United States v. Rush , 910 F. Supp. 2d 286 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Respondent,
Criminal Action No. 10-00246 (CKK)
v.
Civil Action No. 12-00285 (CKK)
SNO H. RUSH,
Defendant/Petitioner.
MEMORANDUM OPINION
(December 26, 2012)
On October 12, 2010, Defendant Sno H. Rush (“Rush”), a former employee of the United
States Marshals Service (“USMS”), pleaded guilty before this Court to one count of conversion
in violation of 18 U.S.C. § 641, in connection with her personal use of $104,000 in USMS funds.
On May 9, 2011, this Court sentenced her to twenty-one months of imprisonment to be followed
by thirty-six months of supervised release and to $104,100 in criminal monetary penalties in the
form of restitution and a special assessment. Presently before the Court is Rush’s [28/34] 1
Motion for Modification of the Imposed Sentence/Motion to Vacate under 28 U.S.C. § 2255(“Motion to Vacate”), by which Rush collaterally attacks her sentence based on various claims of
ineffective assistance of counsel. Upon a searching review of the parties’ submissions, the
relevant authorities, and the record as a whole, the Court finds that Rush is not entitled to the
requested relief. Accordingly, the Court shall DENY Rush’s [28/34] Motion to Vacate.
1
Unless otherwise indicated, all docket references are to United States v. Rush, Criminal Action
No. 10-00246 (CKK) (D.D.C.).
I. BACKGROUND 2
From October 1998 to November 2008, Rush was employed by the USMS as an
administrative officer in the Superior Court for the District of Columbia. In that capacity, Rush’s
responsibilities included handling payroll-related matters, authorizing payment to employees and
outside entities, and drafting and signing United States Treasury checks for expenditures.
Between April 2006 and February 2009, Rush converted to her personal use a total of $104,000
in USMS funds. She did so through three basic devices.
First, the USMS assigns each of its official vehicles a Fleet credit card (“Fleet card”) to
be used for fuel purchases. Fleet cards are not assigned to individual employees, and when a
vehicle is sold, the Fleet card assigned to that vehicle must be returned for deactivation. In April
2006, Rush took possession of a Fleet card assigned to a USMS vehicle that was to be sold.
Rather than destroying or deactivating the card, Rush took the card home and, between April
2006 and November 2008, used the card to cover personal expenses for gas and other automotive
purchases. When the Fleet card expired in November 2008, Rush renewed the card and received
a new card. She then used that card from December 2008 to February 2009. Overall, Rush
incurred $15,000 in charges, which the USMS paid directly to the credit card company.
Second, using a family member’s Social Security Number, Rush created a fictitious
employee in the USMS payroll system and converted the salary for that fictitious employee to
her own use. Between November 2007 and October 2008, Rush completed false time and
attendance records for the fictitious employee and issued United States Treasury checks to the
fictitious employee in the total amount of $31,000. The checks were deposited into a bank
account that Rush controlled, and she used those funds for personal expenses.
2
Unless otherwise noted, the factual background set forth herein is derived from the [5] Factual
Basis for Plea. All dates and monetary amounts are approximations.
2
Third, Rush was responsible for receiving certain invoices and authorizing payment on
behalf of the USMS. From June 2007 to November 2008, Rush issued United States Treasury
checks in the total amount of $58,000 and, disguising the credit card payments by creating false
invoices to a company in a name similar to Rush’s credit card company, used the checks to pay
down the balance on her personal credit card account.
The Government commenced this criminal action against Rush on September 9, 2010.
On October 12, 2010, Rush pleaded guilty to one count of conversion in violation of 18 U.S.C. §
641 for knowingly converting to her personal use money, valued at more than $1,000, of an
agency of the United States. In the plea agreement, the parties stipulated, inter alia, that the
applicable Sentencing Guideline was U.S.S.G. § 2B1.1, which applies to theft. See Plea
Agreement, ECF No. [6], ¶ 9. The plea agreement additionally contains provisions setting forth
the potential for certain downward departures from the advisory sentence calculated under the
Sentencing Guidelines for acceptance of responsibility and/or substantial assistance to the
Government, if warranted. See id. ¶¶ 9, 12-14.
