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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE


AT KNOXVILLE

FREDDIE MARSHALL CARSON, )
Petitioner, )
v. ) Nos. 3:12-cr-17, 3:14-cv-10
) J udge Varlan
UNITED STATES OF AMERICA, )
Respondent. )

RESPONSE TO PETITIONERS MOTION
FILED PURSUANT TO 28 U.S.C. 2255

The United States of America, by its counsel, J ennifer Kolman, Assistant United States
Attorney for the Eastern District of Tennessee, hereby responds in opposition to petitioners
motion to vacate, pursuant to 28 U.S.C. 2255.
A federal grand jury charged petitioner with six counts of wire fraud, in violation of 18
U.S.C. 1343, and five counts of money laundering, in violation of 18 U.S.C. 1957. (R. 1,
Indictment.) Based upon petitioners sworn declaration of indigency (R. 9, Financial Affidavit),
a federal public defender was appointed to represent him.
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(R. 10, Order (finding that petitioner
does not have the funds to retain an attorney).) In August 2012, petitioner pleaded guilty,
pursuant to a written plea agreement, to one count of wire fraud and one count of money
laundering; the United States agreed to dismiss the other nine counts in the indictment. (R. 21,
Plea Agreement.) Because the amount of loss resulting from petitioners conduct exceeded
one million dollars, his base offense level was 23 but was increased to 24 because he was also
convicted of violating 1957. (Presentence Report at 22, 23.) After a three-level acceptance-

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Significantly, though he has been incarcerated for a year, petitioner has now apparently
managed to amass sufficient financial resources to retain not one but two attorneys: one to draft
his 2255 motion and one, who remains unnamed, to conduct additional investigation on his
behalf. (See R. 41, 2255 Motion at 1, 14; see also R. 40, Motion at 2.) Petitioner also admits
that he tried to retain private counsel even while represented by court-appointed (i.e., taxpayer-
funded) counsel. (R. 41-1, Affidavit by Petitioner at 7.)
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of-responsibility reduction, the total offense level was 21. (Id. at 29-31; see also R. 32,
J udgment with Statement of Reasons.) Petitioners criminal history category of I yielded an
advisory Guidelines range of 37 to 46 months, and this Court sentenced petitioner to 46 months
imprisonment, within and at the top of his Guidelines range. (R. 32, J udgment; R. 36, Sent. Tr.
at 13-23.) Consistent with the terms of his plea agreement (R. 21, Plea Agreement at 15(a)),
petitioner did not appeal. He has now filed a timely 2255 motion. (R. 41, 2255 Motion.)
RELEVANT FACTS
1. Facts regarding petitioners offense conduct, as set forth in the plea agreement
and stipulated by petitioner during his guilty plea

