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Palmer v. United States

United States District Court, E.D. Missouri, Eastern Division

March 23, 2017




         This matter is before me on the motion of Robert M. Palmer (“Palmer”) to vacate, set aside, or correct a sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. In his motion, Palmer alleges that his initial defense counsel was constitutionally ineffective. For the reasons below, I find that Palmer's claims are without merit. As a result, his motion will be denied.

         I. BACKGROUND

         On August 21, 2013, a grand jury charged Palmer with a four-count indictment. The indictment charged him with: mail fraud in violation of 18 U.S.C. § 1341 and 18 U.S.C. § 2 (Counts 1 and 2) and wire fraud in violation of 18 U.S.C. § 1343 and 18 U.S.C. § 2 (Counts 3 and 4).

         The charges stem from Palmer and Mark Driver's ownership and operation of Princeton Partnership LLC. Princeton was an insurance brokerage business purportedly involved in the sale of various insurance and investment products.

         Beginning in 2004, Palmer and Driver schemed to defraud Princeton customers. Palmer solicited money from a number of individuals and families, promising to place the funds in suitable investments. Instead of investing the money, Palmer used it for personal expenses and for the general expenses of Princeton. Palmer and Driver also used funds from new Princeton customers to pay old customers under the guise that the old customers were receiving a return on their investment. In furtherance of the scheme to solicit money from Princeton customers, Palmer and Driver committed a series of acts constituting wire fraud. In total, the two defrauded roughly $3 million from Princeton customers. Based on this information, a grand jury indicted Palmer.

         James G. Martin, then of Armstrong Teasdale, first represented Palmer. Armstrong Teasdale lawyers Brian Kaveney and Zachary Howenstine assisted Martin. Assistant United States Attorney Hal Goldsmith prosecuted the case against Palmer. Goldsmith and Martin corresponded on several occasions regarding a possible plea agreement. Martin relayed multiple times that he was meeting with his client to see if resolution was possible. On October 11, 2013, Martin informed Goldsmith in an email that Palmer would only accept a plea agreement with less than one year of jail time. On October 16, 2013, Martin reaffirmed to Goldsmith that Palmer was “stuck on spending no more than one year in prison, ” and would proceed to trial unless offered a plea agreement stipulating as such.

         On November 13, 2013, Martin and Goldsmith met to discuss the facts of the case and a potential agreement. Per Goldsmith's affidavit, Martin “presented a number of facts and legal issues that he felt were mitigating evidence that should be considered in crafting a potential plea agreement for Palmer.” (Doc. #10-1, Aff. Of Hal Goldsmith, at 4). Goldsmith told Martin he would consider the facts. Shortly thereafter, Martin left Armstrong Teasdale and Kaveney requested a formal plea offer from Goldsmith.

         On January 28, 2014, Kaveney forwarded Palmer an email containing the proposed plea offer. The plea offer estimated a total offense level of 20, minus 3 points for acceptance of responsibility, resulting in a guideline sentencing range of 33 to 41 months. Kaveney also informed Palmer that Martin had left Armstrong Teasdale to join Dowd Bennett LLP at the end of January, 2014. Kaveney discussed the plea agreement with Palmer on February 5 and on February 11, 2014 (Doc # 10-2, Aff. of Brian E. Kaveney). In an email to Martin and Kaveney on February 5, 2014, and later, on February 12, 2014, in a meeting with Martin, Kaveney, and Palmer's wife, Palmer emphasized that he felt he had “no other option BUT to go to trial” given the only proposed plea agreement. (Id. at Ex.2, Ex. A.).

         On February 11, 2014, Martin filed a motion to withdraw as counsel which was granted on February 12, 2014.[1] Palmer hired Paul D'Agrosa as replacement counsel on or about March 10th, 2014. On April 1, 2014, Goldsmith emailed D'Agrosa and told him that Palmer should seriously consider a plea agreement. On April 3, 2014, D'Agrosa met with Goldsmith, and D'Agrosa told Goldsmith that he discussed the case with Martin and Kaveney to get up to speed and that he had received the proposed plea agreement. After that meeting Goldsmith sent an email to D'Agrosa on April 17, 2014, to ask whether the case could be resolved. Within an hour, D'Agrosa responded that he did not “see a plea happening.” The next day, on April 18, 2014, based on D'Agrosa's representation that Palmer would not plead guilty, Goldsmith sent a letter to D'Agrosa formally withdrawing and revoking any prior plea offers. (Doc. # 10-1, Aff. of Hal Goldsmith, p.6).

         A few weeks later, federal agents discovered evidence that Palmer made false representations about his annual income on loan/credit applications. In addition, Goldsmith engaged in trial preparation including interviewing witnesses and having a 94-year-old victim give deposition testimony four days before she died. Because of these further developments and Goldsmith's conclusion that the case against Palmer had grown stronger, Goldsmith declined to offer Palmer the original proposed plea agreement. Instead he offered one similar to the plea Driver took. On June 5, 2015, after several rounds of revisions to the plea which Palmer actively participated in, Palmer entered a guilty plea under the final plea agreement negotiated with Goldsmith. That agreement resulted with a total offense level of 27 with a guideline imprisonment range of 70-87 months. I sentenced Palmer to a 70 month term of imprisonment. On October 13, 2015, Palmer filed the present motion to vacate under 28 U.S.C. § 2255. He asserts that his initial counsel, Martin, Kaveney, and Howenstine, were constitutionally ineffective by failing to adequately review and discuss the plea offer that was withdrawn which presented a guidelines sentencing range of 33-41 months. Palmer argues that the plea offer was withdrawn before he could be properly counseled about it. He asserts that had he been properly counseled he would have “most likely availed himself of proper legal counsel and accepted the initial plea offer.” (Doc. #1, Pet. at 9). Palmer asks the Court to grant his motion to vacate and allow him to accept the plea offer which had been withdrawn.


         A motion pursuant to § 2255 “is ‘intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.'” United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting Davis v. United States 417 U.S. 333, 343 (1974)). Under § 2255, “a defendant in federal custody may seek post-conviction relief on the ground that his sentence was imposed in the absence of jurisdiction or in violation of the Constitution or laws of the United States, was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Watson v. United States, 493 F.3d 960, 963 (8th Cir 2007). A defendant's plea agreement waiver of the right to seek this relief does not waive the right to argue, pursuant to that section, that the decision to enter into the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel. United States v. Morrison, 171 F.3d 567, 568 (8th Cir. 1999).

         III. ...

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