United States District Court, D. Massachusetts
J. DANIEL LINDLEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER ON FIRST AMENDED MOTION UNDER 28
U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
(DOC. NO. 1024)
Sorokin United States District Judge
Daniel Lindley, an attorney convicted of crimes arising from
his participation in a mortgage fraud scheme, filed a motion
to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. Doc. No. 1024. He raised a litany of
challenges to the performance of his trial counsel, attorney
Robert Sheketoff. The government opposed the motion. Doc.
No. 1108. Lindley replied with a “Request for Findings
and Rulings.” Doc. No. 1163. The Court held an
evidentiary hearing on certain aspects of Lindley's
motion on December 13, 2017. Doc. No. 1236. Having considered
all of the parties' relevant submissions, the evidence
presented at the hearing, and the record of Lindley's
2010 trial, the Court DENIES Lindley's motion.
Factual and Procedural History
2, 2010, after a six-week jury trial, Lindley was convicted
of conspiracy, thirty counts of wire fraud, and fifteen
counts of money laundering in violation of federal law.
United States v. Appolon, 695 F.3d 44, 52 (1st Cir.
2012). Four co-conspirators tried with Lindley also were
convicted of various offenses. Id. at 51-52. Lindley
was sentenced on November 10, 2010 to seventy-two months'
incarceration, followed by a term of supervised release. Doc.
No. 662. He has served his sentence. Doc. No. 1166.
charges arose from a “mortgage fraud scheme” that
Lindley and his co-conspirators “devised and executed .
. . between May 2005 and June 2006.” Appolon, 695 F.3d
at 51. The First Circuit described the general scheme as
[Lindley and his] coconspirators arranged for straw buyers to
purchase real property at the asking price, falsified
mortgage loan applications for the straw buyers to obtain
financing for an artificially-inflated purchase price, and
pocketed the difference. The loans secured by each of the
properties involved in [the] scheme eventually went into
default, and most of the properties were forced into
foreclosure at huge losses for the lenders.
Id. at 51-52. As to Lindley's involvement, the
First Circuit recounted the following relevant facts
“in the light most favorable to the jury's
Levine, a real estate attorney who had been suspended from
the practice of law, shared office space in Boston with
Lindley, another attorney. During Levine's suspension, he
transferred components of his real estate practice in early
2005 to Lindley, who thereafter handled all property closings
for Levine. . . .
In mid-2005, appellants hatched their mortgage fraud scheme,
which began with [certain co-defendants identifying
properties, negotiating prices, and recruiting straw
purchasers]. Next, aided by Lindsay MacPhee (Levine's
administrative assistant), Levine, Lindley, [and two
co-defendants] prepared and filed falsified mortgage loan
applications, purchase-and-sale agreements, and HUD-1
settlement statements on behalf of the straw buyers,
misrepresenting the straw buyers' eligibility for the
loans and overstating the purchase prices of the properties.
. . . Once the falsified applications were approved by
unsuspecting mortgage lenders, the loan proceeds were wired
to Lindley's Interest on Lawyers Trust Account
(“IOLTA”), from which the actual purchase prices
were paid to the sellers and the excess was disbursed to the
conspirators, usually after passing through bank accounts
held by Levine. The loans secured by the properties were then
permitted to default. Most of the properties were forced into
foreclosure, and one was burned for insurance money.
In all, twenty-one properties were involved in
appellants' scheme. For each of these properties, two
separate HUD-1 forms were created, with one form reflecting
the actual purchase price and the other reflecting the
artificially-inflated price listed on the falsified mortgage
loan application. In addition, separate closings, presided
over by Lindley, were held for many of the properties in
order to distance the straw buyers from the sellers and keep
secret the existence of the scheme. By June 2006, the
conspirators had earned nearly $2 million in illegal profits,
commissions, and fees.
