Case 4:15-cv-00750-MAC-DDB Document 8 Filed 02/03/16 Page 1 of 12 PageID #: 89
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`SHERMAN DIVISION
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`RONZELL MITCHELL, #21155-078
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`VS.
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`UNITED STATES OF AMERICA
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`§
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`§
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`§
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`CIVIL ACTION NO. 4:15cv750
` CRIM. NO. 4:13CR00130-001
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`REPORT AND RECOMMENDATION
`OF UNITED STATES MAGISTRATE JUDGE
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`Movant Ronzell Mitchell, an inmate confined at U.S.P. Lewisburg, brings this motion to
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`vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion was referred for
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`findings of fact, conclusions of law and recommendations for the disposition of the motion.
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` Background
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`On February 6, 2014, after a plea of guilty, Mitchell was sentenced to 46 months of
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`imprisonment for the offense of mail fraud, in violation of 18 U.S.C. § 1341. Following the
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`Government’s motion for a reduction pursuant to Federal Rule of Criminal Procedure 35(b), the Court
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`amended the judgment on March 11, 2014, reducing the sentence to 31 months of imprisonment. On
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`appeal, his attorney filed a no merit brief in accordance with Anders v. California, 386 U.S. 738
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`(1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). The Fifth Circuit agreed with
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`counsel’s assessment and dismissed the appeal as frivolous. United States v. Mitchell, 616 F. App’x
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`755 (5th Cir. Sept, 29, 2015). Mitchell then filed a motion to modify his sentence, which was denied
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`on November 2, 2015.
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`The present motion was filed on October 23, 2015. Mitchell alleges that he was denied the
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`right to effective assistance of counsel because his attorney, Phillip Lender, represented both himself
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`1
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`and Roslyn Long despite a blatant conflict of interest. The Court observes that Ms. Long is discussed
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`in paragraphs 7, 10 and 11of Mitchell’s Presentence Investigation Report. She was convicted of the
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`offense of conspiracy to commit mail fraud in Case Number 4:12CR00248-001. The Government filed
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`a response (docket entry #6) on December 8, 2015. Mitchell filed a reply (docket entry #7).
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`Discussion and Analysis
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`As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different
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`from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). The movant in a
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`§ 2255 proceeding may not bring a broad-based attack challenging the legality of the conviction. The
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`range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be drawn
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`between constitutional or jurisdictional errors on the one hand, and mere errors of law on the other.”
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`United States v. Pierce, 959 F.2d 1297, 1300-01 (5th Cir. 1992). A collateral attack is limited to
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`alleging errors of “constitutional or jurisdictional magnitude.” United States v. Shaid, 937 F.2d 228,
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`232 (5th Cir. 1991). The role of § 2255 has been defined by the Fifth Circuit as follows:
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`Section 2255 provides relief for a petitioner who can establish that either (1) his sentence was
`imposed in violation of the Constitution or laws of the United States, (2) the sentencing court
`was without jurisdiction to impose the sentence, (3) the sentence was in excess of the
`maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack.
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`United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted). “Section 2255 does not
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`reach errors of constitutional or jurisdictional magnitude that could have been reached by a direct
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`appeal.” Id.
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`The conflict of interest issue was fully developed in a hearing conducted on May 30, 2013.
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`The people in attendance at the hearing included Mitchell, Long, defense attorney Linder and Assistant
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`United States Attorney J. Andrew Williams. The transcript shows the following:
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`Mr. Linder:
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`Your Honor, if I may approach. I had both clients sign a waiver of conflict of
`interest just for the Court’s record if we need it. I know you want to put it on
`the record, but I had them do that.
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`2
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`The Court:
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`Yes, that’s fine. Has Mr. Williams seen those?
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`Mr. Williams: I perused them, Your Honor. We would ask the Court to still conduct a
`dialogue between the two, but that’s -- I don’t think it’s a sufficient enough
`inquiry, but it certainly doesn’t hurt. I have no objection.
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`Mr. Linder: Your Honor, Mr. Mitchell is here.
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`The Court:
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`Okay. Very good. And, Mr. Mitchell, we’re here first on a motion for inquiry
`the government filed in both of your cases, and let’s just make sure -- Ms.
`Long, you’ll be -- Is that okay? The order there?
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`The Reporter: That’s fine.