Petitioner ingratiated himself into religious communities and then used those affiliations
to perpetrate a fraudulent scheme by lulling people into investing in or making loans to his
company, Masterworks, without knowledge of how their money would actually be used. (R. 35,
Plea Tr. at 12-14.) Petitioner informed some victims that, if they invested in securities in
Masterworks, the money would be for business activities, but neither Masterworks nor petitioner
were registered to sell securities. (Id.) To other victims, petitioner presented his scheme as an
investment opportunity in the nature of a short-term loan; petitioner guaranteed a high rate of
return as well as the initial investment. (Id. at 12-13.) Regardless of the manner in which
petitioner presented his schemes, once victims wired money to a Masterworks account, petitioner
immediately diverted those funds for his own personal use. (Id. at 13.)
Petitioner scammed multiple victims in multiple states and fraudulently obtained a total
in excess of one million dollars (specifically, $1.078,722.32); the parties stipulated that, for
purposes of the Guidelines calculations, however, that he would only be held responsible for
fewer than ten victims. (Id. at 13-14; but see also R. 32, J udgment at 6 (identifying twenty-five
victims to whom petitioner needed to pay restitution).) For example, as to a victim identified
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as KA, petitioner claimed involvement in private banking and trade deals overseas and promised
that, if KA invested $55,000 with Masterworks, she would receive her initial investment back in
30 days, along with a 50% return. (R. 35, Plea Tr. at 13.) On February 21, 2007, KA wired
$55,000 from her account at Washington Mutual Bank in Colorado to a Masterworks account
(ending in the numbers 648) at First Tennessee Bank in Tennessee. (Id.) On February 22, 2007,
knowing that KAs money had been wired into the Masterworks account, petitioner issued check
number 1073 from the Masterworks account for $55,962.30 to purchase a new Infiniti SUV for
his own personal use. (Id.) By the time petitioner pleaded guilty in August 2012, KA had not
yet received back her initial investment nor the promised return. (Id.)
2. Facts regarding petitioners plea colloquy
At the start of the plea colloquy, petitioner stated under oath that he had a college
education, that he had no difficulty reading or writing, that he had no history of mental illness or
drug addiction, and that he had not taken any drugs, medicine, pills, or alcoholic beverage of
any kind within the last 24 hours. (R. 35, Plea Tr. at 3-4.) Petitioner then confirmed that he
understood the purpose of the hearing and had received ample opportunity to discuss the case
with counsel. (Id. at 4-5.) The Court then referenced the written plea agreement, and petitioner
affirmed that his attorney had explained the terms of that agreement to him. (Id. at 5.) When
asked if he was satisfied with his attorneys representation, petitioner replied, Yes, sir. (Id.)
The Court recited the legal rights petitioner was giving up by pleading guilty, and
petitioner swore that he understood. (Id. at 6-7.) Petitioner also swore that he had not been
coerced to plead guilty, nor induced by any promises of leniency (other than a reduction for
acceptance of responsibility). (Id. at 7.) Petitioner stipulated that he was responsible for losses
totaling $1,145,254.32 and would be ordered to pay restitution in that amount. (Id. at 8; but see
id. at 14 (stating that the stipulated amount of loss was actually $1,078,722.32).) The Court also
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explained that, with very few exceptions, petitioner was waiving his rights to direct appeal and
collateral review, and petitioner again stated that he understood. (Id. at 9-10.)
After being advised of the elements of the offenses and the maximum penalty for those
offenses, petitioner affirmed the factual basis set forth in the plea agreement and stated that he
was pleading guilty because he was, in fact, guilty. (Id. at 10-16.) When specifically asked
whether he agree[d] with the governments summary of his offense conduct, petitioner said,
Yes. (Id. at 14.) The Court concluded that petitioners plea was knowing and voluntary,
accepted his plea, and adjudged him guilty. (Id. at 18-20.)
STANDARD OF REVIEW
To obtain relief pursuant to 28 U.S.C. 2255, a petitioner must establish (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law that was so fundamental as to render the entire proceeding invalid. Moss v. United
States, 323 F.3d 445, 454 (6th Cir. 2003); see also United States v. Addonizio, 442 U.S. 178, 185
(1979) (emphasizing that the relief authorized by 28 U.S.C. 2255 does not encompass all
claimed errors in conviction and sentencing). He must clear a significantly higher hurdle than
would exist on direct appeal and demonstrate a fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or an egregious error violative of due
process. Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
Moreover, a petitioner alleging ineffective assistance of counsel must satisfy a two-part
test. Strickland v. Washington, 466 U.S. 668, 687 (1987). First, he must prove, by identifying
specific acts or omissions, that counsels performance was deficient and that counsel did not
provide reasonably effective assistance, id., as measured by prevailing professional norms.
Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to have provided effective
assistance, and petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d
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604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a reviewing court must
indulge a strong presumption that counsels conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that . . . the
challenged action might be considered sound trial strategy) (internal citation omitted).
Second, petitioner must demonstrate a reasonable probability that, but for [counsels
acts or omissions], the result of the proceedings would have been different. Strickland, 466
U.S. at 694. An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment. Id.
at 691. Petitioner pleaded guilty, so he must show a reasonable probability that, but for
counsels errors, he would not have pleaded guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
Because a petitioner must satisfy both prongs [of Strickland to obtain relief on an
ineffectiveness claim], the inability to prove either one of the prongs regardless of which one
relieves the reviewing court of any duty to consider the other. Nichols v. United States, 563
F.3d 240, 249 (6th Cir. 2009) (en banc) (emphasis in original). Indeed, the Supreme Court
recommended that, [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, . . . that course should be followed. Strickland, 466 U.S. at 697.
ARGUMENT
Petitioner alleges that counsel was constitutionally ineffective for not conducting further
investigation before allowing petitioner to plead guilty; petitioner claims that such investigation
would have established his innocence and that he would not have pleaded guilty had counsel
conducted such investigation. (See R. 41, 2255 Motion at 6 (accusing counsel of not showing
petitioner even one page of discovery), 6-7 (insinuating that counsel failed to use information
provided by petitioner), and 7 (faulting counsel for not interviewing or deposing petitioners
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business partner SA nor the victims identified as MA and KA).) But petitioner has not shown
that he is entitled to any relief.
As a preliminary matter, petitioner explicitly waived his right to file a 2255 motion,
except for claims of ineffective assistance of counsel (or prosecutorial misconduct) not known
to him by the time of the entry of judgment (R. 21, Plea Agreement at 10(b)), and petitioners
current claim involves conduct unquestionably known to him before the entry of judgment. It is
well-settled that a defendant may waive any right, even a constitutional right, so long as he does
so knowingly and voluntarily, and that a waiver provision in a plea agreement is enforceable. See
United States v. Fleming, 239 F.3d 761, 263-64 (6th Cir. 2001); United States v. Ashe, 47 F.3d
770, 775-76 (6th Cir. 1995). The Sixth Circuit Court of Appeals has held that a defendants
informed and voluntary waiver of the right to collaterally attack a conviction and sentence is
enforceable. In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007); accord Davila v. United States,
258 F.3d 448, 450-52 (6th Cir. 2001); Watson v. United States, 165 F.3d 486, 489 (6th Cir.
1999). Because petitioner waived his right to file a 2255 motion (except under conditions not
present here), his motion should be summarily denied.
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Moreover, a petitioner must set forth adequate facts which entitle him to relief, and the
omission of factual support here is fatal to petitioners claims. See, e.g., Short v. United States,
504 F.2d 63, 65 (6th Cir. 1974) (deeming a 2255 motion legally insufficient to sustain
review where stated as conclusions without supporting facts); OMalley v. United States, 285
F.2d 733, 735 (6th Cir. 1961) (Conclusions, not substantiated by allegations of fact with some
probability of verity, are not sufficient to warrant a hearing, much less relief); accord United