Id. at 52-53 (footnotes omitted).
was represented at trial and sentencing by Sheketoff, an
experienced criminal defense attorney. Doc. No. 1108-1 ¶
6. His post-verdict motion for acquittal or a new trial was
denied. Doc. No. 668. On direct appeal, represented by
different counsel, Lindley challenged the sufficiency of
evidence showing “he either had actual knowledge of or
was willfully blind to the mortgage fraud
scheme.” Appolon, 695 F.3d at 55. On September 19,
2012, the Court of Appeals affirmed his convictions.
Id. at 52.
Court of Appeals described evidence showing, inter alia: that
Lindley had prepared conflicting documents with respect to
one property, each stating that a different person would
occupy the property; that Lindley had prepared an agreement
providing he would hold certain funds in escrow to remedy
building code violations on a property, but failed to
disclose the agreement on the HUD-1 sent to the lender and
ultimately transferred the funds to Levine's bank account
instead of using them for repairs; that Lindley had paid a
straw buyer from his IOLTA account without disclosing the
payment on the HUD-1 sent to the lender; that Lindley had
signed a check paying funds from his IOLTA account to a
company controlled by Levine, under the guise of a
“fictitious construction holdback”; and that
Lindley had paid a seller who had discovered a difference in
the purchase prices on HUD-1s provided to him and to the
buyer, but had not disclosed the payment to the lender.
Id. at 55-56. This, the First Circuit concluded, was
“more than sufficient to prove his actual knowledge
beyond a reasonable doubt.” Id. at 56-57.
and “to emphasize the strength of the evidence against
Lindley, ” the Court of Appeals summarized evidence
regarding “a No. of warning signs or ‘red flags,
' that, uninvestigated, suggest Lindley's willful
blindness.” Id. at 57. Examples of such
“red flags” were: evidence that two sets of loan
documents were prepared for all properties involved in the
scheme, but not for other closings conducted by Lindley; and
evidence that “Lindley conducted several closings
involving repeat buyers, ” including buyers purporting
to purchase multiple properties in a short period of time and
signing occupancy affidavits for each of them. Id.
From this evidence, the First Circuit found, a reasonable
juror could have inferred Lindley “willfully blinded
himself to the existence of appellants' scheme.”
Id. at 57-58.
both actual knowledge and willful blindness, the Court of
Appeals noted the plausibility of Lindley's alternative
explanations for the evidence-that each incident proved only
his “inattentiveness and professional
incompetence”-but concluded that the inferences Lindley
urged were not the only ones jurors reasonably could have
drawn, and that there was “unusually strong”
“evidence of Lindley's knowing participation in
appellants' scheme, ” or, alternatively, of his
willful blindness to it. Id. at 56-58.
filed a pro se § 2255 motion in September 2013. Doc. No.
913. He sought and obtained permission to amend his motion
thereafter. Doc. Nos. 926, 1023. In his amended motion,
Lindley levies a host of challenges to trial counsel's
performance, faulting Sheketoff for:
1. Failing to communicate with Lindley;
2. Failing to move to sever Lindley's trial from that of
3. Waiving Lindley's right to a speedy trial without
Lindley's knowledge or consent;
4. Waiving a forfeiture trial without Lindley's knowledge
or consent, and failing “to challenge the ex parte
restraint of [Lindley's] wife's real estate”;
5. Failing to object to the admission of certain documents;
6. Failing to review all relevant evidence and conduct
7. Failing to adequately cross-examine two key witnesses;
8. Requiring Lindley to supply him with paper and pens during
trial and failing to order daily transcripts;
9. Failing to prepare an effective closing argument;
10. Waiving Lindley's right to a defense by resting
without presenting any evidence;
11. Waiving Lindley's right to testify without
Lindley's informed consent;
12. Failing to challenge the money laundering charges on
grounds such as merger, sufficiency, and multiplicity;
13. Failing to move for special verdicts;
14. Having a conflict of interest stemming from demands for
additional fees; and
15. Failing to prepare for and effectively argue at
Doc. No. 1024 at 3-10.
government opposed Lindley's motion generally and
responded specifically to a No. of Lindley's contentions.
