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Blair v. United States

United States District Court, E.D. Tennessee, Greeneville

February 8, 2018

TOMMY BLAIR, Petitioner,



         Tommy Blair (“Petitioner”) has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. §2255, [Doc. 205], and a proposed amendment thereto, [Doc. 207]. For the reasons discussed in this Memorandum and Order, both his motion and the proposed amendment are DENIED.

         I. BACKGROUND

         Petitioner, Samuel Clark, and Christina Rogers were indicted for their respective roles in defrauding TruPoint Bank (“Bank”) so that Clark could obtain a loan to finance his purchase of several business properties from Blair. Rogers was Clark's mortgage broker whose responsibility was to find a bank willing to make a loan to Clark. The facts are set out in the opinion of the Sixth Circuit Court of Appeals:

In 2005, Samuel Clark expressed interest in purchasing several car wash businesses and a laundromat from Tommy Blair. Clark told his mortgage broker, Christina Rogers, that he would need a loan to finance the entire purchase and to provide him with surplus cash to use as operating funds for the businesses. Because no bank would approve such a loan, Rogers devised a fraudulent plan, to which Clark and Blair agreed, that involved inflating the value and purchase price of the transaction so that the bank would approve a loan amount greater than the actual purchase price. Blair agreed to sell his businesses to Clark for $3.4 million. On the bank loan application, however, Rogers inflated the purchase price to $4.2 million so that the bank would approve a loan in excess of the actual purchase price. Blair agreed that he would return $125, 000 of the proceeds from the sale back to Clark as operating cash for the businesses upon receiving a check from the bank, and Clark agreed that he would reimburse Blair for any additional capital-gains taxes incurred as a result of the difference between the actual purchase price of $3.4 million and the $4.2 million price reported on the loan documents. In addition, Blair submitted falsified tax information (a “Schedule C” form) that overstated the income generated by his businesses so that the bank would conclude that the loan transaction was a safe investment. Based on that information, which Rogers submitted to TruPoint Bank, Clark was approved for a loan to finance 85% of the inflated $4.2 million purchase price- a total loan of $3.57 million.
The false information on the loan documents was submitted along with fake checks and a false promissory note, signed by Blair and Clark, and notarized by Rogers, indicating that Clark had made a down payment of 10% of the total purchase price to Blair, and that Blair had agreed to provide seller financing to cover the remaining 5% of the purchase price. At trial, however, Clark testified that he had never actually made any of those payments to Blair and that the purported seller-financing agreement was also part of the sham, designed to deceive the bank so it would provide a loan in excess of the actual $3.4 million purchase price.
After the loan closed in April 2006, Blair received a check for the net proceeds of the sale and issued a check to Clark for approximately $125, 000, the difference between the actual purchase price and the amount they had obtained from the bank, less closing costs and $17, 650 in fees that Rogers claimed for brokering the fraudulent transaction. Thereafter, Clark made only one of the $30, 000 monthly payments on the loan. When Blair learned that Clark had stopped making payments on the loan and began to suspect that Clark might not fulfill his earlier promise to repay Blair's capital gains taxes, Blair decided to come clean about the irregularities in the loan transaction.
In January 2011, a federal grand jury charged Blair, Clark, and Rogers with bank fraud, in violation of 18 U.S.C. § 1344, conspiracy to commit bank fraud, in violation of 18 U.S.C. §1349, and submission of materially false statements to TruPoint Bank, in violation of 18 U.S.C. § 1014. Clark eventually pleaded guilty to a single count of conspiracy to commit bank fraud, 18U.S.C. §1349, pursuant to a plea agreement in which he agreed to testify against Blair and Rogers at trial.
At trial, TruPoint Bank official Cameron Forrester testified that Blair called him on August 1, 2006, to inform him that Clark would likely default on the loan. Blair then sent a letter to Forrester, informing him of the $125, 000 check he had issued to Clark after the closing. In the following weeks, Blair confessed to Forrester that the checks for the down payment amounts had been forgeries and that the purchase price in the settlement statement had been inflated from $3.4million to $4.2 million. Blair also sent Forrester a copy of the real” contract between Clark and Blair, which listed a purchase amount of $3.4 million. Around the same time, Blair recorded a phone conversation with Clark, during which they referred to all three defendants' roles in orchestrating the fraud.
At trial, FBI agents testified that Blair walked into an FBI office on September 18, 2006, and asked to speak with them about the fraudulent transaction. Blair allegedly explained the fraud to them that day and revealed additional details throughout the subsequent investigation. The evidence at trial also included the recording of the phone call between Clark and Blair, which Blair eventually turned over to the FBI in an effort to minimize the appearance of his role in the conspiracy. In addition, the trial evidence included the “real” contract wherein Clark and Blair had agreed to the actual sale price of $3.4 million, the falsified Schedule C form, and documents in which Blair had falsely confirmed that Clark paid him a down payment. Blair did not testify at trial. Rogers testified in her own defense, but her testimony actually supported the Government's case by revealing that she had been aware of Clark's personal finances and presumably knew that he could not make the requisite down payment to qualify for the loan she helped broker.
The jury found both Blair and Rogers guilty of bank fraud and conspiracy to commit bank fraud. Blair was also convicted of making materially false statements to TruPoint Bank, and Rogers was convicted of making materially false statements to the FBI. Both were sentenced to 46 months' imprisonment and ordered to repay $1, 443, 775.73 in restitution to TruPoint Bank.[1]