On May 9, 2011, this Court sentenced Rush to serve twenty-one months of imprisonment
to be followed by thirty-six months of supervised release governed by several special conditions,
and to pay restitution in the amount of $104,000 and a special assessment in the amount of $100.
Judgment in a Criminal Case (May 9, 2011), ECF No. [20]. At sentencing, the Court found by a
preponderance of the evidence that, following her guilty plea, Rush engaged in a separate mail
and wire fraud scheme against two car insurance companies and was therefore not entitled to a
two-level reduction for acceptance of responsibility under the Sentencing Guidelines. See Tr. of
Sent. Hr’g at 5-11. On June 8, 2011, Rush appealed this Court’s Judgment to the United States
Court of Appeals for the District of Columbia Circuit. See Notice of Appeal, ECF No. [23]. On
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August 4, 2011, the appeal was dismissed upon Rush’s own motion. See Order (Aug. 4, 2011),
United States v. Rush, No. 11-3053 (D.C. Cir. 2011), ECF No. [27]. At the time Rush filed the
instant petition, she was in the custody of the Federal Bureau of Prisons (“BOP”), at the Federal
Prison Camp in Alderson, West Virginia. Rush presently remains in BOP custody, in a
community-based correctional program in Washington, D.C. See FEDERAL BUREAU OF PRISONS
INMATE LOCATOR, http://www.bop.gov/iloc2/LocateInmate.jsp (last visited December 26,
2012). 3
On December 8, 2011, Rush, proceeding without legal representation, filed a three-page
letter seeking “a modification of the imposed sentence to a reduction or split sentence.” See
Letter to the Court (“Motion for Modification”), ECF No. [28]. On January 20, 2012, the
Government filed its response to Rush’s Motion for Modification, noting that Rush “does not
specify a legal basis to justify a reduction in her sentence.” See Gov’t’s Resp. to Def.’s Letter to
the Court, ECF No. [30]. By Order dated January 23, 2012, the Court advised Rush that among
the legal vehicles available to a federal defendant seeking a modification of her sentence is a
petition for habeas relief under Section 2255 of Title 28 of the United States Code. See Order
(Jan. 23, 2012), ECF No. [31]. However, emphasizing that construing Rush’s Motion for
Modification as a petition under Section 2255 would trigger significant procedural consequences,
3
Rush is projected to be released from incarceration on December 27, 2012. See FEDERAL
BUREAU OF PRISONS INMATE LOCATOR, http://www.bop.gov/iloc2/LocateInmate.jsp (last visited
December 26, 2012). Because Rush’s motion challenges only the length of her term of
incarceration, it is arguably soon to be moot, as by December 27, 2012, she will have received
the relief specifically requested therein. See Burkey v. Marberry, 556 F.3d 142, 146-150 (3d Cir.
2009). However, because Rush remains in BOP custody at the time of this Order, and because
the parties briefed the instant motion while Rush was serving her sentence at the Federal Prison
Camp in Alderson, West Virginia, the Court will, in an abundance of caution, presume that Rush
could show collateral effects from the calculation of her offense level and the length of her
sentence, and will therefore evaluate Rush’s petition on the merits. See United States v. McCoy,
313 F.3d 561, 564 (D.C. Cir. 2002) (en banc).
4
the Court ordered Rush to “file a document with the Court specifying any and all legal bases for
her request for a ‘modification of the imposed sentence to a reduction or split sentence,’
including, but not limited to, indicating whether she intends to bring her request under Section
2255.” Id.Rush elected to proceed under Section 2255. On February 13, 2012, still proceeding
without legal representation, Rush filed a motion to vacate pursuant to Section 2255. See Mot.