Doc. No. 1108. Along with its brief, the government submitted
an affidavit prepared by Sheketoff presenting a
“global, ” but not “exhaustive, ”
response to Lindley's assertions. Doc. No. 1108-1.
Sheketoff attached emails between himself and Lindley that
are pertinent to some of Lindley's complaints.
February 2016, this matter was reassigned to the
undersigned. Doc. No. 1138. Lindley responded to the
government's brief in April 2016 with a “Request
for Findings and Rulings, ” supported by exhibits
related to two grievances filed against Sheketoff with the
Massachusetts Board of Bar Overseers (“BBO”) and
an affidavit by Lindley. Doc. Nos. 1163, 1164. The Court
construes these submissions as a reply in further support of
the claims set forth in his § 2255 motion.
Order issued in February 2017, the Court scheduled an
evidentiary hearing as to the following issues:
“Whether trial counsel informed Lindley of his right to
testify in his own defense, whether Lindley was otherwise
aware of that right, and whether Lindley knowingly waived
that right”; “Whether trial counsel was informed
of and/or investigated Lindley's assertions that he
attempted to report the mortgage fraud scheme at some point
before it was discovered, and that he aborted a No. of
closings which he believed were suspicious”; and
“Whether trial counsel and Lindley had a dispute about
fees during the trial, and to what extent any such dispute
impacted trial counsel's performance of his duties on
behalf of Lindley.” Doc. No. 1219 at 2. The Court set
the hearing for March 10, 2017. Id. at 2-3. The
hearing date was continued four times thereafter, each time
at Lindley's request. See Doc. No. 1236 (describing the
series of continuance requests).
December 13, 2017, the evidentiary hearing finally proceeded.
Doc. No. 1246. It lasted nearly three hours and featured
testimony by Lindley and Sheketoff. See generally Draft Tr.
Mot. Hr'g, United States v. Lindley, No.
08-cr-10121-LTS-2 (D. Mass. Dec. 13, 2017) [hereinafter Draft
testified first. He became an attorney in 1993. Id.
at 14. He described his practice as primarily civil, and said
his involvement in the charged mortgage fraud scheme arose
from his desire to take over Levine's real estate
practice after Levine's law license was suspended.
Id. at 15-17. Lindley was exposed to criminal law in
a law school class, during an internship with the Suffolk
County District Attorney's office, and through “a
couple of . . . minor legal criminal things”
thereafter. Id. at 17. He “never did a
criminal trial.” Id. He had civil trial and
general legal research experience, he was aware that a
criminal defendant has a constitutional right to testify, and
he knew that the decision whether he should exercise that
right in his trial was his to make. Id. at 26,
explained his version of certain events that were the subject
of his trial, including when he claims he began to suspect
the existence of the charged scheme and efforts he says he
made to expose it. Id. at 19-23. Although he
admittedly saw Sheketoff daily throughout the trial and sat
next to him at the defense table, Lindley described his
relationship with Sheketoff as virtually devoid of
communication. E.g., Id. at 25-27. According to
Lindley, Sheketoff did not respond to calls and emails,
refused to review summaries Lindley prepared regarding the
relevant real estate transactions, declined to review notes
Lindley took throughout the trial, kept Lindley “in the
dark” about pretrial matters, and “stunned”
Lindley by resting without presenting defense evidence.
Id. at 25, 27, 32-33, 37-38. Lindley also testified
that Sheketoff twice said he should have charged Lindley a
higher fee. Id. at 52.