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`The Court:
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`And, of course, the issue is that the government wants us to inquire regarding
`whether or not there’s a conflict of interest with the fact that Mr. Linder is
`representing both of y’all. And the reason that is is because, based on what I
`understand the government is representing as the facts, is that Ms. Long -- who
`has already pled guilty to a conspiracy to commit mail fraud, a violation of 18
`United States Code, Section 1349 -- the information alleged that she conspired
`with an individual named RM, and that RM refers to Ronzell Mitchell. And,
`so, Mr. Linder representing both, that set up a question of conflict.
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`Okay. And let me -- we’ll start off and we’ll just have Mr. Mitchell answer
`these questions first.
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`Have you discussed the issue of this potential conflict of interest with Mr.
`Linder?
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`Mr. Mitchell: Yes, sir.
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`The Court:
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`And have you, also?
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`Ms. Long:
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`Yes, sir.
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`The Court:
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`And do you understand there’s a potential for conflict even though you’re both
`-- Mr. Mitchell, you’re planning on entering a plea of guilty, as well, today, but
`until the case is over, there’s still -- got a potential that a conflict could arise
`if there’s problems later during sentencing. Do you understand that?
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`Mr. Mitchell: Yes, sir.
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`Ms. Long:
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`Yes, sir.
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`The Court:
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`And, Mr. Linder, do you -- the government or Mr. Linder, do you have any
`idea whether there would be an actual conflict arise?
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`3
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`Mr. Linder:
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`No, Your Honor. And just for the record, I’ll go ahead and let the Court know,
`I’ve been involved -- in fact, Your Honor, you appointed me on a case styled
`United States versus John Berry three years ago, which was a 60-defendant
`mortgage fraud indictment.
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`The Court:
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`I do remember that case.
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`Mr. Linder:
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`And that stemmed, of course, a bunch of other smaller indictments and a bunch
`of other investigations on mortgage fraud in the North Dallas and Plano area.
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`Ms. Long came to me two years ago being investigated, and so, I went and we
`did several debriefings. And then Mr. Mitchell hired me -- they kind of know
`each other, but they have both debriefed and given information on lots of other
`people, which is why they’re not being indicted, they’re doing informations
`and waiving that. The information they have each given has been consistent.
`They’ve cooperated. There’s been multiple meetings. So, we’ve all been on
`the same page kind of from Day One.
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`He came to me second. Ms. Long came to me first, but when he came to me,
`they both knew this was all going on, so . . .
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`The Court:
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`Okay. And let me ask, do you agree with what Mr. Linder just indicated?
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`Ms. Long:
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`Yes, sir.
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`The Court: Well, I need to have -- that’s fine, but we’ll have Mr. Mitchell answer first in
`the order y’all are in.
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`Mr. Mitchell: Yes, sir.
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`The Court:
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`That’s fine. I’m think -- I’m sure she got it, but I just wanted to make -- try to
`keep it orderly so the record is clear.
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`Now, do both of you understand that you have a right to have conflict-free
`counsel?
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`Mr. Mitchell: Yes, sir.
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`Ms. Long:
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`Yes, sir.
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`The Court:
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`And although as we stand here today, Mr. Linder is not aware of any conflict --
`but something could come up later and you understand that -- I mean, I can’t
`conceive right now what that would be but there’s always a chance of conflict
`-- between the two of you or something breaks down before sentencing. Do
`you understand that?
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`Mr. Mitchell: Yes, sir.
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`Ms. Long:
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`Yes, sir.
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`The Court: Mr. Williams, you’re not aware of any conflict?
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`Mr. Williams: I’m not aware of any at this time, You Honor.
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`The Court:
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`Now, I know that each of you have entered into waiver of conflicts. And have
`you been provided a copy?
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`Mr. Williams: Yes, Your Honor. She gave us copies.
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`The Court:
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`Is that your signature, each of you?
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`Mr. Mitchell: Yes, sir.
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`Ms. Long:
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`Yes, sir.
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`The Court:
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`And it states that -- your name and that you’re a defendant in the above-styled
`case, and you’re each charged with mail fraud, and it says that the attorney
`representing you in this case is Phillip A. Linder and that he represents the
`other, as well, on a similar charge in a related indictment.
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`Mr. Linder: Actually, that should say information, Your Honor. That’s my typo.
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`The Court:
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`It should say related information -- and that you understand that because of the
`representation of each of you, he may have a conflict of interest representing
`each of you and that you fully understand that you have a right to have a
`conflict-free counsel representing you and that you waive and give up any right
`you have now or in the future to object on the grounds that your lawyer has or
`may have had a conflict of interest because of the joint representation.