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (“Section 2225 Petition”), ECF No. [34]. In view of the Court’s prior instructions to
specify “any and all legal bases” for the requested relief, the Court understood Rush’s Section
2255 Petition to be a more fulsome statement of her three-page informal Motion for
Modification, and, on February 22, 2012, issued an Order consolidating the two motions into a
single Motion to Vacate under Section 2255 (“Motion to Vacate”). See Order (Feb. 22, 2012),
ECF No. [35]. On April 13, 2012, the Government timely filed its opposition to Rush’s Motion
to Vacate. See Gov’t’s Opp’n to Def.’s Mot. to Vacate (“Gov’t’s Opp’n”), ECF No. [38]. Rush
filed her reply on May 15, 2012. See Def.’s Resp. to Opp’n of Motion under 28 U.S.C. § 2255(“Pet’r’s Reply”), ECF No. [39]. Rush’s Motion to Vacate is therefore fully briefed and ripe for
adjudication.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may
move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that
the sentence was imposed “in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. §
5
2255(a). The circumstances under which such a motion will be granted, however, are limited in
light of the premium placed on the finality of judgments and the opportunities prisoners have to
raise most of their objections during trial or on direct appeal. “[T]o obtain collateral relief a
prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United
States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless, “unless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . .
grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions
of law with respect thereto.” 28 U.S.C. § 2255(b). However, the decision whether to hold a
hearing is entrusted to the district court’s discretion, particularly where, as here, the reviewing
judge presided over the proceeding in which the petitioner claims to have been prejudiced.
United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996), cert. denied, 520 U.S. 1131(1997). “If it plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss the motion[.]”
Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 4(b).
III. DISCUSSION
The Court’s discussion here divides into two parts. The Court shall first explain why
Rush’s ineffective assistance of counsel claim does not entitle her to relief under 28 U.S.C. §
2255. Thereafter, the Court shall explain why no Certificate of Appealability shall issue.
A. Rush’s Ineffective Assistance of Counsel Claims Lack Merit.
Rush claims that her counsel’s performance during the sentencing proceedings before this
Court abridged her Sixth Amendment right to effective assistance of counsel, as that right was
articulated in Strickland v. Washington, 466 U.S. 668 (1984). “A criminal defendant is as much
entitled to effective representation by counsel at sentencing as at any other critical stage of [her]
6
trial.” United States v. Ellerbe, 372 F.3d 462, 467 (D.C. Cir. 2004) (internal quotation marks and
citations omitted). Nonetheless, to establish a successful claim for ineffective assistance of
counsel under Strickland, a petitioner must prove both (1) “that counsel’s performance fell below
an objective standard of reasonableness under prevailing professional norms,” and (2) “that this
error caused [her] prejudice.” United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008)
(citing United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008)).
The reviewing court must begin with a strong presumption that counsel rendered
adequate assistance and exercised reasonable professional judgment, Cullen v. Pinholster, __
U.S. __, 131 S. Ct. 1388, 1403 (2011), and it is the petitioner’s burden to show that counsel
made errors “so serious” that counsel could not be said to be functioning as the counsel
guaranteed by the Sixth Amendment, Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 787
(2011). Even then, the petitioner must further establish prejudice, a showing “[t]hat requires a
‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen, 131 S. Ct. at 1403(quoting Richter, 131 S. Ct. at 791). In the sentencing context, the petitioner’s burden of
establishing prejudice is “somewhat lighter,” but the petitioner must still establish a “reasonable
likelihood” that the errors ascribed to her counsel “affected [her] sentence,” United States v.
Saro, 24 F.3d 283, 288 (D.C. Cir. 1994), cert. denied, 519 U.S. 956 (1996); accord United States
v. Smith, 267 F.3d 1154, 1160 (D.C. Cir. 2001). “Even under de novo review, the standard for
judging counsel’s representation is a most deferential one,” Richter, 131 S. Ct. at 788, and
“[s]urmounting Strickland’s high bar is never an easy task,” Padilla v. Kentucky, __ U.S. __, 130
