United States District Court, E.D. Missouri, Eastern Division
ROBERT M. PALMER, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE
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.
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).
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.
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.
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
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.
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.).
February 11, 2014, Martin filed a motion to withdraw as
counsel which was granted on February 12, 2014. 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).
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.
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).