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Harwood v. United States

January 26, 2007

SHIRLEY HARWOOD
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: J. Ronnie Greer United States District Judge

MEMORANDUM OPINION and ORDER

This matter is before the Court to address the petitioner's Motion to Vacate, Correct or Set Aside a Sentence Pursuant to 28 U.S.C. § 2255. The only ground asserted by the petitioner is that her conviction must be vacated because she had ineffective assistance of counsel.*fn1

On April 29, 2002, the petitioner pled guilty to four counts of a twelve count indictment in case No. 2:01-CR-76. Count 1 charged her with a conspiracy to defraud; Count 2 charged her with mail fraud; Count 10 charged her with wire fraud; and Count 11 charged her with money laundering. This indictment was the a result of a sophisticated and complicated scheme involving the petitioner and her employee in the creation of false and forged documents to secure a $4.5 million dollar loan from Credit Suisse.*fn2

On June 3, 2002, the petitioner pled guilty in case No. 2:02-CR-28 to Counts 1 through 11 of a seventeen count indictment that charged her with bank fraud and money laundering offenses. The conduct which led to this indictment involved fraudulent loans and real estate transactions with fictitious borrowers to receive loan proceeds from Union Planters Bank.*fn3

The petitioner's presentence report (PSR) was disclosed to her on July 16, 2002, and it was revised on December 9, 2002, to delete the three level reduction in offense level for acceptance of responsibility. Numerous objections to the probation officer's calculation of the guideline range were filed by both the government and the defendant and hearings on the objections were held on February 3, 2003, and April 28, 2003. The defendant was sentenced on May 19, 2003, to 60 months imprisonment on Counts 1, 2, and 10 and to 97 months on Count 11 in No. 2:01-CR-76 and 97 months on Counts 1-11 in No. 2:02-CR-28, with all terms to run concurrently. She also was sentenced to serve a term of 3 years of supervised release as to Counts 1, 2, 10, and 11 in No. 2:01-CR-76 and to 5 years of supervised release as to Counts 1-11 in No. 2:02-CR-28, with all terms to run concurrently. She was ordered to pay restitution of $3,309,817.00 to Credit Suisse and $2,005,150.00 to Union Planters Bank.*fn4

The petitioner has requested an evidentiary hearing and appointment of counsel in her motion. Because this Court has determined that the files and records of the case conclusively show that the petitioner is entitled to no relief and that her allegations are contradicted by the record, the request for an evidentiary hearing is DENIED. See Smith v. United States, 348 F. 3d 545 (6th Cir. 2003); Rule 8, Rules Governing Section 2255 Cases In The United States District Courts. Since no evidentiary hearing is required, petitioner's request for appointment of counsel is likewise DENIED.

APPLICABLE LEGAL STANDARD

To establish ineffective assistance of counsel a petitioner must show that (1) counsel's performance was deficient; and (2) counsel's deficient performance prejudiced the defendant so as to render the trial unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Strickland's prejudice prong presents a heavy burden because a defendant first must "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689. In addition, a petitioner must show but for errors of counsel, the result of the proceeding would have been different. Lynott v. Story, 929 F. 2d 228, 232 (6th Cir. 1991). A reviewing court's scrutiny of counsel's performance is highly deferential. Cobb v. Perini, 832 F. 2d 342, 347 (6th Cir. 1987), cert. denied, 486 U.S. 1024 (1988).

1. Petitioner's Claims of Ineffective Assistance of Counsel During the Plea Negotiation Stage

Petitioner's allegations of ineffective assistance of counsel during plea negotiations are that counsel "never took the time to explain the plea agreement" to her and that he initially led her to believe she would get probation in the case and would serve no jail time and later told her she would only spend a few months in a camp and get probation. Her allegations, however, lack any credibility and are directly contradicted by the record and plea agreements in her cases. Petitioner was fully aware that she would be sentenced pursuant to the sentencing guidelines and her plea agreement contained a detailed calculation of her guideline range as follows:

4. The defendant acknowledges and understands that the defendant's case is governed by the Sentencing Guidelines and that any term of imprisonment imposed under the guidelines is nonparolable. The defendant further acknowledges and understands that the Court will determine the appropriate sentence under the Sentencing Guidelines and that this determination will be based upon the entire scope of the defendant's criminal conduct, the defendant's criminal history, and pursuant to other factors and guidelines set forth in the Sentencing Guidelines. She further understands that pursuant to U.S.S.G. § 6B1.4 Stipulations (Policy Statement), the parties' agreement of facts is not binding on the Court and that the Court will determine the facts relevant to sentencing after reviewing the factual basis for the sentence, the presentence report, any stipulations and agreements of the parties, and any other information it deems relevant. The defendant further understands that if the Court does not accept the recommendations or requests of this plea agreement as to any sentence, the defendant has no right to withdraw her plea under the terms of Rule 11(e)(2), Federal Rules of Criminal Procedure, and withdrawal of her plea is within the discretion of the Court under Rule 32(e), Federal Rules of Criminal Procedure.

See Plea Agreement, Doc. 15, para. 4, No. 2:01-CR-28. See also Doc. 51, para. 8, No. 2:01-CR-76. Her plea agreement in case No. 2:01-CR-76 also contains the following:

10. Guideline Calculations

The parties agree that the following calculations under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") are consistent with the facts of this case. These recommendations are made with the understanding that the version of the Guidelines effective on November 1, 2000, would apply to this case. See U.S.S.G. § 1b1.11(B)(1). However, if the Court determines that application of the current version of the Guidelines would not violate the defendant's rights under the Ex post facto Clause to the U.S. Constitution, then the parties understand that the current version of the Guidelines would control.

Although these recommendations are not binding on the probation office or the Court, the parties will jointly recommended that the Court make the following findings and conclusions:

(a) CONSPIRACY AND FRAUD:

i. The base offense level is six (6), pursuant to U.S.S.G. § 2F1.1(a).

ii. The amount of money lost by Credit Suisse attributable to the conduct of defendant SHIRLEY HARWOOD and co-defendant DENNIS RAY SUTHERLAND, JR. was approximately $4,500,000.00. The amount of funds fraudulently obtained by defendant SHIRLEY HARWOOD and defendant's employer, Apple Tree Mortgage, was $237,500.00. Each party reserves the right to argue to the probation officer and the Court about the appropriate amount of "loss" to be attributed to the defendant pursuant to U.S.S.G. § 2F1.1(b)(1).

iii. The offense level is increased by two (2) levels because the offense involved more than minimal planning U.S.S.G. §2f1.1(B)(2).

iv. The offense level is increased by two (2) levels because the defendant was an organizer, leader, manager, or supervisor of the criminal activity. U.S.S.G.§ 3b1.1(c).

(b) ENGAGING IN MONETARY TRANSACTIONS IN PROPERTY DERIVED FROM SPECIFIED UNLAWFUL ACTIVITY:

i. The base offense level is seventeen (17), pursuant to U.S.S.G. § 2S1.2(a).

ii. The offense level is increased by two (2) levels because the defendant knew that the funds were the proceeds of specified unlawful activity. U.S.S.G. §2S1.2(b)(1)(B).

iii. The offense level is increased by two (2) levels because the value of the funds laundered exceeded $200,000. U.S.S.G. § 2S1.2(b)(2).

(c) GROUPING

The parties acknowledge that under U.S.S.G. ยง 3D1.2(d), the fraud offenses and the money laundering offense may be grouped. The offense level applicable to the entire group is ...


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