United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
to 31 years in prison and ordered to pay almost $6 million in
restitution after a jury trial, Richard Olive has filed a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255 (Doc. No. 1). He claims trial counsel
was ineffective during plea negotiations and at sentencing.
The former claim requires a hearing, the latter can be
decided on the papers.
facts underlying this case are set forth in the Sixth
Circuit's decision affirming Olive's convictions and
sentence, United States v. Olive, 804 F.3d 747,
750-52 (6th Cir. 2015), familiarity with which is assumed. As
a primer to place Olive's arguments in context, the Court
simply notes the following:
March 1, 2012, a federal grand jury returned a nine-count
Indictment against Olive for his role as the President and
Executive Director of National Foundation of America
(“NFOA”). The Indictment covered the time period
from January 2006 until May 2007.
claimed to be a tax-exempt, non-profit organization, but was
neither. Instead, NFOA paid brokers a 9% commission - far
above the industry average - to induce customers to transfer
their annuities to NFOA in exchange for an investment
contract titled “Installment Plan Agreement.”
Those Agreements guaranteed fixed payments, but, as Olive
well-knew, NFOA had far too few assets to guarantee the
income in the amounts promised. Nevertheless, he represented
that customers would receive the guaranteed income,
misrepresented NFOA's tax status, and continued to
operate, notwithstanding that cease-and-desist letters had
been issued by several states.
the annuities were transferred, NFOA typically surrendered
them, which led to financial penalties and a reduction in
value. Over the course of its existence, NFOA exchanged
customers' annuities worth approximately $19.3 million
and surrendered them for $16.5 million.
funds NFOA received inured to the benefit of Olive and his
family, including his wife, and two step-daughters. Not only
did each of them receive a salary, Olive also used NFOA funds
to purchase a condominium in Las Vegas, Nevada, land in
Tennessee, a Jiffy Lube franchise in Georgia, and an office
condominium in Franklin, Tennessee. Funds were also used to
lease luxury vehicles for both Olive and his wife, and to pay
for a family vacation to New Orleans, Louisiana via a private
2007, the State of Tennessee took control of NFOA because it
was undercapitalized, and the Indictment followed. After a
six-day trial, the jury convicted Olive on all counts: three
counts of mail fraud in violation of 18 U.S.C. § 1341;
four counts of wire fraud in violation of 18 U.S.C. §
1343; and two counts of money laundering in violation of 18
U.S.C. § 1957.
Presentence Report was prepared that calculated a Total
Offense Level of 45, and a Criminal History Category II. This
produced a guideline range of life imprisonment, but the
statutory maximum for each wire and mail fraud conviction was
240 months imprisonment, and the money laundering statutory
maximum was 120 months for each count. Run consecutively,
this would have resulted in a total guideline sentence of 1,
920 months (160 years), which the probation officer
August 9, 2013, Olive was sentenced by then-Judge Kevin H.
Sharp to 36 months on each wire and mail fraud conviction,
and 60 months on both money laundering counts. All counts
were order to run consecutively for a total sentence of 372
months. Olive was also ordered to pay $5, 992, 181.24 in
Standards for Ineffective Assistance of Counsel
of ineffective assistance of counsel are governed by
Strickland v. Washington, 466 U.S. 668 (1984).
“‘Surmounting Strickland's high bar
is never an easy task'” because “[e]ven under
de novo review, the standard for judging
counsel's representation is a most deferential
one[.]” Harrington v. Richter, 562 U.S. 86,
105 (2011) (quoting Padilla v. Kentucky, 559 U.S.
356, 371 (2010)).
establish an ineffectiveness of counsel claim, a defendant
must first show that counsel's performance was deficient:
“[a]n attorney's performance is deficient if it is
objectively unreasonable under prevailing professional
norms.” Hodges v. Colson, 727 F.3d 517, 534
(6th Cir. 2013). In this regard, “a court must indulge
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered
sound trial strategy.” Strickland, 466 U.S. at
689. In fact, “[t]he Strickland Court held
that petitioner must show ‘that counsel made errors so
serious that counsel was not functioning as the
‘counsel' guaranteed the defendant by the Sixth
Amendment.'” Sylvester v. United States,
868 F.3d 503, 510 (6th Cir. 2017) (quoting
Strickland, 466 U.S. at 687).
Strickland, “a defendant must [also]
‘show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.'” Lafler
v. Cooper, 566 U.S. 156, 163 (2012) (quoting
Strickland, 466 U.S. at 694)). “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Harrington, 562
U.S. at 105 (quoting Strickland, 466 U.S. at 694).
“In making this showing, ‘[i]t is not enough for
the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding.'”
Sylvester, 868 F.3d at 510 (quoting
Strickland, 466 U.S. at 693). Rather, a defendant
must show that “counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id.
this backdrop, the Court turns to Olive claims. First, he
asserts that counsel “failed to properly advise [him]
regarding the Government's pre-trial offer.” (Doc.
No. 1 at 4). Second, Olive claims that “[d]efense
counsel ineffectively failed to preserve the Court's
erroneous loss calculation” for appeal and, in any
event, “‘new evidence' exists in any event to
further reduce the guidelines loss and restitution
calculation.” (Id. at 7). Olive requests an
evidentiary hearing, although it is unclear whether this
request is directed at one or both of these claims.
Evidentiary Hearing and Plea Offer Claim
decision on whether to hold an evidentiary hearing on a
Section 2255 petition is a matter of discretion. Huff v.
United States, 734 F.3d 600, 607 (6th Cir. 2013).
Recently, the Sixth Circuit has summarized the guidepost used
for exercising that discretion:
An evidentiary hearing “is required unless the record
conclusively shows that the petitioner is entitled to no
relief.” Campbell v. United States, 686 F.3d
353, 357 (6th Cir. 2012) (quoting Arredondo v. United
States, 178 F.3d 778, 782 (6th Cir. 1999)); see also 28
U.S.C. § 2255(b). The burden “for establishing an
entitlement to an evidentiary hearing is relatively light,
” and “[w]here there is a factual dispute, the
habeas court must hold an evidentiary hearing to determine
the truth of the petitioner's claims.” Turner
v. United States, 183 F.3d 474, 477 (6th Cir. 1999). A
petitioner's “mere assertion of his innocence,
” without more, does not entitle him to an evidentiary
hearing. Valentine v. United States, 488 F.3d 325,
334 (6th Cir. 2007); see also Turner, 183 F.3d at
477. But when presented with factual allegations, “a
district court may only forego a hearing where ‘the
petitioner's allegations cannot be accepted as true
because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of
fact.'” MacLloyd v. United States, 684
Fed.Appx. 555, 559 (6th Cir. 2017) (internal quotation marks
omitted) (quoting Arredondo, 178 F.3d at 782).
“[W]hen a defendant presents an affidavit containing a
factual narrative of the events that is neither contradicted
by the record nor inherently incredible and the government
offers nothing more than contrary representations to
contradict it, the defendant is entitled to an evidentiary
hearing.” Huff, 734 F.3d at 607 (citation and
internal quotation marks omitted).
Martin v. United States, 889 F.3d 827, 832 (6th Cir.
contention that counsel was ineffective during the plea
negotiation process requires a hearing because the record
does not establish he is not entitled to relief on ...