S. Ct. 1473, 1485 (2010) (citations omitted).
Turning to the instant motion, the Court shall note at the outset that nowhere in her
briefing does Rush claim that she would not have pled guilty but for her lawyer’s alleged
7
ineffectiveness, or that her plea was in any way less than voluntary. Nor could she, in light of
her unequivocal statements on the record regarding the voluntariness of her plea. See Tr. of Plea
H’rg at 64. Rather, Rush takes issue with the length of her sentence and her understanding of her
appellate rights. Specifically, Rush contends that she is entitled to post-conviction relief due to
the ineffective assistance of both her trial and appellate counsel on the basis of the following four
grounds: (1) trial counsel’s failure to secure and adequately explain the terms of the plea
agreement, especially those regarding a potential reduction in sentence based upon acceptance of
responsibility and substantial assistance; (2) trial counsel’s failure to seek a downward departure
based upon extenuating circumstances; (3) trial counsel’s “deficient performance”; and (4) the
failure of both trial and appellate counsel to apprise her of available post-conviction options for
legal recourse. For the reasons set forth below, each of these arguments is without merit. 4
1. Alleged failure of trial counsel to secure and explain terms of plea agreement
First, Rush argues that due to her counsel’s “failure to secure and adequately explain
terms of [the] plea agreement,” Rush was denied a three-level reduction of her sentence based
upon acceptance of responsibility and was likewise denied a reduction based upon her alleged
substantial assistance to the Government. See Mot. to Vacate, at 4-5. As the Government aptly
observes, Rush cites no specific action or inaction on behalf of her lawyer that would have
resulted in a different sentence. See Gov’t’s Opp’n at 5. Rather, Rush’s broad claim that her
4
While the Government’s briefing focuses almost exclusively on challenging the merits of
Rush’s motion, the Government also argues in a footnote that Rush’s allegations of ineffective
assistance of counsel at sentencing are likely foreclosed by waiver because, pursuant to her plea
agreement, Rush expressly waived her right to collaterally challenge her sentence. See Gov’t’s
Opp’n at 5-6 n.2 (citing Plea Agreement at 10 & United States v. Pruitt, 32 F.3d 431, 433 (9th
Cir. 1994)). The Court harbors misgivings about the enforceability of such a waiver in the
context of alleged ineffective assistance of counsel, cf. United States v. Guillen, 561 F.3d 527,
529 (D.C. Cir. 2009); U.S. v. Felder, 786 F. Supp. 2d 320, 321 (D.D.C. 2011), but ultimately
need not reach the issue, as each of Rush’s ineffective assistance allegations fails on the merits.
8
counsel failed to “secure and adequately explain” the terms of her plea agreement is framed in
such imprecise and conclusory terms that it is woefully insufficient to overcome the strong
presumption that her counsel’s legal representation at sentencing was adequate and reasonable.
The Court could reject Rush’s first ground on this basis alone. See Simms v. United States, 730
F. Supp. 2d 58, 61 (D.D.C. 2010) (concluding that “vague and conclusory” allegations that
counsel’s representation was ineffective are not enough to overcome the strong presumption of
effective representation).
Furthermore, Rush’s allegations of ineffective assistance with respect to the alleged
failure to secure the downward departures to which Rush maintains she was entitled are plainly
belied by the record. Regarding any potential reductions based upon Rush’s acceptance of
responsibility, Rush cannot, in good faith, maintain that due to some unspecified action or
omission of counsel, she was deprived of a reduction. To the contrary, Rush has only her own
actions to blame. As both the plea agreement and the Court during colloquy made exceedingly
clear, the Government was free to oppose any reduction of the Guidelines calculation for
acceptance of responsibility if Rush engaged in certain actions prior to sentencing, including
engaging in additional criminal conduct. See Plea Agreement ¶ 9; Tr. of Plea Hr’g at 42-43.
Despite having been so advised, Rush, as the Court found by a preponderance of evidence at
sentencing, attempted to commit mail and wire fraud on two automobile insurance companies,
GEICO and Erie, in connection with a car accident that occurred after she pleaded guilty. See
Tr. of Sent. Hr’g at 5-11. Consequently, the Government did oppose, and the Court ultimately
declined to grant, a two-point reduction for acceptance of responsibility. See Gov’t’s Sent.
