United States District Court, D. Minnesota
MEMORANDUM OPINION AND ORDER
RICHARD H. KYLE, District Judge.
On May 10, 2013, Defendant filed a Motion under 28 U.S.C. § 2255, asserting that his counsel rendered ineffective assistance by failing to communicate a Government plea offer before trial. Following an evidentiary hearing, the Court denied the Motion, concluding that no "formal" offer had been extended by the Government and any preliminary plea discussions were communicated to Defendant, who in any event would not have accepted. United States v. Petters, Crim. No. 08-364, 2013 WL 6328544 (D. Minn. Dec. 5, 2013) (Kyle. J.). Invoking Federal Rule of Civil Procedure 59(e), Defendant now moves the Court to alter or amend its Judgment (Doc. No. 630) and separately moves the undersigned to recuse himself (Doc. No. 631). For the reasons that follow, both Motions will be denied.
I. Rule 59(e)
At the outset, the Court notes that while Defendant asserts a host of issues in his Motion to Alter or Amend, most are not properly before the Court.
For example, he now contends that his trial counsel were ineffective for failing to obtain the Government's (purported) plea offer in writing and by failing to adequately plea bargain. (Doc. No. 630 at 7, 11.) But he did not raise these issues in his § 2255 Motion, and Rule 59(e) "cannot be used to... tender new legal theories or raise arguments which could have been offered or raised prior to the entry of judgment." United States v. Metro. St. Louis Sewer Dist. , 440 F.3d 930, 934-35 (8th Cir. 2006). Any newly asserted ground for habeas relief also is foreclosed by Rule 2(b)(1) of the Rules Governing Section 2255 Proceedings, which makes clear that a Motion under § 2255 "must specify all the grounds for relief available to the moving party." A Motion challenging the denial of relief under § 2255, therefore, cannot raise new claims; it must be predicated on "some defect in the integrity of the federal habeas proceeding" itself. Gonzalez v. Crosby , 545 U.S. 524, 532 (2005); accord Ward v. Norris , 577 F.3d 925, 933 (8th Cir. 2009). Were it otherwise, a Defendant could easily evade the proscription on "second or successive" habeas motions, see Rule 9, Rules Governing Section 2255 Proceedings, by asserting new claims under the guise of Federal Rule of Civil Procedure 59 (or its cousin, Rule 60). Indeed, Defendant's self-described "jailhouse lawyer, " John Lambros, is well aware that "inmates may not bypass [the prohibition on] filing a second or successive... § 2255 action by purporting to invoke some other procedure." United States v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005) ( per curiam ). Accordingly, the Court dismisses any newfangled claims of ineffective assistance here. Id.
Defendant also argues that his counsel "withheld the [Government's] oral plea offer" from him. (Doc. No. 630 at 7.) But the Court has already considered and rejected this assertion, concluding that counsel "repeatedly informed [him] of the Government's proposal" of a 30-year sentencing cap in exchange for a guilty plea. Petters, 2013 WL 6328544, at *4. He cannot utilize Rule 59(e) to relitigate that issue. See, e.g., United States v. McElrath, Crim. No. 03-235, 2009 WL 1657453, at *1 (D. Minn. June 11, 2009) (Ericksen, J.).
For these reasons, the Court's review of the instant Motion is limited to whether the Order denying § 2255 relief contains "manifest errors of law." Metro. St. Louis , 440 F.3d at 933. Only one such error is asserted: the Court incorrectly held that in order to show ineffective assistance, Defendant was required to acknowledge his guilt of the offenses charged. (Doc. No. 630 at 9-10.) This argument is meritless.
As the Court noted when denying relief, in order to succeed on his § 2255 Motion, Defendant was required to show that his counsel failed to communicate a formal plea offer to him and that there existed "a reasonable probability [he] would have accepted" it and pleaded guilty. Petters, 2013 WL 6328544, at *2 (quoting Missouri v. Frye, ___ U.S. ___ , 132 S.Ct. 1399, 1408-09 (2012)). And the Court concluded Defendant could not make that showing because at no time prior to trial (or thereafter) was Defendant "ready, willing or able to... acknowledge for all the world his responsibility for the fraud with which he was charged." Id. at *8.
Defendant now contends the Court erred because, instead of acknowledging his guilt, he could have pleaded nolo contendere to the charges against him. (See Doc. No. 630 at 9-10.) But Defendant's § 2255 Motion was predicated on the existence of a (socalled) offer from the Government that required him to plead guilty in exchange for a 30year sentencing cap. (See Doc. No. 579 at 7 ("[T]he defendant must first show... [he] would have accepted the offer to plead guilty in accordance with the terms offered prior to trial. ... Defendant  has attested by sworn affidavit that he would have accepted the Government's offer, without additional conditions, and plead guilty in accordance with that offer had it been communicated to him.") (emphases added); see also 5/2/13 Petters Aff. (Doc. No. 579-6) ¶ 2 ("I learned that the Government had offered my attorney... a 30-year sentencing cap in exchange for my plea(s) of guilty. ") (emphasis added).) It is baseless for him to now claim the Court erred because he would have pleaded nolo contendere, as that was never part of the Government's purported "deal."
In any event, Defendant would not be entitled to relief even if he were correct that he could have pleaded nolo contendere. His § 2255 Motion rested "upon three legs:
(1) the Government extended [him] a formal plea offer; (2) defense counsel failed to communicate that offer before trial; and (3) he was prejudiced because he would have accepted the offer and pleaded guilty, " and all three had to pass muster in order for him to obtain relief. Petters, 2013 WL 6328544, at *3. The Motion was denied because none of the three legs withstood scrutiny. Hence, even if the Court had erred in concluding Defendant was required to show he would have pleaded guilty (as opposed to nolo contendere ), he has not undermined the Court's conclusions that (1) no formal plea offer existed and (2) all plea discussions were communicated to him. Relief from the denial of his § 2255 Motion is therefore unwarranted.
In his Motion, Defendant argues that the undersigned must recuse from further proceedings in this matter. He notes that my son is a shareholder in the law firm of Fredrikson & Byron, P.A. ("Fredrikson"), which previously provided legal advice to Defendant and his companies regarding the sale of securities. (See Doc. No. 631 at 4-9.) According to Defendant, this relationship requires my recusal under 28 U.S.C. § 455(b)(5)(iii), which obligates a judge to disqualify himself when a person within the judge's "third degree of relationship" has an "interest that could be substantially affected by the outcome of the proceeding." (Id.)
Defendant's argument is frivolous and does not merit extended discussion. There is no suggestion that my son, who practices in the area of criminal defense, is involved in Defendant's current post-conviction proceedings, was involved in his defense at trial, or provided legal advice to him or his companies. Nor does Defendant explain how Fredrikson's prior representation in securities matters somehow suggests that my son currently has ...