`Considering that, you want to waive that and your desire is to have Mr. Linder
`represent you. Is that correct?
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`Mr. Mitchell: Yes, sir.
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`Ms. Long:
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`Yes, sir.
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`The Court:
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`And that’s why you went ahead and executed the waiver form?
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`Mr. Mitchell: Yes, sir.
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`Ms. Long:
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`Yes, sir.
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`5
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`The Court:
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`And do you feel like you need to talk to another counsel? Does the Court need
`to make available another counsel? Do you think there’s any reason you need
`to talk to somebody else about the potential conflict of interest?
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`Mr. Mitchell: No, sir.
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`Ms. Long:
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`No, sir.
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`The Court: Mr. Williams, do you have any other questions?
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`Mr. Williams: I do not, Your Honor.
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`The Court:
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`Okay. I’ll go ahead and accept the waiver of conflict and have those filed in
`each of your records and I’ll allow Mr. Linder to go ahead and represent both
`of you. I just want to make sure one last time you understand that later,
`whether it’s after sentencing -- maybe you don’t get the sentence you’d like --
`I’m not sure if there’s an 11(c)(1)(c) or whatever in this case. But later down
`the road, you’re not going to be able to challenge, whether by appeal or filing
`a habeas, trying to say that you didn’t have conflict-free counsel if you discover
`something later. Do you understand that?
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`Mr. Mitchell: Yes, sir.
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`Ms. Long:
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`Yes. sir.
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`The Court:
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`And you still want to proceed with Mr. Linder as your counsel?
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`Mr. Mitchell: Yes, sir.
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`Ms. Long:
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`Yes, sir.
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`The Court:
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`Okay. Well, I’ll let you do that.
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`Transcript (docket entry #53), pages 3-10.
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`Subsequently, during the same hearing, Mitchell entered a plea of guilty to the information
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`charging him with mail fraud. He signed a plea agreement in conjunction with his plea of guilty. In
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`conjunction with the plea agreement, he waived the following rights: (1) to plead not guilty, (2) to have
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`a trial by jury, (3) to have guilt proved beyond a reasonable doubt, (4) to confront and cross-examine
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`witnesses and to call witnesses in defense, and (5) to not be compelled to testify against oneself. Plea
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`Agreement ¶ 1. He stipulated that he understood the nature and elements of the offense. Plea
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`6
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`Agreement ¶ 2. He stipulated that he understood that the maximum penalty included a term of
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`imprisonment for a period not to exceed twenty years. Plea Agreement ¶ 3. Mitchell stipulated that
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`he was pleading guilty freely and voluntarily and that it was not the result of force, threats, or promises
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`other than those set forth in the agreement. Plea Agreement ¶ 12. The plea agreement also included
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`the following waiver that relates to the present motion:
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`13. WAIVER OF RIGHT TO APPEAL OR OTHERWISE CHALLENGE SENTENCE:
`Except as otherwise provided herein, the defendant expressly waives the right to appeal the
`conviction, sentence, fine and/or order of restitution or forfeiture in this case on all grounds.
`The defendant further agrees not to contest the conviction, sentence, fine and/or order of
`restitution or forfeiture in any post-conviction proceeding, including, but not limited to a
`proceeding under 28 U.S.C. § 2255. The defendant, however, reserves the right to appeal the
`following: (a) any punishment imposed in excess of the statutory maximum, and (b) a claim
`of ineffective assistance of counsel that affects the validity of the waiver or plea itself.
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`The Fifth Circuit upheld the informed and voluntary waiver of post-conviction relief in United
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`States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). In United States v. Henderson, 72 F.3d 463, 465
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`(5th Cir. 1995), the Fifth Circuit observed that it had approved the use of waivers but added that it was
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`inappropriate to enforce a waiver of appeal “tainted by ineffective assistance of counsel.” In United
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`States v. White, 307 F.3d 336 (5th Cir. 2002), the Fifth Circuit held that an ineffective assistance of
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`counsel claim raised in a § 2255 proceeding survives a waiver only when the claimed assistance
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`directly affected the validity of that waiver or the plea itself. The Fifth Circuit subsequently noted that
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`it has upheld § 2255 waivers except for when there is an ineffective assistance of counsel claim that
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`affects the validity of that waiver or the plea itself or when the sentence exceeds the statutory
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`maximum. United States v. Hollins, 97 F. App’x 477, 479 (5th Cir. 2004). More recently, the Fifth
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`Circuit recently observed that “the better practice is to ask expressly if the defendant read and
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`understood the plea agreement.” United States v. Narvaez, 452 F. App. 488, 492 (5th Cir. 2011).