government's cross-examination of Lindley, in part,
concerned subjects it would have explored during the trial,
had Lindley taken the stand in his own defense. E.g.,
Id. at 59-74 (probing the circumstances of
Lindley's purported efforts to report the scheme and
whether the scheme actually involved more transactions than
significant factors cause the Court to doubt the accuracy of
Lindley's version of events. First, the record
contradicts Lindley's stated recollection as to several
relevant events. For example, Lindley's assertion that
Sheketoff was called out of order (without notice to Lindley)
and “rested before the other [defendants] put on their
case[s], ” Id. at 37-38, 80-83, is directly
refuted by the trial transcript. See Doc. No. 477 at 207
(reflecting Sheketoff's proposal on May 19, 2010 that he
be permitted to rest the next day immediately after the
government resting subject to an order that no
co-defendant's evidence nor any government rebuttal
evidence could be considered against Lindley); Doc. No. 478
at 11, 113, 157 (reflecting Sheketoff withdrew his proposal
the next morning, the government rested later that day,
co-defendant Levine presented a witness and rested, and only
then did Sheketoff rest on Lindley's behalf). Likewise,
Lindley's description of Sheketoff as having arrived
“two hours late for sentencing” only to say
“barely anything to the Court, ” Draft Tr. at 97,
is at odds with the sentencing transcript. See Doc. No. 675
at 5-7, 15-18, 21, 35-39 (reflecting Sheketoff spoke at some
length on various subjects during the sentencing hearing,
which started only one hour late).
written submissions also allege facts that are refuted by the
record. For example, his motion asserts that “in the
midst of trial, ” Lindley “threatened to
contact” the BBO because Sheketoff was not returning
his calls. Doc. No. 1024 at 7. According to Lindley,
Sheketoff responded by promising to “submit his
resignation the next day.” Id. Emails produced
by the government, however, reveal that the relevant exchange
took place more than a month after the jury returned its
verdict. Doc. No. 1108-1 at 17. This discrepancy is
meaningful, as Lindley cites the threat to resign as the
reason he “submitted to [Sheketoff] completely”
“[f]rom that point on, ” fearing that “any
trouble would result in [Sheketoff] deserting [Lindley] in
the middle of the trial.” Doc. No. 1024 at 7. Given the
actual timing of the interaction, it cannot explain or excuse
Lindley's failure to voice the complaints he presents now
to either Sheketoff or the trial judge at the time of his
Lindley has admitted his memory of events occurring during
and around the time of his trial is, understandably,
imperfect. E.g., Draft Tr. at 32 (noting the passage of time
since the relevant events and conceding he
“believe[s]” a particular discussion occurred but
“can't be certain”); Id. at 52
(stating he could not “remember what the context
was” for the references Lindley said Sheketoff made to
his fee); see also Id. at 47 (noting he “ha[d]
the flu” and found it “hard . . . to focus on
circumstances substantially undermine Lindley's
credibility regarding the specific events giving rise to his
claims. As explained in the discussion that follows, §
III, infra, the Court rejects much of Lindley's
took the stand after Lindley. According to the BBO's
website, Sheketoff has been a member of the Massachusetts bar
since 1976 and never has been publicly
disciplined. At the time of Lindley's trial,
Sheketoff had more than thirty years of experience as a
criminal defense attorney. Doc. No. 1108-1 ¶ 6.
Sheketoff described his trial preparation, his theory of the
case, investigation he undertook at Lindley's request,
and the nature of his communications and interactions with
Lindley. Draft Tr. at 116-30. Although he did not
specifically recall his discussion with Lindley about whether
Lindley should testify, he described his general practice in
this respect, the reasons for his conclusion that Lindley
should not testify, and his usual approach to counseling
clients when he does not believe they should testify.
Id. at 121, 126-27. Sheketoff also stated that his
representation of Lindley was not limited by the fee he
charged Lindley or by his representation of any other client.
Id. at 130-31.
Court found Sheketoff to be candid and credible in all
prisoner sentenced by a federal court “may move the
court which imposed the sentence to vacate, set aside or
correct the sentence” if: 1) “the sentence was
imposed in violation of the Constitution or laws of the
United States”; 2) “the court was without
jurisdiction to impose such sentence”; 3) “the
sentence was in excess of the maximum authorized by
law”; or 4) the sentence “is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a).
Post-conviction relief pursuant to § 2255 is an
extraordinary remedy, available only to a defendant who makes
“a sufficient showing of fundamental unfairness.”
