United States District Court, W.D. Missouri, Southern Division
GARY A. FENNER, District Judge.
Presently before the Court is pro se Movant James Keith Ivey ("Movant") Motion to Vacate, Correct, or Set Aside a Sentence pursuant to 28 U.S.C. § 2255. (Doc. # 1). Respondent United States of America (the "Government") opposes. (Doc. # 9). For the reasons set forth below, Movant's Motion is DENIED.
The underlying criminal case involved criminal charges alleging that Movant and others inflated invoices submitted by Movant's trucking company, J&M Trucking, Inc. ("J&M"), to Tracker Marine, LLC ("Tracker Marine"). ( See generally Case No. 12-03017-CR-S-GAF, Doc. # 1). At trial, a former Tracker Marine employee, Paul Hunting, testified that his involvement in this scheme started when he authorized additional payments to J&M to compensate it for flat tires; in exchange, Movant would give Mr. Hunting cash to show his gratitude. (Trial Transcript ("T. Tr.") 63:1-14). Thereafter, Mr. Hunting started to inflate the number of miles recorded for certain trips J&M made; in exchange, Movant would meet Mr. Hunting in a parking lot and give him cash in an envelope. ( Id. at 64:1-65:17). Eventually, Mr. Hunting and Movant agreed that an additional 158 miles should be added to each invoice. ( Id. at 67:17-68:2). This resulted in J&M being reimbursed an additional $300 per trip, which was split one-third to Mr. Hunting, one-third to Movant, and one-third to Movant's wife. ( Id. at 68:4-18).
Mr. Hunting testified that J&M issued Mr. Hunting 1099s for the cash he received because Movant "didn't want to pay the taxes on the full amount, that [Mr. Hunting] had to incur some of the cost of the taxes." ( Id. at 82:14-22). To conceal this income, Mr. Hunting reported it as income from his and his wife's catering business. ( Id. at 84:6-85:19).
One of Movant's trial attorneys, Mr. Applequist, provided a Declaration Under Oath in which he recounts that in 2009 he and Movant undertook "several months of voluntary information-sharing and negotiations with the federal criminal case agents and responsible Assistant United States Attorney (AUSA) with a strategy of persuading the government to decline criminal prosecution." (Declaration Under Oath of John F. Appelquist ("Appelquist Decl.") ¶ 4; see also Affidavit of Gary L. Smith ("Smith Aff.") ¶ 5(A)). As part of this process, one of Movant's attorneys suggested they obtain "an independent accounting review of [Movant's] financial records, in hopes that it would corroborate Movant's explanation for payments which the government contended were kickbacks' to [Mr. Hunting]." (Appelquist Decl. ¶ 6; Smith Aff. ¶ 5(A) ("There was a strategy discussed in 2009 of trying to persuade the Government not to file criminal charges. Included as part of that was the retention by the defense of an accounting firm to review the records. This was discussed with [Movant and his wife] and they agreed to it."). To accomplish this, Mr. Appelquist contacted Kirkpatrick, Phillips & Miller ("KPM"), an accounting firm, in order to prepare a financial report to be used by investigators in this case. (T. Tr. 238:15-20). The accountants at KPM testified that under the agreement they were free to discuss the matters calculated and how they arrived at the calculations with law enforcement. ( Id. at 238:21-239:2). Movant and his wife met with the accountants and told them J&M leased some vehicles from Mr. Hunting and that they were paying him the net profits on those vehicles. ( Id. at 235:20-236:9; 240:4-17). Movant also met with a Federal Bureau of Investigation agent and provided this same explanation. ( Id. at 288:8-24).
Subsequently, a federal grand jury returned a twenty-four count Indictment charging Movant, his wife, and Mr. Hunting with conspiracy, wire fraud, conspiracy to launder money, false statements, and willful failure to file an income tax return. (Case No. 12-03017-CR-S-GAF, Doc. # 1). Mr. Hunting pled guilty to the crimes for which he was indicted. ( Id., Doc. # 13).
At trial, one of the accountants testified that the profits on the trucks allegedly owned by Mr. Hunting did not match the amounts reported on the 1099 Forms J&M provided to Mr. Hunting. (T. Tr. 244:5-19). During trial, an employee of Tracker Marine's parent company testified that in some point in August or September of 2008 Tracker Marine stopped paying J&M on their invoices and that there was about $200, 000 worth of open invoices. ( Id. at 46:16-47:1). Movant also testified that there was a little over $200, 000 in open, unpaid invoices, but that he hadn't seen the invoices. ( Id. at 434:4-11). Following the bench trial, Movant and his wife were found guilty of all crimes they were charged with. (Doc. # 63).
Mr. Thomas Carver, Movant's sentencing counsel, objected to the loss figures on the ground that Tracker Marine had withheld approximately $200, 000 in open invoices owed to J&M. (Case No. 12-03017-CR-S-GAF, Doc. # 90, p. 38). He argued that "whatever the established loss figure is, it should be reduced by the total of open invoices." ( Id. at 39). At sentencing, this Court found the loss calculation for purposes of sentencing was $797, 325 and that Movant was not entitled to any setoff for the open invoices. (Sentencing Transcript ("Sent. Tr.") 31:25-32:11). This Court ultimately sentenced Movant to a total of seventy months' imprisonment, three-years of supervised release, and ordered restitution in the amount of $797, 325. ( Id. at 40:16-41:11). Movant did not file a direct appeal from the Court's conviction or sentence.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a movant may collaterally attack his sentence on four (4) grounds: "(1) that the sentence was imposed in violation of the Constitution or laws of the United States' (2) that the court was without jurisdiction to impose such sentence, ' (3) that the sentence was in excess of the maximum authorized by law, ' and (4) that the sentence is otherwise subject to collateral attack.'" Hill v. United States, 368 U.S. 424, 426-427 (1962) (quoting 28 U.S.C. § 2255).
Movant argues habeas relief is appropriate for three reasons. ( See generally Doc. # 1). All three of Movant's grounds argue that he received ineffective assistance of counsel from either his trial counsel or his sentencing counsel. ( Id. ). First, Movant alleges his trial counsel was ineffective for hiring KPM under an open agreement. ( Id. at 8-10). Second, Movant argues his trial counsel was ineffective for failing to have the amount of loss reduced to reflect the open invoices owed by Tracker Marine to ...