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`During the hearing in the present case, the Court fully explored the issue of whether Mitchell
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`was freely and voluntarily pleading guilty and waiving his right to bring a § 2255 motion. Mitchell
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`7
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`specified that his attorney had discussed all of the facts of the case with him. Tr. 17. He specified that
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`he was satisfied that his attorney had fully considered his case, as well as any defenses he might have
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`to the charges. Id. The Court reviewed his rights, and Mitchell stated that he understood his rights.
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`Id. at 18. Mitchell stated that he understood the nature of the charges against him and the elements of
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`the offense. Id. at 20. Mitchell specified that he understood that the maximum penalty included a term
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`of imprisonment of twenty years, a fine not to exceed $250,000 or twice any pecuniary gain to him or
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`loss to any victim, and supervised release of not more than three years. Id. at 20-21. He specified that
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`he also understood how the sentencing guidelines would apply to his case and that his sentence was
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`in the sole discretion of the Court. Id. at 23.
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`The terms of the plea agreement were then fully discussed with Mitchell. Id. at 23-26. He
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`specified that he understood that he was waiving his right to a proceeding under 28 U.S.C. § 2255.
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`Id. at 25. The Court reviewed the two exceptions: (1) any punishment imposed in excess of the
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`statutory maximum, and (2) a claim of ineffective assistance of counsel that affects the validity of the
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`plea itself. Id. Mitchell testified that he understood the two exceptions. Id. at 26. The Court explored
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`the voluntariness of Mitchell’s plea before accepting his guilty plea. Mitchell specified that he was
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`pleading guilty of his own free will because he was guilty. Id. at 27. The Fifth Circuit has held that
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`“solemn declarations in open court carry a strong presumption of verity.” United States v.
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`Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001) (quoting Blackledge v. Allison, 431 U.S. 63, 73-74
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`(1977)). Mitchell’s statements made in open court provide a strong presumption that his guilty plea
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`and waiver were entered knowingly and voluntarily.
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`Mitchell’s § 2255 motion does not address the waiver provision in the plea agreement. He
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`failed to show that his waiver was not entered knowingly and voluntary. He likewise failed to show
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`that his guilty plea was not entered knowingly and voluntarily. He failed to show that ineffective
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`assistance of counsel affected the validity of the waiver or the plea itself. He likewise failed to show
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`that he received a sentence in excess of the statutory maximum. Overall, he has not shown that the
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`waiver should not be upheld; thus, the § 2255 motion may be denied on that basis alone.
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`Despite the foregoing, Mitchell argues that he is entitled to relief because he was denied the
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`right to effective assistance of counsel since his attorney, Phillip Lender, represented both himself and
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`Roslyn Long despite a blatant conflict of interest. His claim is governed by Cuyler v. Sullivan, 466
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`U.S. 335 (1980). “In order to establish a violation of the Sixth Amendment, a defendant who raised
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`no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s
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`performance.” Id. at 348. The Fifth Circuit has recognized, however, that “[j]oint representation does
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`not necessarily create a conflict of interest.” United States v. Rico, 51 F.3d 495, 508 (5th Cir. 1995).
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`A conflict will exist only “when defense counsel is compelled to compromise his or her duty of loyalty
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`or zealous advocacy to the accused by choosing between or blending the divergent or competing
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`interests of a former or current client.” Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2001). The
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`Fifth Circuit has further observed that, “[i]n cases where a defendant demonstrates such a conflict of
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`interest, we ask whether the defendant freely and validly waived his right to representation by a
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`conflict-free counsel.” United States v. Newell, 315 F.3d 510, 516 (5th Cir. 2002) (citation omitted).
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`“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done
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`with sufficient awareness of the relevant circumstances and likely consequences.” Id at 519 (citing
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`Brady v. United States, 397 U.S. 742, 748 (1970)). A court must determine whether the defendant had
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`“actual knowledge of the existence of the right or privilege, full understanding of its meaning, and
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`clear comprehension of the consequence of the waiver.” Id. (citing Hatfield v. Scott, 306 F.3d 223,
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`230 (5th Cir. 2002). A waiver before trial does not reach conflicts that were unforeseen and did not
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`emerge until trial. Id. at 522.