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In an attempt to avoid that conclusion, petitioner asserts that a 2255 waiver provision
is unenforceable where a defendant challenges the voluntariness of his plea due to ineffective
assistance of counsel. (R. 41, 2255 Motion at 3.) Yet petitioner has not alleged that his plea
was involuntary and any such claim would be refuted by the plea colloquy, in which this Court
painstakingly complied with Rule 11 to ensure that petitioners plea was knowing and voluntary.
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States v. Roach, 502 F.3d 425, 442 (6th Cir. 2007) (deeming undeveloped claims unreviewable).
Although petitioner claims to have provided significant documentation to his prior counsel, he
has not set forth the substance of that documentation nor explained how it would entitle him to
relief. And although petitioner names three individuals he allegedly asked prior counsel to
interview (SA, KA, and MA) and asserts that deposing them would have yielded evidence to
directly refute the governments allegations (R. 41, 2255 Motion at 7), petitioner has not
identified the allegedly exculpatory information the individuals ostensibly could have provided,
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and he only supplied this Court with affidavits from his business partner SA.
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(R. 41-29, 41-30,
41-31, 41-32, Affidavits.) After all, petitioner does not even mention the other nine counts of the
indictment, and SA, KA, and MA who lack knowledge of the facts underlying those counts
would have been unable to provide petitioner with any defense for those counts, had petitioner
proceeded to trial as charged instead of pleading guilty to two of the eleven counts. Petitioner
has thus failed to satisfy the threshold requirement of providing adequate factual support for his
claim that, had counsel conducted further investigation, petitioner would have been acquitted had
he proceeded to trial. Accordingly, petitioners 2255 motion should be denied.
Petitioners reliance upon Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006), is misplaced.
Dando participated in a crime spree with her boyfriend, admitted her role in the offenses once
arrested, and, upon advice of counsel, ultimately pleaded no contest to eight separate offenses.

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Interestingly, by petitioners own account, he only asked counsel to interview SA, KA,
and MA to help him evaluate the strength of the governments case; petitioner has not claimed
to have asked counsel to interview all of the victims or witnesses involved in the other counts.
Moreover, all of the charges against petitioner could have been easily proven with bank records,
which, by definition, have no interest in the outcome of any criminal prosecution.

