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United States v. Osei

United States District Court, Eighth Circuit

November 6, 2013

United States of America, Plaintiff,
v.
Patrick Daniel Osei, Defendant. Criminal Nos. 09-314(1) (JNE/JJG), 10-142 (JNE)

ORDER

JOAN N. ERICKSEN, District Judge.

In Criminal No. 09-314(1), Patrick Daniel Osei pleaded guilty to one count of illegal remuneration. In Criminal No. 10-142, he pleaded guilty to two counts of false statements. Several months after he had entered guilty pleas, Osei moved to withdraw them. After denying the motion, the Court sentenced him to 63 months' imprisonment. On the count of illegal remuneration, the Court sentenced him to 57 months' imprisonment. On each count of false statements, the Court sentenced him to 6 months' imprisonment, to be served concurrently with each other and consecutively to the 57-month term of imprisonment. Osei appealed, and the Eighth Circuit affirmed. United States v. Osei, 679 F.3d 742 (8th Cir. 2012). The cases are before the Court on Osei's motion under 28 U.S.C. § 2255 (Supp. V 2011).[1] Because the record conclusively shows that he is not entitled to relief, the Court denies the motion without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995).

Ground one

Osei asserts that relief under § 2255 is appropriate because of "[g]overnment misuse of unconfirmed evidence to obtain an indictment." "[A] valid plea waives all non-jurisdictional objections, such as that the indictment was based on false information." United States v. Schmitz, 887 F.2d 843, 844 (8th Cir. 1989) (per curiam) (affirming denial of § 2255 motion). Having entered a valid guilty plea, [2] Osei waived his claim of government misuse of evidence to obtain an indictment. The Court rejects this claim.

Ground two

Osei maintains that he received ineffective assistance of counsel. The two-part test of Strickland v. Washington, 466 U.S. 668 (1984), "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985). Osei must demonstrate that his attorney's representation fell below an objective standard of reasonableness and that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 57-59.

Osei claims that he pleaded guilty on the advice of his attorney after his attorney had made misrepresentations about the evidence in the government's possession. According to Osei, his attorney visited the United States Attorney's Office in April 2010, reviewed evidence, and claimed he had watched a videotape that showed Osei on November 8, 2007, paying $100 for a referral and offering to pay $200 for additional referrals. In May 2012, Osei asserts that he first saw a report of the November 8, 2007, meeting. The report, prepared by a special agent of the FBI, indicates that "[a] recording of the conversation was not acquired due to operator error of the recording device."

At the hearing on Osei's motion to withdraw his guilty pleas, Osei testified that he, his attorney, and an investigator had reviewed videotapes provided by the government. He also testified that he had reviewed a log prepared by his investigator. Osei was asked, "[W]as there any information about that that [your attorney] gave you that affected the representation?" He replied: "Yes. What he told me was he said just looking at the information and also talking to [the investigator], I had a very good defense in regards to that packet." The log stated that the defense did not have a recording of the meeting on November 8, 2007, and that there was no recording due to "operator error." Osei also testified that his attorney had stated the government's case was very weak. His attorney's opinion changed after a meeting at the United States Attorney's Office. After that meeting, Osei discussed the case with his attorney. Osei described their discussion:

Things changed. We had gone to the U.S. Attorney's Office, [my attorneys], myself, and [the investigator]. When we went to the U.S. Attorney's Office, I stayed outside, and they went inside for the meeting. And when they came back, [my attorneys] and myself... went downstairs, and we had a meeting.
And at that meeting, [my attorney] told me that there are about 14 people that the government is claiming that you defrauded. I don't have a problem with the tapes that you've reviewed. I have an issue with the ones that the information that the government says they have.
The government says they talked to people. The have testimonies. They have some very good information. As a matter of fact, he told me that [the prosecutor] took him to the room where my stuff was stored, and he said that - he didn't say [the prosecutor] said this, but he said the government says that they have a lot of information from people that he spoke to. And based on that information, it doesn't look like you have - you would have a good defense. He says they spoke to a lot of people that claim that they have been defrauded by you.

Osei testified that he asked his attorney for the evidence, that his attorney stated he had not seen the evidence but believed the government had it, and that his attorney never showed the evidence to him.

Osei's present claim of ineffective assistance of counsel contradicts his testimony at the hearing on his motion to withdraw his guilty pleas. His claim of ineffective assistance of counsel does not warrant relief under § 2255. See Engelen, 68 F.3d at 240 (stating that a § 2255 motion may be dismissed without a hearing if the allegations cannot be accepted as true because they are contradicted by the record, are inherently incredible, or are conclusions rather than statements of fact); Holloway v. United States, 960 F.2d 1348, 1358 (8th Cir. 1992) ("We therefore conclude that the fact that Holloway has managed to make a single, self-serving, ...


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