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`9
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`In the present case, the Court complied with the duty to inquire about the apparent conflict of
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`interest. The Court scrupulously complied with the duty of determining whether the waiver was
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`entered knowingly, intelligently and with sufficient awareness of the relevant circumstances and likely
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`consequences. The waiver was accepted only after a determination was made that these prerequisites
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`were satisfied. Once again, Mitchell’s “solemn declarations in open court carry a strong presumption
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`of verity.” Lampazianie, 251 F.3d at 524. Mitchell has not overcome the presumption of verity. The
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`waiver of the conflict of interest should thus be upheld.
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`In addition to the foregoing, Mitchell has not shown the existence of an actual conflict in the
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`sense that counsel was compelled to compromise his duty of loyalty or zealous advocacy to him by
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`choosing between or blending his interests with those of Ms. Long. Instead, he merely asserts that
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`“[c]ounsel either did not appreciate the conflict of interest or misled both Mr. Mitchell and the Court
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`to believe there was no conflict.” See Motion, page 4. He does not support his conflict of interest
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`claim. Instead, he has offered nothing other than conclusory allegations and bald assertions, which are
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`insufficient to support a petition for a writ of habeas corpus. See Miller v. Johnson, 200 F.3d 274, 282
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`(5th Cir. 2000); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990); Ross v. Estelle, 694 F.2d 1008,
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`1011 (5th Cir. 1983). In his reply, he complained that, if the cases had gone to trial, he would have
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`been a witness against her and she would have been a witness against him. Mitchell has shown
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`nothing more than a potential conflict of interest, as opposed to an actual conflict of interest.
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`In addition to the foregoing, Mitchell has not shown that the existence of a potential conflict
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`of interest had the effect of ineffective assistance of counsel that affected the validity of the waiver or
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`the plea itself. As such, the Court again concludes that the waiver contained in paragraph thirteen of
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`the plea agreement should be enforced.
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`In conclusion, the motion to vacate, set aside or correct Mitchell’s sentence should be denied.
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`Certificate of Appealability
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`An appeal may not be taken to the court of appeals from a final order in a proceeding under
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`§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
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`2253(c)(1)(B). Although Mitchell has not yet filed a notice of appeal, it is respectfully recommended
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`that this Court, nonetheless, address whether he would be entitled to a certificate of appealability. See
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`Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule on a
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`certificate of appealability because “the district court that denies a petitioner relief is in the best
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`position to determine whether the petitioner has made a substantial showing of a denial of a
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`constitutional right on the issues before the court. Further briefing and argument on the very issues
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`the court has just ruled on would be repetitious.”).
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`A certificate of appealability may issue only if a movant has made a substantial showing of the
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`denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
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`requirement associated with a “substantial showing of the denial of a constitutional right” in Slack v.
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`McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner’s
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`constitutional claims on the merits, “the petitioner must demonstrate that reasonable jurists would find
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`the district court’s assessment of the constitutional claims debatable or wrong.” Id.; Henry v.
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`Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). “When a district court denies a habeas petition on
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`procedural grounds without reaching the petitioner’s underlying constitutional claim, a COA should
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`issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the
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`petition states a valid claim of the denial of a constitutional right and that jurists of reason would find
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`it debatable whether the district court was correct in its procedural ruling.” Id.
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`In this case, it is respectfully recommended that reasonable jurists could not debate the denial
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`of Mitchell’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented
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`are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37
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`(2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the court find
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`that Mitchell is not entitled to a certificate of appealability as to the claims raised.
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`Recommendation
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`It is accordingly recommended that Mitchell’s motion to vacate, set aside or correct his
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`sentence pursuant to 28 U.S.C. § 2255 be denied and the case be dismissed with prejudice. It is further
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`recommended that a certificate of appealability be denied.
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`Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
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`and file written objections to the findings and recommendations contained in the report.
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`A party's failure to file written objections to the findings, conclusions, and recommendations
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`contained in this Report within fourteen days after being served with a copy shall bar that party from
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`de novo review by the district judge of those findings, conclusions, and recommendations and, except
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`on grounds of plain error, from appellate review of unobjected-to factual findings and legal
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`conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n, 79 F.3d
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`1415, 1430 (5th Cir. 1996) (en banc).
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`12
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