United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION
JOHN C. NIVISON, Magistrate Judge.
Petitioner Todd Denson was twice convicted of wire fraud. United States v. Denson, 689 F.3d 21, 22-23 (1st Cir. 2012). His first conviction, in 2007, was based on his guilty plea. His second conviction, in 2011, followed a 2010 jury trial. In the pending motion, pursuant to 28 U.S.C. § 2255, Petitioner seeks to vacate, set aside or correct the sentence that followed the second conviction. (Motion, ECF No. 106.)
Through his motion, Petitioner claims ineffective assistance of counsel at his 2010 trial, alleging that: (1) counsel failed to file a motion in limine to exclude evidence of the prior conviction and the prior bad acts upon which the 2007 conviction was based; (2) counsel failed to secure witnesses to testify and authenticate documentary evidence; (3) counsel failed to obtain and offer certain documentary evidence; and (4) counsel failed to provide him with access to discovery. The recommendation is that the Court deny the requested relief and dismiss the motion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner was indicted in 2006 and pled guilty in 2007 to seven counts of mail and wire fraud that occurred at various times from August 2005 to the date of the indictment in October 2006. As explained by the First Circuit in its opinion on Petitioner's appeal of his 2011 conviction and the concurrent revocation of his supervised release, the conduct that led to the 2007 conviction started when
persons in Africa emailed Denson saying that he (Denson) had inherited the rights to an overseas company worth $9-plus million. They also said that there was a pile of cash in a Barclays Bank account in London just waiting there for him. All he had to do was send over a few thousand dollars to take care of taxes, wire-transfer fees, and the like, and he would be a very rich man.
Denson, 689 F.3d at 22. Petitioner subsequently initiated contact with the local United States Secret Service office, during which contact an agent told Petitioner the proposal was a scam and that he could be criminally liable if he solicited money from other people to send abroad. Id. at 22-23. Nevertheless, Petitioner solicited money from others, deceiving them by representing that they were investing in his window-washing patent or other business. Id. at 23. Petitioner again initiated contact with the Secret Service, admitted that he had deceived people, and stated that he now realized that it was a scam and that he was done with it. Id. A week later, agents confronted him with proof that he had tried to convince an undercover agent to invest $30, 000 in an overseas construction venture. Id.
Petitioner pled guilty to the seven counts of mail and wire fraud. The Court sentenced him to eighteen months of imprisonment on each of the counts, to be served concurrently, followed by three years of supervised release, and ordered him to pay $54, 861.98 in restitution. (Docket No. 2:06-cr-00081-GZS: Indictment, ECF No. 19 at 1-2; Fed. R. Crim. P. 11 (Rule 11) Tr., ECF No. 57 at 19-20; Judgment, ECF No. 45 at 2, 3, 5.) Petitioner did not appeal from the 2007 judgment or sentence.
Petitioner was serving the supervised release portion of his 2007 sentence when he returned to his old ways, hustling a bunch of people out of thousands of dollars by saying (among other lies) that he had made a killing in the overseas stock markets or had millions sitting in a Scottish bank but that he needed their money-which he would pay back, and then some-to get what he said was rightfully his.
Denson, 689 F.3d at 23. Petitioner was indicted on thirteen counts of wire fraud alleged to have been committed between June 2009 and April 2010. (Superseding Indictment, ECF No. 29 at 1.) At Petitioner's jury trial, several witnesses testified that Petitioner's conduct was directed at them during the period covered by the indictment. (Trial Tr. I, ECF No. 94 at 14-19, 38-47, 110, 118-20, 137-41; Trial Tr. II, ECF No. 95 at 18-25, 42-43.) The Government also introduced documentary evidence to corroborate testimony about the wire transfers. With a limiting instruction in accordance with Fed.R.Evid. 404(b), through the testimony of a former United States Secret Service special agent, the Court admitted Petitioner's 2006 signed written statement admitting to his scam activity. (Trial Tr. II at 135-38.) The Government also introduced, and the Court admitted, copies of the 2006-2007 indictment, the redacted change-of-plea transcript, the prosecution version, the judgment and conviction, and a redacted sentencing transcript. (Trial Tr. II at 4, 6.)
Petitioner waived his right to testify at trial. (Trial Tr. III at 68-70.) The jury found Petitioner guilty on all counts. The Court sentenced Petitioner to concurrent prison terms of thirty months on each of the counts, followed by three years of supervised release. The Court also ordered Petitioner to pay $21, 233.00 in restitution. (Amended Judgment, ECF No. 83 at 2, 3, 5.) In addition, following a hearing, the Court revoked Petitioner's supervised release for "(a) committing wire fraud, (b) neglecting to file truthful and complete monthly reports with probation, and (c) failing to disclose financial gains (like lottery winnings, income-tax refunds, etc. ) and to apply them to court-ordered obligations." Denson, 689 F.3d at 23 n.2. The Court sentenced Petitioner to a term of fifteen months of imprisonment for the supervised release violations, which term Petitioner was to serve consecutive to the thirty-month prison term, followed by twenty months of supervised release, to run concurrent with the supervised release in case 1:10-cr-00090-GZS. (Docket No. 2:06-cr-00081-GZS: Amended Revocation Judgment, ECF No. 65 at 2-3.)
Petitioner appealed. On appeal, Petitioner argued that the jury instructions were deficient. First, he argued that the "willful-blindness instruction likely confused the jury into thinking that it could convict based on what a reasonable person in his shoes should have known rather than on what he actually believed or intended." Denson, 689 F.3d at 24. Second, he argued that the good faith instruction "did not clarify' that good faith turned on what he subjectively believed instead of what some reasonable person would have believed." Id. at 25. Third, he argued that the Court erred in giving its "willful blindness" and "good faith" instructions back-to-back. Id. at 26. In addition, Petitioner appealed the sentence, arguing that the Court overlooked his terminal illness and placed "too much weight on the need to protect the public." Id. at 26-27. The First Circuit affirmed both the conviction and sentence, as well as the sentence on the revocation. Id. at 29. Petitioner filed a petition for a writ of certiorari to the United States Supreme Court, which denied the petition in January 2013. Denson v. United States, 133 S.Ct. 996 (2013).
Petitioner's section 2255 motion is dated August 26, 2013, the date on which it was filed. (Motion at 8.) The Government acknowledges that the petition was timely filed given that it relates only to the sentence on the second conviction. (Response at 2 ...