Memo., ECF No. [16], at 1-3; Tr. of Sent. Hr’g at 5-11. For this same reason, the Government,
in its discretion, chose not to move for the additional one-level reduction for acceptance of
9
responsibility pursuant to U.S.S.G. § 3E1.1(b). Gov’t’s Opp’n at 7. See also Gov’t’s Sent.
Memo. at 3 & n.2.
In any event, irrespective of whether the Government opposed a reduction for acceptance
of responsibility, the Court itself was under no obligation to accept either party’s sentencing
recommendations. The Court made a pointed effort to explain this to Rush during her plea
colloquy, and Rush unequivocally acknowledged her understanding of this fact. See Tr. of Plea
Hr’g at 41-42, 64. See also Plea Agreement ¶ 11 (“It is understood that pursuant to Federal
Rules of Criminal Procedure 11(c)(1)(B) and 11(c)(3)(B) the Court is not bound by the …
stipulations [contained within the plea agreement], either as to questions of fact or as to the
parties’ determination of the applicable Sentencing Guidelines range, or other sentencing
issues.”). This given, even if Rush had sufficiently alleged objectively unreasonable
performance by counsel in connection with the plea agreement and sentencing – which she has
not – she fails entirely to show any resulting prejudice. See Hurt, 527 F.3d at 1356 (To establish
a successful claim for ineffective assistance of counsel under Strickland, a petitioner must prove
both (1) “that counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms,” and (2) “that this error caused [her] prejudice.”) United States v.
Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008) (citation omitted).
Rush likewise fails to establish ineffective assistance in connection with the
Government’s decision not to move for a downward departure pursuant to U.S.S.G. § 5K1.1,
which permits the Government to file a motion indicating that a defendant has provided
substantial assistance in the investigation or prosecution of other criminal matters and
recommending that the defendant’s sentence be reduced from the advisory sentence suggested by
the Sentencing Guidelines. Specifically, Rush alleges, albeit vaguely, that she was “led to
10
believe she would receive additional reduction for assistance to authorities.” Mot. to Vacate at 5.
Rush further asserts that she provided assistance through “life-threatening measures” only to be
“denied [the] benefits” of downward departure at sentencing. Id. See also Pet’r’s Reply at 1-2
(detailing alleged efforts to cooperate). However, as the Government most appropriately
contends, Rush cannot rely on the claim that her counsel was ineffective because the
Government declined to move for a downward departure based upon Rush’s alleged efforts to
cooperate. See Gov’t’s Opp’n at 8.
A decision as to whether to file a § 5K1.1 motion is committed to the discretion of the
Government. United States v. Motley, 587 F.3d 1153, 1159 (D.C. Cir. 2009). To be sure, when
a plea agreement provides for it, the Government has a contingent obligation to file a § 5K1.1
motion for substantial assistance if it finds that substantial assistance was in fact provided.
United States v. Jones, 58 F.3d 688, 691 (D.C. Cir. 1995). Rush’s plea agreement contained no
such contingency, see Plea Agreement ¶¶ 13-14 (“The defendant acknowledges and agrees,
however, that nothing in this Plea Agreement may be construed to require the United States to
file any such motion(s) and that the United States’ assessment of the nature, value, truthfulness,
completeness, and accuracy of the defendant’s cooperation shall be binding insofar as the
appropriateness of the United States’ filing of any such motion is concerned.”). Further, the
record reflects that both Rush’s counsel and the Court made every effort to explain this fact. See,
e.g., Gov’t’s Opp’n, Ex. 1 (Aff. of Trial Counsel), ¶1; Tr. of Plea Hr’g at 51.
More to the point, Rush makes no attempt whatsoever to connect her ineffective
assistance of counsel claim to the Government’s decision not to file a motion for a reduction
based upon substantial assistance. To the extent Rush’s allegations can be generously construed
to assert that her counsel failed to sufficiently put Rush on notice of the possibility that the
11
Government would not move for such a reduction, Rush is unable to establish that any
shortcoming in counsel’s assistance in this regard caused her actual prejudice because, as set
forth above, the Court independently advised her of this fact during an extended colloquy.
