Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Godfrey v. United States

United States District Court, D. Massachusetts

June 12, 2017

CHRISTOPHER S. GODFREY and DENNIS FISCHER
v.
UNITED STATES OF AMERICA

          MEMORANDUM OF DECISION AND ORDER

          RYA W. ZOBEL SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner Christopher S. Godfrey has moved pro se under 28 U.S.C. § 2255 to vacate his conviction. Docket # 336[1]. Petitioner Dennis Fischer has separately moved pro se under 28 U.S.C. § 2255 to vacate his sentence. Docket # 340. Godfrey alleges that his counsel was constitutionally ineffective for failing to investigate, interview, subpoena, and call nine defense witnesses. Fischer alleges that his counsel was constitutionally ineffective for failing to conduct discovery or investigate the loss amount proposed by the government. Both request an evidentiary hearing in support of their motions. Docket ## 337 and 341. The government opposes all motions and asserts that neither petitioner can establish by a preponderance of the evidence an ineffective assistance of counsel claim. Docket ## 350 and 352.

         I. Background

         The factual background of this case is fully described in United States v. Godfrey, 787 F.3d 72 (1st Cir. 2015). I include only those facts necessary to frame the issues here.

         In 2009, Godfrey and Fischer formed and ran a Florida company, Home Owner Protection Economics Inc. (“HOPE”), that purported to sell mortgage modifications to distressed homeowners nationwide for an up-front fee of $400 to $900. In order to obtain these payments, HOPE lied to its customers about its affiliation with the homeowners' mortgage lenders and its “98 percent success rate” in obtaining modifications. HOPE falsely informed its customers that their applications had been approved at the outset by HOPE's fictitious underwriters, and all that was required was for the homeowners to complete paperwork. The paperwork HOPE provided these homeowners with was a replicate of the Treasury Department's free Home Affordable Modification Program (“HAMP”) application form. The only difference between the two forms was that HOPE's form replaced the government's official telephone number with HOPE's number. “In fact, the loan modification request could never have been granted at the outset of the process, much less by HOPE rather than the lender.” Godfrey, 787 F.3d at 75. Eventually, when its customers failed to receive the benefits they were promised, they complained to HOPE and, ultimately, to state authorities.

         On August 3, 2011, a federal grand jury returned an indictment charging Godfrey and Fischer[2] with numerous mail fraud and wire fraud violations, and misuse of a government seal, as well as conspiring to commit those crimes. On November 14, 2013, after a jury trial both were convicted on all counts.[3] The sentencing hearing occurred on February 20, 2014. The court found, after applying various enhancements, that the total offense level for each petitioner was 39 and the criminal history category was I, resulting in an advisory guideline range of 262 to 327 months. All parties agreed that the guideline range was too high. The government recommended a 10-year prison sentence. The court varied even further downward and sentenced each petitioner to a term of seven years imprisonment. Both appealed, and the Court of Appeals for the First Circuit affirmed their convictions in their entirety. See Godfrey, 787 F.3d at 81.

         Petitioners timely filed their section 2255 motions, each alleging ineffective assistance of counsel.

         II. Standard of Review

         Section 2255 allows a federal prisoner to seek post-conviction relief when “the sentence was imposed in violation of the Constitution or laws of the United States . . . .” See 28 U.S.C. § 2255(a). It is well settled that the Sixth Amendment “right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (citations omitted). The petitioner, however, bears the burden of establishing the need for relief and showing the need for an evidentiary hearing. See Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (“Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted.”). Summary dismissal of a section 2255 claim is appropriate when the petition “(1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.” Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974).

         III. Discussion

         To succeed on an ineffective assistance of counsel claim, the petitioner must establish by a preponderance of the evidence that (1) “counsel's representation fell below an objective standard of reasonableness”; and (2) a reasonable probability exists that, “but for counsel's unprofessional errors, the result of the proceedings would have been different.” United States v. De La Cruz, 514 F.3d 121, 140 (1st Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)); see Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993) (“The burden is on the petitioner to demonstrate ineffective assistance by a preponderance of the evidence.”). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “Judicial scrutiny of counsel's performance must be highly deferential” and subject to “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. “A defendant's failure to satisfy one prong of the Strickland analysis obviates the need for a court to consider the remaining prong.” Tevlin v. Spencer, 621 F.3d 59, 66 (1st Cir. 2010) (citing Strickland, 466 U.S. at 697); see Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”).

         A. Godfrey's Claim of Ineffective Assistance of Counsel

         Godfrey claims that his trial counsel was constitutionally ineffective for one reason: failing to investigate, interview, subpoena, and call nine defense witnesses who, he alleges, would have offered testimony that refuted the testimony of two government witnesses. According to Godfrey, Ralph Thumma, Loretta Seneca, Michael Froio, and Andy Keller, all employees at HOPE, would have testified that Godfrey had no involvement in the sales process and that all sales were handled by Burris and Fischer, and that Burris conducted all hiring and training of employees. See Docket # 336, at 6-10. Ira Bornstein[4], an employee at the credit card company that managed HOPE's business account, allegedly would have testified that Godfrey “was operating within [an] acceptable range and margin of good business contrary to the government's theory of the case that everything at HOPE was a complete fraud.” Id. at 9. Chantal Lydia Swart, another employee at HOPE, allegedly would have testified that Godfrey instructed her “to advise customers that there were no guarantees that the customer would receive a modification or [sic] their mortgage.” Id. at 10. Similarly, Godfrey alleges that Jennifer Coon would testify that HOPE employees “were honest based on conversations she overheard.” Id. James Perdue allegedly would have testified that “if an employee was bad that employee would walk out into the hallway to sell dirty or use their own personal cell phones.” Id. Lastly, Bert Jerome Smith allegedly would have testified that Godfrey was a “good person” and that “he didn't do anything dishonest and that he did not tell customers that there was a guarantee of receiving a loan modification.” Id.

         Godfrey contends that the proposed testimony of these nine witnesses “would have refuted everything that Burris and Kelly falsely testified to the jury about regarding [sic] Godfrey.” Id. at 10. Godfrey essentially retries the case to prove his innocence and argues, through these nine witnesses, that he did not know of his “rogue” employees' fraudulent sales tactics. See Godfrey, 787 F.3d at 76. In order to succeed on his claim of ineffective assistance of counsel, Godfrey must overcome the strong presumption that counsel's decision not to call these witnesses would be considered sound trial strategy. See Lema, 987 F.2d at ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.