         This Court must vacate and set aside petitioner's sentence if it finds that “the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . .” 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4.

         When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).

         To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).

         When a § 2255 Petitioner claims he was denied his sixth amendment right to effective assistance of counsel, it is noted that an attorney is presumed to have provided effective assistance, and the Petitioner bears the burden of showing that the attorney did not, Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003). Petitioner must prove that specific acts or omissions by his attorney were deficient and that the attorney failed to provide “reasonably effective assistance, ” Strickland v. Washington, 466 U.S. 668, 687 (1987), which is measured by “prevailing professional norms, ” Rompilla v. Beard, 545 U.S. 374, 380 (2005). “[T]he constitutional right at issue here is ultimately the right to a fair trial, not to perfect representation.” Smith v. Mitchell, 348 F.3d. 177, 201 (6th. Cir, 2003 (citing Strickland). If Petitioner crosses this evidentiary hurdle, he must then show “a reasonable probability that, but for [the attorney's acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S. at 694. In other words, he must show that he was actually prejudiced by the attorney's deficient representation:

To succeed on an ineffective assistance claim, a defendant must show that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). [A court's ] review of counsel's performance is “highly deferential.” Id. at 689, 104 S.Ct. 2052. [The court must] “judge the reasonableness of the time of counsel's conduct.” Id. at 690, 104 S.Ct. 2052. The defendant “must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. To establish “prejudice, ” a “defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S.86, 131 S.Ct. 770, 792, 178 L.Ed.2d 624 (2011). And, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

Docherty v. United States, 536 Fed.Appx. 547, 551 (6th. Cir. 2013).


         A. Ground One: Ineffective Assistance of Counsel

         Petitioner claims that his lawyers provided ineffective assistance by refusing to obtain a handwriting analysis to show that his signatures on three documents submitted to the bank in support of the loan application--two offers to purchase and a lease agreement with a business tenant--were forged by either Daniel Mitchell, whom petitioner retained to find a buyer for his businesses, or Sam Clark.[2] He argues that it is not his signature on these documents and that a handwriting expert has so confirmed after the trial.[3] In the same vein, he argues that his attorneys were ineffective in failing to call Mitchell and Danny Pollito (who assisted Clark in creating and submitting to the bank three fake cashier's checks intended to show that Clark made the required down-payment to petitioner)[4] in an effort to prove that one of them signed petitioner's name to the documents.

         Petitioner's attorneys did well to refrain from hiring a handwriting expert in an attempt to show that someone other than petitioner signed his name to the three documents; it would have been a waste of time and very likely counter-productive. Regardless of who signed his name to the offers to purchase, petitioner never repudiated them, choosing rather to allow the documents to be furnished to the bank as ...

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