Further, Rush’s “vague and conclusory” reference to her counsel’s purportedly “ineffective
response to government denying sentence reduction” is likewise insufficient to allege ineffective
assistance. See Simms, 730 F. Supp. 2d at 61. Assuming, arguendo, that Rush alleges that her
counsel rendered ineffective assistance for failing to request the Court to compel the Government
to file a § 5K1.1 motion, this argument again overlooks the critical fact that the decision to file a
motion for departure pursuant to § 5K1.1 is within the sole province of the Government. What is
more, the Court went to great lengths to expressly and repeatedly explain during the plea
colloquy the fact that a decision by the Government not to file a § 5K1.1 motion is
“unreviewable” and that, even if the Government decides in its discretion to file such a motion,
the Court was under no obligation to grant it; Rush expressed nothing short of complete
understanding of this fact. See, e.g., Tr. of Plea Hr’g, at 38, 50-52, 62. She likewise
acknowledged multiple times during her colloquy that she was satisfied with her trial counsel’s
services and that she had discussed with him all of the matters addressed in the plea agreement,
including the issue of substantial assistance. See, e.g., Tr. of Plea Hr’g at 6-7, 39. 5
5
The Court notes that Rush’s reply brief specifically requests that the Court “review the
Government’s refusal to file [a] 5K1.1 motion.” Firstly, the Court declines to construe this
impromptu request for relief, which was made for the first time in a reply memorandum, as a
proper motion. Second, for reasons already discussed, and because the plea agreement in this
case imposes no obligations on the Government concerning the filing of a § 5K1.1 motion, the
Court is in no position to “review” the Government’s refusal to move for a § 5K1.1 reduction.
Finally, even if the plea agreement had contained an agreement regarding the filing of a § 5K1.1
motion, Rush has made no showing that her alleged efforts to cooperate justified a downward
departure. While “[a] district court may . . . grant relief if the government’s refusal [to file a
downward departure motion] breaches its agreement to file such a motion,” id. (citing In re
Sealed Case No. 97-3112, 181 F.3d 128, 142 (D.C. Cir. 1999)), the court need not inquire into
12
Against this record, Rush’s elusive claim that her counsel was ineffective for failing to
“secure and explain” terms of the plea agreement rings hollow against the firm presumption that
her counsel rendered adequate assistance and exercised reasonable professional judgment. 6
2. Alleged failure of trial counsel to seek a downward departure based upon
extenuating circumstances
Second, Rush faults her counsel for failing, at the time of her sentencing, to “present
extenuating family circumstances,” which Rush contends justified a lesser sentence. Mot. to
Vacate at 7. Rush’s motion provides a detailed account of the unfortunate health-related
difficulties facing Rush and her family, including her mother and son, as well as a description of
the psychological trauma she continues to suffer as a result of physical and emotional abuse she
suffered as a child. Id. This argument need not detain the Court for long, as Rush’s assertion that
counsel failed to present this evidence to the Court is wholly incredible in the face of the record.
During sentencing proceedings, Rush’s counsel argued for a variance pursuant to 18 U.S.C. §
the government’s decision “‘unless the defendant makes a substantial threshold showing that the
government acted in bad faith.’” United States v. Shah, 263 F. Supp. 2d 10, 33 (D.D.C. 2003),
aff’d, 453 F.3d 520 (D.C. Cir. 2006) (quoting United States v. Alegria, 192 F.3d 179, 187 (1st
Cir. 1999)). Here, Rush makes no such threshold showing.
