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Olive v. United States

United States District Court, M.D. Tennessee, Nashville Division

June 6, 2018

RICHARD OLIVE, Petitioner,



         Sentenced 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.

         I. Factual Background

         The 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:

         On 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.

         NFOA 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.

         Once 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.

         The 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 jet.

         In May 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.

         A 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 recommended.

         On 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 restitution.

         II. Legal Analysis

         A. Standards for Ineffective Assistance of Counsel Claims

         Claims 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)).

         To 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).

         Under 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.

         Against 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.

         B. Evidentiary Hearing and Plea Offer Claim

         The 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. 2018).

         Olive's 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 ...

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