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Simpson v. United States

United States District Court, N.D. Texas, Dallas Division

March 6, 2019

Matthew Norman Simpson, #39454-177, Movant,
v.
United States of America, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE.

         Pursuant to 28 U.S.C. § 636(b) and Special Order 3, the motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 was referred to the undersigned United States magistrate judge for case management, including findings and a recommended disposition. As detailed herein, the motion should be DENIED.

         I. BACKGROUND

         Movant Matthew Norman Simpson was convicted of conspiring to commit wire and mail fraud (Count 1), aiding and abetting the transmission of spam (Count 2), obstructing justice (Count 4), and registering a false domain name (Count 7). All convictions except the one for false registration were affirmed on appeal, United States v. Simpson, 741 F.3d 539, 546 (5th Cir. 2014), and on remand he was resentenced to an aggregate term of 480 months-consecutive 240-month terms on Counts 1 and 4 and a concurrent 36-month term on Count 2. United States v. Simpson, 796 F.3d 548 (5th Cir. 2015), cert. denied, 136 S.Ct. 920 (2016).

         Simpson subsequently filed this timely, pro se Section 2255 motion, asserting ineffective assistance of counsel. Doc. 2. The Government filed a response in opposition and Simpson filed a reply. Doc. 11; Doc. 12. Upon review, the Court concludes that Simpson has failed in his burden to demonstrate that counsel was ineffective. Thus, his Section 2255 motion fails.

         II. ANALYSIS

         To establish ineffective assistance of counsel, a movant must demonstrate counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Failure to establish either deficient performance or prejudice defeats the claim. Id. at 697.

         To prove the deficient performance prong of the Strickland test, movant must show that counsel made errors so serious that he or she was not functioning as the counsel guaranteed by the Sixth Amendment. Id. at 687. The proper measure of attorney performance is reasonableness under prevailing professional norms. Id. at 688. “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id.

         To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. Thus, the question under Strickland is “whether it is ‘reasonably likely' the result would have been different.” Harrington v. Richter, 562 U.S. 86, 111-12 (2011) (quoting Strickland, 466 U.S. at 693, 697). However, “[t]he likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112.

         A. Obstruction of Justice (Count 4)

         1. Failure to call lay and expert witnesses

         Simpson asserts that counsel rendered ineffective assistance by failing to call certain lay or expert witnesses to oppose the Government's evidence of obstruction of justice. Simpson identifies Chris Stigler, [1] the company's programmer, as a witness who would have impeached co-conspirator Alicia Cargill Smallwood's testimony that Simpson “told her to destroy [data].” Doc. 2 at 5. He contends that Stigler would have testified that Smallwood did not have the requisite “access to delete any data.” Doc. 12 at 3. Simpson also asserts that an unidentified expert witness could have established that the hard drive, which he was accused of destroying or altering, was actually unencrypted and did not contain “any data remotely connected with the case.” Doc. 2 at 3. He surmises that such an expert could have explained at a minimum the encryption and contents of the hard drive involved in the obstruction of justice charge. Doc. 2 at 3-4. In addition, Simpson maintains that the affidavit of Dan James, which he received after drafting his Section 2255 motion, is “newly discovered evidence.” Doc. 2 at 16. In his affidavit, James, a possible computer forensic expert, affirms the hard drive contained data, including deleted files, which was neither encrypted nor “wiped” or damaged. Doc. 2 at 19.

         Simpson has failed in the basic requirement that he establish the proposed witnesses were available, would have testified, and their testimony would have been favorable to him. See United States v. Fields, 761 F.3d 443, 461 (5th Cir. 2014) (to satisfy Strickland prejudice based on failure to call a lay or expert witness, the movant must name the witness, demonstrate the witness's availability and willingness to testify, identify the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense (citing Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009))). Contrary to his reply argument-that he “specifically set forth the content of proposed testimony, and demonstrated how that testimony directly contradicted the Government's bald assertions at trial, ” Doc. 12 at 2-Simpson's allegations are “largely speculative.” Fields, 761 F.3d at 461. Indeed, Simpson only mentions by name one lay witness and one possible expert witness and only generally summarizes the substance of their hypothetical testimony. This is plainly insufficient. See Day, 566 F.3d at 538 (finding uncalled expert witness's affidavit insufficient because it only countered the expert opinion presented at trial and did not address that he was available to testify at trial, that he would have done so, and that he would have testified in accord with the opinions and conclusions he states in his affidavit); Sayre v. Anderson, 238 F.3d 631, 636 (5th Cir. 2001) (denying uncalled-witnesses claim due to failure to present affidavits from missing witnesses). In addition, considering the extensive evidence presented at trial, Simpson has failed to demonstrate “a reasonable probability” that the testimony of any proposed lay or expert witnesses, if presented at trial, would have changed the jury's conclusion. See Day, 566 F.3d at 538. Simpson's obstruction of justice “conviction was based on Simpson's deletion of his electronic communication with Faulkner after search warrants for Faulkner's home and offices were executed.” Simpson, 741 F.3d at 551. While Simpson eventually provided the drive from which the communication had been deleted, the FBI agent testified “it had no usable data” and “was as if the data had been ‘splashed all over the drive,' supporting the inference that Simpson did more than simply remove emails from his inbox.” Id. at 552. That notwithstanding, the United States Court of Appeals for the Fifth Circuit concluded that: (1) Simpson's admission that he deleted emails after learning of the executed search warrant, and (2) his instruction to Smallwood to do the same on her computer “provided sufficient evidence of [his] intent to interfere with the administration of justice” to support his obstruction-of-justice conviction.[2] Id. On this record-especially Stigler's admissions-any testimony that Smallwood did not have the necessary “access to delete any data” would not have impacted the outcome of the case. The same is true as to the impact, or lack thereof, of James' or any other expert's purported testimony about encryption, the contents of the hard drive, and that the hard drive contained unencrypted data. Therefore, this claim fails.

         2. Failure to disclose content ...


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