6
Also buried among Rush’s briefing in support of her first ground of alleged ineffective
assistance is a claim that her counsel was ineffective for “neglecting to protect [her] by way of
sealing case records and information from public sector, civilians, and government employee
access.” Mot. at 5. While not entirely clear, Rush seems to imply that the sealing of her case
would have facilitated an opportunity for greater cooperation with the authorities. However, for
the reasons stated herein, Rush has not – and could not – explain how this alleged “failure to
seal” materially affected her conviction or sentence. Further, a decision as to whether to file a
motion to seal, especially in view of the strict standard governing the sealing of court filings (and
the presumptively public nature thereof), is most certainly a “strategic decision that falls well
within the range of reasonable professional assistance.” Hoover-Hankerson v. United States, 792
F. Supp. 2d 76, 84 (D.D.C. 2011). Finally, on a separate but related note, the Court observes that
in her reply brief, Rush requests that the Court “seal all case documents to protect the future
safety of the Defendant.” Pet’r’s Reply. The Court shall not construe this as a proper motion to
seal. To the extent Rush seeks the sealing of one or more documents in this matter, she must file
a separate motion which must, at a minimum, be made in accordance with the Local Rules of this
Court and address each of the factors set forth in United States v. Hubbard, 650 F.2d 293 (D.C.
Cir. 1980).
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3553(a) 7 and in support thereof, described in detail Rush’s own medical issues, as well as those
of her mother and son. See Tr. of Sent. Hr’g at 26-28. Further, the Court itself specifically
referenced Rush’s physical and psychological abuse and adopted all facts contained within the
presentence report, including those regarding such abuse. See id. at 12, 36. Accordingly, Rush
has not – and could not – show prejudice resulting from her counsel’s allegedly inadequate
efforts to seek a reduction in her sentence based upon extenuating circumstances.
3. Alleged “deficient performance” of trial counsel
Rush’s third ground for relief is that her counsel was ineffective because of “deficiency in
performance.” Mot. to Vacate at 10. Rush’s briefing in support of this third ground identifies –
in passing and without any meaningful explanation or argument – a handful of complaints about
the adequacy of her counsel’s representation. Once again, these complaints are stated in such
“vague and conclusory” terms that they are woefully inadequate, whether considered together or
independently, to overcome the strong presumption that her trial counsel’s representation was
adequate and reasonable. Simms, 730 F. Supp. 2d at 61. Simply by way of example, Rush
alleges that her counsel was “deficient” for “ineffectively investigating and applying case law to
protect [her]” and for ineffectively “determining strategies best suited to argue alternative
sentencing under the plea agreement.” Mot. to Vacate at 10. However, Rush neglects entirely to
articulate what sort of investigation or strategies her counsel should have undertaken, or what
case law was overlooked or misapplied. Because Rush’s sweeping attacks are wholly
unsupported by specifics, they should be summarily dismissed. See United States v. Taylor, 139
F.3d 924, 933 (D.C. Cir. 1998) (noting that “[s]ummary disposition” of an ineffective assistance
7
18 U.S.C. § 3553(a) instructs judges, in determining a defendant’s sentence, to consider several
enumerated factors, in addition to the Sentencing Guidelines and the policy statements of the
U.S. Sentencing Commission, including, inter alia, the “history and characteristics of the
defendant.”
14
of counsel claim “may [ ] be appropriate where the defendant has failed to present any affidavits
or other evidentiary support for the naked assertions contained in h[er] motion.”).
Also thrown into the mix of “deficient performance” allegations is a claim that Rush’s
trial counsel provided ineffective assistance when he failed to disclose to her a pending
investigation by the District of Columbia Bar into his law firm’s alleged misappropriation of
trust funds. Mot. to Vacate at 10. While Rush provides no further detail in this regard, the
Government’s submissions make clear that the investigation (which ultimately resulted in a
finding that the misappropriation was the result of neither reckless nor negligent conduct by
counsel, see Gov’t Opp’n, Ex. 2 (R&R of Hr’g Comm. No. Nine (Apr. 13, 2012))), concerned a
dispute and clients entirely unrelated to Rush. Rush provides no explanation as to how this
separate investigation affected her own case beyond an abstract allusion to the “personal effects”
necessarily felt by counsel – an explanation simply too nebulous and speculative to defeat the
strong presumption that her counsel’s representation was adequate and reasonable. See Simms,
730 F. Supp. 2d at 61; Taylor, 139 F.3d at 933. See also Morrison, 98 F.3d at 622 (“[S]ummary
denial of a §2255 motion is appropriate when the ineffective assistance claim is speculative.”)
