.” See Tahir Aff. 7/3/13 [Doc. No. 271-1] ¶ 3. The government opposed the amended motion with an affidavit of Ms. Davis and copies of communications between Defendant and her former attorneys. The Court conducted an evidentiary hearing on November 21, 2013, and received documentary evidence and the testimony of witnesses, including Mr. Jones and Ms. Davis. In an order issued December 2, 2013, the Court made detailed findings and denied Defendant's original and amended motions because she “failed to establish a fair and just reason for withdrawing her guilty plea.” See 12/2/13 Order [Doc. No. 291] at 6 (available at 2013 WL 6230627, *4) (hereafter, “Order”). The Court's pertinent findings regarding Defendant's assertion of innocence and the alleged ineffectiveness of her attorneys are discussed infra.

         Following this ruling, the presentence investigation report was revised to address guideline provisions affected by Defendant's subsequent conduct, specifically, adding an enhancement for obstruction of justice and deleting a downward adjustment for acceptance of responsibility. At sentencing, the Court overruled Defendant's objections to these changes but sustained some objections originally prepared by Mr. Jones and Ms. Davis. After these rulings, the advisory guideline range of imprisonment remained 41-51 months. On March 26, 2014, the Court imposed a 24-month prison sentence followed by a three-year term of supervised release, and ordered restitution of $382, 290.82. Defendant did not appeal but, instead, filed this timely § 2255 Motion.

         Defendant's Motion

         In her Motion, Defendant asserts a single claim of ineffective assistance of counsel presented in tandem: 1) Mr. Jones and Ms. Davis failed to interview six witnesses who would have supported a defense to the charges of the Indictment, and otherwise failed to investigate the defense, that she lacked the requisite intent to commit the offenses and acted in good faith; and 2) her original attorneys failed to consider whether Defendant had a viable good faith defense in advising her to accept the plea agreement. Defendant alleges that the attorneys' failure to investigate and adequately advise her caused her to enter a guilty plea that was not knowing and voluntary. See Def.'s Mot. [Doc. No. 314] at 10. She also argues in support of the Motion that a proper investigation would have developed evidence that could have resulted in a favorable jury verdict, and that proper advice regarding a good faith defense would have caused her to reject the government's plea offer and insist on going to trial. See Def.'s Supp. Br. [Doc. No. 323] at 10, 16-17, 20, 21-22.

         Standard of Decision

          “A successful claim of ineffective assistance of counsel must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” United States v. Harms, 371 F.3d 1208, 1211 (10th Cir. 2004). Under this test, Defendant must show both that her “counsel committed serious errors in light of ‘prevailing professional norms' and that there is a ‘reasonable probability' that the outcome would have been different had those errors not occurred.” United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993) (quoting Strickland, 466 U.S. at 688, 694); accord United States v. Mora, 293 F.3d 1213, 1217 (10th Cir. 2002); see United States v. Barrett, 797 F.3d 1207, 1214 (10th Cir. 2015) (defendant must show counsel's performance was “completely unreasonable, not merely wrong”). “An insufficient showing on either element is fatal to an ineffective-assistance claim, rendering consideration of the other element unnecessary.” Smith v. Duckworth, 824 F.3d 1233, 1249 (10th Cir. 2016); see Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011).

         In the context of a guilty plea, the prejudice prong of Strickland requires Defendant to “show that there is a reasonable probability that, but for counsel's errors, [she] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Premo v. Moore, 562 U.S. 115, 131-32 (2011); United States v. Silva, 430 F.3d 1096, 1099 (10th Cir. 2005). This showing involves an objective component; “proof of prejudice requires a petitioner to show that ‘a decision to reject the plea bargain would have been rational under the circumstances.'” See Heard v. Addison, 728 F.3d 1170, 1184 (10th Cir. 2013) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)) (emphasis omitted). The assessment includes “objective factors such as whether an unmade evidentiary or legal discovery ‘likely would have changed the outcome of a trial, ' or whether a defense about which the defendant was not advised ‘likely would have succeeded at trial.'” Id. at 1183 (quoting Hill, 474 U.S. at 59). A showing of prejudice also involves a subjective component, which “take[s] into account a particular defendant's own statements and actions in determining whether he would have insisted on going to trial.” Id. Where a ...

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