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SA was instrumental in furthering petitioners scheme in that he vouched for petitioner
to his sister-in-law KA and her husband MA, who were victimized by petitioners conduct. As
such, the reliability of SAs latest affidavits which contradict his earlier statements to federal
investigators is necessarily suspect.
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Id. at 794. Dando later sought to withdraw her plea, arguing that counsel was ineffective for not
investigating the possibility of a duress defense based on Battered Womans Syndrome, where
Dando had told counsel that she was a victim of physical and sexual abuse, that her boyfriend
had beat her and threatened to kill her immediately before their joint crime spree, and that she
wanted counsel to consult with a mental health expert before she entered any plea. Id. at 794-98.
Counsel had declined to obtain an expert because, in his view, doing so would be too expensive.
Id. at 798. The Sixth Circuit granted habeas relief, finding that, based on the information Dando
had provided to counsel and the probable availability of state funding for an expert under those
circumstances, counsel had acted unreasonably by urging Dando to plead no contest. Id. at 799
(the attorneys decision was not [a reasonable] exercise in professional judgment because it
reflected a misunderstanding of the law regarding the availability of a mental health expert).
The Sixth Circuit explained that, if an expert had concluded that Dando had Battered Womans
Syndrome and if counsel had pursued such a defense at trial, Dando could have been acquitted.
Id. at 800. As such, Dando could establish a likelihood that she would not have pleaded guilty
had counsel thoroughly investigated all possible defenses on her behalf. Id.
There are three key differences between Dando and the instant case. Dandos counsel
misunderstood the relevant law as it applied to the information provided by Dando, whereas
petitioner only alleges that counsel failed to fully investigate the facts of his offense conduct.
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See Tollett v. Henderson, 411 U.S. 258, 267-68 (1973) (stating, once a defendant pleads guilty,
he cannot set aside his plea by merely showing that if counsel had pursued a certain factual
inquiry such a pursuit would have uncovered a possible constitutional infirmity in the
proceedings) (emphasis added). Second, the Sixth Circuit found prejudice in Dando because

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All three of the individuals petitioner now claims counsel should have interviewed had
already been interviewed by federal investigators, and counsel had already received copies of
their statements via discovery.
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the defense that Dandos counsel failed to investigate, if proven, could have resulted in her
acquittal; here, for the reasons discussed above, petitioner cannot show that he would have been
acquitted if counsel had interviewed three individuals whose prior statements had already been
provided in discovery. Finally, because Dando entered a no contest plea, she did not necessarily
admit any specific facts to support her plea; petitioner, by contrast, swore that he had committed
the criminal acts set forth in the plea agreement and that he was pleading guilty because he was,
in fact, guilty.
The decision to plead guilty first, last, and always rests with the defendant, Smith v.
United States, 348 F.3d 545, 552 (6th Cir. 2003), and this Court conducted a thorough colloquy,
consistent with Fed. R. Crim. P. 11, to ensure that petitioners guilty plea was knowing and
voluntary. (See generally R. 35, Plea Tr.) Solemn declarations in open court carry a strong
presumption of verity, Blackledge v. Allison, 431 U.S. 63, 74 (1977), and a petitioner is bound
by his statements where the court has followed the require procedure under Rule 11. Baker v.
United States, 781 F.2d 85, 90 (6th Cir. 1986) (internal citation and quotation marks omitted);
accord United States v. Rennick, 219 F. Appx 486, 488-89 (6th Cir. 2007). Here, petitioner
specifically stated during the plea colloquy that he was satisfied with counsels representation,
that no one had put any pressure upon him to plead guilty, that he agreed with the factual basis
set forth in the plea agreement and recited by the undersigned prosecutor during the plea hearing,
and that he was pleading guilty because he was actually guilty. (R. 35, Plea Tr. at 5, 7, 14, 16.)
Petitioners current claim that counsel urged [him] to enter a plea to facts which were clearly
untrue (R. 41, 2255 Motion at 13) is contradicted by petitioners prior sworn statements in
open court. Although the government was likely in the best position to evaluate provable
offenses, petitioner had superior knowledge regarding his actual offenses. See United States v.
Socolovitch, 340 F. Appx 291, 296 (6th Cir. 2009) (reasoning that if the government alleged that
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a defendant was responsible for a certain amount of loss, the defendant would not sign a plea
agreement stipulating that amount if he were not guilty of at least that amount of loss). Petitioner
has not even alleged nor could he plausibly show that his plea was involuntary or unknowing,
and he has not satisfied either prong of Strickland. His 2255 motion should thus be denied.
Respectfully submitted,

William C. Killian
United States Attorney

By: s/ Jennifer Kolman
J ennifer Kolman
Assistant United States Attorney
800 Market Street, Suite 211
Knoxville, Tennessee 37902
(865) 545-4167

CERTIFICATE OF SERVICE
I certify that on February 10, 2014, the foregoing response was filed electronically and a
true and accurate copy was sent to petitioner by regular United States mail, postage prepaid,
addressed as follows:
Freddie Marshall Carson
No. 10495-028
F.M.C. Lexington
Federal Medical Center
P.O. Box 14500
Lexington, KY 40512
s/ Jennifer Kolman
J ennifer Kolman
Assistant United States Attorney
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