(citation omitted). 8
8
Also among the hodgepodge of allegations contained within Rush’s briefing on her third
ground are two claims that are duplicative of claims asserted elsewhere in her briefing, and
likewise addressed elsewhere in this Memorandum Opinion. First, Rush alleges that counsel was
ineffective for permitting “the case to be filed unsealed.” Mot. to Vacate at 10. This claim,
which replicates that asserted under her first ground, lacks merit for the same reasons stated
supra, Part III.A.1, n.6. Second, Rush alleges that her trial counsel “denied [her] post-conviction
assistance.” Id. This claim is subsumed within Rush’s broader fourth ground, which asserts,
inter alia, that both trial and appellate counsel failed to provide adequate “post-conviction
assistance,” and shall therefore be addressed with that claim infra, Part III.A.4.
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4. Alleged failure of both trial and appellate counsel to advise of post-conviction
options for legal recourse
Finally, Rush asserts that both her trial counsel and appellate counsel, a Federal Public
Defender appointed by the Court after sentencing, failed to provide her with an adequate
understanding of post-conviction processes for legal recourse. Mot. to Vacate at 10, 12. Rush
conclusorily asserts that her trial counsel failed completely to provide post-conviction assistance;
she alleges with only slightly more specificity that her appellate counsel “never presented
options on grounds to appeal” but rather advised her to withdraw her appeal and “led [her] to
believe there was no legal recourse available.” Id. at 12. Once more, Rush’s claims are flatly
rebutted by the record. Throughout the plea hearing, the Court made every effort to discuss with
Rush the particulars of her appellate rights, including those she was waiving by pleading guilty,
and Rush unequivocally indicated her acknowledgment and understanding each time. See, e.g.,
Tr. of Plea Hr’g at 10-12, 45-46, 52-54. Further, Rush’s trial counsel expressly stated to the
Court that he had explained Rush’s limited rights to challenge her conviction or sentence. See id.
at 53.
Furthermore, pursuant to her plea agreement, Rush expressly waived her statutory rights
to appeal her sentence or the manner in which her sentence was determined. See Plea Agreement
¶¶ 16-18. It is axiomatic, therefore, that neither trial counsel nor appellate counsel could have
acted unreasonably by failing to advise Rush to pursue appellate rights that she did not have.
And Rush can identify no prejudice she suffered from receiving accurate advice regarding her
appellate rights. Correspondingly, appellate counsel did not act ineffectively in advising Rush
that she should withdraw her notice of appeal in light of the terms of her plea agreement. Indeed,
at the time she withdrew her appeal, Rush herself acknowledged in a sworn declaration that her
appellate counsel had “fully informed [her] of the circumstances of her case” and that she was
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“completely satisfied” with her attorney’s services. See Gov’t’s Mot. to Vacate, Ex. 3 (Mot. for
Voluntary Dismissal, United States v. Rush, No. 11-3053 (D.C. Cir. 2011)).
B. No Certificate of Appealability Shall Issue From This Court.
When the district court enters a final order resolving a petition under 28 U.S.C. § 2255that is adverse to the petitioner, it must either “issue or deny a certificate of appealability.” Rules
Governing Section 2255 Proceedings for the United States District Courts, Rule 11(a). By
statute, “[a] certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing
demands that the petitioner demonstrate that “reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For the reasons set forth
above, the Court concludes that Rush has failed to make that showing in this case, and,
accordingly, no certificate of appealability shall issue from this Court. To the extent Rush
intends to file an appeal, she must seek a Certificate of Appealability from the United States
Court of Appeals for the District of Columbia Circuit in accordance with Federal Rule of
Appellate Procedure 22.
IV. CONCLUSION
For all of the foregoing reasons, the Court shall DENY Rush’s [28/34] Motion to Vacate.
Furthermore, no Certificate of Appealability shall issue from this Court. To the extent Rush
intends to file an appeal, she must seek a Certificate of Appealability from the United States
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Court of Appeals for the District of Columbia Circuit in accordance with Federal Rule of
Appellate Procedure 22. An appropriate Order accompanies this Memorandum Opinion.
_____/s/_______________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
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