Singleton v. United States, 26 F.3d 233, 236 (1st
Cir. 1994). “[D]efendants bear the burden of
establishing by a preponderance of the evidence that they are
entitled to relief.” United States v. DiCarlo,
575 F.2d 952, 954 (1st Cir. 1978). To assess whether a
defendant has met this burden, a court generally must accept
his factual averments as true, but “need not give
weight to conclusory allegations, self-interested
characterizations, discredited inventions, or opprobrious
epithets.” United States v. McGill, 11 F.3d
223, 225 (1st Cir. 1993).
most other claims of error, which must be raised at trial and
on direct review, counsel-ineffectiveness claims may be
presented for the first time in a § 2255 motion.
Massaro v. United States, 538 U.S. 500, 504 (2003).
“The benchmark for judging any claim of ineffectiveness
must be whether counsel's conduct so undermined the
proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984). To
establish that his counsel was constitutionally ineffective,
a defendant must satisfy Strickland's well-known two-part
test. “First, the defendant must show counsel's
performance was deficient, ' which requires showing
“counsel made errors so serious that counsel was not
functioning as the ‘counsel' guaranteed . . . by
the Sixth Amendment.” Id. at 687.
“Second, the defendant must show the deficient
performance prejudiced the defense.” Id. Both
showings are required; a failure to establish either one will
defeat a defendant's post-conviction claim. Id.;
accord Knight v. Spencer, 447 F.3d 6, 15 (1st Cir.
Supreme Court repeatedly has emphasized, “[s]urmounting
Strickland's high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010); see
Knight, 447 F.3d at 15 (establishing either of
Strickland's prongs is a “highly demanding”
and “heavy burden”). Counsel's performance is
measured objectively, considering only what is
“reasonable under prevailing professional
norms.” Strickland, 466 U.S. at 687-88; accord
Premo v. Moore, 562 U.S. 115, 122 (2011). The
standard is “highly deferential, ” and courts
must “indulge a strong presumption” that
counsel's challenged actions might be considered sound
strategy under the circumstances. Strickland, 466 U.S. at
689; accord Knowles v. Mirzayance, 556 U.S. 111, 124
(2009). “It is rare that constitutionally competent
representation will require any one technique or
approach.” Cullen v. Pinholster, 563 U.S. 170,
195 (2011) (quotation marks and alteration omitted). A
strategic choice “made after thorough investigation of
law and facts relevant to plausible options [is] virtually
unchallengeable.” Strickland, 466 U.S. at 690. The
relevant inquiry, then, is not whether counsel was
“prudent or appropriate, ” United States v.
Cronic, 466 U.S. 648, 665 n.38 (1984), but rather
whether the proceedings resulting in the defendant's
conviction and sentence were fair, see Strickland, 466 U.S.
establish prejudice, a defendant must demonstrate “a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694; accord Knowles, 556 U.S.
at 127; Sleeper v. Spencer, 510 F.3d 32, 39 (1st
Cir. 2007). It is not sufficient “to show that the
errors had some conceivable effect on the outcome of the
proceeding.” Strickland, 466 U.S. at 693; accord
Gonzalez-Soberal v. United States, 244 F.3d 273, 278
(1st Cir. 2001). Rather, the defendant must show that
counsel's errors were “so serious as to deprive
[him] of . . . a trial whose result is reliable.”
Strickland, 466 U.S. at 687.
specific relevance here, “given the paramount
importance of the right to testify and the small amount of
time that would be required to inform the defendant of that
right, . . . failure to inform a defendant of his right to
testify constitutes performance outside of an objective
standard of reasonable competence, and . . . is
constitutionally deficient.” Owens v. United
States,483 F.3d 48, 58 (1st Cir. 2007). This failure
“could be prejudicial.” Id. at 59. In
particular, the First Circuit has held that if the defendant
“was not informed by counsel of his right to testify in
his own defense, was not otherwise informed of the right . .
., and ...