United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
September 9, 2011, a jury convicted Salvatore DiMasi and
Richard McDonough, a lobbyist, for conspiring to commit
honest services mail fraud, honest services wire fraud, and
extortion under color of official right, as well as for
honest services mail fraud and wire fraud. See 18 U.S.C.
§§371, 1341, 1343, 1346, and 1951. The evidence at
trial showed, in essence, that McDonough conspired with his
client, Joseph Lally, to pay DiMasi to use his official power
as Speaker of the Massachusetts House of Representatives to
obtain more than $17, 000, 000 in state software contracts
for Lally's employer, Cognos Corporation, and later his
company, Montvale Solutions. Lally pled guilty, cooperated
with the government, and testified at trial against DiMasi,
McDonough, and a fourth alleged co-conspirator, Richard
Vitale, who was acquitted. The payments to DiMasi were made
in the form of purported referral fees through his unwitting
associate in the practice of law Stephen Topazio, and through
Vitale. See United States v. DiMasi, 810 F.Supp.2d
347, 356-62 (D. Mass. Aug. 30, 2011).
court denied the defendants' motions for acquittal and a
new trial. Id. DiMasi was sentenced to eight years
in prison and McDonough to seven years in prison. The court
subsequently denied their motions for release pending appeal.
See United States v. DiMasi, 817 F.Supp.2d 9, 12 (D.
Mass. Oct. 11, 2011). McDonough began serving his sentence on
November 30, 2011. In 2013, the First Circuit affirmed
McDonough's conviction and sentence. See United
States v. McDonough, 727 F.3d 143, 166 (1st Cir. 2013) .
On January 27, 2014, the Supreme Court denied certiorari, and
his conviction and sentence became final. See McDonough
v. United States, 134 S.Ct. 1041 (2014) .
January 26, 2015, McDonough timely filed a petition to vacate
his conviction and sentence pursuant to 28 U.S.C. §2255
(the "Petition"). McDonough asserts that his trial
counsel, Thomas Drechsler, was constitutionally ineffective
because: (1) he "fail[ed] to investigate and present
expert testimony regarding the 'blurred' but critical
distinction between legal lobbying and the criminal conduct
required to maintain [a] conviction for honest services
fraud;" and (2) he failed to effectively
"demonstrate that [McDonough's] normal professional
activities included lobbying all branches of government"
and to show that McDonough was "at all times acting
within the boundaries of legal lobbying." McDonough
asserts that Mr. Drechsler should have done so by: (a)
confronting State Representative Robert Coughlin with prior
inconsistent statements on cross-examination; and (b) calling
Senator Joan Menard to rebut certain testimony given by
Lally. Memo, in Supp. of Petition ("Memo.") at 4-5,
response to the Petition, the government requested that the
court find that McDonough waived attorney-client privilege by
filing his Petition; order Mr. Drechsler and counsel for
DiMasi and Vitale to disclose any information reasonably
necessary to enable the government to respond to the
Petition; and extend the deadline for the government to do
so. See United States' Motion for Order
Regarding Waiver of Attorney-Client Privilege and for
Extension of Time to File Response (Docket No. 857).
McDonough opposed that request. See Response to
Government Motion for Waiver to Attorney-Client Privilege
(Docket No. 863).
court has reviewed McDonough's submissions, as well as
the pertinent portions of the record. It finds that the
existing record conclusively establishes that McDonough is
not entitled to relief under §2255. As explained below,
the decisions not to call a lobbying expert, confront
Representative Coughlin with past inconsistent statements, or
call Senator Menard did not constitute ineffective
assistance, and there is not a reasonable likelihood that
McDonough would have been acquitted if his counsel had done
so. Accordingly, the Petition is being denied. The
government's request for information from counsel for
defendants is, therefore, moot.
18 U.S.C. §2255 Proceedings
prisoner in federal custody may collaterally attack his
conviction under 28 U.S.C. §2255. As the First Circuit
Section 2255 contemplates four potential bases on which a
federal prisoner may obtain relief: (1) "that the
sentence was imposed in violation of the Constitution or laws
of the United States"; (2) "that the court was
without jurisdiction to impose such sentence"; (3)
"that the sentence was in excess of the maximum
authorized by law"; or (4) that the sentence "is
otherwise subject to collateral attack." 28 U.S.C.
Damon v. United States, 732 F.3d 1, 3 (1st Cir.
2013) (quoting 28 U.S.C. §2255 (a)). In an action under
§2255, "[t]he burden of proof is on the
petitioner." Wilder v. United States, 806 F.3d
653, 658 (1st Cir. 2015), cert, denied, 136 S.Ct.
prisoner files a §2255 petition, 28 U.S.C. §
2255(b) requires that:
Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
the court shall cause notice thereof to be served upon the
United States attorney, 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). As the First Circuit wrote in
United States v. McGill, 11 F.3d 223 (1st Cir.
We have distilled these principles into a rule that holds a
hearing to be unnecessary "when a §2255 motion (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). In other words, a
"§2255 motion may be denied without a hearing as to
those allegations which, if accepted as true, entitle the
movant to no relief, or which need not be accepted as true
because they state conclusions instead of facts, contradict
the record, or are 'inherently incredible.'"
Shraiar v. United States, 736 F.2d 817, 818 (1st
Cir. 1984) (citations omitted).
Id. at 225-26 (some citations omitted); see also
United States v. Panitz, 907 F.2d 1267 (1st Cir. 1990);
David v. United States, 134 F.3d 470, 478 (1st Cir.
1998) ("To progress to an evidentiary hearing, a habeas
petitioner must do more than proffer gauzy generalities or
drop self-serving hints that a constitutional violation lurks
in the wings."). "Moreover, when...a petition for
federal habeas relief is presented to the judge who presided
at the petitioner's trial, the judge is at liberty to
employ the knowledge gleaned during previous proceedings and
make findings based thereon without convening an additional
hearing." McGill, 11 F.3d at 225.
Ineffective Assistance of Counsel
Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel." Lema v. United
States, 987 F.2d 48, 51 (1993) (citing Strickland v.
Washington, 466 U.S. 668 (1984)). "But the
Constitution does not guarantee a defendant a letter-perfect
defense or a successful defense; rather, the performance
standard is that of reasonably effective assistance under the
circumstances then obtaining." Id. at 51. To
succeed on an ineffective assistance of counsel claim, a
petitioner must demonstrate: (1) that "counsel's
performance fell below an objective standard of
reasonableness"; and (2) that the petitioner ...